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N. L. R. B. EXHIBIT No. 375-C

THE NATIONAL LABOR RELATIONS ACT

Address of J. Warren Madden, Chairman, National Labor Relations Board, at the 57th Annual Convention of the American Federation of Labor at Denver, Colorado, Tuesday, October 5, 1937

The National Labor Relations Act, the statute in the administration of which I have a part, was signed by President Roosevelt on July 5, 1935. On August 27, the President appointed the Board to administer the Act. On October 10 of that year I, in response to President Green's invitation addressed your convention at Atlantic City. At that time the Board had not yet held a hearing in any case. There was a great and entirely legitimate curiosity on your part as to what would be the attitude of the Board towards its statute and its work.

You realized fully that much that was vital to your interest would depend upon the choice which the Board might make as to its course of action. You know that the Board might take a narrow view of its jurisdiction, in view of the conflict of opinion as to what prior court decisions had really decided; that it might not attempt to extend the protection of this law to more than the small proportion of you who were employed by steamship, telephone and bus companies, or other enterprises directly engaged in interstate commerce; that if the Board should take that course, most of you would still have to protect your right to be union men and to get others to join your union, by the same old recourse to strikes, picketing and self-help.

You knew that, aside from the constitutional question, there would be choices to be made in the interpretation of the statute itself, wherein the Board might give to the law a strict interpretation according to the letter which "killeth" though in violation of the spirit which "giveth life."

In short, you knew that whether this new statute was to fulfill its high purpose would depend in large measure upon the approach which the Board would make to these problems.

When I spoke to your 1935 convention, the Board had not yet, as I have said, made any formal decisions. But it had been in constant conference in the drafting of its Rules and Regulations, the selection of personnel and the general discussion of its problems. What was more important, it had become acquainted with the staff of the old Board, which had been transferred to it by the statute, and had learned more of what were the evils which the statute was designed to prevent and of what were the purposes of the draftsmen of the statute and of the Congress which enacted it.

I was, therefore, able to tell you on that occasion what was to be the attitude of the Board toward these problems. I said, in effect, that we thought well of the law which we were to administer and had no apologies to make for it; that we thought the Congress intended the law to have a wide application and that the Constitution did not forbid such an application; that we were hopeful that the purpose of the law to promote industrial pease with freedom and self-respect would be attained by obedience to the law.

Much that is of importance to you and to the country has occurred since October 1935, in connection with this law. A kangaroo court of lawyers set itself up and, without hearing evidence or argument, pronounced the law void and advised employers to disregard it. Editors and columnists, who are widely read but who could by no possibility have had the slightest comprehension of the legal question involved, did not hesitate to don the judicial ermine and concur in the decision of this disorderly court. These shallow purveyors of ideas treated their readers to the dismal spectacle, almost on consecutive days, of first advising employers that the law was void and that they need pay no attention to it, and next, when employers had followed their advice and brought about strikes, sneering at the law and its inability to prevent strikes.

The extraordinary legal remedy of the injunction, so long and so oppressively used against labor, was attempted to be used against the Board to tie its hands and prevent it from administering the law. Many cases were entangled for months in such useless litigation, and only by the most skillful effort on the part of the Board's legal staff was this attack successfully beaten off. When the Board did make decisions, they were almost never obeyed, and it became apparent that this law, enacted by the Congress and approved by the President, would not become the law in reality until it received the approval of the Supreme Court. In the early two years which were consumed in carrying the test cases through the stages of Decisions by the Board and the Circuit Court of Appeals, to the

Supreme Court, it was the field staff of the Board, the regional directors, attorneys, examiners, and stenographers who really bore the heat of the battle. They were the ones who were in direct contact with you of the unions and who were obliged to tell you that, in the face of a flat and direct violation of the law, you had no remedy and must wait until the law had been further approved. In the most discouraging circumstances, they acted with such courage, dignity and tact that they obtained some compliance with the law and, what was more important, they helped to keep alive in union people the faith that ultimately they would obtain the rights which the Congress and the President had attempted to give them. The Board and the Washington staff, who were in a comparatively sheltered position, are glad to acknowledge their debt to the field people, who carried themselves so admirably during those times.

On April 12th of this year the Supreme Court of the United States decided the five test cases relating to this law, and as you well know, all the decisions were in favor of the validity of the law and of the jurisdiction which the Board had asserted. You rejoiced at this victory, for certainly these were the most notable decisions in favor of labor which had ever been won in any court at any time. They put an end unanimously and for all time to the heresy that there is something in the glorious word "liberty" as used in our Constitution which guarantees to an employer the power to destroy the union which his employees desire for their protection. In this year, when throughout the country the one hundred and fiftieth anniversary of the chart and plan of our Government and the guaranty of our civil rights is being celebrated it was fitting that our highest court should in this positive way reassure the country that there is nothing low or mean in that sacred document; that the travails which brought it into being were not suffered to make America safe for stool-pigeons and black lists or for those employers who would condemn their faithful employees to the bread-line for the innocent act of joining a union.

Indeed it would seem likely that if any future American Congress, in imitation of the dictatorships of Europe, should attempt to reverse the guaranties of the National Labor Relations Act and forbid American working men to form unions of their own choosing, our Supreme Court would find in the guaranty of "liberty" in our Constitution a reason for holding unconstitutional such an act of a misguided Congress.

The Supreme Court decisions brought to the Regional offices of the Board such an increased number of cases that the staff proved utterly inadequate to investigate, adjust, or hold hearings within a reasonable period. There were irritating and discouraging delays. This condition has been considerably improved by increases in staff made possible by an increased appropriation given by the Congress near the end of the last session and the effective enforcement of the National Labor Relations Act is being and becoming a fact. During these long periods of delay and discouragement you representatives of labor and your constituents were patient and hopeful. If you had not been, the task of the Board and its staff would have been impossible. You well deserve the victory for which you struggle so valiantly and waited so patiently.

The objectives of the National Labor Relations Act are industrial peace for the country with increased freedom and self-respect and bargaining power for American workmen. Considering the fact that the law has been in full effect for only a few months, these results have already been achieved to an astonishing degree. All of you whose constituents work in enterprises which fall within the jurisdiction of the law have found workmen less fearful to join your unions and employers more willing to recognize your unions than before. Real and rapid progress is being made toward organizing the unorganized. No major strikes have occurred in recent weeks, though it is both the season of the year and the period in the recovery of business when strikes would be most likely to occur. The Heremiahs who have pointed with scorn to the descriptive words at the beginning of the Act "An act to remove the causes of industrial strife," and who took delight in the ruinous strikes of the past winter may prove to be false prophets. A prophet who is poisoned with prejudice is never to be trusted. Thoughtful people will remember that these strikes occurred at a time when this law was being openly violated, and that the strikes of that period should properly be charged to the violation of this law, and not to the law itself.

Since the validation of the law, since the specter of unconstitutionality which was so solemnly paraded to conceal the indecencies which walked behind it, has vanished, other attacks have been made upon the law and its enforcement.

Until time and experience have knit this law firmly into the economic fabric of the country, you may expect that its die-hard opponents will be fertile in invention of new devices to discredit it.

After the Gover

One recent invention which has achieved some publicity is the charge that the Board's attorneys who present the evidence for the Government in hearings. and the Trial Examiners, who preside over the hearings, act in an arbitrary and dictatorial fashion and act more like persecutors than like attorneys and judges, Some five hundred of these hearings have been held and in all parts of the country, and if this charge were even remotely true, its truth would have been discovered long ago. In fact the entire hue and cry seems to be based upon the following incident in one hearing which occurred only a few weeks ago. ment's case had been completed, one of the employers' first witnesses told a story which, if true, would have exonerated the employer. Upon cross examination by the Board's lawyer, the witness became evasive, and would not give satisfactory answers to his questions. The Trial Examiner then quietly asked the witness four or five questions and he answered them truthfully and so destroyed the employer's defense and implicated him deeply in violation of the law. Whereup his attorney resorted to one of the most ancient tricks known to trial lawyers, which is to divert attention from the case on trial by directing attention elsewhere He therefore issued a statement branding the conduct of the attorney and exainer as outrageous and abusive and stating that he would not subject any mor witnesses to such humiliation. This lawyer's attack was widely publicized Some newspaper, without the slightest effort to ascertain whether the lawyers statement had any justification whatever in fact, editorially deplored the unjudicial character of the Board's hearings. At a number of hearings since this occasio the effects of this reckless amplification by some newspapers and some comme tators, of malicious gossip have appeared in amusing ways. One company added to its legal staff for the occasion a lawyer who was notorious for his browbeating and baiting tactics, for the sole purpose of irritating the Trial Examiner into some intemperate expression. After a couple of days of such tactics whic had produced no result other than his being quietly put in his place, his associates apologized privately for him and allowed him to take no further part in the hear ing, except to draw his fee. At one recent hearing a public spirited woman cal to the opening session with a statement already prepared for the press as to ho bad the hearing was going to be. The newspapers thought it might be better to withhold the statement until she had observed at least a little of the hearing She did so and later withdraw the statement and issued one to the opposite effect I have no doubt that the lawyer who, by playing the old red herring trick on nated this furore, was as much amazed as he was gratified at the gullibility of those to whom the public has a right to look for informed opinion.

An attempt has been made to create the public impression that the law heavily overbalanced in favor of labor and against the employer, and that fairness requires that it should be equalized. When it is remembered that American law, in the real sense, consists of all the federal, state, and city law which is applicat to a given situation, this statement becomes ludicrous. Tens of thousands of union men engaged in strikes have been arrested and punished for miscellaneos crimes, at least a dozen in number, which may arise out of such strife. Let s assume that they were all guilty, and well deserved the punishment which ther wounded by police and militia in industrial strife have been necessarily sacrified Let us further assume that all of those who have been killed and by those officers in the proper performance of their duty. The fact would sti remain that the entire force of the penal law is spent upon the heads of labor, and none of it whatever upon the heads of employers, no matter how provocative and illegal their actions may be, and no matter how inevitably those actions t

received.

Ihave led to the strife which ensued. To equalize the law would require that the police first inquire who caused this strife, and if they conclude that the em ployer caused it, they should back the police wagon up to his office and push ha in, lock him up in a dirty jail and charge him with vagrancy or being a suspicious person, set his bail or fine so high that he could not meet it, and leave him. Do

those who prate of inequality really want equality?

ready tactics which the law applies to labor, to employers who violate the las If they do, but are shocked at the very thought of applying the rough and the law might be equalized in the other direction. All this swift and sever

punishment which the law visits upon labor might be abandoned in favor of the to employers. This would mean that if Picket, a union man on strike, violated mild and considerate provisions which the National Labor Relations Act apples the law, the employer would file a charge in our Regional office, perhaps some Our office would write a letter or telephone politely to An investigator would go out as

hundreds of miles away.

Picket and ask him for his side of the story.
soon as convenient and attempt to ascertain the true facts.

If the investigation

indicated that the employer's charge against Picket was apparently well founded and if Picket indicated that he was unwilling to bring himself into compliances with the law, a formal complaint would be issued against Picket, giving him not less than five days' notice that a hearing would proceed, and in due time the Trial Examiner would make an intermediate report. If he thought Picket had violated the law, he would recommend that Picket "cease and desist' from further violations, and post a notice that he would sin no more. If Picket followed this recommendation, that would be the end of the proceeding. If, however, Picket was recalcitrant the entire record of the hearing would be forwarded to the Board in Washington, which, after studying it, might make an order similar to the Trial Examiner's recommendation. This order would be served upon Picket with a request that he inform the Board within a specified reasonable time what steps he had taken to comply with the Board's order. If Picket expressly or by silence gave the Board to understand that he didn't intend to comply with the Board's order at all, then the Board would file a petition in the United States Circuit Court of Appeals, and have the record printed and file briefs and make oral arguments when the Picket case had its turn on the docket. The three judges of that Court would deliberate, and if they concluded that the Board's order was supported by evidence and well founded in law, they would enter a decree that Picket should comply with the Board's order. Then, after all these months, Picket would for the first time face the alternative of obeying the law or going to jail.

Are those who clamor for equality really willing to remove the numerous legal burdens which labor carries alone, and which do not touch employers, if in return labor is subjected to the provisions of the National Labor Relations Act? Of course not. They would be unwilling to remove one ounce of the legal load which labor carries. They want merely to add to that load. And yet they speak of equality.

What I have said relates also to the frequently suggested proposal that the National Labor Relations Act be amended to forbid "coercion from any source." This sounds plausible and equitable. In the discussion of this proposal it should first be remembered that coercion exercised by working men upon each other which is objected to by those who would amend this law take the form of force or threat of force which is already a crime everywhere and which is universally punished as such. If it is claimed that city, county, and state police and courts do not in fact adequately detect and punish these crimes, and that therefore the Federal Government should step in, the proponent of such a course must be ready to face certain serious implications. First, the Federal Criminal laws must be amended to make these crimes federal crimes if committed in the course of industrial strife. Next, if the Federal Government is to assume this responsibility it must recruit and maintain an enormous police force throughout the country, ready for the sudden occurrence of industrial conflict, and with authority to displace state, county, and local police when such conflict occurs. The responsibility cannot be assumed unless power be given to meet it.

No proponent of the "coercion from any source" amendment has suggested that a federal police establishment be thus created. Neither would they be willing that the mild remedy now used to prevent coercion by employers be applied to a working man who coerces his fellow worker, if that remedy were to displace the legal burdens which labor now bears. Some of them offer instead the naive suggestion, that if a labor union or its members have violated this law, the union should be disqualified from functioning as a collective bargaining agency and should forfeit its rights under the National Labor Relations Act. Since the purpose and reason for existence of a union is that it may bargain collectively for its members, this would in effect be a death sentence. If this doctrine were applied equally to both sides of these conflicts, it would follow that if an employer, whose business is the making of automobiles, should violate the labor law, his penalty should be that he shouldn't make any more automobiles, or at least that he shouldn't hire any more labor for the making of automobiles. There is no more reason why a labor union chosen by employees should, for its violation of law, be disqualified from dealing with an employer, than why an employer should, for his violation of law, be disqualified from dealing with labor.

This proposal simply will not do. To impose a death sentence on one party who is already subject to numerous legal penalties, in order to counterbalance a mild "cease and desist" order limited to specific illegal practices, on the other party, cannot be justified by an argument for equality.

The plain truth of the matter is that industrial conflict always has presented and always will present a delicate and difficult problem of policing. Whether this

218054-41-vol. 24, pt. 2———74

policing be done by federal, state, county, or city police, there will always be controversy as to whether the responsible authorities have not been, on the one hand too brutal and severe or, on the other hand, too lax and tolerant. Once the battle is joined the community is at the mercy of the judgment, good or bad, of the authorities which have the policing in their charge. The only real hope is to prevent this strife from occurring, by removing its causes.

The National Labor Relations Act was passed for that purpose and shows much promise of preventing a considerable number of such conflicts. To do this, it has placed mild restraints upon employers. Labor should be vigilant that this fact should not be used as s pretext for adding to the already heavy legal burdens of labor.

I should, perhaps, advert to the criticism which some officers and members of your body have directed at the Board. Most of it has been related to the present division in the main current of the labor movement. That division, the reasons for it, the merits of the two sides of the controversy, are none of our affair. The division has added somewhat to the volume of our work, and enormously to the difficulty of it. Situations in which the meaning and purpose of the law are plan and the application of it would, in a calm atmosphere, be easy, become in the minds of the contestants confused with hot emotions, and victory over the adversary is demanded, regardless of the law and regardless of the facts.

Some of the hottest controversies have been fought over the application, by the Board and its agents, of Section 8, Subsection 1 of the Act, which reads as follows. "It shall be an unfair labor practice for an employer

(1) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7."

Section 7 says:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing

* * *""

The meaning of these provisions is plain beyond question. They do not say and they do not mean that it shall be an unfair labor practice for an employer to coerce his employees to join a union unless he coerces them to join an American Federation of Labor Union. They do not say and they do not mean that it shall be an unfair labor practice for an employer to coerce his employees to join a union unless he shall coerce them to join a Committee for Industrial Organization union. They say that it shall be an unfair labor practice for an employer to coerce his employees to join any union. The only exception to this which the statute tolerates is the coercion which results from a valid closed shop agreement entered into by an employer with the representatives of a majority of his employees With the division in the labor movement and with competition between the A. F. of L. and the C. I. O. for the right to represent the workers in the same plant, the employer, not unnaturally, may have a preference for one of the competing unions. The law forbids him to give effect to that preference by coercing his employees to join the preferred union or not to join the other union. This meaning of coercion has been made plain by the Board in numerous decisions which antedate the current division to compel membership in unions limited to their own employees, and thus destroy the possibility of growth of unions affiliated with your Federation. Whenever this happened to you you complained t to us and we compelled the employer to stop this practice. Yet we had no more right and no more responsibility to act on your behalf in those cases than we have now to forbid an employer to coerce membership in one of your unions, or in one of the C. I. O. unions, or in an independent union not affiliated with either.

And we shall so forbid employers, and continue to forbid them. If the great labor organizations desire to increase their membership by having employer force their employees into them against the employees' will, they must first, by repeal or amendment, cut the heart out of the National Labor Relations Act For no board which can read English and can understand the purpose of this law, can ever hold, under the present law, that the employer may choose the union for his employees.

And if this law shall ever be amended so that in words or in effect it shall say that employees shall be entitled to be represented by a union of the employers' become again the happy hunting ground for the company union. The employers choosing, then all the rest of the law should be repealed, for America will have who are now accepting one or the other of the great national organizations as the lesser of two evils, will fly immediately to their real love, the feeble company union

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