(Thereupon, at 3: 22 p. m., Tuesday, July 12, 1955, an adjournment was taken to meet at the call of the chairman.) (Additional statements and letters relating to H. R. 3:) THE STATE OF WISCONSIN, INDUSTRIAL COMMISSION, Mr. FRANCIS E. WALTER, Chairman, Committee on the Judiciary, Subcommittee No. 1, DEAR MR. WALTER: The purpose of this letter is to place ourselves on record as endorsing bill, H. R. 3, 84th Congress. We wish to cite an example showing how the administration of an act of Congress, the Fitzgerald Act, seriously interferes with the administration of a State law. Such interference has resulted in conflict and in bad relations between management and labor in some industries. The Fitzgerald Act (adopted in 1937) is administered by the Bureau of Apprenticeship, United States Department of Labor. It authorizes the Bureau to further labor standards of apprenticeship and "*** to cooperate *** with State agencies in the formulation of standards of apprenticeship.") The quotation is taken directly from the law. The Bureau of Apprenticeship has six men and the necessary clerical help stationed in Wisconsin. Since 1911, Wisconsin has had apprenticeship law. It is administered by the industrial commission apprenticeship division and from the beginning it had the support of management and organzed labor. Over the years we developed workable policies and procedures in cooperation with individual employers, trades, and trade groups. We took into account the fact that practices with respect to employment and training of apprentices vary consderably between industries and trade groups. The program was highly successful as official records will indicate. Then along came the Bureau of Apprenticeship. That agency concentrated its early efforts on the construction trades. It created national joint apprenticeship committees in all of the major building trades and these committees in turn promulgated national apprenticeship standards; the idea being that States would adopt these standards and encourage their usage in each community within the State. Also, the Bureau advocated creation of State, local, and area joint apprenticeship committees. All of this was not new to Wisconsin so far as concerned the building trades. As a matter of fact, the Bureau's building trades apprenticeship program was copied from Wisconsin's long-established plan; lock, stock, and barrel, with the exception that our joint apprenticeship committees acted in an advistory capacity whereas the Bureau advocated that such bodies be administrative in nature. Another difference was that the Bureau plan contemplated that creation of joint apprenticeship standards be made a condition for employment of apprentices in all trades and industries. However, the Bureau of Apprenticeship made the fatal mistake of assuming that what was good for the construction industries must be equally good for the manufacturing industries. Also, in promoting a national apprenticeship program, the Bureau of Apprenticeship failed to give due recognition to the fact that apprenticeship in some States is governed by State law. That is when trouble began, especially in the manufacturing industries. The UAW-CIO adopted the type of apprenticeship recommended by the Bureau of Apprenticeship. Now when this organization negotiates the collectivebargaining agreement with our manufacturers, it insists the plan include a joint apprenticeship committee and apprentice standards. Attempts are made to give these committees control of the apprenticeship. In Wisconsin this authority is vested in the industrial commission by State law. Threats of strikes have been made in our State in cases where manufacturers have been reluctant to enter into the arrangement. They prefer to deal directly with the State apprenticeship agency and to operate under the State apprenticeship law. At any rate, the result has been conflict, confusion, and resentment. On the other hand, so insistent has the UAW-CIO been that the Federal apprenticeship program be imposed upon our manufacturing industries that in a circular letter, issued by the organization's Detroit headquarters in February of 1954, Wisconsin members of the union were urged to take whatever steps were necessary to amend the State apprenticeship law to accomplish their ends. We are sure that it never was the congressional intent to let a Federal law, such as the Fitzgerald Act, so completely upset a successful apprentice-training program operating under a State law. A Federal law such as intended under H. R. 3 would have prevented the unhappy situation such as we now face in the manufacturing industries in Wisconsin. One further comment, in the State of Wisconsin Report of the Governor's Committee on Inter-Governmental Relations there is the following recommendation: "The Bureau of Apprenticeship staff should be reduced greatly so that its operation in the promotion of apprenticeship in this State should not overlap the same functions being performed by the industrial commission." Very truly yours, APPRENTICESHIP DIVISION, WALTER F. SIMON, Director. NATIONAL ASSOCIATION OF MANUFACTURERS, July 14, 1955. Hon. FRANCIS E. WALTER, Chairman, Subcommittee, House Judiciary Committee, DEAR MR. CHAIRMAN: On behalf of the National Association of Manufacturers, I am authorized to submit the attached statement in support of H. R. 3, by Congressman Smith, of Virginia, a bill to establish rules of interpretation governing questions of the effect of acts of Congress on State laws. You will understand, I am sure, the very deep interest and concern of the members of this association over the continuing trend toward centralization of power in the Federal Government resulting from numerous recent court decisions preempting various areas which Federal legislation has touched, even, in some instances, by implication. We, therefore, appreciate very much this opportunity to communicate our views to your committee. I trust this statement can be included as a part of the record of the brief hearing on this measure just concluded by your subcommittee and that your committee will take early and favorable action on this very important matter. I am forwarding herewith sufficient copies of this statement so that it can be made available to all of the members of the House Judiciary Committee. Sincerely yours, LAMBERT H. MILLER, STATEMENT OF THE NATIONAL ASSOCIATION OF MANUFACTURERS This statement is submitted on behalf of the National Association of Manufacturers in support of H. R. 3, a bill introduced by Representative Smith (Democrat, Virginia), to establish rules of interpretation governing questions of the effect of acts of Congress on State laws. The principal problems proposed to be dealt with by the Smith bill are those raised under our Federal system of government wherein either or both the several States and the United States may properly have jurisdiction over the same subject matter. Since one or the other must prevail when there is a conflict between State and Federal laws, it was necessary for the framers of our Federal Constitution to make a choice. That choice was made in the so-called supremacy clause of article VI, which provides that— "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Naturally, questions have arisen under this clause from the beginning. Until recent years, however, they did not usually constitute serious problems because Federal legislation was largely limited to matters of primary national concern in which uniform national regulation was required. During the past quarter century, however, the Congress has legislated on many subjects formerly governed entirely by the States. As a Supreme Court Justice has stated, this "extension of Federal authority over economic enterprise has absorbed the authority that was previously left to the States," and has presented a serious problem of construing Federal legislation "with due regard to accommodation between the assertions of new Federal authority and the functions of the individual States, as reflecting the historic and persistent concerns of our dual system of government" (Mr. Justice Frankfurter. separate opinion in Bethelehim Steel Co. v. New York Labor Relations Board, 330 C. S. 767, 779, 780 (1947)). In the same case, at page 771, Mr. Justice Jackson, speaking for the Court, commented that in the National Labor Relations Act then before the Court, "Congress has not seen fit to lay down even the most general of guides to construction of the act, as it sometimes does, by saying that its regulation either shall or shall not exclude State action." Each case raises a question of statutory interpretation in order to ascertain the congressional purpose. To aid the courts in this task, H. R. 3 would lay down two general "guides to construction," in the Supreme Court's words, or "rules of interpretation” in the words of the bill's title, by providing: "That no Act of Congress shall be construed as indicating an intent on the part of Congress to occupy the field in which such Act operates, to the exclusion of all State laws on the same subject matter, unless such Act contains an express provision to that effect. No Act of Congress shall be construed as invalidating a provision of State law which would be valid in the absence of such Act unless there is a direct and positive conflict between an express provision of such Act and such provision of the State law so that the two cannot be reconciled or consistently stand together." It will thus be seen that the bill does not propose substantive law of any kind but rather is designed, as stated in its title, merely "to establish rules of interpretation governing questions of the effect of acts of Congress on State laws." In our view, the bill would have no application in areas where the Federal Government is given exclusive power by the express terms of the Constitution itself, for example, the power to coin money, expressly granted to the Congress in article I, section 8, and expressly denied the States in article I, section 10. Likewise, the bill would not apply where, in the words of the Supreme Court, "the subject is one demanding uniformity of regulation so that State action is altogether inadmissible in the absence of Federal action. In that class of cases the Constitution itself occupies the field even if there is no Federal legislation" (Kelly v. Washington, 302 Ú. S. 1, 9 (1937)). The present bill would deal rather with those areas where power is vested both in the Federal Government and in the States. Since it would merely provide rules of interpretation for determining the intent and purpose of Congress in such areas, without creating substantive law or conferring powers on either Federal or State Governments, it would raise no constitutional question. In the latter areas of concurrent jurisdiction, the Congress has a wide range of discretion. At one extreme it may refrain entirely from exercising any regulatory authority, leaving the area entirely to State control. At the other extreme it may, under the supremacy clause, occupy the entire field to the exclusion of all State laws on the subject. Or it may exercise any degree of authority it desires between these two extremes. As the Supreme Court stated in Kelly v. Washington, supra, p. 10: "When Congress does exercise its paramount authority, it is obvious that Congress may determine how far its regulation shall go. There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, State regulation outside that limited field and otherwise admissible is not forbidden or displaced. The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by Federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot be reconciled or consistently stand together' (citing Sinnot v. Davenport (22 How. 227, 243 (1859)) and numerous subsequent cases applying this rule during the past century). This principle has been stated even more recently and more concisely in Rice v. Santa Fe Elevator Corp. (331 U. S. 218, 230 (1946)). There the Supreme Court said that where matters are within the Federal domain, "Congress may, if it chooses, take unto itself all regulatory authority over them (citing cases), share the task with the States, or adopt as Federal policy the State scheme of regulation" (citing cases). The Court noted that within this wide range the Congress may even make Federal regulation subservient to State regulation, as it had done in the original Federal Warehouse Act by a provision that "nothing in this act shall be construed to conflict with, or to authorize any conflict with, or in any way to impair or limit the effect or operation of the laws of any State relating to warehouses, warehousemen," etc. The Court stated that "the question in each case is what the purpose of Congress was." It then reviewed a number of standards by which it has sought to determine the congressional purpose, but it added that even with such standards "it is often a perplexing question whether Congress has precluded State action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the State and Federal regulations collide." The Smith bill would provide two rules of interpretation which would resolve this question of intent-that Congress does not intend to preempt unless it expressly so provides, and that it intends to "share the task with the States," in the Supreme Court's words, and does not intend to supersede any provision of State law except where there is a direct and positive conflict. Any different intent on the part of Congress in enacting a statute, for example, an intent to preempt on the one hand or to make Federal regulation wholly subservient to State regulation on the other, would be expressly stated in the statute. Thus the bill would raise no constitutional question. It would neither add to nor detract from the respective rights and powers of the States and the Federal Government. Where the Federal Constitution preempts, the States would acquire no power. The supremacy clause would be given full force and effect-where Congress intends Federal regulation to preempt it would so state and thereby accomplish that result, where Congress intends Federal regulation to be subservient it would state such intent and accomplish that result. and in the normal case where it intends to share the task of regulation and to override only those provisions of State law which are in direct and positive conflict, this result would flow from the present bill without further statement of intent. The need for such legislation is clear when State courts are led to invalidate their own laws because of mere possibility of conflict with a Federal enactment, as in Commonwealth v. Nelson (377 Pa. 58, 104 A 2d 133), decided by the Supreme Court of Pennsylvania on January 25, 1954. There the defendant had been convicted of violation of the Pennsylvania Sedition Act. On appeal the Pennsylvania Supreme Court pointed out that in view of the preeminence of the National Government's interest in defending itself efficiently and effectively against sedition, the Federal Government's control of the field must be exclusive if it is to protect itself effectively. Accordingly it held that the Federal Smith Act (18 U. S. C. 2384-2385), defining and punishing sedition against the United States, preempted the field and suspended operation of the Pennsylvania Sedition Act. The need for such legislation is perhaps more apparent in the field of labor relations, however, than in most others. Employment, as we all know, is essentially a local relationship between local parties living and working under local conditions with other local people all subject in most respects to local law. Their employment, however, is being increasingly regulated from Washington. In the area of labor relations, this Federal control is fast becoming complete to the exclusion of the States, all because of judicial findings that Congress so intended when it adopted and amended the National Labor Relations Act. Much has been written about the meaning and effect of the many decisions of the United States Supreme Court excluding the States from one area after another in the field of labor relations. It is no longer necessary to speculate on this subject since the Court itself, in one of its recent decisions, has undertaken "briefly to summarize where our decisions, under both the Wagner Act and the Taft-Hartley Act, have brought us." The Court stated in that case, Weber v. Anheuser-Busch, Inc. (- -U. S. -), decided March 28, 1955, that it has established these preemption principles in the cases cited: 1. "A State may not prohibit the exercise of rights which the Federal acts protect" (Hill v. Florida, 325 U. S. 538 (1945); International Union v. O'Brien, 339 U. S. 454 (1950); Amalgamated Assn. v. Wisconsin Employment Relations Board, 340 U. S. 383 (1951); Garner v. Teamsters Union, 346 U. S. 485 (1953)). In the Amalgamated and O'Brien cases the Court held that Federal protection of the right to engage in concerted activity renders the right to strike so absolute that the States cannot prohibit even strikes which interrupt essential public-utility services, nor can they even require notice before such strikes. In the Hill case, the Court held that the federally protected right to bargain collectively is so absolute that a State cannot even require licensing of union "business agents" to exclude aliens, convicted felons, and persons of bad moral character. 2. "A State may not enjoin under its own labor statute conduct which has been made an 'unfair labor practice' under the Federal statutes" (Garner v. Teamsters Union, 346 U. S. 485 (1953); Plankinton Packing Co. v. Wisconsin Employment Relations Board, 338 U. S. 953 (1950); Building Trades Council v. Kinard Construction Co., 346 U. S. 933 (1954); Capital Service, Inc. v. NLRB, 347 U. S. 501 (1954)). For example, in the Garner case, the Court held that State courts cannot enjoin conduct which violates both State law and the TaftHartley Act. 3. "A State may not certify a union as the collective-bargaining agent for employees where the Federal Board, if called upon, would use its own certification procedure" or "even if the Federal Board has refused certification, if the employer is subject to the Board's jurisdiction" (LaCrosse Telephone Corp. v. Wisconsin Employment Relations Board, 336 U. S. 18 (1949); Bethlehem Steel Co. v. New York State Labor Relations Board, 330 U. S. 767 (1947)). In brief, therefore, the Court has ruled that Congress intended to preempt the field and bar the States from dealing with any conduct which is either protected or prohibited under the Federal act, or with any representation maters within the Federal board's jurisdiction. Although the Court has repeatedly said that the Federal act leaves much to the States, its summary of its ruling listed only four cases where it has affirmatively upheld State power to act. These cover violence, mass picketing and similar conduct in breach of the peace, AllenBradley Local v. Wisconsin Employment Relations Board (315 U. S. 740 (1942)); intermittent strikes which the Court found "neither prohibited nor protected by the Taft-Hartley Act" (International Union v. Wisconsin Employment Relations Board, 336 U. S. 245 (1949)); compulsory unionism under a maintenanceof-membership clause (Algoma Plywood and Veneer Co. v. Wisconsin Employment Relations Board, 336 U. S. 301 (1949)); and damages based on violent conduct which a State court found to be a common-law tort, United Construction Workers v. Luburnum Construction Corp. (347 U. S. 656 (1954)). After thus summarizing the status of the labor preemption doctrine, the Court proceeded in the Anheuser-Busch case to project it into the field of antitrust law despite the fact that the traditional right of the States, under their police power, to enact and enforce laws regulating and preventing unreasonable restrainits of trade has long been recognized. As recently as 6 years ago, the Supreme Court had occasion to reaffirm this right of the State of Missouri, including that State's right to prohibit and enjoin union boycott activities which restrained trade in violation of the Missouri antitrust law (Giboney v. Empire Storage and Ice Co., 336 U. S. 490 (1949)). In doing so, the Court pointed out that this resolves to the basic issue whether the State can control unions or unions can control the State. It concluded that the State's power was paramount. Court's succinct statement bears repetition: The "*** it is plain that the basic issue is whether Missouri or a labor union has paramount constitutional power to regulate and govern the manner in which certain trade practices shall be carried on in Kansas City, Mo. Missouri has by statute regulated trade one way. The appellant union members have adopted a program to regulate it another way. The State has provided for enforcement of its statutory rule by imposing civil and criminal sanctions. The union has provided for enforcement of its rule by sanctions against union members who cross picket lines. (See Associated Press v. United States, 326 U. S. 1, 19; Fashion Guild v. Trade Commission, supra at 265; Addyston Pipe and Steel Co. v. United States, 175 U. S. 211 242). We hold that the State's power to govern in this field is paramount. ***" On March 28, 1955, however, in the Anheuser-Busch case involving the same Missouri law and similar facts, the Supreme Court held that Federal preemption under the Taft-Hartley Act precludes the State from enforcing its antitrust laws against union boycotts in violation thereof. The Court said that Federal labor preemption bars the State "even though that with which the Federal law is concerned as a matter of labor relations be related by the State to the more inclusive area of restraint of trade" (Weber v. Anheuser-Busch, Inc., U. S. (1955)). What happened here to Giboney and the State's paramount power to govern? The Court relegated Giboney to its last footnote on the last page of its opinion, with the statement that "no question of Federal preemption was before the Court; accordingly it was not dealt with in the opinion." It is quite possible that at the same time the Court relegated the traditional State powers in the antitrust field to a footnote in the pages of history. This case says that the Congress, in applying a mild unfair labor practice proscription to some of the worst abuses of boycott activities of unions, intended |