the property of others. That being true, that having been decided by the courts, I know of no reason why there should be any law to expand their responsibility. I do not know why employers who reject existing law should seek to expand the legal liabilities of labor. The CHAIRMAN. I am afraid we are going to have to run along with these rules, if you do not mind.

Mr. VINCENT. I finished on the rules some time ago, Mr. Chairman. We thank you.

Mr. CELLER. Mr. Chairman, Mr. Pressman, general counsel for the C. I. O., wishes to have placed in the record, because he cannot be here, a letter. Is there any objection to having it put in?

The CHAIRMAN. I think not.

(The letter referred to follows:)

COMMITTEE FOR INDUSTRIAL ORGANIZATION,

Washington, D. C., March 9, 1938.

HOUSE JUDICIARY COMMITTEE,

Capitol, Washington, D. C.

HONORABLE SIRS: The purpose of this letter is to present certain amendments, to the Rules of Civil Procedure for the District Courts of the United States adopted by the Supreme Court of the United States on December 20, 1937, insofar as the rules relate to the service of process upon unincorporated associations, as set forth in rule 4, subdivision (d), pars. (3) and (7).

We think these amendments are necessary in order to prevent an apparent injustice. The amendments which we propose are herewith indicated by setting out the above-mentioned sections with the amended portion in italics, as follows: "RULE 4. Service shall be made as follows:

(d) (3) Upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name, by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process, and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant: Provided however, That in the case of an unincorporated association, service may not be made by delivering a copy of the summons and of the complaint to an individual member of an unincorporated association, or an individual member, officer, or other agent of any subordinate or affiliated body of an unincorporated association.

(7) Upon a defendant of any class referred to in paragraph (1) or (3) of this subdivision of this rule, except an unincorporated association, it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the State in which the service is made for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that State."

The foregoing amendments are necessary in order to prevent these rules from being construed so as to subject an unincorporated association, composed of hundreds of thousands of members with numerous affiliated local bodies, to suits by service upon an individual member of the association or some officer or other agent of one of its many locals or subordinate branches.

We have had occasion to note certain situations in which a local union in the course of its own affairs has engaged in local activities out of which certain lawsuits are commenced against it. The national organization, with which this local union is affiliated has had no knowledge or notice of the local affairs of its affiliate. The general organization, with which the national union is affiliated, is even less connected with the whole transaction. Nevertheless, upon a misconception of the nature of unincorporated associations, certain courts have permitted suits to be commenced by service upon an individual member of a local union or one of its officers, against the national organization, and the general body with which it is affiliated, and both are thereby subjected to unjustifiable claims and expenses. Some States have passed statutes which have permitted suits to be commenced by such service, apparently as a reaction to the fact that at common law unincorporated associations could not be sued except by joining all of its members. But in doing so, these statutes have remedied a situation by introducing new evils and going to extremes. See, e. g., Alabama Code, sections 5724-5726. The vice in these cases and statutes arises out of a confusion of the status of an unincor

porated association as the sum of its individual members and its status as a legal entity.

To sanction such methods of service is to ignore the development of the law of unincorporated associations which provides the basis for permitting one to be sued in its common name. This development is based upon the recognition of an unincorporated association as a legal entity. Coronado Coal Co. v. United Mine Workers of America (268 U. S. 295). The doctrine of this case is reflected in rule 17 (b) providing for suits against unincorporated associations in their

common name.

If unincorporated associations are to be sued in their common name because they constitute legal entities, then their identity must be preserved. The local union affiliated with a national union is one entity, the national union is another, and the general body with which it is affiliated is still another. Coronado Coal Co. v. United Mine Workers of America (268 U. S. 295).

Obviously one would not suppose that service could be had upon a corporation by suing one of its affiliates or subordinates, assuming that there is no question of fraud or bad faith involved. The attempt to analogize the case of affiliated unincorporated associations to that of a partnership where service can be had upon any member thereof is erroneous, since partnerships as a practical matter are not made up of many thousands of persons with subdivisions and agencies constituting in themselves separate legal entities. See, e. g., Jardine v. Superior Court et al. (213 Calif. 301, 2 P. 2d., 756).

Nor can the fact that officers and other agents of a local union affiliated with a national organization exercise special duties as local officers performing the obligations of the local to the national organization, in accordance with the terms of the charter of affiliation, make such officers or agents direct representatives of the national organization for purposes of service. The failure to recognize this distinction is the fallacy of the case of Operative Plasterers and Cement Finishers International Union of the United States v. Jesse B. Case (#6766 U. S. Court of Appeals for the District of Columbia, Sept. 7th, 1937, 93 F (2d) 56).

The amendments which we have suggested represent in fact the opinion of the Federal courts in two recent cases. We quote from Christian v. International Association of Machinists (7 F. (2d) 481), where the court quashed the service against the International Association of Machinists which had been sued by serving officers and members of the local and subordinate bodies of the International. The court said:

"It seems to me clear that the motions of these six defendants will have to be sustained. An individual member of an international union, assuming that individuals are members thereof, is not a representative of such union. He is no more its representative than a stockholder in a corporation is representative thereof. As a corporation cannot be brought before the court by service of process on one of its stockholders so a labor union, international or local, cannot be brought before the court by service of process on one of its individual members. An individual member of a union, international or local, cannot be subjected to a personal judgment by service of process on another such individual. A statute providing that he could would be unconstitutional. Flexner v. Parson (248 U. S. 789). It would seem to be equally true that the suable entity, consisting of himself and other members of the union, cannot be subjected thereto upon such service of process.

* *

"So also, it must be held that the chairman or any other officer of a local union is not a representative of the International Union for service of process *. It is not to be blinked at that these unions, international and local, artificial units and entities, and suable as such, cannot be brought before the court, save by service of process on a direct representative, whose relation thereto is such that it is reasonable to infer that the service of such a process on him will be brought home to the union which he represents. They are entities, distinct and separate from their membership and subordinates, as much so as à corporation is an entity distinct from its stockholders or subordinate organizations.

"Of course, it is possible, where an association consists of supreme and inferior bodies, for the inferior body or an officer or member of it to be an agent for the supreme body in a certain particular, if the constitution so provides, or the supreme body may in some contingency make it or him its agent in a particular transaction, in which case the supreme body will be affected by its or his action within the scope of the agency. (Thompson v. Supreme Tent, 189 N. Y. 294; Mitchell v. Leech, 69 S. C. 413.) But it does not follow from this, that it or he is a representative of the supreme body for service of process."

The same decision was reached in Singleton v. Order of Railway Conductors (9 F. Supp. 417); see also Medlin v. Ebeneezer Methodist Church (129 S. E. 830 (So. Car.)).

It is because of the foregoing reasons as set forth in these decisions of the Federal courts and the peculiar nature of labor unions and other unincorporated associations where mutual relationships between several such associations are involved that we have suggested the foregoing amendments to the Rules of Civil Procedure for the District Courts. We hope that you will give this amendment your most earnest consideration and favorable decision.

Very truly yours,

LEE PRESSMAN, General Counsel.

Mr. ALEXANDER HOLTZOFF (Department of Justice). Mr. Chairman and gentlemen of the committee, I should like to present now Mr. Arthur T. Vanderbilt, president of the American Bar Association, as the next witness.

The CHAIRMAN. Mr. Vanderbilt, we will be very glad to hear you, sir.

STATEMENT OF HON. ARTHUR T. VANDERBILT, PRESIDENT OF THE AMERICAN BAR ASSOCIATION

Mr. VANDERBILT. Mr. Chairman and gentlemen, the American Bar Association looks on these proposed rules as a tremendous forward step in the administration of justice in the Federal courts, for several

reasons.

The first reason that impresses me is that the proposed rules are in line with what Congress has done in every other field of adjudication. We have had the equity rules from the beginning of the Federal Government. We have had the admiralty rules for the same period of time. Commencing 50 years ago Congress began to give the same type of power to all of the great administrative tribunals, such as the Interstate Commerce Commission, the Federal Trade Commission, the Board of Tax Appeals, and the National Labor Relations Board. Every one of those organizations has the right to make the rules that govern its own procedure. It was natural and proper that Congress should give these bodies the power to make their own rules of procedure because they were most familiar with their own work and necessities from day to day, they were experts most familiar with what had to work out in practice.

Now, it does seem an anomalous situation that we have had to wait all these years to have that same course taken with respect to actions at law that we have had in equity, admiralty and all the administrative procedures, consequently I think it was a tremendous forward-looking step that Congress was willing to commit the making of rules of procedure at law to the men best qualified to make those rules. I do not mean that this committee or the Congress could not make equally as good rules if they had nothing else to do, but just as a matter of the plain, ordinary, sensible division of labor, it seems that Congress 3 years ago did a very sensible thing in confiding this power to the court, reserving always the right in Congress to come back and resume jurisdiction of the field, if the rules that the courts have set up for themselves do not work out well.

I was impressed by the question which was raised this morning as to what would be done with respect to rules that might be promulgated by the Supreme Court in the future under the power vested in it under the preceding act of 3 years ago. I do not think any better course

could be taken than to provide a course similar to the course which has been pursued here, namely, that the matter of any proposed amendments should be taken up either by the Court or by a committee of the Court, and that due notice should be given to all who are interested, so that, with respect to any amendments or supplements the same opportunity to be heard would be given then as has been given

now.

As I understand it, over 5,000 lawyers have actually been heard by the committee in the process of the work of drafting and redrafting the rules which are now presented to the Congress.

The CHAIRMAN. On that question, Mr. Vanderbilt, there are two things that occur to me. I cannot at the moment think of a situation under which this would develop, but it might be found that some rule would not work, would require temporary change, but in the absence of that, what is the reason why, after it has been proceeded with as you have indicated, that the rules, the proposed amendments, should not come back to Congress under a similar arrangement to that which now obtains with reference to the main body of these rules that we are considering?

Mr. VANDERBILT. I see no objection to that, Judge. My only thought would be that, for example, the Supreme Court might give notice in the Federal Register or somewhere else that they contemplated a change of the rules. It might refer the matter for preliminary discussion to a committee of the Court. They would let all the lawyers and other people, as before, represent their organizations. They would make a preliminary sifting of the matter and bring it back here for approval.

Now, in none of the administrative tribunals, where the rules are far more drastic than any of these rules, is there any resubmission to Congress. Personally I should be delighted if every time any of these administrative tribunals was going to revise its rules, it would have to submit them back here and let them lay before this committee for a given time and have a hearing on them. I think that would be orderly procedure.

The CHAIRMAN. This would be a move in that direction. Since these organizations are initiating rules and construing rules and enforcing rules, they have pretty nearly the power of law.

Mr. VANDERBILT. They are courts just as much as the gentlemen who wear the black robes.

Mr. CELLER. Would the gentleman be in favor of an administrative court?

Mr. VANDERBILT. That is getting into a large subject, but I would like to come down, Congressman, and talk about it some time. I am very much in favor of it personally.

Mr. RAMSAY. What is the difference between the rules of these boards and other boards where their rules are very like those of the State courts?

Mr. VANDERBILT. I am coming to that, Congressman. You painted this morning a delightful picture of the simplicity of the conformity act, and my mind went back to my first Federal court case. I had heard somewhere in law school about the conformity act, but it took me many long evenings to find out when you had conformity and when you did not have it, and I think the conformity act is the worst maze

that was ever set up for any man who practices only in State courts and has an occasional case in Federal court.

Mr. RAMSAY. You think this will simplify it?

Mr. VANDERBILT. Well, he has these rules in 100 pages and he can read this in an evening, but I know from practical experiencethat I could not grasp the meaning of Federal conformity act and all of its ramifications in 6 weeks.

Mr. RAMSAY. Suppose, though, that you are just one individual practitioner and you do not have a boy in the office to tell you about it? Mr. VANDERBILT. Then you are sunk. And that is the reason I am in favor of these rules. I am in favor of it for that reason.

The third reason I am in favor of it, and most of all, is because of rule No. 6. Rule No. 6 is what I call a flexibility rule. I do not know what the men who got it up call it. Rule 6 is on page 7 and provides that whenever you get into trouble and counsel has made a mistake, unless it goes to the jurisdiction, that the court can come and help the poor fellow out. It gives the flexibility to the administration of justice that you cannot possibly get when the judge is confronted with a statutory enactment. Then he says: "Well, I would like to help you out, son, but you haven't lived up to that rule, and good bye. Î will take up the next case.'

We have heard a lot here today about the rich corporations, and much has been said about the rich labor unions, but we have not heard anything about the poor litigant. Believe me there are a great many of them in the Federal courts.

Mr. CELLER. There are poor labor unions too.

Mr. VANDERBILT. All right, they will be interested in what I have to say now. I think these rules, which certainly do simplify the procedure, at least as I know it in the district where I practice, would do more to help the poor litigant, the man of limited means, than any other thing that has been proposed in the way of improving the work of the Federal courts in the last hundred years.

Mr. RAMSAY. What provision is that? How is it going to help the poor man? That is what I want to know.

Mr. VANDERBILT. It will help him for this reason-I will put him in the position of the client that I represented 23 years ago when I had my first case, and it was a rather involved case. I had heard a little bit in law school about the Conformity Act, and I had to spend a long time trying to find out just where I stood and what I could do and what could not be done to me under the Conformity Act. Did my adversary have to file an affidavit of merit within 10 days, as required by my State practice? Well, if the Conformity Act means what it said, he did, but the judge said he did not, because that is one of the places where the Conformity Act did not apply.

Then you get into the question of interrogatories and examination before trial. I wanted to examine the defendant. You cannot do that in the Federal courts. Why not? We do it in the State courts. Well, here again the Conformity Act does not apply. You have to bring a bill for discovery. Instead of being something nice and simple to help the poor young country practitioner out, the Conformity Act was just a delusion and a snare. I thought I was getting something simple in the Conformity Act but I was really being handed a package of green goods.

Mr. RAMSAY. Instead of helping the poor man, this is going to help the poor lawyer? Is that the idea?