(The letter referred to follows:)

Hon. JOHN MARSHALL BUTLER,

United States Senate, Washington, D. C.

APRIL 28, 1953.

MY DEAR SENATOR BUTLER: I find your letter of April 20, to which was attached a copy of your bill, S. 1606, pertaining to the control of Communists in labor unions, when I returned to my office this morning. A quick glance at the bill indicates one outstanding virtue it has that is possessed by none of the others that have been suggested. I refer to the provision whereby you take a leaf out of section S (b) (4) and 10 (1) of the Taft-Hartley Act and, in effect, issue an injunction restraining the NLRB from entertaining any business from the union under consideration at the very threshhold of your investigation.

That

is when preemptory action is most necessary, but I am afraid it will kick up considerably more of a disturbance than has thus far been caused by the injunction provisions of Taft-Hartley.

As you may well suppose, I am giving a great deal of study to the present investigations that are being made concerning the Taft-Hartley Act and hope to be able to come up with some suggestions that will be of value to the Congress if we can just find appropriate sponsors for them.

This business of handling the Communists to many is like handling almost any other knotty problem, and you will not have solved it unless someone takes hold of it with very firm hands and, continuing his grip, forces it through to final recognition.

I regret my inability to find anything that is honorable in any position the Communists take, or any movement or promises they make. Apparently those who are individuals in the Communist Party and those who are the international organizations in the world structure live by the same philosophy, and that is that their world is theirs to plunder and to lie and to cheat, and that any method of doing so is wholly justifiable. My answer to that is to scrap the United Nations, bring out our generals who are of the MacArthur and Van Fleet type, recognize that there is one treatment for the rule or ruin bully, call for volunteers to apply that treatment, and then proceed. To be sure, it will cost some American lives and be another drain on our economy, but if we continue to treat these Communist nations, and the individuals of the party as those who have either national or personal consciences, sooner or later the entire civilization of the world is going to find it is backing off the shelf edge of a cliff into nothingness.

This is not intended as warmongering, but is just another type of genuine Americanism which, once upon a time, prodded our Pilgram Fathers to pay bounties for the scalps of bears and other predatory animals when they very well could have used the money for other purposes.

Sincerely,

ROBERT N. DENHAM.

Mr. DENHAM. Going back to discussing these questions of possible minor things in the text, I can only make one suggestion, and that is, that nothing be left to the imagination in planning a bill of this sort and in finding any of the remedies which are sought.

I think that it would be well to give consideration—if it can be done to things that may not be available now, and one of those things is the FBI records.

I do not know to what extent you have those records available, but get those records of persons who would be made the subject of charges under section 117.

One of the great powers that the Labor Board has is in the source of its investigation and the extent, the places, to which it can go in its investigation.

They have been given very broad power of invesigation, and you should have the same thing for your Board in this case. It would have to make some extended investigations and some very keen ones, in order to arrive at the point where it could consistently say to the Labor Board, "Here is a suspension order against this organization.” That is No. 1.

Mr. ARENS. Could I interpose a comment, and ask you what you think about it, Mr. Denham, so that this record brings up all the is

sues.

Do you think it would be conducive to clarify, still keeping the bill effective, if it were prescribed exclusively who it is that would bring the charges under 117?

Mr. DENHAM. That, of course, raises another question, and I am now going back to problems that we met in the Labor Board that parallel the problems that are inherent in this.

Under the National Labor Relations Act, anybody can bring a charge.

It does not have to be an employer. It does not have to be a union. It doesn't even have to be an employee, when you get right down to it. If you want to limit the source of your charges, where would you place your limit?

Mr. ARENS. I do not know. I was just wondering if you had a comment to make on that particular issue, because, as our 117 is presently drafted, there is no specification as to who would bring the charge.

Mr. DENHAM. You have the same language here that is in the TaftHartley Act and in the old Wagner Act, practically identical. Mr. ARENS. Do you think there should be a specification?

Mr. DENHAM. Well, in a case of this sort, the entire country's welfare is at stake and is involved, and I just hate to let anybody file a charge, because you are bound to have a lot of crackpot charges.

On the other hand, if you set limitations which will prevent the individual who has some real information from filing a charge, you may limit yourself out of court. I would rather give a whole lot more thought to a suggestion like that than I have had an opportunity to give since a telephone call yesterday morning, but I just do not know where you would place the limit as to who might file charges.

Mr. ARENS Well, you have a possibility of two extremes. You have the possibility of your crackpot coming in and, as you say, cluttering up your procedures, and on the other hand, if you get too specific in designating who should bring the charge, that person may not be disposed to bring charges when they ought to be brought.

Mr. DENHAM. That may be.

We attempted to do this in connection with the National Labor Relations Board—and I think it could be equally applicable here: There were a great many charges filed in the Labor Board by labor unions who wanted to throw up a roadblock against some action by a rival union, or some one who probably wanted to charge an independent union with being company dominated.

Particularly was that true in representation cases where a contesting union was not quite ready for the election, and they would file a charge, utterly baseless, because the Board had a rule that it would not process a representation case as long as there was a charge outstanding.

I set up a procedure which took a long time to get underway. It required that when a person filed a charge, he had 72 hours, I think it was, within which to produce to the Regional Office, sufficient evidence of his own bona fide and the prima facie value of his charge, to justify the office proceeding on it.

Until he did that the investigators were simply barred from going out and trying to do anything. He had to bring in something to

justify the charge. It worked fairly well, because the rule was, that the regional office was compelled to dismiss the case, dismiss the charge, if they did not get that material in within a reasonable time.

Of course, they extended the 72 hours very frequently, to more time than that, but it did serve to keep the docket clear of crackpot charges. Something of that sort might be a rule here. It might be a regulation of the Board. It might be incorporated in here under certain regulations that the Board might publish or adopt, or you might write them into the act, but I certainly would have that in mind as a protective move to do away with the crowding of your docket.

Mr. ARENS. Mr. Denham, I invite your attention now, if you please, to the language appearing on page 2 of S. 1606 in lines 11 and 12 particularly, which read as follows:

** * the Board shall investigate such charge and if it has reason to believe that allegations therein contained are meritorious, it shall issue and cause to be served * * * do you have any observations or comments to make on that language?

Mr. DENHAM. The word "meritorious" is, I think, one that could be improved upon.

What you are actually intending to say is that, if the Board has reason to believe that in substance the allegations as contained in the charge are true and provable, it shall issue and cause to be served, a complaint, etc. In other words, it may have reasons to believe that the allegations are true, but still not have reason to believe that it can prove them, and in that event any action would probably be purposeless.

I think that you will find that the use of unequivocal language in a matter of this sort, particularly is highly essential. The Communist mind and the minds of two or three other classes of persons who come afoul of regulatory language are addicted to the use of semantics in everything they say and do, particularly when they are trying to give an obscure or double meaning to a piece of legislation.

For that reason, in anything that I have had occasion to write, I have tried to put it in unequivocal language, that is capable of but one meaning, and which will cover as much as possible of the question that might be raised. I would suggest that some language similar to what I have just suggested be substituted for that word "meritori

ous.'

Mr. ARENS. Now, may I invite your attention, if you please, sir, to any other items in this particular bill, or any other bill of this character pending before the committee, on which you would like to comment?

Mr. DENHAM. On page 2 in line 6, and again on page 3 in line 17, we find the use of the words "who have consistently aided, supported, or in any manner contributed to."

Again you find a word there which might be manhandled and mishandled in the use of the term "consistently." It does not occur to me right at the moment what other term could be used that would more clearly set out what is intended there.

Mr. ARENS. In other words, your thought there is that some Communist-controlled organization could point to one deviation from the norm of its conduct which would break the "consistency?"

Mr. DENHAM. That is correct; yes, sir.

My impression is that that is another place where you will find a possible hole being poked in the thing. Now, the principle that is involved here is an excellent one, and I want to just think out loud, if I may, for a moment, concerning the effect of a suspension order, beginning on line 25 at page 2, going through the top 4 lines of page 3.

* * * order providing that such labor organization shall be ineligible to act as exclusive bargaining agent or to become, or to continue to be, the recipient of any procedural or substantive benefit under or by virtue of the Labor-Management Relations Act of 1947, as amended.

Now, it is very clear to me what we are driving at there, but again, if you should by chance run into the thing which we have been confronted with in the National Labor Relations Board for quite a number of years up until the last 6 months or so-and that is the propensity on the part of the Board and its staff or those who really do the work for the Board members, to avoid exactly the thing that this suspension order provides for, or something of that same nature, not necessarily in connection with communism-and you run into a new word of that sort, you might find that this language would be again subverted.

What you are driving at, as I see it, is to provide that such labor organization shall not be eligible to institute, either by itself or through anyone acting on its behalf, as a front or as a disclosed or undisclosed representative, any proceedings before the National Labor Relations Board, and the National Labor Relations Board shall not have jurisdiction to entertain any such effort to institute proceedings of any character. That is one point.

And, in the event that such an organization has been certified by the Board as a bargaining agent, the effect of such certification shall be suspended.

Mr. ARENS. Could I ask you a question right there?

Mr. DENHAM. May I just add one thing?

Mr. ARENS. I beg your pardon.

Mr. DENHAM. And that if, in any event, such organization has been recognized by an employer without certification by the Board, none of the provisions of the Labor Management Relations Act imposing obligations upon the employer shall be applicable as between the employer and the designated union or any of its members or representatives.

Mr. ARENS. Could there be a possible problem here, Mr. Denham, along this line?

Here would be a labor organization that was Communist-controlled named the XYZ labor organization.

Tomorrow it is served with this intermedial suspension order. The next day it changes its name from the XYZ to the ABC organization, and goes right on.

Should there, in your judgment, be some language here which would preclude change of name or which would identify?

Mr. DENHAM. In the specific law, with reference to making it applicable?

Mr. ARENS. Predecessor or successor.

Mr. DENHAM. Predecessor or successor to that organization. I am pointing out things where you are liable to run into decisional problems in connection with the interpretation of the application of this

thing, which we have seen paralleled in the interpretation of the National Labor Relations Act.

I have not had an opportunity to investigate section 13 (c), (d) (1) and (2), (e), and (f), of the Subversive Activities Control Act of 1950, as amended, to determine the limitations, if any, or the definitions, if any, of the method of proceeding with the hearings that are provided for.

Now, we have the Administrative Procedure Act, which undoubtedly would come into play in any such hearings, and you may want to take into consideration the extent, if any, to which you may want to deviate from some of the phases of the Administrative Procedure Act.

The Administrative Procedure Act provides that the hearings must be held before a qualified trial examiner, and that the established rules of procedure and evidence, as far as practical, will be followed.

It sets up a lot of the rules of procedure that are designed to protect the public in connection with the proceedings of our various adsentation cases.

On the other hand, there are certain exceptions that are especially provided for in, I think, section 5 of that act. You may want to study the applicability of the Administrative Procedure Act to these hearings, and the question of whether, and to what extent you want to loosen up the conduct of those hearings, by giving the Board or its examiner, a greater degree of liberty in his conduct of the hearings.

As a matter of fact, there are several exceptions that are written into the Administrative Procedure Act which, for instance, make it possible for a hearing to be conducted before someone other than a qualified trial examiner.

That is true in the Labor Board again, with reference to representation cases.

Now, at times, it has been rather embarrassing to everyone that that exception is in there because, in connection with representation cases, you can get into some mighty hot, knockdown and drag-out legal battles, and to have a case heard before somebody who is inept and does not know the rules of evidence and does not know procedure and probably is not even an attorney, as frequently happens, results in a record that, when it gets down to the courts, is poorly made; and, unfortunately, when they do that, the Board says "We are not going over any of that any more, we have already litigated it in the very informal hearing in the representation case.

That is the extreme of the thing that can happen when any administrative body is excepted from the provisions of the Administrative Procedure Act.

On the other hand, there are a lot of things where it probably can be excepted. But in these cases you are going to run into a great program of obstructive tactics. You are going to have a bad time when these hearings are held, at best, and I think it would be smart to take a look at all of the rules of due process, and see that they are observed.

However, I do not think that you should go all out on some of these things, so that they could take advantage and keep you in court for the rest of your life.

(Discussion off the record.)