case" held that the act was applicable to unions both the Federal Government and private employers frequently invoked the act to obtain injunctions and recover damages in a variety of situations, including those involving a refusal to handle or work on goods made in open shops and other secondary boycotts. The use by courts of the Sherman Act to deprive labor of the use of the boycott and other traditional economic weapons led Congress to pass the Clayton Act. Section 20 of the Clayton Act provided that no injunction would be issued to restrain employees from "ceasing to patronize" or "from recommending, advising, or persuading others by peaceful means so to do." It was believed that this would have the effect of outlawing the use of the injunction in this type of case. Nevertheless the United States Supreme Court in 1921 in the Duplex Printing Press case involving a secondary boycott held, over the vigorous dissent of Justices Holmes, Brandeis, and Clark that section 20 did not preclude the issuance of injunctions. Justice Brandeis, speaking for the minority, pointed out:

24

"May not all with a common interest join in refusing to expend their labor upon articles whose very production constitutes an attack upon their standard of living and the institution which they are convinced supports it? *

**

** courts with better appreciation of facts of industry, recognized the unity of interest throughout the union,, and that, in refusing to work on materials which threatened it, the union was only refusing to aid in destroying itself." The Supreme Court's interpretation of the Clayton Act led to an increase in the number of injunction suits not only in secondary boycott cases but in other situations where the powers of the Federal courts could be invoked. In the 83 cases which were brought under the Sherman Act against unions during the period 1890 to 1930, 64, or over 77 percent, were brought in the 14-year period after the passage of the Clayton Act. Thirty-four of these sixty-four cases were private injunction suits.25 By 1932 the public was so aroused that Congress passed the Norris-LaGuardia Act, which, by broadly defining the term "labor dispute," made it clear beyond doubt that Congress intended to prevent the use of injunctions in so-called secondary boycott situations."6

The report of the Joint Committee on Labor Management Relations shows that the use by Federal courts of the injunction in labor disputes is being revived on a scale heretofore unprecedented. As previously noted, in the 14-year period 1914-28, 64 injunction cases were brought against unions under the Sherman Act. The majority report shows that under the Labor Management Relations Act in the 5-month period August 1947 to February 1, 1948, 132 charges alleging secondary boycotts were filed, or approximately 26 cases per month. During the 9-month period February 1, 1948, to November 1, 1948, 210 such charges were filed, or an average of 23 cases per month. The vast majority of these charges were later dismissed, and it is therefore impossible to state how many of such charges were valid. Notwithstanding this apparent decrease in the number of secondary boycotts, it is equally clear that injunctions are being sought in an ever-increasing number of such cases. In the first-mentioned period nine petitions for temporary restraining orders or injunctions were filed. However, in the latter period 22 such petitions were filed." Thus in the brief 14-month period 31 suits for injunctions against unions were filed under the secondary boycott sections alone as compared with a total of 83 injunction suits of all types filed under the Sherman Act in the 40-year period 1890 to 1930. The act makes it mandatory on the Board to give priority to such cases and directs the Board to seek an injunction whenever an officer of the Board finds any reason to believe that a charge of secondary boycott is true. It is wholly reasonable to anticipate, therefore, that unless the use of the injunction in labor disputes is again prohibited the present upward trend in the use of injunction in labor disputes will continue.

POINT 15. DISCRIMINATION AGAINST LABOR ORGANIZATIONS IN THE APPLICATION OF SANCTIONS AGAINST UNFAIR LABOR PRACTICES

"The Taft-Hartley Act grossly discriminates in the application of sanctions against unfair labor practices in favor of employers and against labor organizations. Mandatory injunctive action is provided for in the case of three employee or union organization unfair labor practices. In no case is it mandatory to

Loewe v. Lawlor (208 U. S. 274 (1908)).

24 254 U. S. 443 (1921).

Edward Berman, Labor and the Sherman Act, p. 219.

28 Milk Wagon Drivers Union v. Lake Valley Farm Products (311 U. S. 91).

27 Joint Committee on Labor-Management Relations, majority report, pp. 24, 27.

afford relief to employees or a labor organization against any employer unfair labor practice."

Section 8 (b) (4) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, provides that it shall be an unfair labor practice for a labor organization or its agent "to engage in, or to induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services, where an object thereof is :

28

"(a) forcing or requiring an employer or employed persons to join a labor or employer organization or any employer to cease doing business with any other person;

"(b) forcing or requiring an employer to bargain with the labor organization unless it is the certified representative under Section 9 of the National Labor Relations Act, as amended;

"(c) forcing or requiring an employer to bargain with such labor organization if another labor organization has been certified as the bargaining representative under Section 9 of the National Labor Relations Act, as amended.

Section 10 (1) of the act provides that when it is charged that any "person," which by definition includes any labor organization," has engaged in any of the three foregoing unfair labor practices "the preliminary investigation of such charge shall be made forthwith and given priority over all other cases except cases of like character in the office where it is filed or to which it is referred. If, after such investigation, the officer or regional attorney to whom the matter may be referred has reasonable cause to believe that such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any district court of the United States ** * * for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter. Upon the filing of any such petition the district court shall have jurisdiction to grant such injunctive relief or temporary restraining order as it deems just and proper, notwithstanding any other provision of law." [Italics supplied.]

30

All other unfair labor practices provided in the National Labor Relations Act, as amended by the Labor-Management Relations Act, 1947, including all unfair labor practices of employers, are made subject to the provisions of section 10 (j) which makes it discretionary with the Board to seek temporary injunctive relief. That section provides:

"The Board shall have power, upon issuance of a complaint as provided in subsection (b) charging that any person has engaged in or is engaging in an unfair labor practice, to petition any district court of the United States (including the District Court of the United States for the District of Columbia), within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the cout shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper."

It is to be noted that the provisions of section 10 (j) as well as the provisions of section 10 (1) are available to invoke injunctive action against labor unions charged with violation of section 8 (b) (4).

POINT 16. NATIONAL EMERGENCY DISPUTES

"The Taft-Hartley Act provides elaborate and inflexible procedures including boards of inquiry, an 80-day waiting period enforced by iniunction, and secret ballots which must be followed in emergency disputes. Nevertheless, as the President said in his veto message, he and his officers are deprived of their power to take effective action in securing peaceful settlement of such disputes. For example, even the boards of inquiry are deprived of authority to make recom mendations for settling the dispute. In the atomic energy and longshore cases these procedures were unavailing, and agreements between the parties were

26 See sec. 8 (b) (4) of the National Labor Relations Act, as amended by title I of the Labor-Management Relations Act, 1947 (Public No. 101, 80th Cong., 1st sess.).

29 Sec. 2 (1) of the National Labor Relations Act, as amended. 30 Sec. 10 (1) of the National Labor Relations Act, as amended.

31 Sec. 10 (j) of the National Labor Relations Act, as amended.

reached with the assistance of Government conciliation, only after the machinery provided by the law had ineffectively run its course."

The Labor Management Relations Act, 1947, sections 206 to 208, inclusive, authorizes the President, whenever in his opinion, a threatened or actual strike or lock-out affects substantially an entire industry and would, if permitted to occur or continue, imperil the national health or safety, to appoint a board of inquiry which shall report the facts without recommendation. The board is given subpena powers. After receiving the report the President may direct the Attorney General to petition for an injunction, and if the court finds that such peril exists it has jurisdiction to enjoin the lock-out or strike.

The order of the court is subject to review by the circuit courts of appeals and the Supreme Court.

Sections 209-210 require that the parties to a dispute in which an injunction has been issued to make every effort to settle their differences with the assistance of the Mediation and Conciliation Service, although neither party would be required to accept any proposal of the Mediation Service. It settlement is not reached 60 days after the injunction, the board of inquiry makes a progress report to the Attorney General which report is made public. Within 15 days thereafter the NLRB holds an election among the employees of each employer to see whether they wish to accept the employer's final offer as stated by him. Within 5 days after the election the Board is required to certify the results of the election. Thereupon (or upon settlement at any time during the 80-day period if that is sooner) the Attorney General is required to move to have the injunction discharged. The President thereafter makes a full report to Congress with his recommendatoins.

32

Under the foregoing provisions of the Labor-Management Relations Act, 1947, the President is virtually under a congressional mandate whenever there is a threatened strike or lock-out affecting an entire industry or a substantial part thereof to invoke the procedures provided for therein. It is true that the questions whether such procedures should be invoked and whether an injunction should be sought in any particular case are left to the discretion of the President. Once the initial decision is made to invoke the procedures provided for in sections 206-210, however, the act provides for an inflexible succession of boards of inquiry without authority to make recommendations, an 80-day injunction, a vote on individual employers' last offers as stated by them and discharge of the injunction.

The Federal Mediation and Conciliation Service in its first annual report pointed out that

"One of the conclusions which the Service is undoubtedly justified in drawing from its experience of the last year is that provision for an 80-day period of continued operations, under injunctive order of a court, tends to delay rather than facilitate settlement of a dispute. Parties unable to resolve the issues facing them before a deadline date, when subject to an injunction order, tend to lose a sense of urgency and to relax their efforts to reach a settlement. They wait for the next deadline date (the date of discharge of the injunction) to spur them to renewed efforts. In most instances efforts of the Service to encourage the parties. to bargain during the injunction period, with a view to early settlement, falls on deaf ears. Further, the public appears to be lulled into a sense of false security by a relatively long period of industrial peace by injunction and does not give evidence of being aware of a threat to the common welfare which would produce a climate of public opinion favorable to settlement." 33 The report also observed that

"In every national emergency dispute to date the results of a ballot conducted by the National Labor Relations Board pursuant to section 209 (b) of the act have been overwhelmingly for rejection of the employer's last offer. For reasons which need not be elaborated here it is fair to assume that the likelihood of any ballot in the future having a contrary result, is small and remote. These ballots are expensive to conduct, and the experience of a year demonstrates that they do nothing to promote settlement of a dispute. To the contrary, they are a disrupting influence in collective bargaining and mediation. The last or final offer of an employer which the National Labor Relations Board is under an obligation to submit to ballot, is not likely to be the ultimate offer in fact, on the basis of which a settlement will be reached * *

Secs. 206-210 of title II, Labor-Management Relations Act, 1947 (Public, No. 101, 80th Cong.. 1st sess.). First Annual Report, Federal Mediation and Conciliation Service, pp. 56-57.

"A vote turning down an employer's last offer places additional obstacles and difficulties in the way of a settlement. Union representatives must necessarily accept the vote as a mandate from the rank and file of workers that they may regard as practicable and possible bases of settlement only those offers of employers substantially more favorable than the one rejected. With foreknowledge of this consequence, employers tend to keep in reserve, and not to represent as a last offer which may be submitted to ballot, concessions which might result in a settlement. Union leadership and employees, aware that employers assess the situation in this manner, act accordingly. Thus, the mandatory last-offer ballot sets into action a cycle of tactical operations by both parties which cancel each other out and delay serious efforts to arrive at a prompt resolution of their differences.'

99 34

30

In his message of June 20, 1947, to the Congress, vetoing the Labor-Management Relations Act, 1947,35 the President called attention to the fact that the boards of inquiry authorized by the act in emergency strike situations are forbidden to offer their informed judgment concerning a reasonable basis for settlement of the dispute. This constitutes a serious handicap to the Government's efforts to assist the parties to settle the issues involved in this dispute. William M. Leiserson, former Chairman to the National Mediation Board and member of the National Labor Relations Board, has pointed out in an article published in the New York Times Magazine, on February 6, 1949, at page 49, that—

"This is a clumsy and undesirable substitute for the customary method of fact finding which is the final step in the mediation process developed from the practice of collective bargaining itself and often used to secure settlements by mutual agreement. It is common in any major labor dispute, whether it appears to affect public health and safety or not, when direct negotiations between the parties and mediatory efforts both fail and they cannot agree on arbitration, for a board to investigate positions of the parties and the facts in the case and then to recommend an equitable settlement.

"Such recommendations form the basis on which the parties usually reach agreement. This procedure takes time, but a provision in the law that neither party shall change the conditions out of which the dispute arose for a period of 60 days is now generally acceptable to both labor and management. There is no need to resort to injunctions and court procedures to secure maintenance of the status quo pending a fact-finding investigation."

The national emergency provisions of the Labor-Management Relations Act have proved ineffective not only in solving the disputes in which they were invoked, but in preventing the occurrence of emergencies which they were designed to prevent.

In the atomic-energy dispute, all of the statutory procedures were invoked, but the dispute had not been settled at the time when the injunction had to be discharged. At that time the emergency was still, therefore, as great as when the injunction proceeding was first initiated since the parties were still in dispute. The dispute was not in fact settled until the urgency of the situation was sufficiently felt by the parties to compel a settlement. Thereupon the parties themselves met, remained in continuous negotiation for over 50 days and, with the assistance of Government conciliation, finally reached an agreement."

In the Pacific coast maritime dispute a settlement was not reached until almost 2 months after an injunction obtained under the national emergency provisions of the Labor-Management Relations Act had been discharged.

38

In the Atlantic coast longshore dispute, also, there was no settlement reached until after the injunction obtained under the national emergency provisions of the Labor-Management Relations Act had run its course and been discharged. Settlement was finally reached by the parties assisted by Government conciliators.3

William H. Davis, former Chairman of the National War Labor Board, testified before the Senate Labor and Public Welfare Committee on February 7, 1949, that "there has not been a case under the Taft-Hartley law in which a settlement has been reached during the cooling-off period under an injunction." 40

34 First Annual Report, Federal Mediation and Conciliation Service, p. 57.

35 H. Doc. No. 334 (80th Cong., 1st sess.).

36 Id., p. 7.

37 First Annual Report of the Federal Mediation and Conciliation Service, pp. 41-42, 55-56.

38 Id., pp. 47-48, 54.

39 Id., p. 53.

40 Transcript of hearings held before the Senate Committee on Labor and Public Welfare (S. 249, 81st Cong., 1st sess., vol. 7, p. 1694).

STATEMENT OF ARTHUR J. GOLDBERG, GENERAL COUNSEL, CONGRESS OF INDUSTRIAL ORGANIZATIONS, AND UNITED STEEL WORKERS OF AMERICA

The CHAIRMAN. Mr. Arthur Goldberg, please.

Mr. Goldberg, I would like to announce for the benefit of the committee and yourself that we will adjourn at half past 5 and reassemble at 7:30, but I thought that we could use these 15 minutes to get you started.

Will you state what you wish for the record about yourself?

Mr. GOLDBERG. My name is Arthur J. Goldberg. I would like to introduce myself to the committee. I am the general counsel of the CIO and the general counsel of the United Steelworkers of America. Senator PEPPER. Mr. Chairman, before the witness starts, would it be appropriate since we are passing now from Government witnessesand I want to take just a minute-whom both sides might have a proper interest in questioning, it is obvious that we can't all indulge ourselves to the kind of examination and cross-examination that perhaps we would like if we have unlimited time, if we are going to meet our deadline as our resolution provides, and I don't know whether it will be a matter of self-discipline for the members of the committee, in which case I am willing to show as good a spirit and example as I can personally, or whether it is going to be left up to the chairman to take into account the number of witnesses that are expected or indicated on both sides, and give us some idea about what we can do within that scope or not, but I am merely raising the question at this time so that we might

The CHAIRMAN. There is a proposition in a resolution which is adopted by the committee which has to do with statements made by the witnesses outside of the record which they have prepared to hand in. This is limited to 10 minutes, and that rule will be observed. Mr. Goldberg and all future witnesses are hereby notified.

That is about as far as we can go because the Senators have in no way been curbed under the rules, but I think that we should be governed, as has been suggested, by our limitation and by our judgment. Senator TAFT. Mr. Chairman, may I ask what happens then to this 112-page document submitted by Mr. Goldberg?

The CHAIRMAN. That was the point the Chair is trying to make. If every witness comes along with somethinng like this, everyone knows that something has to be done.

Mr. GOLDBERG. That was the purpose, Mr. Chairman, if I may add, for offering this statement. Something does have to be done, soon, too. The CHAIRMAN. Yes, it will be done. Thank goodness Senator Murray has to make the first ruling in regard to this one, and I assure you if he makes it well, the present chairman will follow absolutely his decision.

Senator DONNELL. Mr. Chairman, may I ask as a matter of information in addition to the 112 pages, is this 53-page document, appendix A, also accompanying this statement, so we have 165 pages.

The CHAIRMAN. The witness, I suppose, is offering that for the record.

Senator TAFT. Now, Mr. Chairman, that raises the questions that I think I would like to have the chairman rule on. As far as I have