Mr. TOLAND. Suppose I put these in and then adjourn?

The CHAIRMAN. Go ahead.

Mr. TOLAND. I haven't much more. I can finish with it in the morning, but I do want to have the General Motors file from the Board. We have asked for it.

The CHAIRMAN. We will go on for a little while, anyway.

Mr. TOLAND. I am now reading from Committee Exhibit 57, from Dr. Leiserson to Mr. Madden, Mr. Smith, and Mr. Emerson, dated October 21, 1939. Subject, Coos Bay Lumber Co., R-1314:

Here is my revised dissent on the basis of one majority opinion. I have made the reservation about the against or neither in a footnote.

Please note also that I have omitted the reference to proportional representation on which there is comment in the majority draft.

WML.

Mr. Chairman, I ask the same ruling heretofore made, that this may be filed as an exhibit and not spread on the record. Mr. MURDOCK. Is that a dissenting opinion?

Mr. TOLAND. Yes. I now read from Exhibit 58, from Dr. Leiserson to Mr. Madden and Mr. Smith, on the subject of ballots, dated July 22, 1939:

I should like to direct your attention to the two paragraphs from the decision of the Sixth Circuit Court of Appeals in the Consumers Power Company cases, attached hereto.

These paragraphs, it seems to me, justify a reconsideration of the whole matter of providing places on ballots for voting "against" and "neither," as well as the practice of having run-off elections. I have always felt, as the Court says in this case, that the purpose of elections under the act is to select representatives, not to reject them. In so far as employees may want to represent themselves or may want to vote for some representative whose name is not printed on the ballot, it is possible to meet this desire by providing a blank line on every ballot where employees may write in any alternative representation that they desire. I should like to have the Board set a meeting some time soon for the purpose of discussing this whole matter.

There is attached a quotation from the decision of the United States Circuit Court of Appeals of the Sixth Circuit in the case of International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, Local Union 876 v. The National Labor Relations Board, decided June 28, 1939. I ask that the opinion not be printed or spread on the record.

Mr. MURDOCK. Who is the writer of that opinion?

Mr. TOLAND. W. M. Leiserson. I now refer to Committee Exhibit 59, from Dr. Leiserson to Mr. Madden, Mr. Smith, and Mr. Emerson, in the case of Great Lakes Steel Corporation, R-1311, R-1312, dated October 4, 1939:

Attached hereto is a revision of my opinion to accompany the Supplemental Decision in this case.

Attached thereto is the concurring in part and dissenting in part opinion of Dr. Leiserson, and I ask that that be made an exhibit but not printed.

Mr. MURDOCK. Mr. Toland, with reference to the opinion just introduced before this last one, isn't that case now pending in the Supreme Court?

Mr. TOLAND. I think it is.

Dr. LEISERSON. Yes; it was argued last week.

Mr. TOLAND. It was argued last week.

I now read from Exhibit 60, Dr. Leiserson to Mr. Madden, Mr. Smith, and Mr. Emerson, dated July 25, 1939, Aluminum Co. of America, R-1020, R-1021:

I am not convinced that the law gives us authority to order run-off elections. If we may order such elections, if we have authority to do this, we would also have authority to order voting on the basis of proportional representation, such as is used in Cincinnati and New York, or we could order some other form of preferential voting. I think the Board goes beyond its powers in this decision. However, since I did not participate in the three previous election orders, I do not need to participate in this one.

Please note on page 3, where the association protests that 269 employees were denied the right to vote for their representatives because the Board fixed an eligibility list many months back. I think the protest should be sustained, for the Board violates the law when it denies bona fide employees the right to participate in choosing the representative who will negotiate agreements for the unit in which they are included.-WML.

Mr. HEALEY. I think the record should show, if it does not show it already, what the term "run-off election" means. May the witness give us his view?

Dr. LEISERSON. My position on that is this: That when the law says we shall run elections to determine the choice of the majority, we run an election. If it results in no majority, we would say we cannot certify because there is no majority; that it is necessary for us to have express authority to devise another system of election, like a run-off or preferential, because people have different ideas as to different kinds of run-off elections. If you use one kind of run-off election you get one result, but if you use another kind of run-off election you get another result, and therefore there is a great deal of difference of opinion on that sort of thing, and we ought not to assume the authority. We should merely say, "There is no majority," and as soon as the people present evidence with the petition that they are ready to have a majority, make a prima facie case, we should run off a new election.

Mr. HEALEY. And would you state what is the present practice of the Board on that?

Dr. LEISERSON. The present practice of the Board results in this situation: Every ballot has on it a place for the organization that presents some authority from employees to represent them in the form of petitions or cards, and they get on the ballot. Now, if there is only one organization in the picture, the name of that organization is placed on the ballot, and then there is another place for voting against that organization. There will be "For" and "Against." If there are two organizations on the ballot, then there is a third place to vote for neither.

That results in this situation: If you have a substantial number of votes for neither, and you have on there two organizations, one may have very many more votes than the other, but will not have a majority of the total vote cast. Now, the policy of the Board has been in that case, first, if none of the organizations ask for a run-off election, then none is held-that is, it is left until a later date, when a new petition is filed. I would do that in all cases, but if one organization, the one that had the highest number of votes, asks for a run-off elec

tion, then the Board will put the one that has the highest number of votes on, leave off the organization that has the next highest, and merely vote the one that has the highest, and then a place for and against that one. Now, there is some difference of opinion among the members of the Board as to whether it would not be better to drop the vote "Neither" from the second ballot, if you did have a second ballot, and that is what the Board suggests in the Consumers Power case, and then just vote for the two highest.

That illustrates what I mean by saying that there are different ways of running run-off elections. You can run a run-off election, using the highest only, and then provide a place for and against that, or you can use a run-off election where you use the two highest and drop the "Neither." Different people will have different ideas on that subject, and therefore I don't think the Board ought to just take it upon itself to adopt one or the other, because it is a vital matter.

Mr. MURDOCK. Does the Board now pursue a fixed policy?

Dr. LEISERSON. It still continues in the policy of running a run-off election if the organization that had the highest vote requests it, and then having a place for or against that organization, but is in doubt about that, and they have agreed that we may want to change it, but it would not be wise to change it now while the matter is pending before the Supreme Court of the United States, which shortly will decide that issue on appeal from that Consumers Power case.

Mr. HEALEY. Let me see if I understand you correctly. If there are two unions in the first instance, the first election, and neither one of them gets a majority, but one has more than the other, then on the second election, or run-off election, the name of only one organization appears on the ballot; also providing a place where the employees may vote either for or against the representation?

Dr. LEISERSON. That is the present policy.

Mr. TOLAND. Do you want to continue, Mr. Chairman?
The CHAIRMAN. Have you finished?

Mr. TOLAND. I can finish in 5 minutes.

The CHAIRMAN. Very well.

Mr. TOLAND. Doctor, I show you a photostatic copy of your memorandum of October 10, Clyde-Mallory Lines case, and ask you if that is a true and correct copy (showing a document to the witness)? Dr. LEISERSON. Yes.

Mr. TOLAND. I offer it in evidence.

(Memorandum, October 10, 1939, Leiserson to Madden, Smith, Fahy, and Emerson, "Clyde-Mallory Lines," was received in evidence as read further below and marked "Exhibit No. 61.")

Mr. TOLAND. I show you a photostatic copy dated August 21, 1939, from Dr. Leiserson to Mr. Madden and Mr. Emerson, in the Matter of Johnson-Carper Furniture Co., and ask you if that is a true and correct copy (showing a document to the witness)?

Dr. LEISERSON. Yes.

Mr. TOLAND. I offer it in evidence.

(Memorandum, August 21, 1939, Leiserson to Madden and Emerson, "Johnson-Carper Furniture Co.," was received in evidence as read further below and marked "Exhibit No. 62.")

Mr. TOLAND. I show you photostatic copy of your memorandum dated September 2, 1939, in the Iowa Southern Utilities Company case, and ask you if that is a true and correct copy?

Dr. LEISERSON. It is correct.

Mr. TOLAND. I offer it in evidence.

(Memorandum, September 2, 1939, Leiserson to Madden, Smith, and Hawes, "Iowa Southern Utilities Co.," was received in evidence as read further below and marked "Exhibit No. 63.")

Mr. TOLAND. I show you photostatic copy dated August 21, 1939, addressed to Mr. Madden, concerning Harry E. Knowlton and Anders Larsen, and ask you if that is a true and correct copy?

Dr. LEISERSON. It is correct.

Mr. TOLAND. I offer it in evidence.

(Memorandum, August 21, 1939, Leiserson to Madden, in the case of Harry E. Knowlton and Anders Larsen, was received in evidence as read further below and marked "Exhibit No. 64.")

Mr. TOLAND. I show you a photostatic copy of your memorandum dated July 18, 1939, concerning the Pittsburgh Plate Glass Co. case, and ask you if that is a true and correct copy?

Dr. LEISERSON. Correct.

Mr. TOLAND. I offer it in evidence.

(Memorandum, August 21, 1939, Leiserson to Madden and Smith, "Pittsburgh Plate Glass Co.," was received in evidence as read further below and marked "Exhibit No. 65.")

Mr. TOLAND. Reading from Exhibit 61, October 10, 1939, from Dr. Leiserson to Mr. Madden, Mr. Smith, Mr. Fahy, and Mr. Emerson. Subject: Clyde-Mallory Lines (R-1329):

I have eliminated from my dissent in this case the statement that I thought prejudicial errors were made. Since an election is ordered, I would rather not hold the case up. But I should like to call to your attention that it is decisions like this one that makes people feel we are unfair.

The decision says that the I. L. A. waived the right to file a brief. That is not the whole truth. Counsel for the I. L. A. protested the proceedings, charging they were unfairly conducted. The least we could do in a case like this is to say that we considered the charges and we find that they were unfounded. If, on the other hand, we find that there is some ground for complaint, we ought to say that some errors were made which we regret but that they were not serious enough to affect anybody's rights. I do not think that we should put ourselves in the position of condoning anything unfair, even though legally nobody's rights were prejudiced.

It does not seem right to me to ignore the protests of the I. L. A. attorney and pass them off by a statement that he waived the filing of a brief and no prejudicial errors were made. If I were representing the I. L. A., I would feel the Board is unfair when it handles protests in this manner. The fact that the attorney for the I. L. A. may have acted in an objectionable manner does not justify us in acting the same way.

The CHAIRMAN. What is the I. L. A.?

Dr. LEISERSON. International Longshoremen's Association.

Mr. TOLAND. That is an A. F. of L. union, is it not?

Dr. LEISERSON. Yes.

Mr. TOLAND. I am reading now from Committee Exhibit 62, from Dr. Leiserson to Mr. Madden and Mr. Emerson, dated August 21, 1939, concerning the Johnson-Carper Furniture Company case, R1461:

I cannot agree with this decision unless it can be shown that the people hired during and since the strike are not employees of the company. As I understand it, we have no right to exclude strikers from voting, because the Act says that they are employees while the strike is on. By the same token we cannot exclude any other people from voting who are legally employed by the company.

It appears that the union filed charges against the company on the assumption that its strike was caused by unfair labor practices. But it has withdrawn those charges, and it now asks for the election that it could have asked for before. Under these circumstances, since no unfair labor practices are involved, I do not see that we have the authority to help out the union which called an ill-considered strike by refusing to permit certain employees from voting.

It appears, also, that the company indicated before the hearing that it would stipulate July 1st as the date of eligibility for the election. This would have excluded the people hired after the strike began. When the company indicated its willingness to do this, the proper way to handle the case was to have arranged a consent election. I feel confident that a good regional director or a good supervisor could have arranged such an election.-W. M. L.

Mr. TOLAND. Do you recall what district this case arose in?
Dr. LEISERSON. I am not sure.

Mr. TOLAND. I am informed it was Roanoke, Va. That would be within the Baltimore district.

I am reading from Exhibit No. 63 a memorandum from Dr. Leiserson to Mr. Madden, Mr. Smith, and Mr. Hawes, dated September 2, 1939, in the Matter of Iowa Southern Utilities Company case, R-1546 and R-1547:

I cannot agree with this decision. The only evidence presented to show that there is a question of representation here is that of the U. W. O. C., and this is limited to the Burlington district. Neither the independent union nor the I. B. E. W. showed any evidence that substantial numbers of the employees desired them to act as their representative. The president of the independent union made a statement that a majority of the employees were members of his organization, but he offered nothing in support of his statement. The I. B. M. E. merely said that they had members among the employees of the company.

The Board is criticizing Bowen for not properly insisting on evidence in support of the A. F. of L. petitions in the General Motors cases, and we are telling the General Motors Corporation that the statements in their petition do not present sufficient evidence. At the same time that we are doing that we propose to issue a decision on the basis of a mere statement of majority membership. I do not believe that the law authorizes us to act in any such fashion.

I would either dismiss the petitions on the ground that one requests an inappropriate unit and the other lacks sufficient evidence of a question of representation, or I would send the case back to the regional director with instructions to properly investigate the case by securing the necessary evidence from the independent union in support of the petition.-W. M. L.

I am reading from Committee Exhibit 64, from Dr. Leiserson to Mr. Madden, dated August 21, 1939. Subject, Harry E. Knowlton and Anders Larsen:

I think the recommendations of Pratt and Van Arkel with respect to Knowlton and Larsen should be followed. The two field examiners did not get a fair deal in the way their dismissal was handled. The recommendation for their dismissal came from McTernan and not from Mrs. Rossiter even though she signed it. The dismissal was rushed through the Board here before we knew anything about the field examiners' side of the case. The regional director should have talked to both of them about the reasons for dissatisfaction with their work, and they should have been told that a recommendation for their dismissal was going to the Board. They would then have had an opportunity to write to the Board and have their side considered before action was taken. Notice that Krivonos was in the picture, getting complaints about the field examiners from union officials. I should like to have the dismissal of Knowlton and Larsen reconsidered in today's meeting of the Board, and I want to propose that Knowlton be trans