Hearings, Reports and Prints of the Senate Committee on Education and Labor

Mr. Smith, will you state whatever descriptive matter you wish to appear in the record about yourself and then proceed as you wish? STATEMENT OF EDWIN S. SMITH, MEMBER OF THE NATIONAL LABOR RELATIONS BOARD

Mr. SMITH. My name is Edwin S. Smith, and I have been a member of the National Labor Relations Board since its inception, and for the past 20 years I have been connected through my positions with labor relations in one aspect or another.

In 1919 I was connected with the personnel department of the Dennison Manufacturing Co., and thereafter for 3 years I was on the staff of the Russell Sage Foundation of New York, making studies of employee representation plans.

In 1922 I became employment manager of the Filene Department Store in Boston and then, for a period of years, was personal secretary to Mr. Lincoln Filene.

Following that, in 1930, I was made commissioner of labor and industries in the State of Massachusetts, and in that capacity I had charge of enforcement of various labor laws in that State.

In 1933 I was sent by President Roosevelt as a member of the first official delegation to the International Labor Conference in Geneva, and shortly after my return I was made a member of the original National Labor Relations Board, which was administering section 7 (a).

I think that is all I have to say.

The CHAIRMAN. What do you mean by enforcement of labor laws in Massachusetts?

Mr. SMITH. Well, Massachusetts has had a long reputation, as the Senator knows, I think, for progressive labor legislation. Under me I had a division of factory inspection which was concerned with enforcement of those laws, including the 48-hour law for women and children. M62939

I had a good deal to do with the administration of the minimumwage legislation in Massachusetts and the legislation applying to factory safety and sanitation; also legislation applying to public works, the maintenance of the prevailing rate of wages on public works.

In general they consisted of the duties of a State labor department. The CHAIRMAN. But there was no State labor department?

Mr. SMITH. Oh, yes; I was the head of the State labor department. I was also chairman of a committee on industrial hygiene, which made recommendations to the legislature for improving the State laws on that subject, and I was a member of the committee on stabilization of employment in Massachusetts, which preceded the enactment of the social-insurance legislation in Massachusetts and made recommendations in regard to social insurance, particularly unemployment insurance.

The CHAIRMAN. You had nothing like the National Labor Relations Board under your administration, did you?

Mr. SMITH. Nothing that closely paralleled it. Of course, that was before the establishment of the State Labor Relations Act in Massachusetts, but I had a good deal to do with mediation of labor disputes. Under the administrative set-up in Massachusetts, there were three associate commissioners, whose particular function it was to handle labor diputes, but I had a sort of general connection with this work and occasionally participated in matters which were before them. But I did have complete general supervision over that department. The CHAIRMAN. Thank you.

Mr. SMITH. Mr. Chairman, this statement of mine, which will take something like an hour and a quarter, I should think, to read, is principally concerned with one topic, and that is the question of the appropriate bargaining unit. Now, I thought it might assist clarity if I were to read that statement as a whole. But I haven't the slightest objection to being interrupted, if any of the Senators wish to do so. But that is the scheme of my presentation.

I have asked the committee's permission to make a statement to it at this time not only because there has been some indication from the committee of a desire to question me but also because I felt that as an individual member of the Board who on several occasions had differed with the majority on the application of the act to particular situations, I should make my views known to the committee. Particularly is this true because my dissenting statements have for the most part had to do with the troublesome question of bargaining unit. This question is now before the committee in the form of proposed amendments, as, of course, it has been constantly before the Board in the form of necessary judgments to be made under the statute as it now exists.

Furthermore, I desire to make a statement for the record because of attacks which have been made upon me by representatives of the American Federation of Labor tending to show that I had some special bias in coming to certain conclusions.

Although the committee is not charged with an investigation of the Board, it has been presented with evidence and argument that bias on the part of the Board does exist. From one point of view such a presentation to the committee may not be irrelevant since, if

prejudice were proven, it might tend to show the desirability of amendments restricting the discretionary powers of the Board.

At the outset I want to note my general concurrence with the Board's report to the committee and what has been said in the testimony of Mr. Madden and Mr. Fahy. The report of the committee represented, of course, a statement of the views of all three members of the Board. Like my colleagues I agree that it is desirable for this committee to study carefully the proposals in the Walsh bill and the Burke bill regarding bargaining unit, although I doubt that any satisfactory legislative substitute for the discretion vested in the Board by the present statute can be devised.

I should like to impress upon the committee the peculiar situation in which the Board has been placed because of the craft versus industrial unionism controversy. Through its application of the Globe doctrine, the Board has distinctly favored the craft end of the argument. It has done so out of motives which it believed to be judicially and practically sound. I have differed from the judgment of the majority in a number of cases in which this doctrine has been applied. Such differences in judgment are, it seems to me, inevitable when the Board is confronted with the essential complexity of this bargaining unit problem, in the same way as differences in judgment between judges of the same court have come to be regarded as inevitable.

The Board's report to this committee and the statement of the chairman have, I hope, convinced you that the majority of the Board is not rightly accused of bias against craft unions. Certainly, no basis for such a conclusion is to be found in the conclusions to which the majority has come in its decisions. It seems to me unfortunate that the obligation placed on the Board to disprove this often-repeated accusation of bias against the crafts might tend to cause the committee to neglect the still broader question whether the act should not be so written as to operate with equal fairness to employees who are adherents of either craft or industrial unionism.

I, myself, feel that the position of the industrial unions as bargaining agencies has been considerably weakened by certain of the Globe decisions. I say this while still doing entire deference to the judicial disinterestedness of the majority of the Board in coming to the conclusions to which it did come. However, to write into rigid and permanent statutory form the point of view adopted by the majority of the Board in the Globe doctrine cases would, I am convinced, definitely incline the balance of governmental favor in the direction of craft unions. Such a course seems to meet with no justification in the evolution of collective-bargaining practices in this country preceding the adoption of the National Labor Relations Act.

It is a serious thing for the Congress to determine whether an administrative agency has in this important field of bargaining unit injudiciously and unwarrantedly favored one type of organization as against another. To go further, as do the amendments proposed by Senator Burke and Senator Walsh, and write into the statute a provision which throws the weight of governmental favor on the side of one type of union as against the other is, of course, much more serious. It is equally true that nothing should be done either by the Board or by the law itself which gives to the craftsmen, the

skilled workers of industry, less than their due protection in the collective-bargaining picture.

I do not know how I can make my views plainer to the committee than by a brief discussion of my dissenting opinions, which I propose to do.

I wish first of all to call your attention to the fact that far from being a frequent dissenter from the views of the majority, I have dissented only 24 times out of the approximately 1,200 formal decisions which the Board has rendered. In general my decisions have been those of the Board. Insofar as our decisions have coincided, I believe that elaboration is not now necessary.

The main field in which the American Federation of Labor has taken issue with my dissents is that of the question of the appropriate unit. Chairman Madden has termed the problem of the appropriate unit a "difficult and perplexing one." Certainly, no single question which the Board has faced has been more persistently complex and vexatious. The possible variations of bargaining units are as numerous as the circumstances which come before us in each case. The exact lines of an appropriate bargaining unit, whether industrial, craft, or some other, can rarely be drawn with complete assurance that we are right in including some individuals and excluding others. As the Chairman and the Board's report have described, the Board has in its decisions given weight to many factors, such as mutuality of interests among employees, comparative wages and skills, past history of collective bargaining, and the desires of the men.

The administrators of the Railway Labor Act have had similar difficulty with the question, even in an industry where union organization has reached a relatively high and stable degree of development. There are a host of serious problems which, even after almost half a century, the American Federation of Labor has itself not been able finally to solve on the question, of what type of worker belongs in what type of union in a given industry. That is why the American Federation of Labor has industrial unions, semi-industrial unions, craft unions, multiple-craft unions, and so forth. Moreover, the jurisdiction of many of the unions of the American Federation of Labor has necessarily changed from time to time, either by amendment of their constitutions and charters, or as the result of interpretations made by the executive council and the conventions of the federation. These changes are in response to alterations in the nature of industry itself, which bring about new groupings and new bonds of economic interest among workers themselves. The experience of the A. F. of L., as well as the Board, is a powerful argument for the Congress to refrain from casting into a precise statutory mold a subject which must admit of changing judgment in the light of changing circumstances.

So varied indeed are the circumstances which even now present themselves to the Board as we pass from one case to the next that even among three persons, each seeking the same objective under the statute by which we are all bound, there has been room for bona fide disagreement. I am certain that the members of this committee would, after examining the records in some of the more thorny and complex cases concerning the appropriate unit, reach different conclusions among yourselves concerning the proper unit.

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Hearings, Reports and Prints of the Senate Committee on ..., Partes9-12