About 40 called on Puckett ab. same night a week later. Puckett promised to call a joint meeting, but didn't because of threats of violence-105, 146 (circled), 599, 604, 627, 632, 1301, 1338, 1353 (X), 1355, 1369, 1656 (X), 1675, 1771, 1784, 1847, 1882. Meetings at Library Park and RR tracks, threats of violence-946, 951, 966, 1339 (X), 1355 (X), 1359 (X). Hendrickson took lead in proceedings at P's house, altho not an officer1851, 1898. Hendrickson known to be good fighter-1856. Another call, told chgs. would be pressed-1343. Assn. advt. joint meeting-no charge for ad.-1358. (The above line is crossed out.) Thot they might form national org. with ind. unions at other plants, or might affiliate with A. F. L.-1317. Schmuck kept minutes of meeting even before being elected sec.-1394. "Easterly" to "1471" is crossed out.) (The line from Sec. & Treas. made Dir. on advice of counsel-1232. Rundel-1225, 1236. James Moore passed around petition along div. lines of old Co. union plan― 1682, 2304 (X) (crossed out). James Moore solicited men who had signed petition-1672. H. Mumme asked Easterly and Jim Moore to pass pet. for ind. union in plant. Mumme also passed it himself. Hung it up where idea of Assn. originated. Invited Mumme to first meeting. Mumme had been Co. Rep., son of a foreman1236, 1327, 1426, 1880. Decided to have no relatives of foremen-1913. Easterly pd. for printing applications-1243. E. told reporters he understood other plants were working under ind. plans— 1246. E. told reporters plant would reopen when they had a majority-1249. Thot Co. would divide work of other plants that had ind. unions.--1251, 1408. E. and other organizers thot Co. would never recognize outside org.-1256, 1259, 1260, 1264, 1473, 1695, 1912. Shut down other plants for labor trouble-1256. E. opposed to strikes-1257. 1933: CHRONOLOGICAL TABLE August-Plan of employees' representation inaugurated. 1935: August 26-Motion by Whitley for increase. 1937: January 2-Started organizing Union. April 26-Benedict met with Whitley and Puckett. April 29-Benedict returns to Litchfield. April 30-Benedict read letter about Wagner Act. May 1-Vacation with pay notice posted. May 3-Vote of thanks for vacation circulated. May 3-Petition for independent union circulated. May 6-Union organization meeting. May 7-Benedict in Springfield. May 7-Telephone call from Locke. May 7-Plant closed down. May 20-Union's charter issued. May 20-Benedict went out of town. May 20-Meeting at Easterly's house. May 20-Union called on respondent. Benedict out of town. May 24-Association meeting at Newberry Hall. Officers elected. Voted to petition the management to reopen the plant just as soon as orders would permit. Such petition prepared. May 25-Petition presented to Fellers. May 25-Benedict returns to Litchfield. May 26-Benedict went to St. Louis, returning same evening. Was handed petition by Fellows. May 27-Benedict went out of town. While out of town sent Fellers letter acknowledging petition. May 28-Letter from Fellers to Timmons. June 1-Charges filed. June 2-Benedict received copy of letter from Labor Board to Locke. Locke called Benedict to Detroit for a few days. June 3 and 4-Benedict conferred with Company counsel from Buffalo who was in Detroit. Returned to Litchfield evening of June 4. June 5-Easterly and Timmons went to Springfield to obtain documents used by independent Union there. June 7-Telephoned Springfield to inquire if organization papers have been sent. June 7-Conference between Regional Director and Benedict and Logan. June 9 Proposed recognition agreement presented to respondent by Association in the afternoon. June 9-Association meeting at Elks Club in the evening. By-laws adopted. Name changed. Reading of demands and agreement approved and accepted. June 9-Conference between respondent and Union arranged by Labor Board but between time of interview with delegation to make appointment and time appointment was kept Benedict was waited on by delegation from Association presenting proposed contract. Both claimed majority. Neither proved majority. Union had majority June 9 but not at time of hearing. July 1-Springfield plant closed. August 24-Association committee visited Puckett. September 12-Association applied for charter. EXHIBIT NO. 353 Matter of AMERICAN RADIATOR COMPANY, a corporation, and LoCAL LODGE No. 1770. AMALGAMATED ASSOCIATION OF IRON, STEEL, AND TIN WORKERS OF NORTH AMERICA. Case No. C-444, 7 N. L. R. B., No. —, (June, 1938.) Business: Respondent engaged in manufacture of heating apparatus. 8 (1): Respondent's supervisory employees expressed opposition to outside labor organization. 8 (2) Formation and maintenance of Employees' Representation Plan from August 1933 to April 1937. Circulation in plant during working hours of petition for formation of similar organization. Company-dominated organization formed after plant closed down in order to induce respondent to reopen plant. 8 (3): Lock-out of all employees on May 7, 1937, in violation of 8 (3). Charges of discrimination sustained as to one employee, dismissed as to one employee. 8 (5) Respondent refused to bargain with Union duly authorized to represent majority of employees in an appropriate unit. because plant was closed and respondent claimed that it therefore had no employees. Since respondent admitted the plant was closed only temporarily, the Board held that employees could reasonably expect to be reinstated upon the reopening of the plant, and continued to be employees within the meaning of 2 (3), and therefore had the right to bargain with the respondent concerning reopening of the plant. Remedy: Usual orders under 8 (1), (2), and (5). Board ordered respondent to offer, when plant reopens, reinstatement, according to seniority, to all employees laid off on May 7, discharging, if necessary, new employees, and providing that if, after such reinstatement, business conditions do not require its entire working force, the respondent may reduce its staff on a nondiscriminatory basis, placing those for whom employment is not available upon a preferential list. Board found that plant was closed down precipitately because of union activities but did not order back pay during the time the plant was closed down since it was determined that plant would have had to close shortly for business reasons. Back pay provided, however, if respondent refuses to reinstate or to place upon a preferential list the employees laid off on May 7, in accordance with Board's order. Failure to make a proper investigation. As appears in the brief summary of the proceedings in this case, attached hereto, Mr. Fordyce, counsel for the respondent, is not justified in his claim that the Regional Office did not make sufficient investigation of this case. It appears, on the contrary, that the investigation was as thorough and adequate as was possible under all the circumstances. Counsel for the respondent were not so cooperative as they might have been. The feeling in the town, moreover, that the plant had closed in order to thwart the organization of the C. I. O. was a considerable obstacle to overcome in conducting an investigation. Violation of the settlement agreement. Messrs. Fahy and Fordyce agreed, at the time they entered into the stipulation in this case, that no information about the terms of the settlement would be issued until the decree had been entered by the Circuit Court. The consent decree was issued by the Circuit Court on September 19. Mr. Fordyce, on September 16, informed Mr. Godfrey, counsel for the Association, of the terms of the settlement. Mr. Godfrey immediately issued an inaccurate account to the press, which caused the C. I. O. to gain an impression that the Board had betrayed it. The consent decree provided, among other things, that the respondent would bargain with the union which represented a majority of the employees in the appropriate unit. Mr. Fordyce accordingly instructed both organizations to present proof of membership, despite the finding in the Board's decision that the Association was company-dominated. The C. I. O. had filed a petition on October 4, 1938, and was unwilling to reveal the names of its members to the respondent except at a Board conference. The Regional Director wrote Mr. Fordyce on October 6 that a petition had been filed, and requested him to attend a conference on this matter on October 12. The Regional Director received a letter from Mr. Fordyce on October 8 in which he stated that the C. I. O. had failed to submit its proof of membership as he had directed, but the Association had done so, and, since the proof submitted by the Association seemed convincing, he had instructed the superintendent of the plant to bargain with the Association. A closed-shop contract was thereupon entered into with the Association despite the pendency of the proceedings in the representation case. After a hearing in the representation case, the Board on March 14, 1939, issued a Direction of Election. The Board, however, on March 21, 1939, issued an amendment postponing the election indefinitely. The feeling that still prevails throughout Litchfield that the plant will close down again if the C. I. O. should win the election is inimical to the holding of a fair election. Furthermore, an investigation has been conducted indicating that the respondent has violated the terms of the settlement, in contempt of the consent decree issued by the Circuit Court. Defects in the case. There are some unfortunate angles to this case. Board Attorney Davis was originally assigned to conduct the first hearing. Some of the employees he interviewed in the course of his preparation of the case gained the impression that they had to belong to the C. I. O. to get their jobs back or to get back pay because of the alleged lock-out. Davis was recalled, and Shaw assigned to the case. The Board considered the evidence as to the effect of such misunderstanding, and concluded that none of the witnesses were influenced thereby to any appreciable extent. Another unfortunate incident occurred when information as to the contents of the Intermediate Report was, through a misunderstanding, given to the press by the Trial Examiner's wife before the Report had been issued. These incidents, however, do not appear to have prejudiced the respondent, which, on the contrary, has always received from the Board the utmost in consideration, courtesy, and impartiality. The Board, if anything, was too generous to the respondent in respect to the terms of the settlement of the case. On June 1, 1937, charges were filed by the C. I. O. Steel Workers Union alleging violation of Section 8 (1), (2), (3), and (5) of the Act. Field Examiner Cannon went to Litchfield on June 1 to investigate this matter. The Regional Director communicated with the respondent on the same day, and a conference was arranged, which took place at the Regional Office on June 7. The respondent at this conference agreed to the holding of an election. The Regional Director later conferred with the Union, and it also agreed to a consent election. Both parties, however, subsequently revoked their consent. The respondent refused to attend a conference proposed by the Regional Direetor to discuss the holding of a consent election on the ground that the plant was closed indefinitely because of surplus inventory so that a conference or an election would be futile since there was nothing about which to bargain with a union. The Union withdrew its consent on the ground that the Association, the alleged company-dominated union, had gained so much headway that a Board hearing was necessary. On June 26, Regional Attorney Shaw and Field Examiner Cannon were in Litchfield and conferred with representatives of the Union and of the Association. On July 2 the Regional Director informed the respondent's attorney that the Board would proceed to a hearing. On August 14 the Regional Director and Cannon went to Litchfield in connection with the investigation of this case. The Regional Office communicated with the respondent as well as with the Union a number of times during July and August, in person, by telephone, and in writing. During all this time, the feeling was prevalent throughout the town that the plant had closed down on may 7, 1937, because of the activity of the C. I. O. Pressure was brought to bear by the Mayor, by a back-to-work committee, by the local press, and by various individuals on the C. I. O. to withdraw its charges, under the belief that the plant would then reopen. The C. I. O. did not withdraw its charges, however, and a hearing was held from September 21 to October 8, 1937. Trial Examiner Wenzel, in his Intermediate Report dated February 1, 1938, found that the respondent had violated Section 8 (1), (2), (3), and (5) of the Act. The Board issued its decision on June 24, 1938. finding that the respondent had violated Section 8 (1), (2), (3), and (5) of the Act. The respondent filed a petition for review in the Circuit Court of Appeals for the Eighth Circuit. After conferences between Mr. Fordyce, counsel for the respondent, and Mr. Fahy, however, a stipulation was entered into, and a consent decree was entered by the Circuit Court on September 19, 1938, providing that the respondent would cease and desist from dominating or interfering with any labor organization, from discouraging membership in any labor organization by discrimination with regard to employment, and from in any way interfering with the rights of its employees to self-organization and to collective bargaining through representatives of their own choosing: and, affirmatively, would bargain collectively with the representative selected by a majority of the employees in the appropriate unit, pay one discharged employee $250, and post copies of the decree in the plant. Messrs. FAHY, WATTS, WITT, PRATT, APRIL 8, 1938. COMMENTS ON THE RECORD Case: AMERICAN RADIATOR COMPANY and LOCAL LODGE No. 1770, AMALGAMATED ASSOCIATION OF IRON, STEEL AND TIN WORKERS OF NORTH AMERICA, affiliated with the Committee for Industrial Organization (C-444) Dates of Hearings: September 20 through October 8, 1937. Trial Examiner: Herbert Wenzel. Regional Attorney: David C. Shaw. The transcript of record consists of 2625 pages. The case is weak in several respects. This is largely due to the fact that it was a very difficult case to try. The language used to describe the operations at the respondent's plant appears to be a vernacular peculiar to the radiator in. dustry. The statistical evidence introduced to show whether or not the plant closed down because of business conditions is very complicated. Moreover, Jack Davis, who had been assigned to the case before Mr. Shaw was, appears to have given a number of witnesses to understand that in order to get back pay they should belong to the C. I. O. However, a few of the weaknesses of the case could have been avoided. The respondent, in its answer, stated that it "neither admits or denies" the allega tions in the complaint as to the appropriate unit. No evidence whatsoever was put in on this question. The respondent, of course, excepted to the finding as to the appropriate unit in the trial examiner's report. The following appears in the cross-examination of a witness by Godfrey, counsel for the independent union, and pertains to a speech made by Godfrey at one of the Union's meetings: "Q. I also told them when I got out of High School I had to work four years to get money enough to go school, didn't I? "A. Yes, sir. "Q. I told them I worked at the factory one year? "A. I don't remember. "Q. I told them that I worked for the American Radiator Company. "A. I remember that." In redirect examination, Shaw questioned the same witness as follows: "Q. At the time Mr. Godfrey told you at this meeting-during cross-examination it came out at the time he told you that he was a delegate to the Democratic National Convention, that he was a friend of the working man, did he also tell you he was a member of the law firm that represented the American Radiator Company in some cases? "A. I don't remember that." On the basis of the above testimony, it appears that Shaw might well have put Godfrey on the stand. However, it does not appear that the trial examiner was justified in describing Godfrey, in his report, as "one-time attorney for the respondent." This appears to have been the trial examiner's first case for the Board. It might be a good idea to instruct him, and other trial examiners as well, to cite page references of the transcript. A few of the trial examiners already do so. Such citations are generally very helpful, and would probably place no additional burden upon the trial examiners, who no doubt refer to the transcript constantly when writing their reports. COURT DECISIONS CONCERNING THE VALIDITY OF THE PROCEDURE USED BY THE BOARD IN DECIDING CASES This memorandum is submitted, for the information of the Committee, to show what the courts have held and said with respect to the validity of the Board's procedure in deciding cases, particularly with respect to the Board's reliance upon attorneys in the Review Section. By way of introduction, it may be noted that, as stated by the Circuit Court of Appeals for the Third Circuit in National Labor Relations Board v. Botany Worsted Mills (106 F. 2d 263, at 266): * * the Labor Board has never made any mystery of the part taken by the attorneys in its 'Review Division' in aiding it in writing its opinions, Gelhorn and Linfield, Politics and Labor Relations, 39 Columbia Law Review 339, at pages 384, 385; Madden, Administrative Procedure; National Labor Relations Board, 45 West Virginia Law Quarterly 93, 96." The address of Chairman Madden before the Legal Institute of the American Bar Association on November 13, 1939, is to be added to the above-cited descriptions of the Board's procedure. The portion of Chairman Madden's address |