Mr. TOLAND. Mr. Chairman, I offer in evidence the photostatic copy just identified by the witness. (Letter dated July 24, 1939, from WML to Mr. Madden was received in evidence, marked "Exhibit 26.") Mr. TOLAND. Reading from Exhibit 26: [Interoffice communication, National Labor Relations Board] Date, JULY 24, 1939. To Mr. Madden. From Wm. M. Leiserson. Subject: Chicago Malleable Casting Company, R-1297. In going over the files in this case I find irregularity in handling by the Secretary, and I therefore do not want to have any connection whatever with the case. Since the oral arguments were completed in April, I do not mean to participate in the decision. On the facts, my opinion is that in 1934 the engineers and firemen were established as an appropriate unit for collective bargaining with the employer. In 1937 they gave written notice that they desired to maintain this unit. The S. W. O. C. therefore had no authority to include them in the larger unit without their consent. (Initialed) W. M. L. Mr. TOLAND. What union is referred to as "SWOC"? Dr. LEISERSON. The C. I. O. I should say that the irregularity mentioned there, if I recall it correctly, is that the case was dismissed at first and then later the authorization for hearing and investigation ordered again, and I could not find in the files any explanation of why it was done. Mr. TOLAND. Now, Doctor, will you look at your files for the memorandum of August 15, Henry Glass & Co.? I show you, Doctor, a photostatic reproduction and ask you if it is a true and correct copy? Dr. LEISERSON. Right. Mr. TOLAND. I offer in evidence the photostatic copy just identified by the witness. (Letter dated August 15, 1939, from WML to Mr. Madden and Mr. Emerson was received in evidence and marked "Exhibit No. 27.") Mr. TOLAND. Reading from Exhibit 27: To Mr. Madden. Mr. Emerson. From William M. Leiserson. Henry Glass & Co., R-733 C-1265. AUGUST 15, 1939. These originated with a petition filed April 5, 1938. On April 18 an order directing an investigation and hearing was issued, and on April 29 hearing was held. The trial examiner filed an informal report on May 13 recommending that an election should be held. There is nothing in the file to indicate why the election was not held or why the case was not otherwise decided. It was not until October that the charge was filed, although it is headed Amended Charge. The complaint did not specifically allege a violation of Section 8 (5), although in the body of the complaint statements are made that the employer refused to bargain collectively. The two cases were consolidated by order of the Board December 23, 1938, and hearings were held January 5 to 13, 1939. Apparently the notice of hearing had not mentioned that the cases were consolidated, because Board's counsel moved to amend the notice of hearing to include the representation case. Respondent opposed this motion, but the trial examiner granted the request of Board's counsel. On April 24, 1939, the trial examiner issued his intermediate report finding violations of 8 (1) and 218054-40-vol. 1-4 8 (3) but not of 8 (5). In the body of the report, however, the trial examiner found that the C. I. O. local was the duly designated representative of a majority of the employees in an appropriate unit, and that the respondent had refused to bargain collectively with the local. The respondent's brief raises the question whether the Board can find an 8 (5) violation while a representation dispute is before the Board. It states that the question of representation must first be decided. I think he is right about this, especially in a case of this kind where the representation case was heard within a month of the filing of the petition in April 1938, and the trial examiner recommended that an election should be held. I do not feel that I am justified in overruling that trial examiner. Under these circumstances I do not see how I can approve an amendment to the complaint at this time proposed to allege an 8 (5) violation. It is important to note that in this case, as in many of the other troublesome cases that we have, all the trouble and complications could have been avoided if there were adequate management and direction of the work of the regional offices by the Secretary's office here. (Initialed) W. M. L. Dr. LEISERSON. May I say that that explains itself, but it raises a question that has bothered the Board a good deal, and that we have changed our policy a bit on. Section 8 (5) has to do with the unfair labor practices where the employer refuses to bargain collectively. Section 9 (c) has to do with petition for investigation of a representation dispute, that the representation is in doubt. Well, to me, who have been experienced in handling these election cases in the Railroad Board, and also previously in the old National Labor Board, if a question is raised of representation, for the Board to decide, that means that nobody knows who is the true representative. Therefore, to make a charge against an employer that he has refused to bargain collectively is quite wrong, because he is not allowed to deal with any one until he knows the true representative; and if he made an agreement and dealt with one representative, who was a party to the representation dispute, and we later after our investigation found that that was the wrong one, he would be in trouble for illegally making an agreement with a representative that was not the true representa tive. But the Board had been for some time accepting petitions first and then afterwards also accepting these 8 (5) complaints. We had a good deal of discussion. Again it gets back to the deeper problem. The lawyers felt that that was perfectly proper, that it could be handled under the procedures in the law especially because sometimes we have an 8 (5) complaint and we find the employees or the organization did not have a majority, so we dismissed the complaint of refusal to bargain, and we settled the dispute by an election. Now, that is sensible enough, if the two come in together, if the representation question comes in after the complaint about refusal to bargain, but if it comes first it is just putting the cart before the horse. After much discussion the Board has recently ordered and sent out instructions to the regional directors not to accept representation cases until we get the complaints out of the way. Mr. TOLAND. Is it a fair statement to say that that resulted from the position that you took in the memorandum Dr. LEISERSON. Naturally, I want to take credit for it, but I think the members of the Board are getting more experienced, and they decide things, change their mind just as I do. Some of these memoranda-I may, for instance, take the Chicago Malleable case-after much discussion, in order to get a decision out and not hold it, I had said I would not participate; I changed my mind and did participate in order to get the case off our books; so we all change our minds. Mr. TOLAND. But you have not been there 4 years and 5 months, though, Doctor? Dr. LEISERSON. No, sir; I have been there 6 months. Mr. TOLAND. Will you look at the memorandum of July 25The CHAIRMAN (interposing). Mr. Toland, would this be a convenient place for me to interpose two or three questions? Mr. TOLAND. Yes; surely. The CHAIRMAN. I would like to take you back, Doctor, to this exhibit—it is not marked on my copy-July 24, relative to the Chicago Malleable Casting Co., Exhibit 26. I take it from that memorandum you are pretty familiar with what happened, are you not? Dr. LEISERSON. Yes; fairly familiar. On the facts, my opinion is that in 1934 the engineers and firemen were established as an appropriate unit for collective bargaining with the employer. In 1937 they gave written notice that they desired to maintain this unit. The 8. W. O. C., therefore, had no authority to include them in the larger unit without their consent. Now, were these engineers and firemen an independent union? Dr. LEISERSON. No. They were another union. They are really two unions. One is the operating engineers and the other is the International Association of Firemen and Oilers. The CHAIRMAN. With what union are they affiliated? Dr. LEISERSON. A. F. of L. The CHAIRMAN. They had served notice that they wanted to remain A. F. of L., had they not? Dr. LEISERSON. Well, that is not quite correct, Judge Smith. At the time they notified them, they merely wrote a letter and said they were individuals, and they had not then yet joined the A. F. of L. organization. They joined them later, but they said, "We reserve our rights to be represented separately." They had not yet joined the A. F. of L. The CHAIRMAN. Well, that is not what your memorandum says. Your memorandum says that in 1937 they gave written notice they desired to maintain this unit. Dr. LEISERSON. Unit, yes; the engineers. The CHAIRMAN. That they wanted to maintain their own separate craft unit. Dr. LEISERSON. Unit, but not union. They didn't have a union yet. The CHAIRMAN. What actually happened in the final analysis was that the Steel Workers' Organizing Committee, a C. I. O. organization, Swallowed them up, did it not? Dr. LEISERSON. Yes; it was what happened later. The CHAIRMAN. Wait a minute. Let me follow through and then you make any explanation you want. They were a minority of these employees? Dr. LEISERSON. Yes. The CHAIRMAN. And against their will they were divorced from a union of their own choice and forced into a union they did not wish to belong to? Is that a correct statement? Dr. LEISERSON. That isn't altogether correct, Judge Smith. The CHAIRMAN. Wherein is it not altogether correct? Dr. LEISERSON. After they gave this notice of 1937, some of them, perhaps a majority, actually joined the C. I. O. union. It isn't altogether clear whether a majority did, but that there were only about 10 or 12 men involved. When they did join the C. I. O. union— and they were members of the C. I. O.-the C. I. O. made another contract including them. After they had that contract, then the A. F. of L. union came in and these engineers left the C. I. O. union, those that had joined it, as well as those who had never joined it, and all joined the firemen and oilers' union and the engineers' union. And the case came to us when that had happened. We had made a decision on that, by the way, by a majority, Mr. Madden and I, deciding they had a right to have a separate unit. But on the other hand, since then our information is that a good many of these firemen and oilers have gone back to the C. I. O. union again. That just shows some of the troubles involved. Mr. TOLAND. Doctor, will you tell us where and how you get the information to which you just referred? Dr. LEISERSON. From some of the people that came into the office. The CHAIRMAN. You indicate in your memorandum that the C. I. O. union therefore had no authority to include them in the larger unit without their consent? Dr. LEISERSON. That is right. The CHAIRMAN. That would indicate they had actually been included against their will? Dr. LEISERSON. That is my opinion on the record, because of that previous memorandum. The opinion of the other members of the Board, or of one of them at least, was that there was a sufficient number who had joined the C. I. O. to give them that authority. The CHAIRMAN. Let us get away from that specific case and come to the principle involved, which is the point I am trying to get at. It is entirely possible under the law as at present written, that that very thing might happen to that minority union, isn't it, that they might be swallowed up by the order of the Board into a larger union? Dr. LEISERSON. That is now being tried before the Supreme Court. The arguments were heard last week, you remember, on this Longshore case on the west coast, where the Board ruled there was one unit of all of the longshore work on the Pacific coast, and there were three or four small ports that were represented by another labor organization, and they put them all into one unit. The CHAIRMAN. Yes. Dr. LEISERSON. And it is possible, just as you say, that is possible; and whether it is proper under the act will be decided by the Court. The CHAIRMAN. It is possible under the act for smaller unions to be swallowed up against their will into a larger union, under the circumstances as occurred here? Dr. LEISERSON. Not under the act-under an interpretation of the act. The CHAIRMAN. Under an interpretation of the act which has been made by the Board? Dr. LEISERSON. Which has sometimes been made by the Board. The CHAIRMAN. If the Board is right in that interpretation, haven't you taken away from the workingmen liberties they have always enjoyed before there was ever any such act? Dr. LEISERSON. That is true, and that is why I think the law does not authorize that sort of thing. There is nothing in the law making it necessary we should do it. Mr. TOLAND. Doctor, would you refer to your file and memorandum of July 25, 1939, Universal Pictures? Dr. LEISERSON. Twenty-sixth or twenty-fifth? Mr. TOLAND. Twenty-fifth. Dr. LEISERSON. Yes, sir; the twenty-fifth. Mr. TOLAND. I show you a photostatic copy and ask you if it is a true and correct copy of the copy in your files? Dr. LEISERSON. Correct. Mr. TOLAND. I offer the copy identified by the witness in evidence, Mr. Chairman. (Memorandum July 25, 1939, Leiserson to Madden, was received in evidence and marked "Exhibit No. 28.") Mr. TOLAND. I am reading from Exhibit 28, interoffice communication to Mr. Madden from William M. Leiserson, July 25, 1939: Subject, Universal Pictures. Yesterday I sent you a memorandum saying I did not want my name attached to this complaint until I had checked the files carefully for irregularities in handling. I have not yet had time to do that. If you think immediate action is needed on this, you can leave me out of the case entirely. I would rather not participate in it. I think this is another one of those cases in which the Secretary has put his fingers and balled it up, and I suspect that this telegram from Brackett was inspired. Dr. LEISERSON. I think you read that this morning. Mr. TOLAND. Then we will strike it. Dr. LEISERSON. The next one, on July 26, explains the details. Mr. TOLAND. Well, I now want the memorandum of July 20, marked "Confidential." That other exhibit must have appeared in duplicate. Dr. LEISERSON. July 20; what case? Mr. TOLAND. July 20, just marked "Confidential." I thought that sounded familiar when I read it, Doctor. Dr. LEISERSON. Is this it (indicating)? Mr. TOLAND. Yes. Doctor, I show you a photostatic copy of your memorandum of July 20 and ask you if it is a true and correct copy thereof? Dr. LEISERSON. Correct. Mr. TOLAND. Mr. Chairman, I offer the copy just identified by the witness in evidence. (Memorandum, July 20, 1939, Leiserson to Madden, was received in evidence and marked "Exhibit No. 29" and appears in full in the appendix of this volume.) Mr. TOLAND. Reading from Exhibit 29, dated July 20, 1939, marked "Confidential," to Mr. Madden from Dr. Leiserson: Here is the revision of my dissent in the Chrysler cases. I have tried to omit any implication of criticism of members of the Board. Your point is well taken in that respect; and if you find anything else of that nature in the revised version, I will be glad to eliminate it. When I wrote the first draft, I thought I was directing my criticism at the Secretary of the Board, who I think mishandled those cases, as he has mishandled many others. In this connection I should like to direct your attention to the attached excerpts from the minutes of the Board. Here a formal order for an investigation and hearing of the Plymouth case only was ordered on March 27th. Then four days later another order was issued consolidating this |