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 judgment 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

Chicago, manufacturing white goods, who came before our board on a charge of discrimination and refusal to deal with the Ladies' Garment Workers. They had organized his shop and in retaliation he had discharged four of his cutters and brought about a strike and a shutdown of his workers for the time being and finally brought before the regional labor board.

In an attempt by the regional labor board to adjust that difficulty they summoned Mr. Roga before the board, requesting him to appear, and he did not appear until three requests of that kind had been served upon him. Twice the board held sessions at which the workers appeared and others who were interested, but Mr. Roga did not appear and it was not until the intersession of one of his colleagues and a member of the board that he actually came before our board to reply to the charge of discrimination and refusal to deal with the representatives chosen by his people.

The chairman of the board put the question to Mr. Boga as to whether he was willing to deal with the elected representatives of his people, whether they were people within the shop or whether they were representatives of the Ladies' Garment Workers, and Mr. Roga stated positively that he had not and would not deal with any representatives except a representative who was an employee in his works. The chairman of the board cautioned him as to his statement and said, "You know, that is in violation of section 7 (a) and you know that this board is not interested at all in the unionization of your plant but we are interested in the enforcement of this act. That was President Hutchins, of the University of Chicago.

Mr. Roga said, "I am not going to deal with anyone except a representative of my own people.

When the board then took a resolution to refer this case to the National Labor Board with the recommendation to have it presented in the courts, two of the employers on that board voted against that resolution. They were members of the association of which this gentleman was a member. They were holding together and they were giving evidence of their class consciousness. I have no doubt but what that board, if they were in the position where there were 10,000 men on strike in the stockyards in Chicago and the regional labor board felt that was an illegal strike and required a determination of it by vote of the workers, representatives on that board would not give their consent to it, and for that reason I feel that these two parties on the board should not vote a question of that sort, and that the voting power of the board ought to be restricted to the representatives of the public.

I wanted to say a word in support of section 207, speaking out of our experience. That section refers to the question of the matter of the selection of these representatives and how they shall be certified to the employer. This section is valuable because it clarifies the powers of the board. We have found that employers, and very rightly, say to the representatives when they come forward, "How do we know that you represent the workers in our plant?"

We require a definite certification, of course, but there was in 7 (a) a way in which the representatives of the workers, the elected representatives of the workers, certified themselves to the employer, which was by calling the workers out on the street, by causing a strike, but we wish to avoid strikes, so how shall the board certify, how shall

the employer be assured that these representatives really represent his workers, and this definitely states it:

In any such investigation the Board shall be authorized to take a secret ballot of employees or to utilize any other appropriate method to ascertain their representatives.

Now, we have been doing that, but we have done it because we felt it was implied in the law. We now have a clear authorization of

it in this present section.

I want to speak also of section 208 regarding the power of subpena and the production of witnesses. One of the greatest handicaps that we have in Chicago in bringing about satisfactory mediation and negotiations with employers and the workers was the refusal of the employers to come into the conference.

As Dr. Lapp said, it is true that many of these employers were small, and perhaps they did not realize the full significance of this request set out; to be sure, in a way, it was informal and there was nothing especially legalistic about the style of it. They would not come in and the afternoon might be wasted by the Board just listening to one side of the case.

I recall that in the case of the Greyhound Bus Line we held that case for we have three different sessions on that case before we could get any representative of the bus line to come in, and I happen to know that they came at that time only because one of the members of the Board representing the employers' end of it saw to it that the representative of the bus line was present.

To be able to have the books and records produced and the pay rolls produced will be a very great assistance in helping to bring about a successful mediation and negotiation.

We had a case just recently in the oil trade out West, in a hearing that I had, and there was a division of opinion on the part of the oil company with regard to the professed representatives, and the question was whether there should be an election or some other form of election, and I asked the attorney for the company if they would not supply us with a list of their employees. He said he would take it under consideration, and I suppose he consulted with his associates, and they decided they would not supply the list to us, so we had no method of checking the names of the workers in this plant.

All of that would be done away with by reason of this provision. We could ask for that and it would be a perfectly reasonable request and I think it is a reasonable one.

There is another reason why this provision for bringing the parties before the Board I think is altogether worth while, and that relates to these charges of discrimination. Now, I do not happen to have the fortune and experience of being trained in the law, but I think lawyers will know perhaps better than anybody else how difficult it is to prove discrimination because it involves proof of motive and the proof of motive, as you know, can never be exact as a thing of direct evidence unless some incautious employer in this industry tells you in so many words he has fired the men because they joined the union. We have had some cases of that kind but more employers are far more cautious than that, and in order to prove an ulterior reason for an action requires a deduction from a certain concatenation of circumstances, and those cannot all be assembled.

I worked in a machine shop as a youth for 5 years and we knew in the shop who the "soups" were and the "suckers", as we called them, who carried the tales to the foreman and the management, and every man on the floor knew that when you were talking to those two or three fellows you had to look out, so we looked out. We could not prove that if we were hauled before a regional labor board to make good our assertion of our opinion-we could not have done it-yet we were perfectly certain of it.

That is what I mean by the difficulty of proving discrimination, but the bringing in of pay rolls to show the duration of time that this group of men were employed as against those who were discharged is evidence of that kind that will help substantiate these charges or set them aside.

I want to reiterate what Dr. Lapp has just said about the significance of section 5 relating to the phrase dealing with collective bargaining, to exert every reasonable effort to make an agreement with such representatives concerning wages, hours, and other conditions of employment.

We had a dispute that our board was undertaking to adjust in Chicago with one of our big pastry stores.

I had called on the head of that store and explained to him that this particular section of his store had become organized. I said, "I believe they have become unionized." I said, "Are you willing to meet with the head of the union and deal with them?"

He said, "I know what the requirement of section 7 (a) is; I have to meet them; but I want to tell you now that I do not intend to deal with them in the sense of granting them the results they are expecting."

I said, "You will be willing to meet with them and talk with them?" and he said "Yes."

So, in the hope that something would come out of it I arranged with the representative of the Amalgamated to call upon him, and it was an entirely unsuccessful conference because when I spoke to the Amalgamated representative later to see whether he had succeeded in adjusting the matter, he said, "Well, we met, but I could not collect and I could not bargain." So, a strike was called and that store is being picketed.

Now, those are the only suggestions I have to make with regard to special phases of the bill. I am for the whole bill as it is. I would like to have the privilege that you indicated this morning, Mr. Senator, of supplying a supplementary statement with regard to what I think is the big underlying problem that this bill is intended to meet. The CHAIRMAN. Thank you, Mr. Mullenbach. Mr. Chipman, how much time would you like?

Mr. CHIPMAN. About 10 minutes.

The CHAIRMAN. Will you give your full name?

STATEMENT OF A. J. CHIPMAN

Mr. CHIPMAN. My name is A. J. Chipman, of Denver, Colo. The CHAIRMAN. What is your association with this problem? Mr. CHIPMAN. General Chairman, Brotherhood of Locomotive Firemen and Enginemen for approximately 17 years, on the Denver & Rio Grande Western Railroad, Labor Compliance Director, acting since March 1, 1924, for the State of Colorado.