as to why I think this bill is an attack upon the final citadel of democracy and our social order and our country, which it is, but I do not want to go into that, into a long discourse, why it is that they resort to devious devices by company unions in order to retain their power. The CHAIRMAN. You might send us a statement for the record of your views. They will be put into the record.

Mr. MULLENBACH. I would like to do that, if that would be satisfactory to you.

First, with regard to the composition of the Board, my suggestion there is that the representatives of the public-the three representatives of the public-be given sole voting power in the Board. I think it is well to have these 3 representatives, and the 2 representatives of capital and labor on the Board, but these representatives of capital and labor I would have in purely an advisory relationship. It is my observation during these years as an arbitrator and mediator that it is very difficult sometimes for an arbitrator to make a decision that is entirely satisfactory to both sides. I can conceive of situations arising where it would be quite impossible for the three members of the Board to secure the consent of both sides to a decision that they believe to be valid and proper.

To speak of my experience in the regional labor board in Chicago, we had a case which was before your National Labor Board, the case of A. Roth, which is a small concern. In that case the employer had to be summoned three times before the regional labor board before he was finally persuaded to appear by one of the representatives of his own kind, a representative of the Manufacturers' Association that sits upon our Board. Not until that persuasion was used did he appear before our Board, and when he appeared there, in response to a question by the chairman, President Hutchins of the Univeristy of Chicago, who asked him if he were prepared to observe the regulation of 7 (a)

The CHAIRMAN. Just a minute. Could you come back this afternoon?

Mr. MULLENBACH. Yes; I could come back this afternoon.

The CHAIRMAN. I am sure your presentation will be most helpful and very interesting. I do not like to press you, but we will have to finish very soon. Now may I suggest that you and the other witnesses, those who desire to be heard, that they return to the committee room at 2:30 this afternoon.

(Whereupon a recess was taken, at the hour of 1:00 p.m., until 2:30 p.m., of the same afternoon, Thursday, March 16, 1934.)

AFTER RECESS

(The hearing was resumed at 2:30 p.m.)

The CHAIRMAN. I must apologize for being late. I should not have agreed to come back at all this afternoon because I knew I had an engagement that would keep me quite a long time, but I thought I would try to find an opportunity to hear some of this evidence, especially those who could not be here next Tuesday. I understand Mr. Chipman is anxious to get a hearing and that Mr. Mullenbach is willing to have Mr. Chipman take his place.

Mr. MULLENBACH. Dr. Lapp.

46652-34-PT 1-13

STATEMENT OF DR. JOHN A. LAPP

The CHAIRMAN. Dr. Lapp, what is your full name?
Dr. LAPP. Dr. John A. Lapp.

The CHAIRMAN. Your residence, for the record?

Dr. LAPP. Chicago.

The CHAIRMAN. What have been some of your activities?

Dr. LAPP. Chairman of the bituminous coal labor board of division 2; member of the National Bituminous Coal Labor Board; for several weeks last fall at the beginning directing the Chicago Regional Labor Board, and associated rather closely with that organization since that time; at the present time engaged entirely in the work of the bituminous coal labor board, division 2, which includes the State of Indiana, the State of Iowa, and the very peaceful State of Illinois

I do not intend to go into the question of collective bargaining because that has been presented to this Board fully by a number of witnesses. I will pass that up.

Yesterday this article by Senator Wagner was proposed and one of the witnesses said he would present it, the one that appeared last Sunday, on company unions. Lest he does not present it, I will leave it here with the committee because I think it is one of the most excellent statements of the principles of collective bargaining, and also one of the best expositions of the company union.

(The newspaper article referred to by the witness is attached as an exhibit.)

Dr. LAPP. In the first place, I am not speaking in behalf of the rightness of collective bargaining because in my judgment only extreme Bourbons oppose collective bargaining. It is quite inconceivable to be that anyone should hold that workers have not the right to act in unison. It is an elemental right of man to do that, and it seems to me like a travesty that we are here discussing before a Senate committee and that the Senate committee and the Senators take time necessarily in consideration of a question that is settled by plain, ordinary principles of right, that men have the same right to organize as workers that industrialists have to organize as industrialists. Now, the industry from which I come as a representative is fully organized in three States. There are only 2 or 3 company unions in all of Illinois, Indiana, and Iowa in the coal industry, and there are only a few, and very small mines at that, that are organized.

Moreover, these mines have been organized for many years and I have yet to find any leader of industry who would go back to the anarchy of the old days. I doubt if you would find any leaders in the three States who would think of giving up collective bargaining as it has been developed in those three States in the coal industry.

The coal code under which we work goes farther even than section 7 (a) and even goes farther than the proposed bill. I would like to read the section of the coal code to show how far this matter extends:

Sec. 5. Labor relations.-(a) Any controversy concerning hours, wages, and conditions of employment, or compliance with the provisions of article V of this code

that is the labor provisions

between employers and employees who are organized or associated for collective action shall, if possible, be adjusted by conference and negotiation between duly designated representatives of employers and such employees, meeting either in a

mine conference or district conference or divisional conference, as the machinery for such conference may be established by agreement of the parties thereto; and it shall be the duty of employers and employees to exert every reasonable effort to establish such machinery of adjustment and to utilize it to negotiate to a conclusion such controversies wherever possible.

In other words, in our industry, the code calls for both employers and employees to get organized in order that they may settle disputes with the machinery thus set forth, and the Bituminous Coal Labor Board is given jurisdiction to see that that is done, and in some instances, the Board has definitely ordered the representatives of small mines to get organized in order that they might settle their own disputes, we realizing that if they settle their own disputes this Board as a governmental body will have comparatively little to do.

I am very much agreed on this bill. It is an excellent bill.' There are a few details in it that one might question but they are not the important provisions of the bill.

It removes the obstructions to industrial peace. It removes the main causes of industrial war. It does this by stopping the causes at their very source; it does not stop strikes, nothing can do that completely, but it does lessen or will be bound to lessen their occurrence. I emphasize again that it is a preventive measure.

Experience as we have had it in the regional labor boards and elsewhere shows that representatives of workers for collective bargaining must be absolutely free and no company union represented can be free to be an agent in collective bargaining, it just is not possible for a man who represents a company union, dependent upon a company, to be a representative in collective bargaining.

а

Representatives of company unions are not free, because, as you heard this morning, and as you heard yesterday, they are under the domination and the influence of the employers, and to have a collective bargaining arrangement or a contract between a company union and the company is absurd. No man can contract with himself. No one department of a business can contract with another department of business, and the company union is nothing short of a department of the business contracting with another part of the business.

I should like to emphasize what others have emphasized here throughout these hearings, that there is no collective bargaining arrangement in force anywhere, nor to my knowledge has one ever been made, where wages, hours, and the really vital conditions of work have been the object of negotiations between company union representatives and the employers.

As a rule also the men in a plant, the men who work in the plant, are not able to and willing to stand up in the face of their employer as the representative of their fellow employees. I think that is extremely important to emphasize although it is a matter well known to all who have had connection with labor unions. An employee who faces his employer is timid, even though he has a group back of him. I have been in groups where employers have met employees and the first thing that struck me was the timidity of the men when they faced their employer. The result is that it is necessary for employees to have outside representatives if they are really going to be free in the bargaining which they are to have with their employer. That is why it is so essential that the men have free choice to pick men either within their own group or outside of their own group, men who work in this

plant, or men who come from outside, as representatives of labor unions if there is to be that kind of freedom which is so essential in the development of real bargaining.

Now, the next matter which has come from my experience is this matter of what is collective bargaining. Meeting the employees is one thing and bargaining is quite another thing. We have had ever so many instances not in the coal business, because that is organized but in the other lines of industry where men have said, "Yes, I will meet my men; I have always been willing to meet my men; I will meet a committee of my men at any time-" but they have added, "I will not agree with them, I will not bargain with them, I will not do as they ask me to." In other words, in advance agreeing that they will disagree on anything that is proposed by the employees. I had that within the last few weeks while I was sitting on a committee with one of the leading employers of our section of the country, a man employing some 4,000 men. He said very frankly, "We agreed to meet our men but we did not agree to do anything about it, but we will always meet them." His conclusion was that there was nothing that was certain to come out of it.

Now, it is essential that we have some means by which men who are required to have collective bargaining go beyond the mere meeting and discussion, and the bill does specifically provide that they must observe every reasonable effort to bring about collective bargaining. That is to my mind the most essential fact, and the machinery set up in this bill will have its main duty in seeing to it that that bargain is actually made or that every reasonable effort is exerted to make that bargain.

Of course, the weakness that we have all discovered has been in the enforcement of section 7 (a). I do not want to go into that because it has been discussed here so much, but this is evident to all that section 7 (a) in its present form has not been enforcible to the degree that has been necessary to bring about results that have been desired.

This bill remedies that weakness. This bill puts teeth into section 7 (a) and makes certain that the workers shall have a free right to organize into the kind of unions they desire and that they shall not be coerced into company unions.

It is particularly important to note what has been noted so frequently, that the employer is taken out of the business completely of having anything to do with the organizing of workers, and my judg ment is that he cannot have anything to do with the organizing of workers without actually coercing them for his very presence is a coercive thing with employees.

There is one matter that has not been touched upon, at least while I have been present at this hearing, that this bill does provide a very adequate machinery for court review. No man can claim that anything is being put over on him arbitrarily by this bill if he can go into court, the provisions being very specific, and have that decision, if it affects him vitally, reviewed by the court. There is also a very fine protective feature in that provision, namely, that if he goes into court and advances new testimony, the matter is automatically referred back to the board in order that the board can take into consideration all new testimony.

It has happened so frequently in public utility hearings that the boards have been made jokes of because they would present only part

of the case to the board and then later go into court and present their full case and the board would be a laughing stock because it was overruled. This provides that new testimony must go back to the board and be heard by the board.

Then, finally, there is the provision regarding attendance of people whom we want to hear. The regional boards and the national boards, too, have had the difficulty of forcing men to come in, and it has been very humiliating to public officials to send out a notice to men under the authority of the Government of the United States and have some little whipper-snapper of an employer-usually the smaller they are the more they do it-refuse to come in even to be heard in the case. Consequently, in that connection it is very important that we have a right to get the employer that we want to come in and not the attorney for the employer. We have had in the regional boards difficulty, as I am sure all regional boards have had, that oftentimes the employer would not come in but he would send his attorney. Now, the attorney is welcome but we want the employer to come along because we feel that if the employer would come in and sit in the conference that probably a benefit would result from it, whereas the attorney would be an influence for keeping alive the dispute. So, this bill remedies the defects that we have found.

I think, Mr. Chairman, that this bill does remedy all of the defects that experience has shown to exist in the existing recovery act, particularly in section 7 (a), and I believe it should be enacted into law, particularly so at this time when business has been brought to a high degree of organization, when to curb the activities of business which is organized to this high degree we must have on the other side an equally strong labor force organized with the Government in between. keeping the balance between the two great forces. It is certainly unwise and dangerous to have business organized as it is organized under the codes, and, at the same time, not having an adequate organization or an equally balancing force on the other side. I hope very earnestly that this bill will be enacted into law as being a measure which men who have been studying the question for many years have thought to be necessary to safeguard the rights of labor.

The CHAIRMAN. Dr. James Mullenbach? Mr. Mullenbach was testifying at the time of the recess at noon and will now continue.

STATEMENT OF JAMES MULLENBACH-Resumed

Mr. MULLENBACH. I was speaking, Mr. Chairman, on that section of the bill regarding the composition of the board and urging that the three members representing the public be the only members of the board charged with voting power, that is, that the other two, the representatives of capital and the representatives of labor should have purely advisory functions on the board for the reasons, as I stated, that there will be cases, undoubtedly, in the course of the activities of this board where the public members of the public will want to reach a decision or a recommendation with which neither of the other parties will wish to concur. That has been my experience as an arbitrator for many years, that such changes are almost bound to arise.

There is another reason why the members representing capital and representing labor cannot always vote with freedom. I took up the case of A. Roga & Co., and a small employer on the north side of