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Senate or the House, should be as carefully drawn as possible. You have been very fair about it, in adopting suggestions that have been made to you; but since last night there have been about five amendments suggested, and I think more.
Mr. WARRUM. Well, I do not know what they are. I accepted the suggestion of the chairman that there might be a loophole in the bill in so far as a company might organize to actually produce and ship coal in interstate commerce, and might attempt to evade the provisions of the law by selling to some individual who is not under the restraint of the law. Senator Couzens could have drawn that amendment just as well as I could, because he had a clear idea of it. Any suggestions that are made could be, I suppose, at the committee meeting, readily adopted.
For instance, this section 4 that has been read; I imagine that if I drafted it, it might still, as the draftsmanship of an individual, be subject to some criticism by some one else who would have worded it better. You can not meet situations of that kind.
Senator Hawes. You can not do it, Judge. You have done a fine piece of pioneering work, and that is what this is. This is absolutely a pioneering work.
Mr. WARRUM. I thank you for the compliment; but I do not want to be so overcome by your generous compliment, Senator, as not to press our proposition that we would like to get this bill on the calendar, so that at the next session men may know in the Legislature that this problem is there for solution alongside the deplorable condition of the textile industry, alongside of the farm problem, which involves factors that are equivalent to this—a disorganized competition, subject (as said by the Supreme Court of Kentucky in the Burley tobacco case) to the oppressive power of an organized purchasing source.
We want that considered, because it has been considered during the campaign. It was considered by both political parties when they drafted their platforms as one of the things that ought to be remedied. It is an appeal that can be made to members of both parties. It has its own moral appeal; and we feel that if we are not euchered out, if we are made one of the three, that we can urge that we be considered as one of the three subjects for consideration at the special session and that we be not put again, like a poor relation, below the salt, and allow the tariff to take precedence over the coal industry, which can not be protected by a tariff, and that the farmers be given what it seems they will be given, marketing associations and things of that kind for the strengthening of the industry, and we be left again on the outside.
We pray you, Senators, if it is possible, that you do what we have suggested. If you want to impose upon me any duty with reference to staying here—something that I heartily dislike; I mean, staying in Washington-I do dislike it, but I would stay here night and day if I can do anything that will advance the cause of this bill, by direction of the committee or by direction of individual Senators, if there is anything that needs rectifying and I can do it. I have had to assume, however, that whatever I did would still be subject to the careful scrutiny of members of the committee, and especially any subcommittee that might be appointed of lawyers or others for the purpose of passing upon this bill, and that the committee would have the final say about it anyway before it reported the bill.
Senator BLACK. Judge, may I ask you a question with reference to the wording on page 8, which refers to what I presume is the meat of the bill—at least, one phase of the bill--in so far as the laboring man is concerned, and affects fundamental rights to contract by collective bargaining?
As I understand, both parties have expressed themselves for many years in favor of collective bargaining and the right of the individual to contract. That seems to be a fundamental right which does not refer alone to the coal industry. If it is proper to enact legislation to protect that right for the men engaged in the coal industry, is it needed as a general bill! Why would it not be proper to give all men these fundamental rights if they need them?
Mr. WARRUM. God knows, I am perfectly willing if Congress will do it; but I do not know how, under the title of this bill
Senator BLACK. I do not think you could do it under this bill.
Senator Black. This seems to be a special bill with reference to the coal industry.
Mr. WARRUM. But there is a special condition in the coal industry, Senator.
Senator BLACK. I said I doubted-and I am asking you if you think so—I doubted if you could make a general regulation for all men engaged in work. What do you think about it? I am very frank to state, sir, that if this right and privilege is guarded for the men in the coal business, there are millions of men in other work who might have been oppressed by the same power.
Mr. WARRUM. All right. Now, Senator, I will try as logically as I am able to take up this proposition. I do not want to take much time because Mr. Townsend is to speak yet.
There are two provisions relating to what is called the individualservice contract, or the "yellow-dog” contract, or the right to contract. The first one is the primary licensee. That provision reads:
No such licensee shall make it a condition of employment that the employee shall not join a labor union, but the right of the mine workers employed by such corporations to organize and maintain their union shall not be denied or abridged.
It is not necessary for any company to come under the primary license. There is a grant of privilege there.
Senator BLACK. I understand that.
Mr. WARRUM. I say, if the grant of privilege can be extended, why card not the conditions be limited in that?
Senator Black. But why should not the grant of privilege be made to others?
What I am getting at is this:
I have had some little experience in trying some lawsuits in connection with this same thing where I have represented the men where I thought their rights had been impinged upon, not with reference to one union only but with reference to others. If the rights of the men are impinged upon, men engaged in any industry or business, why should there not be a general bill if it is necessary to protect them in' their fundamental rights?
Mr. WARRUM. I think there ought to be. I think the Judiciary Committee now is considering a general bill, but we want this!
Senator BLACK. I understand that you are representing the coal miners.
Mr. WARRUM. We are representing the coal miners. The primary licensee is given privileges, as you see.
We discussed yesterday whether or not the granting of the privileges to this industry under the circumstances was class legislation. We say that it is on the same footing as these agricultural associations and for the same reason as given by the Supreme Court in this Burley Tobacco Growers’ Association case. Now, if, then, you can legislate so as to give these operators in the bituminous coal-mining industry alone, and not everywhere, a right to combine to advance their economic strength and control them with reference to prices as to the public, why is it that the conditions can not be imposed upon that particular class in this law?
Senator BLACK. You misunderstand my question and the intent of it. It was not with reference to the constitutional right to select this particular group but with reference to the justice. My idea is that if the men are being impinged upon—and think they are--in many respects there should be a general bill to protect the rights of all of them.
Mr. WARRUM, But in dealing with a subject of that kind, what is wrong with giving the men the right to increase and exercise their combined economic power by collective bargaining with the operators ?
Senator Black. There is nothing at all wrong with it. I am for it.
Mr. WARRUM. I think, like you, that it ought to be a matter of general legislation; but it certainly ought not to be escaped or avoided in this bill. Senator WHEELER. I assume that
have had opposition enough to the one industry because it is attempting to change that.
Mr. WARRUM. Yes; although we have been met here by Mr. Emery, and people who have no particular interest in this bill except from a philosophical point of view, even professors of economy; but we do not want to take on a bigger fight in this bill than is necessary,
Senator BLACK. We might, if we agreed that those rights should be protected.
Mr. WARRUM. I think, Senator, you will have a chance to do that, because let me call your attention to the bill reported by Senators Blaine, Norris, and Walsh on this "yellow dog - contract. It outlaws the “ yellow dog ” contract as void, against the national public policy. We do not do anything of that kind; and this is not the American Federation of Labor bill, as you know if you are familiar with the discussion there. Theirs was the Shipstead bill, that undertook to strike down the equity powers of the courts. This is the bill reported by, I fancy, as good lawyers as there are in the Senate. They are certainly a subcommittee of the Judiciary Committee, which would lead the ordinary layman and outsider to assume that they were selected with reference to their legal talents to some extent at least. They say [reading]:
No undertaking or promise, such as is described in this section, or any other undertaking or promise contrary to the public policy declared in section: 2 of this act, shall be enforceable or shall afford any basis for the granting of legal or equitable relief by any court of the United States, including spec. fically the following:
Every undertaking or promise hereafter made, whether written or oral, express or implied, constituting or contained in any contract or agreement of hiring or employment between any individual, firm, company, association, or corporation, and any employee or prospective employee of the same, whereby
(a) Either party to such contract or agreement undertakes or promises not to joint, becomes, or remain a member of any labor organization or of any employer organization; or
(b) Either party to such contract or agreement undertakes or promises that he will withdraw from an employment relation in the event that he joins, becomes, or remains a member of any labor organization or of any employer organization.
There are two provisions relating to this so-called “yellow dog" or independent service contract. One is in relation to the primary licensees who have been given this power to gather around the big table, join hands, fixe prices, and incidentally, of course, to fix wages. We say that when that power, that economic power, is given them, the same rights shall be given their labor to act through their representatives not necessarily the United States Mine Workers, but to act through representatives of their own choosing in collective bargaining, which is an exercise of combined economic power.
The other provision is with reference to these corporations that do not want to come in. Now, let me just show you for a second what that provision is. These are the secondary licensees, corporations that do not care to come under the primary license, and that propose to operate under the secondary license, doing business just as they are now. [Reading :] If any such corporation,
That is, the secondary licenseedesires to employ only nonunion mine workers, its employees shall be free to terminate their employment and join a labor union at will, and no contract of employment which is intended to impair this right shall be lawful.
That is based upon this proposition, and this is as far as their rights actually go under the law to-day:
That if an employer wants to employ only nonunion men, if he wants to employ only Democrats, if he wants to employ only Presbyterians, this concedes his right to employ only nonunion men, Democrats, or Presbyterians; but he has no right to make that a condition of employment except at will; that he can not contract, as you know, Senator, from your connection with these cases that you speak ofthat he ought to have no right and legally has no right to enter into a covenant or contract with his labor that gives him a right to perpetuate the status of that labor; that if he says, “I want to employ only Presbyterians," he has a right to say, “Are you a Presbyterian? All right;
I will hire you, and I will not hire you any longer than you are a Presbyterian”; but he has no right to say, under a contract of employment of that kind or character, that the man can not terminate that relationship at will and join the Methodist Church. He has no right under that contract to say, “I have acquired a property right in the status of my employee, and if any Methodist elder comes around here trying to persuade my employee that the 39 articles are all wet, and that he ought to joint a real church, we will enjoin him "; and that is what they do with us.
He has a right to employ Democrats, we say; that is conceded; but he has no right to say, "I have acquired a status in the political tenets and affiliations of my men.” If he employs only Democrats, he ought to be willing to concede that that employment is terminable at will; and that is all we say there.
If any such corporation desires to employ only nonunion mine workers, its employees shall be free to tern ate heir employment and join a labor ion at will, and no contract of employment which is intended to impair this right shall be lawful.
Why, Senators, they talk about that infringing their constitutional rights! I say to you that that condition is imposed to maintain constitutional rights. Why, there are four other conditions in this, and only shame kept them from making the same argument with reference to those conditions.
Said employees shall have the right of assemblage for the purpose of peaceably discussing and hearing discussed principles of organized labor and collective bargaining.
hat is not an infringement of constitutional rights. That is a guaranty and an assurance of a constitutional right.
The employees of such corporation shall be paid in lawful money of the United States and be free to purchase their necessities of life where they choose.
Why do we say that? Because even the figure that has been given here showing the degradation of mine labor and the constant and continuing deflation of their wages is a false figure, because where they are paid the $3 or $3.50 a day they are required to take scrip or token money, redeemable at the company store, and in the ultimate analysis they get less than that.
These things all affect labor all over the country. They impinge upon the wages of the organized miners and upon the standards that they are trying to maintain. Why? Because with this cheap labor, among other things, they are absolutely taking the markets away from operators that try to pay a standard, an American standard, of wages and guarantee American standards of living.
Another condition that was not discussed would stand exactly on the same footing, and only shame kept them from discussing it:
Said employees shall be entitled to select a checkweighman to inspect the weighing of their coal, and the weights and scales used by said corporation for the purpose of determining the wages of its employees shall be open to inspection by the agents of the Bureau of Standard Weights and Measures of the United States or of this commission.
Why do we say that? That is because, in addition to the token money, their scrip redeemable only at the store, the deflation of their wages to a point that is ridiculous in this day, they deflate wages further by stealing the coal from the miner.
Why, just a word: I copied what I am about to read this morning from page 1454 of the proceedings. The committee had been hearing for some time about the way they stole the coal from the miners in the cars, and this occurred:
Mr. TOWNSEND. That was the case of Tony Rhodes v. Miller Pocahontas Coal Co., case No. 5939, decided by the Supreme Court of Appeals of West Virginia upon a writ of error and supersedeas from the circuit court of Wyoming County. The plaintiff received a judgment for $3,000
That is a good deal of money for stealing—stealing in this indirect and insidious fashion.