directed by the Board, that it must rid itself of these objectionable persons in order to get its status redetermined. The suggested procedure is practically as sweeping an enforcement device as is provided in the present bill, since a mere finding of Communist influence would cut off the union from all the prerogatives that failure to comply with specific orders of the Board does under the present bill.

II. DETAILED REASONS FOR CHANGES

Following is a more detailed analysis of individual changes. Wherever the change is necessitated solely by the above-mentioned shift in operation of the bill from both organizations and individuals to only organizations, the Roman numeral I appears after the suggested change. Where the change is indicated in whole or in part by considerations other than this change in focus, such considerations are set forth.

2:5-6-I.

2:15-16-I.

3:2—This change is suggested in order that no labor organization against which a declaration of Communist influence is outstanding can avoid the effect of such declaration by any merger or reorganization.

3:23-5: 19-These charges carry out the approach described in I above. The definition of "Communist influenced labor organization" is phrased in terms of actions or tendencies to act. Likewise, the definitions of "Communist labor official" and "political strike" emphasize action.

5:20-I.

5:20-21-I.

6:1-The adjective "any" is necessary here because the change in 5:20-21 deletes the prior mentioned "individual.”

6:2-I.

6:5-The adjective "certain" is susceptible of an undesirably restrictive interpretation.

6:7-I.

6:9—I.

6:10-11-I.

6:20-23-I.

6:25-I.

7:5—6—I.

7:8-The phrase "present evidence" is substituted for the phrase "give testimony" in order to broaden this provision and insure the right to present documentary as well as oral evidence.

7:9-This change is necessary in order to be consistent with the sentence beginning on 6: 24, providing for notice of hearing.

7:11-See 7: 8.

7:22-8: 2-The provision allowing subdelegation has been deleted because of its dubious constitutional implications. The question of subdelegation has never been squarely passed on by the Supreme Court, but at least would furnish an added ground of attack on the bill (Cf. Morgan v. United States, 298 U. S. 468, 80 L. ed. 1288).

8:17-11: 10-Here the provisions of section 3 and section 5 of the present bill, both relating to the disabilities resulting from a Board order, have been consolidated under one heading. As explained in I, above, it has been thought best to confine the Board to a simple declaration from which the disabilities follow automatically. There is no need in a bill the purposes of which are those of this bill to give the Board discretionary power to frame its orders in a manner such as it believes would effectuate the policy of the bill. Likewise, the penalties are confined strictly to deprivation of privileges otherwise granted to labor organizations by Congress. This is thought desirable because of the opinion of Chief Justice Vinson in Douds where he stresses the fact that the non-Communist oath provision of the Taft-Hartley Act imposes no criminal penalties, but merely denies resort to privileges conferred by Congress.

The requirement that the Board's order have become final before it is operative is inserted in the interest of fairness to the organizations and of following established procedures. The more general practice is to deny efficacy to the orders of the agency until a court has ordered them enforced; see e. g., Federal Trade Commission, 15 U. S. C. 45 (c); National Labor Relations Board, 29 U.S. C. 160 (e); Federal Communiications Commission (semble), 47 U. S. C. 401, 402; Subversive Activities Control Board, 50 U. S. C. 793 (b); on the other hand,

orders of the Securities Exchange Commission (15 U. S. C. 771 (b)) and of the Federal Power Commission (16 U. S. C. 825) are effective immediately, subject to the discretionary power of the agency or of the reviewing court to grant temporary stays. A declaration by the Board under this bill could well sound the death knell for a union; even if the order were effective only for a few months it could seriously cripple the union. Such a result should obtain only after the union has had a chance to challenge the Board's order in the reviewing court.

In (i) the termination of all collective-bargaining agreements is spelled out in detail in order that there may be no mistake about the retroactive application of the bill.

In (iii) the language is made specifically applicable to a petition filed with the NLRB "thereafter or theretofore." This is to obviate the result reached by the Supreme Court in N. L. R. B. v. Dant, 344 U. S.

The provisions of (v) have been thought necessary because of the unwillingness of some of the courts of appeals to bar the NLRB from processing a complaint brought ostensibly by individuals, even though it was fairly clear that such individuals were "fronts" for a noncomplying union. See e. g., N. L. R. B. v. Augusta Chemical Co. (5th Cir.), 187 F. 2d 63, 64; N. L. R. B. v. Clausen (3d Cir.), 188 F. 2d 439; Contra, N. L. R. B. v. Alside, Inc. (6th Cir.), 192 F. 2d. 678. In (e) the Board is required to issue a declaration where it concludes that an organization is not Communist influenced. It is elemental fairness to give a conclusion favorable to an organization the same publicity as is given an adverse conclusion.

In (f) it has been thought desirable to put a moratorium of 1 year on the union's right to reopen a proceeding. This will make an adverse decision by the Board which is in turn sustained by the courts a more serious blow to a labor organization than if such organization could immediately reopen the proceeding. Therefore, the unions coming up for adjudication before the Board might well feel that prudence was the better part of valor and clean house on their own. In so doing, they might well rid themselves of officials who could not constitutionally be reached by any law.

11:11-13: 4-The detailed provisions in section 4 of the present bill are probably superfluous. A short statement of the desired result will save verbiage and at the same time prevent the courts from saying that by detailing the corners which may be cut in an emergency, Congress has in effect forbidden the Board to cut any other corners. A short expression such as is suggested here will prevent this application of the rule of expressio unius, exclusio alterius. 13:4-15:3-Section 5 is now incorporated in section 3.

15:3-18:1-These changes have been partially explained in I above.

"The Board shall consider" has been substituted for "the Board may consider" in order to make the provision mandatory. Congress should do more than permit the Board to consider such highly relevant factors; it should require the Board to consider them.

The detailed language regarding affiliation in (i) should give the provision as sweeping an effect as possible, and avoid any repetition of the problem presented to the Supreme Court in NLRB v. Highland Park Mfg. Co. (341 U. S. 322, 95 L. ed. 969). This same language is repeated in each of the subsections.

The provisions of 6 (b) (5) have been added because of their obvious relevancy and usefulness as a source of information. The provisions of 6 (b) (6) are added because such information also may be relevant. Certainly where an individual can be compelled to take the stand, as he can here, this not being a criminal proceeding, his refusal to answer on grounds of self-incrimination can be upheld only if a relevant answer would incriminate him. His refusal to answer is in effect an affirmation that the truthful, relevant answer he would give would be at least a "link in the chain" of evidence tending to incriminate him. The Board can use this line of analysis to support its finding against unwilling individuals and thus dispense with the necessity for immunity contained in the present bill. The refusal to answer on grounds of self-incrimination has long been held admissible in a civil proceeding, and a fair subject of comment even in a criminal proceeding. See Adamson v. California (332 U. S. 46, 60, 91 L. ed. 1903, 1913) and cases cited.

18:1-4 Since this bill merely gives an added function to the Board, there is no reason to think that the provisions of the Internal Security Act would not apply to the Board in carrying out this function even without the specific enumeration of those provisions in this bill.

18:5 "Its" is substituted for "such," since in view of the change in 18:1-4, there is no longer any antecedent to which "such" relates; the same effect is obtained by inserting the word "hereunder" after "functions."

18:13-I.

18:15-I.

18:16-18-I.

19:1-2-This change is necessary to achieve consistency with similar references in other parts of the bill.

20:6-14-Though this provision appears in the Internal Security Act, neither the reason nor the necessity for it is at all clear. Unless such reason or necessity is made apparent to the committee, there is no point in putting in such a vague and all-inclusive provision.

20:15-21: 4-See comment under 15:3-18:1, 6 (b) (6).

21:4—I.

21:13-I.

21: 16-17-Since the only action taken by the Board will be a finding of fact, it is desirable to call it a declaration rather than an order.

21:17—1.

21:18-I.

21:18-An emphatic statement of finality and immunity to collateral attack is more appropriate in this section than elsewhere.

21:20 This provision has been broadened to encompass an individual who appears on behalf of an organization but is neither a party nor a counsel. 21: 21-See 21: 20.

21:23-23: 8-The procedure for judicial review has been revised in order to more clearly designate the circuit court in which review may be sought. It is a more standard practice to require the person aggrieved to actually seek the review than the agency, and certainly such a practice imposes no great hardship on the person aggrieved. Specific reference to the Court of Appeals for the District of Columbia has been omitted, since that court is already burdened with a great deal of review of agency action; and unless a labor organization were actively engaged in representing employees in the District of Columbia, the Court of Appeals for the District should not be called upon to review the action of the Board under this bill. The provision relating to judicial review has been shortened because much of the language in the present bill appears unnecessary.

23: 23-The power of the court on review to modify an order of the Board has been deleted. This is because it is now contemplated the Board will issue only a finding of fact to the effect that an organization is or is not Communist influenced. Thus there would be no purpose to be served by allowing a court of appeals to modify such a declaration.

24: 19-I.

24: 21-24-I.

25: 2-I.

25:6-I.

25: 11-I.

25: 12-26: 19-For constitutional purposes as suggested in section I above, it is desirable to eliminate all of the criminal penalties contained in this bill since they give no added efficacy.

26: 19-26: 23-No reason is apparent for this provision and, therefore, it is deleted.

26: 23-27: 2-The existing non-Communist-oath provisions of the Taft-Hartley Act should not be repealed until it is certain that this substitute bill will stand up in court.

27:14 I.

27: 14-15-The bill in its present form would give the Board power to order an election upon the mere commencement of proceedings by the Attorney General. This in effect passes judgment on the organization before it has had a hearing.

SUGGESTED CHANGES IN S. 1254

2:5-6-Delete "and persons functioning as Communist labor representatives." 2: 15-16-Delete "Communist labor representative" and substitute "such labor organization."

1 Number preceding colon refers to page (number), of S. 1254; numbers following colon refer to lines.

3:2—Add, after “as amended", the following: "The term labor organization' shall include any successor organization created or utilized in whole or in part for the purpose of evading any provision of this Act."

3: 23-5: 19-Delete all of section 2, subsection 5, beginning on this line, and substitute the following:

"(5) A 'Communist-influenced labor organization' is one which (a) is likely to engage in or to solicit others to engage in (i) political strikes as herein defined or (ii) any other concerted activity one of the purposes of which is to aid the world Communist movement or (b) allows its policy to be directed or in any substantial degree influenced by one who is a Communist labor official, as herein defined, whether or not such Communist labor official is an officer or member of the union.

"(6) A 'Communist labor official' is one who is in any substantial degree influential in formulating or executing any part of the policies of a labor organization, whether or not he is a member of such labor organization, and who advocate or counsel that such labor organization engage in the practices set forth in subsection 5 of this section.

"(7) A 'political strike' is any concerted work stoppage, one of the purposes of which is to aid the world Communist movement."

5: 20-After "any," insert "Communist influenced."

5: 20-21-After "organization", delete "or individual found to be a Communist labor representative."

6: 1-Before "individual", insert "any."

6: 2-Delete "or individual."

6: 5-Delete "certain."

6: 7-Delete "or individual."

6:9 Delete "labor representative" and substitute "influenced labor organization."

6:10-11-Delete "the persons named therein whom he alleges are Communist labor representatives" and substitute "such labor organization." 6:20-23-Delete remainder of paragraph, starting "and any or all." 6:25-Delete "persons" and substitute "organizations."

7:5-6-Delete "organization and the persons" and substitute "organizations." 7:8 Delete "in person or otherwise and give testimony" and substitute "and present evidence."

7:9-Delete "complaint" and substitute "notice of hearing." 7:11-Delete "testimony" and substitute "evidence."

7:22-8: 2-Delete sentence beginning "in appointing."

8:17-11: 10-Delete from sentence beginning "If, upon the preponderance" to the beginning of section 4 on page 11, and substitute the following:

"(d) If, upon the preponderance of the evidence, the Board finds that any labor organization named in the petition is a Communist-influenced labor organization, it shall issue a declaration to that effect and serve copies of such declaration on such organization, on the National Labor Relations Board, and on the Attorney General. When any such declaration becomes final, it shall have the following effects:

"(i) All collective-bargaining agreements to which such labor organization is a party shall be deemed to have terminated by operation of law and shall be of no further force or effect whatsoever.

"(ii) No employer shall be obligated to recognize or bargain with such labor organization as a representative of any of his employees.

"(iii) The National Labor Relations Board shall have no jurisdiction to entertain or process any charge or petition filed thereafter or theretofore by such labor organization under the provisions of the National Labor Relations Act, as amended, or to permit such labor organization to intervene or participate in any proceedings, including representation elections, under such Act.

"(iv) The limitations on the jurisidiction of the courts in labor dispute cases prescribed by section 20 of the Clayton Act (38 Stat. 738) and sections 1 and 7 of the Norris-LaGuardia Act (47 Stat. 70, 71) shall not apply to labor disputes to which such labor organization is a party.

"(v) Any proceeding brought by an individual before the National Labor Relations Board or any court, which, if brought by the labor organization with which such individual was affiliated at the time his alleged cause of action arose, would be affected by subparagraphs i-iv of this subsection, shall be affected to a like extent by this section if such labor organization would derive any advantage from such individual's successful prosecution of such proceeding, whether

or not such individual would also derive any advantage from the successful prosecution of such proceeding.

"(e) If the Board shall find that any labor organization named in a petition is not Communist influenced, it shall issue a declaration to that effect and serve copies of such declaration on such organization, on the National Labor Relations Board, and on the Attorney General.

"(f) Not less than one year after a declaration of the Board has become final, the labor organization adversely affected by such declaration may file with the Board a verified petition for a redetermination of the existence of Communist influence in such labor organizations. Copies of the petition shall be served on the Attorney General, who shall be a party to the proceeding. If on the basis of the facts set forth in the petition there is reason to believe that Communist influence in such labor organization no longer exists, the Board shall hold further hearings to consider evidence of events which have occurred since the issuance of the declaration. No evidence shall be received which was received at prior hearings to which this organization was a party. If, upon the preponderance of all of the evidence received at all of the hearings to which such labor organization was a party, the Board finds that such labor organization is no longer a Communist-influenced labor organization, it shall issue an order rescinding its previous declaration and serve copies of such order on the labor organization, on the National Labor Relations Board, and on the Attorney General. Not more than one petition for redetermination involving a particular labor organization shall be filed within any one-year period." 11:11-13: 4–Delete all of section 4 and substitute the following:

"SEC. 4. When, upon allegations contained in the petition of the Attorney General there is reason to believe that the national security would be injured by an interruption in the production or delivery of goods of any employer whose employees a labor organization named in the petition represents or claims to represent, the Board shall take all steps to expedite the proceeding consistent with appropriate recognition of the rights of the parties under the circumstances."

13:4-15:3-Delete all of section 5.

15: 3-18: 1-Delete all of section 6 and substitute the following:

"SEC. 6. (a) In determining whether a labor organization is Communist influenced, the Board shall consider, among other things:

"(i) Whether it or any international, national, regional, or local labor organization with which it is affiliated or of which it is a constituent part, or which is affiliated with it has at any time engaged in or aided an organization engaged in a political strike.

"(ii) Whether it or any international, national, regional, or local labor organization with which it is affiliated or of which it is a constituent part, or which is affiliated with it, has accepted financial or other support from a Communistaction organization, Communist-front organization, Communist foreign government, or the world Communist movement.

"(iii) Whether its funds, resources, or personnel, or those of any international, national, regional, or local labor organization with which it is affiliated or of which it is a constituent part, or which is affiliated with it have been used to promote by word or deed the military, economic, or political policies of any Communist-action organization, Communist-front organization, Communist foreign government, or the world Communist movement.

"(iv) The extent to which its declared positions on public questions, or those of any international, national, regional, or local labor organization with which it is affiliated, or of which it is a constituent part, or which is affiliated with it have not deviated from those of Communist-action organizations, Communistfront organizations, Communist foreign governments, or the world Communist movement.

"(v) The extent to which its members are or ever have been members of any Communist-action organization, Communist-front organization, Communist foreign government, or the world Communist movement.

"(b) In determining whether any person is a Communist labor official, for the purpose of in turn determining whether a labor organization is Communist influenced, the Board may consider, among other matters:

"(1) Whether he has aided by funds or services any Communist-action organization, Communist-front organization, Communist foreign government, or the world Communist movement.

43903-54-6