Senator TAFT. It could not be surplusage in the position of the ITU, could it? They take the position that they are not bound to sign a contract and will not sign a written contract.

Mr. HERZOG. The problem comes up, of course, on the question of what for 15 years has been called good faith in bargaining, the construction of that. I have not consulted my colleagues as to how they feel about that sort of thing. Again I am a little reluctant to say what should go into and what should not go into a statute.

By some chance we might be asked to administer that statute. I think that is not something that is particularly disturbing to us. I notice that Dr. Leiserson, who is regarded as one of the great experts of the country in this field, has always felt that something of this kind should go into an act.

Senator TAFT. Don't you think that, if collective bargaining lies at the basis of our whole labor policy and the chief charge against the Taft-Hartley law is that it is interfering with collective bargaining, as Mr. Tobin said the day before yesterday, we ought to insist that collective bargaining be engaged in by both sides? Is not that a necessary corollary of the theory that collective bargaining lies at the basis of our labor policy?

Mr. HERZOG. It is a necessary corollary in terms of the blueprint of the statute which would look very neatly arranged on both sides. Whether in practice, in practical terms, it would make very much dif ference, I do not know.

Senator TAFT. Well, it means it is not an unfair labor practice, as this bill is now written, for a union to call a strike any time they want to, as far as I can see. I do not see anything-they do not have to go around and see the employer or talk to him at all. They have to give the Conciliation Board notice, that 30 days from now they are going to strike, but they do not even have to call on the employer. Mr. HERZOG. No; but I think that the chances are that the Conciliation Service would use some franked envelopes and pass the word along to the employer.

I think the great difference really is that section 8 (d) of the present act has a 60-day notice. This only provides for 30 to the Conciliation Service.

Senator TAFT. The difference is that it does not provide that they even have to talk to the employer or tell him what they want. They do not even have to announce what their demands are, but just strike. Is it not a necessary corollary to collective bargaining and it should not be left out?

Mr. HERZOG. They can even strike even though they are required to bargain collectively. It is just a question of how much notice is necessary, and that sort of thing.

Senator TAFT. Mr. Herzog, there is a provision in the present lawis this provision eliminated-the one that gives professional employees the right to exempt themselves from plant unions and have a special professional union?

Mr. HERZOG. It does not seem to appear in the present bill, Senator. It is in the Taft-Hartley Act. It was not present in the Wagner Act. The professional exclusion in the Taft-Hartley Act has come to the Board's attention in two ways: Sometimes where a group of people who think themselves professionals want to be set up in a separate

unit, and in two rather important and rather difficult cases, where professional unions sought to get out of an existing unit which included them together with rank-and-file employees.

I can give you the citations of those cases if you want them. I think they both involved the telephone company.

Senator TAFT. Do you see any harm done by leaving in the present exemption? I have letters from professional associations all over the United States demanding to be heard here. We must have 50 requests from professional organizations to be heard because they want to have that right, to have a separate professional organization.

Mr. HERZOG. I know they felt very deeply about that 2 years ago, and testified considerably before both Houses of Congress at that time. I think it is the engineers who are most interested, and probably the chemists.

Senator TAFT. Yes.

Mr. HERZOG. The provision has been a little difficult to interpret. The standards set forth in the definition are pretty complicated. Senator TAFT. It is a difficult definition to make.

Mr. HERZOG. Yes, I think actually, Senator-then, again, I must leave it to Congress as to whether they want to leave the Board discretion or not actually the professional exemption did not do very much more than put into statute the policies that the Board had followed with regard to professional employees some years before. If that is so, I suppose it is not an essential thing.

Senator TAFT. You cannot see any great fundamental union question involved in leaving the provision in?

Mr. HERZOG. No; I do not think it is any question of fundamental importance one way or the other, except that it is not necessary.

Senator TAFT. I understood you to testify that, in your own opinion, there were some cases certainly where the employer ought to have the right to petition for an election. Is that right?

Mr. HERZOG. Yes; I think the Board practice, before the amendment, of letting the employers do it in two-union cases might very well have been expanded by rule to cover one-union cases. I operated for 7 years under a State statute that had that provision and did not do any harm.

Senator TAFT. It is claimed that the employer can get an advantage by springing an election on the union before they are ready. But hesn't the Board got the discretion to have this election held 3 months from today or sometime which will give plenty of time to contest the election?

Mr. HERZOG. That is up to the union, Senator. As I read the statute, and as we construed the New York State statute for years, the petition does not lie unless the union has made a claim which means a claim of majority representation. So that, if the union is not claiming to represent a majority, or after the employer has sought to file the petition, or has filed the petition, withdraws its claim, the employer petition falls.

Senator TAFT. So they can interfere with the election; they can stop the election from taking place. The case we have is a typical case, and it happened often, because I know two people who had it. A man comes into the office; you never saw him before, and he says, "I represent your employees. If you do not sign a contract with me, I am going to strike this plant tomorrow."

One case that I know of is a newspaper.

The man had no way of finding out whether the man represented a majority of the employees or not, and maybe another fellow would turn up and claim it, or maybe it was just the one, and the employees did not want it.

He can, it seems to me, have the right, and it would be reasonable to give him the right, to ask the Board to determine the question of whether he had to deal with this man or not.

But, as you say, in the first place, the Board, under any circumstances, could put it off for 3 months; couldn't they? They could fix a day, say, 3 months or any reasonable period.

Mr. HERZOG. I would say so; yes. In fact, if the case were contested, that would happen anyway, because it would take that long. Senator TAFT. Yes.

Mr. HERZOG. Of course, the thing that is bad, if it could be done, is for an employer to file a petition prematurely, and when the union has not gotten started. But, since this statute requires a claim, I suppose we have not had any problem involving that.

Senator TAFT. So that you do not see any great harm in the present law. That is eliminated from the present law.

Mr. HERZOG. What is not eliminated from the Thomas bill is the discretion of the Board to promulgate a rule doing precisely that. Although again I cannot speak for other men, I think there is no doubt that if S. 249 were passed in its present form, became law in its present form, the Board would permit employer petitions and permit them in single-union cases, as we almost did in 1946.

Senator TAFT. Then, it follows inevitably that there cannot be any harm in leaving it as it is.

Mr. HERZOG. That is one of those arguments that chases itself around.

Senator TAFT. Now, this question of decertifying a union, I am in favor of eliminating certainly this election on the union shop; but, if people want to decertify a union, if a union becomes unpopular, don't you think it is wise to have some way in which we can get a vote on going to some other union or going back from any union? I have particularly in mind a situation like the United Steel workers, where the international union has rules that are just completely arbitrary, and some other international unions, on the local union.

Now, it may well be that the local union may want to say, "We do not want to be with the International Steelworkers any more. We either want an independent union or want to join the United Automobile Workers, or somebody else."

Don't you think there ought to be some way in which a majority of those men can be certified as to the union if they want to?

Mr. HERZOG. That question has to be answered in two sections, Senator Taft.

First, of course, if they want to join another union, and the other union has come into the picture in some way to solicit their interest, or they have solicited that other union's interest, there is no problem at all.

Under the Wagner Act, that other union would have filed a petition, and the Board would have run an election, presumably with this other union, the incumbent union, which I think you called the Steelworkers, and also a choice of neither union on the ballot. That presents no

problem, and never has presented a problem, so far as I know, since

1935.

The second case which you set forth is the one in which the incumbent union has no affirmative competition. There is no other labor organization trying to take its place.

I suppose that it is that sort of situation which was intended to be covered by the decertification proceedings as described in section 9 (c) (1) (A-II) of the present Labor-Management Relations Act. That is on page 9 of the regular print of the Taft-Hartley law, toward

the bottom.

That sort of election has taken place-has been sought-in about 650 cases out of a total of 10,600 representation cases in the 16 months of the act's being effective. That represents approximately 6 percent of all representation petitions filed.

Rather few of them have reached the Board level. I am not prepared at this time to say how many decisions actually issued.

The problem there, I think, was generated by an old doctrine of the Board in a case known as the Tabardrey case, in which the Board refused administratively many years ago to conduct that sort of an election on the ground that the objective sought was negative.

In deciding that, the Board reached the conclusion-and I speak now of the predecessor board-that, after all, the employer did not have to bargain with the union anyway if it did not represent a majority, and that if the union was not bargained with, and then brought a charge of refusal to bargain under section 8 (5) of the Wagner Act, that charge must fail because there was no majority at the moment of the demand.

I think that that was the theory upon which the old Board thought that this sort of an election was unnecessary.

The CHAIRMAN. I would like to call the attention of the committee to the fact that it is about 1 o'clock.

Senator TAFT. I am willing to go on right through to 10 o'clock at night, Mr. Chairman.

[Laughter.]

The CHAIRMAN. If that is the way in which the Republicans interpret this ruling, I will have to do it.

Senator TAFT. That all-day session on Saturday sounds like that. The CHAIRMAN. I suggest we adjourn and come back at 2:30. Mr. HERZOG. Anytime you say, Senator, including 10 o'clock. (Whereupon, at 1 p. m., the committee recessed, to reconvene at 2:30 p.m. of the same day.)

AFTERNOON SESSION

The CHAIRMAN. The committee will be in order.

Mr. Herzog, you may proceed. Senator Taft had the floor.

I have the vote of seven members of the committee permitting radio companies to connect up. I would just like to say that, while NBC shows on the desk or on the table in front of Mr. Herzog, this is not a privilege that is being given to NBC only, but it will be given to all of the services through this one machine.

As far as the committee here is concerned, this particular committee, this is the first time that we have connected up with a broadcasting outlet, but there was a recommendation made at the time we

were discussing the reorganization of Congress that all the sessions of Congress be broadcast to the people, and some committees have done it heretofore. Whether this will be continued or not depends entirely upon the committee, but we will allow them to hook up at the present time to hear the rest of Mr. Herzog's testimony and that of Secretary Tobin.

Senator PEPPER. Before Mr. Herzog begins, I would like to say that I have always believed in giving the fullest publicity to these hearings, and I have always advocated that we put even the proceedings of Congress on the radio. There was no recording of Secretary Tobin's statement; was there?

The CHAIRMAN. This is the first.

Senator PEPPER. He made such an excellent statement I wish it could have been carried also. If there is some way to put it on a record, I wish the country could have the benefit of hearing what the Secretary said.

The CHAIRMAN. Mr. Herzog and Senator Taft.

STATEMENT OF HON. PAUL M. HERZOG-Resumed

Senator TAFT. Mr. Herzog, this law doesn't contain any provision about the manner in which run-off elections shall be conducted; does it?

Mr. HERZOG. No. By "this law", sir, you mean S. 249 as substituted! Senator TAFT. Yes. You will remember that under the Board rule before the passage of the Taft-Hartley law, if you had three choices on a ballot of A. F. of L., CIO and "no union", if "no union" ran second, the Board excluded "no union" from the run-off ballot and insisted on their voting only between the A. F. of L. and the CIO.

Mr. HERZOG. Under some circumstances, I think that was the rule. Senator TAFT. The Taft-Hartley Act provided that the first two of those three, if there were three, should be put on the run-off ballot so that you voted as between the union that got first or second and the no-union people who got first or second.

Do you see any reason why that provision should be changed?

Mr. HERZOG. Senator, the members of the National Labor Relations Board several months before the Taft-Hartley law went on the books were all agreed that the old run-off system was unduly complicated, regardless of any question as to whether it was just or not.

In a special concurring opinion in a case involving some rubber company, as I recall it, which came down about April or May 1947, I expressed the view that, as a matter of decision, the Board should move to a technique more similar to that which is familiar to all of us in political elections. That, of course, means the two top choices should be on the run-off ballot.

The Board did not do it at that time, because it would have required a change in rules and regulations at the very moment that legislation was evidently imminent in the Congress. So we didn't do it.

I am now speaking for the old members of the Board, of whom there are three. All of us, as a matter of decision, intended to change that rule, which we thought very clumsy administratively and perhaps not quite fair.

Senator TAFT. In this respect the Board is in accord with the TaftHartley law?