property of the officers, agents and members of the union, who would be individually liable as partners. There are no doubt many other considerations to be regarded but, in our judgment, even though compulsory incorporation were constitutionally possible, it would not go far toward bringing about real "responsibility" on the part of labor organizations. On the contrary, it is at best an incidental step toward that result. FOR THESE REASONS, IT IS RECOMMENDED THAT WE DO NOT ADVOCATE COMPULSORY INCORPORATION OF LABOR UNIONS. LAWFUL VS. UNLAWFUL STRIKES There is a common assertion in many quarters that the right to strike is an absolute right, subject to no restriction, and may be exercised for any purpose and by the employment of any means. This erroneous conception has been generated by such declarations as are found in Section 13 of the National Labor Relations Act which declares: "Nothing in this Act shall be construed so as to interfere with or impede or diminish in any way the right to strike." However, it is a fundamental proposition of law that strikes may be illegal either because they are conducted for an illegal purpose or because even though the purpose be lawful, the methods employed are violence, intimidation, coercion, and other unlawful acts. This proposition has been very forcefully stated by Mr. Justice Brandeis speaking for the Supreme Court of the United States in the case of Dorchy v. Kansas. Mr. Justice Brandeis said: "The right to carry on business-be it called liberty or propertyhas value. To interfere with this right without just cause is unlawful. The fact that the injury was inflicted by a strike is sometimes a justification. But a strike may be illegal because of its purpose, however orderly the manner in which it is conducted. To collect a stale claim due to a fellow member of the union who was formerly employed in the business is not a permissible purpose. In the absence of a valid agreement to the contrary, each party to a disputed claim may insist that it be determined only by a court. * * * To enforce payment by a strike is clearly coercion. The legislature may make such action punishable criminally, as extortion or otherwise. And it may subject to punishment him who uses the power of influence incident to his office in a union to order the strike. Neither the common law, nor the 14th Amendment, confers the absolute right to strike." * * * It is therefore entirely permissible for a State to declare certain types of strikes illegal; it is permissible for the Federal Government to bring them within its jurisdiction where they directly affect interstate commerce, for instance; and it is not only possible but proper that where the Federal Government confers certain privileges on labor organizations, as by permitting them to represent employees for purposes of collective bargaining under the National Labor Relations Act, the Federal Government should also withhold that privilege of representation from organizations calling or prosecuting illegal strikes. Another angle which should be kept in mind is that the National Labor Relations Act, Section 2, defines employees as including "any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice.” The National Labor Relations Board makes no distinction whatever between legal and illegal strikes but on the contrary treats all striking employees as entitled to the benefits of the Act irrespective of the nature, purposes, or methods of the strike. It is therefore recommended that the Wagner Act should be amended in two important respects: 1. The definition of employees as including strikers should be confined to those engaged in a lawful strike: 2. Any labor organization should be disqualified from the privilege of representation under the National Labor Relations Act if it organizes, supports, or maintains strikes of the following character: (a) to cause the commission of an illegal act or the omission of a legal duty; (b) without presentation of written demands and reasonable opportunity for consideration; (c) when undertaken to enforce demands upon any person offering to submit the controversy to arbitration by a public agency; (d) to overthrow arbitration awards; (e) in violation of a collective bargaining agreement; (f) where a jurisdictional dispute exists and has not been referred to the parent organization, with reasonable opportunity for settlement; (g) to enforce the closed shop or check-off, or to prevent or terminate the employment of any person because he is or is not a member of any organization; (h) to prevent the use of non-union materials, equipment or services; (i) to coerce government either directly or by inflicting hardship upon the community; (j) when accompanied by continuous and systematic acts of violence and intimidation; (k) sit-down strikes; (1) general or sympathetic strikes. The definition of employees in the Labor Relations Act should therefore be amended so as not to include any persons engaging in the types of strikes just enumerated. "COERCION FROM ANY SOURCE" When the President issued his statement in March, 1934, at the time of settlement of the automobile strike, he emphasized that it was the Government's sole function to see that employees had complete freedom of organization for collective bargaining without coercion from any source. When the National Labor Relations Act was pending in Congress and it was proposed that the prohibitions of the Act should run solely against the employer, we proposed to broaden the prohibition so as to protect the employees against coercion from any source in accordance with the President's declaration of principles Senator Wagner at first agreed to this amendment but on reconsideration and perhaps discussion with interested parties, opposed its inclusion and on a test vote in the Senate that body defeated an amendment by Senator Tydings of Maryland which would have had the same effect. It is argued by those who oppose this amendment that the effect of it would be to transform the Federal Government into a policeman and have it undertake to stop or punish all coercive tactics by labor organizations. This, however, is not the purpose of the proposed amendment. We do not suggest that the Federal Government should take over the function of State and local governments to prevent and punish breaches of the peace. We do propose that no labor organization which is guilty of coercive tactics should be recognized under the National Labor Relations Act as an authorized and qualified representative. It would be immaterial from the Board's standpoint in enforcing this provision, whether the State and local governments had or had not performed their police duty. It would simply be the function of the Board to receive testimony and upon a finding that a particular labor organization had applied coercion, to refuse to require the employer to deal with such organization as a representative of his employees. We therefore recommend that Section 7 of the National Labor Relations Act should be amended to read as follows: "SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection, free from coercion or intimidation from any source." SEC. 6. No officer or member of any association or organization, and no association or organization participating or interested in a labor dispute, shall be held responsible or liable in any court of the United States for the unlawful acts of individual officers, members, or agents, except upon clear proof of actual participation in, or actual authorization of, such acts, or of ratifictaion of such acts after actual knowledge thereof. SEC. 7. No court of the United States shall have jurisdiction to issue a temporary or permanent injunction in any case involving or growing out of a labor dispute as herein defined, except after hearing the testimony of witnesses in open court (with opportunity for cross-examination) in support of the allegations of a complaint made under oath, and testimony in opposition thereto, if offered, and except after findings of fact by the court, to the effect— (a) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authorizing or ratifying the same after actual knowledge thereof; (b) That substantial and irreparable injury to complainant's property will follow; (c) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief; (d) That complainant has no adequate remedy at law; and (e) That the public officers charged with the duty to protect complainant's property are unable or unwilling to furnish adequate protection. Such hearing shall be held after due and personal notice thereof has been given in such manner as the court shall direct, to all known persons against whom relief is sought, and also to the chief of those public officials of the county and city within which the unlawful acts have been threatened or committed charged with the duty to protect complainant's property: Provided, however, That if a complainant shall also allege that, unless a temporary restraining order shall be issued without notice, a substantial and irreparable injury to complainant's property will be unavoidable, such a temporary restraining order may be issued upon testimony under oath, sufficient, if sustained, to justify the court in issuing a temporary injunction upon a hearing after notice. Such a temporary restraining order shall be effective for no longer than five days and shall become void at the expiration of said five days. No temporary restraining order or temporary injunction shall be issued except on condition that complainant shall first file an undertaking with adequate security in an amount to be fixed by the court sufficient to recompense those enjoined for any loss, expense, or damage caused by the improvident or erroneous issuance of such order or injunction, including all reasonable costs (together with a reasonable attorney's fee) and expense of defense against the order or against the granting of any injunctive relief sought in the same proceeding and subsequently denied by the court. The undertaking herein mentioned shall be understood to signify an agreement entered into by the complainant and the surety upon which a decree may be rendered in the same suit or proceeding against said complainant and surety, upon a hearing to assess damage of which hearing complainant and surety shall have reasonable notice, the said complainant and surety submitting themselves to the jurisdiction of the court for that purpose. But nothing herein contained shall deprive any party having a claim or cause of action under or upon such undertaking from electing to pursue his ordinary remedy by suit at law or in equity. SEC. 8. No restraining order or injunctive relief shall be granted to any complainant who has failed to comply with any obligation imposed by law which is involved in the labor dispute in question, or who has failed to make every reasonable effort to settle such dispute either by negotiation or with the aid of any available governmental machinery of mediation or voluntary arbitration. SEC. 9. No restraining order or temporary or permanent injunction shall be granted in a case involving or growing out of a labor dispute, except on the basis of findings of fact made and filed by the court in the record of the case prior to the issuance of such restraining order or injunction; and every restraining order or injunction granted in a case involving or growing out of a labor dispute shall include only a prohibition of such specific act or acts as may be expressly complained of in the bill of complaint or petition filed in such case and as shall be expressly included in said findings of fact made and filed by the court as provided herein. EXHIBIT 5385 THE COURT BILL [Copy] NATIONAL INDUSTRIAL COUNCIL 11 West Forty-Second Street, New York City Important-Confidential. Mr. KARL B. DODGE, Secretary, Trumbull County Manufacturers Association, 611 Second National Building, Warren, Ohio. FEBRUARY 8, 1937. DEAR MR. DODGE: The pending issue in Congress for reorganization of the judicial machinery of the country, with the appointment of six new justices to the Supreme Court, is one that I feel we must meet. I am inclosing a copy of a letter which we have addressed to all members of the NAM urgently recommending that they exercise their rights as American citizens to express themselves upon both this issue, and the reorganization of the Administrative branch along lines that might again lead to more centralized power. Equally earnestly, I urge that you follow up with your members and with all with whom you have contact to generate an expression upon this most momentous issue. The newspapers inform us that "Congress is awaiting the reaction of the country." By telephone, by telegram and by letter we can help to provide this reaction. But our activity must not stop with merely getting our members to communicate their views, or by getting them to encourage others to express their views. There are many channels through which we might work. Committees can be set up in each community which will use their best efforts to have a continuity of expression during the coming months not only to their own members of Congress, but to others from other states who are representing this viewpoint. These committees can encourage attorneys, the Bar Association, ministers, editors and others to take a position on this important question. Some attorneys might make radio addresses. Forums might be arranged at which both sides of the issue would be presented and to which, no doubt, large crowds would be attracted. There are a variety of means of stimulating the kind of activity which is needed and which will let those in Washington who represent your viewpoint know that they have popular support back of them. If there is any cooperation that we can give you, please do not hesitate to call upon us. Very truly yours, WILLIAM B. WARNER, Chairman. 89562-39-pt. 35-16 Mr. C. L. BARDO, 11 West 42nd Street, New York, N. Y. MY DEAR MR. BARDO: This morning's papers tell us that business and industry has now determined to do all that it can towards recovery. This is a very interesting statement and no doubt on the part of some individuals it is sincere. Of course, a great many business leaders have been doing all in their power for many years to bring back prosperity and it would seem rather unlikely that any new spurt at this moment will be of any great significance. However, the announcements are more likely the direct result of certain legislative proposals that have recently been made, and which I am afraid industry in general is out of sympathy with. The purpose of this letter is to say as plainly as I know how that business recovery will not solve the unemployment situation, and furthermore I do not believe that business recovery can take place in any real sense until the nation adopts a much shorter day, a five-day week and at the same time a much higher minimum base wage. For the past two years I have carried on a relentless crusade in this direction with very little support from the government and, I am sorry to say, with almost no support from my industrial colleagues. Perhaps this may throw me in an unfortunate position in the eyes of your association. I am not a radicalI am not a professional labor leader, but as an industrialist I see the necessity for some real solution of the unemployment question and the development of the domestic markets through increased buying power. There are a great many efficiencies to be gained from a six-hour day. Of course, these advantages will accrue more to good management than to poor. Enlightened modern management has proven conclusively that high wages and short hours make for low costs and low prices. I sincerely trust that you, as an individual, and the personnel of your association will at this time take a determined and energetic position for the sixhour day, the thirty-hour week and a fifty cents per hour minimum base rate for the nation. Very truly yours, R. W. Johnson. lis. (Signed) R. W. JOHNSON. EXHIBIT 5387 NATIONAL ASSOCIATION OF MANUFACTURERS OF THE UNITED STATES OF AMERICA 11 West 42d Street, New York Mr. C. L. BARDO, Pine Valley Golf Club, NOVEMBER 19, 1934. Clementon, New Jersey DEAR MR. BARDO: Here is a letter from Mr. R. W. Johnson of Johnson & Johnson in which he puts a pretty stiff proposition up to us. You will recall that Russell Watson, Vice President of his company, is a member of our NRA Committee. He is the gentleman who voted "No" on the report and today asked me to remove his name from the committee that is being published with the report. Because of the nature of this letter, I did not seek to reply to it. However, I think it needs the most careful consideration and treatment. Sincerely, 1 See pt. 17, p. 7437. (Signed) WALTER B. WEISENBURGER, |