To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Subject: International Shoe Company, R-1406. Date: Oct. 4, 1939. I understand from Tom Emerson that since there is no request for a run-off election in this case the petition will be dismissed. I will join in the dismissal. I am not ready to question the Board's policy of putting "against" and "neither" on the ballots at this time. WML INTER-OFFICE COMMUNICATION Date: Oct. 5, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Kelly's Creek Colliery Co., Case No. C-1255. Since the record shows that the United Mine Workers have a closed shop agree. ment, and we so find (page 9), then isn't the lay-off of Shfflett, however discriminatory, authorized by the Act? WML INTER-OFFICE COMMUNICATION Date: Oct. 5, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Friday Harbor Canning Company, R-1535. This tentative draft is 0. K. except that on page 6a a statement of the secretary of Local 19 is given as the reason for placing this local on the ballot. Since Local 19 holds a membership contract with the company, it seems to me this contract is the best justification for placing its name on the ballot. WML To: Mr. Madden. Mr. Smith. Mr. Emerson. INTER-OFFICE COMMUNICATION From: Wm. M. Leiserson. Subject: John A. Roebling's Sons Company, C-860. Date: Oct. 5, 1939. I am inclined to think that there is enough connection in this case between the new Association and the admittedly illegal one to justify us in ruling that the new one does not express the free choice of the employees. However, if the litigation Section thinks otherwise because of any court decisions and will object to seeking enforcement of an order of the Board, then I would rather not issue the order. I think this case should be discussed with the Legal Division at the same time that we are discussing the other case referred to them yesterday regarding whether a complaint should be issued or not. The letter of the president of the company dated January 22nd shows clearly that he was pursuing a policy contrary to the expressed will of Congress. He 218054-40-vol. 1--22 said that his employees would have no further say in selecting their representatives if they organized freely with other workers for collective bargaining. whereas the Act of Congress makes it plain that such organization is designed to give employees freedom of choice. This statement of the employer seems to me to connect directly with the organization of the new Association. In the first place, the new Association was formed by representatives elected under the illegal Plan and not by the employees. Since the Plan was illegal, the representatives were suspect especially because at the time of their election and when they appointed the subcommittee they were still being paid for acting as representatives by the company. When the committee of representatives went to see the lawyer the first time they told him that they wanted the company-dominated Plan to continue to function as far as it could under the law. This indicates, I think, that the new Association was not a voluntary organization of the employees but an organization devised by representatives who preferred a company-dominated plan. The representatives who devised the new organization were leaders in the companydominated plan (page 194). It does not appear that the employees themselves ever discussed or voted whether they wanted the Plan at a meeting of their own. The election, although conducted by school superintendents, was obviously not an election of officers or representatives by employees in the exercise of their right of self-organization. Since it was conducted in the plant as the elections under the illegal Plan had been conducted, it was inevitable that the employees should think that the selection of representatives was pursuant to a management policy and not pursuant to their own efforts at self-organization. This is borne out by the election notice that was posted, by the passing out of the ballots in the various departments to the employees at their work, and particularly by the fact that practically every employee in the plant voted. Since anyone who did not vote would immediately be recognized as not a member of the Association, it cannot be said that there was any expression of opinion on the question whether the employees wanted to continue the method of the Plan or have an independent organization of their own. The statement of the company policy (page 23) by its emphasis on the right of individual bargaining seems to me to contradict not only the Act but the promise of the company that it will abide by the principles of collective bargaining. The Act provides for bargaining by an exclusive representative, where, as in this case, it is claimed that practically all the employees voted for collective bargaining. The by-laws of the Association were submitted for approval not to the employees but to the representatives. In view of the Trial Examiner's feeling that the respondent's supervisors encouraged membership in the new Association, I should be inclined to accept his judgment. I cannot agree with the finding on page 34 of the draft that the fact that the company relied solely on the number who voted in the election as a basis for its recognition of the Association is insignificant. This fact, it seems to me, makes plain that the company was proceeding on the old Plan and not on the basis of collective bargaining representatives chosen by a new organization of the employees. WML INTER-OFFICE COMMUNICATION Date: October 10, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Wickwire Brothers, C-1004. I agree that the complaint in this case should be dismissed, but I think we should be forth-right about it and not at the same time hold that the employer was guilty of unfair labor practices. The decision seems to me contradictory. I would suggest that we make a forth-right statement that the notice posted on February 28, 1938, at the request of the Regional Director together with the agreement for a consent election purged the employer of the unfair practices complained of. We cannot expect to get settlements in the field if subsequently we issue decisions of this kind. WML INTER-OFFICE COMMUNICATION To: Mr. Madden. Mr. Smith. Mr. Emerson. NATIONAL LABOR RELATIONS BOARD From: Wm. M. Leiserson. Subject: Halff Manufacturing Company, C-1314. Date: October 10, 1939. In view of the findings, why should we not merely hold the respondent guilty of unfair labor practices occurring after the settlement with the Regional Director and order him to cease and desist from these and any such activities in the future? WML INTER-OFFICE COMMUNICATIONS Date: October 11, 1939. To: Mr. Madden. Mr. Smith. From: Wm. M. Leiserson, Subject: Alloy Cast Steel Co., C-1344. This is the first case that has been completed in which the record was reviewed and checked before the intermediate report was issued. It is a short record, and I have gone through it myself. I have also discussed the case with the trial examiner. I am ready to decide the case, and I think we ought to settle immediately the matter of the policy which we started to discuss in connection with the Donnelly Garment case. WML INTER-OFFICE COMMUNICATIONS Date: Oct. 14, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Weyerhaeuser Timber Company (Longview Branch), R-1315, 1316, 1317. Long-Bell Lumber Company, R-1320, 1321. I can go along with the brief concurring note in the Weyerhaeuser case, but in the Long-Bell case it seems to me unfair to order an election and leave the Machinists off the ballot. The Machinists filed a petition, and they want to be certified as the representative of their unit. I do not think that we should compell them to vote against collective bargaining when their petition asks the opposite. It seems to me also that we must order elections for the purpose of choosing representatives and not merely for the purpose of determining a bargaining unit. Without questioning the general policy of refusing to hold elections where A. F. of L. jurisdiction is involved, I think we might decide in this case that the peculiar circumstances here require an election in the machinists' unit with the A. F. of L. unions as well as the C. I. O. organization on the ballot. Isn't it a mistake to authorize a hearing at all in a case involving jurisdiction between A. F. of L. organizations? It seems to me a waste of time and effort to hold hearings, review the records, and then dismiss the cases because of the jurisdictional policy. If we have to hold a hearing because a non-A. F. of L. organization is also involved, we might well modify the policy and order elections in cases where other organizations in addition to the A. F. of L. unions are involved. WML INTER-OFFICE COMMUNICATIONS Date: Oct. 14, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Southwestern Gas & Electric Company, C-482. This draft is O. K. except that I do not think there is any 8 (1) pages 27 to 29. Is the remedy the best we can do? It seems to leave loopholes which will make enforcement difficult. Couldn't we order reinstatement to any lineman's job in place of any one hired since May 20? WML INTER-OFFICE COMMUNICATION Date: Oct. 17, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson, Subject: Atlas Underwear Company, XI-C-487. I have gone over the intermediate report and the exceptions in this case and have checked some facts in the records. The 8 (1) and 8 (2) charges are supported by substantial evidence, and I think a cease and desist order should be issued accordingly. Since the record was reviewed before the intermediate report was issued, I think a review attorney should be assigned immediately to draft the decision. We should not put these cases in which the records have been reviewed before issuing the intermediate report behind the old cases and hold them up for many months. WML For Board minutes Wednesday, October 18, 1939. ALTERNATIVE IN ACCORDANCE WITH SUGGESTION OF MR. SMITH Motion by Mr. Leiserson that Mr. Krivenos be relieved of his duties as special examiner and transferred to the Legal Division. Mr. Leiserson stated that he brought the matter up because he felt that Mr. Krivonos shared responsibility for the condition that developed in the Los Angeles Regional Office. He said that he was impressed by the remark of Mr. Pomerance, one of the field examiners who was transferred from Los Angeles, that it was not fair to discipline the field staff when the Washington office was in large part responsible. It was Mr. Leiserson's opinion that the Secretary of the Board and Mr. Krivonos, who investigated the charges against the Los Angeles Regional Director, merited severe discipline for their methods of handling the problems that arose in the Los Angeles office. He felt that Mr. Krivonos's investigation and report on Los Angeles was grossly one-sided and confirmed the lack of qualification for his responsible position which Mr. Leiserson had previously called to the attention of the Board. With respect to the Secretary, Mr. Leiserson moved to renew his motion of July 28th reading as follows: "Motion by Mr. Leiserson that Nathan Witt be relieved of his duties as Sceretary of the Board. Mr. Leiserson stated that he felt that Mr. Witt was not qualified for the position either by training or experience. From observation of Mr. Witt's work, Mr. Leiserson said, he had concluded that Mr. Witt lacked understanding of the problems of administration that are required in managing a large organization such as the Board has. Mr. Leiserson also stated that Mr. Witt's manner of handling certain cases made it impossible for him to have confidence in Mr. Witt's ability to perform his duties impartially as between various parties who appear in cases before the Board." Mr. Leiserson stated that when he made his previous motion to remove Mr. Witt from the position of Secretary, he had done that on the basis of discussions at Board meetings in which he had called attention to cases mishandled by the Secretary as well as other matters which, in Mr. Leiserson's judgment, showed that Mr. Witt did not have the qualifications for Secretary and chief administrative officer of the Board. In addition to the matters on which he based his previous motion, Mr. Leiserson gave the following reasons. He felt that the instructions given by the Secretary to Mr. Krivonos in connection with the charges against Mr. Nylander, Regional Director at Los Angeles, and the Secretary's handling of the problems in Los Angeles were inexcusable. He also thought that the report of the four regional directors who investigated the work of the Secretary's office showed plainly that Mr. Witt did not have ability and imagination enough to analyze the mass of work that came to the Secretary's office, or to organize and manage it on an efficient basis. Mr. Leiserson also brought up for consideration the large backlog of cases in the Review Division and suggested that a survey be made of the work of the Division to find ways of eliminating delays and getting out decisions more promptly. INTER-OFFICE COMMUNICATIONS Date: Oct. 19, 1939. To: Mr. Madden. Mr. Smith. Mr. Emerson. From: Wm. M. Leiserson. Subject: Jamestown Metal Equipment Co., Inc., and its Subsidiary, Blackstone Manufacturing Co., Inc., C-10. This tentative draft is O. K. except that I am in doubt about the order as against the Jamestown Company. I asked Halliday to look into this, and ne reported to me that in his opinion the Jamestown company should not be included in the order. WML INTER-OFFICE COMMUNICATIONS Date: October 19, 1939. To: Mr. Leiserson. From: Edwin S. Smith. Subject: Your memorandum dated October 17 re Atlas Underwear Company, XI-C-487. It seems to me that the method which you have pursued in coming to a conclusion that the 8 (1) and 8 (2) charges in the Atlas Underwear case should be sustained and an appropriate cease and desist order issued is entirely inadequate to the review of the record which the parties at interest have a right to expect from members of the Board. Your statement that "the 8 (1) and 8 (2) charges are supported by substantial evidence" also seems to me an indication of a peculiar approach to the problem of determining the issues in a case. The mere fact that the charges may be supported by substantial evidence is no indication that a careful weighing of the factors pro and con would mean that the charges should be sustained. I do not see how there can be any such weighing of the evidence, as the Board should make, simply by pursuing the method which you have followed. What you have done is to review the Intermediate Report of the Trial Examiner, which has been previously reviewed by another Trial Examiner, read the exceptions, plus going through the process of having "checked some facts in the records," as your memorandum states. You now suggest that the Board should instruct a review attorney to draft a decision along the lines of your conclusions. I am out of sympathy with any attempt to decide cases which is not based on a thorough-going review of the record, including the Intermediate Report and exceptions, by the review division. If the Board members themselves |