with Mr. Irving Helbling, Chief of the Mails and Files, who is the most accurately informed person with respect to the files of the Board, and he advises me that so far as he knows there are no files of the Board, formal or informal, that are missing with the exception that in the case of The Jacobs Bros. Co., Inc., C-244, part of the files were lost or misplaced some time around February or March 1938. The formal file in this case was reconstructed from copies available in the Regional office and the informal file in this case, with the exception of one memorandum dated October 7, 1937, copy of which appears to have been available, dates from February 25, 1938. The case went to a consent decree October 3. 1939. As you know, the informal file in the Consumers Research case, C-52, which was in the hands of your Committee and presumably returned, has been misplaced and is still being sought. I know of no other files that are missing. With respect to your reference to a conversation with Mr. Witt when his files were being taken last Fall, I do not recall that any documents or letters were missing from the files. I do recall that Mr. Witt made some remark critical of some of the filing systems, which he had been endeavoring to correct. I think what you are referring to is the fact that Mr. Witt's own files were not complete case files, which of course is true as to the files of all Board Executives. Yours very truly, CHARLES FAHY, General Counsel. CHARLES FAHY, Esquire, CONGRESS OF THE UNITED STATES, HOUSE OF REPRESENTATIVES, SPECIAL COMMITTEE TO INVESTIGATE THE NATIONAL LABOR RELATIONS BOARD, Washington, D. C., May 24, 1940. General Counsel, National Labor Relations Board Washington, D. C. DEAR MR. FAHY: I have your letter of May 22, 1940, with reference to missing files. I have been informed that there are ten informal files missing, and were missing prior to the passage of this Resolution. I am also informed that there is a memorandum to that effect. I wish you would make a further inquiry regarding these files and let me know if you have any such list, or if Mr. Helbling, or his assistants have such a list. With reference to the Consumers Research case, that file was definitely returned to the Board, not presumably. With regard to Mr. Witt's files, when we took his files there were many documents and letters missing, and I was furnished with a list of them, and over a period of weeks Mr. Krivonos located copies or the very documents that were missing. Mr. Witt stated that the filing system was such that the Board could be criticized for it. Furthermore, we had an understanding that there was to be no change in the filing system during the course of the investigation. I wish you would send me a list of all the changes made in the filing systems in the various divisions of the Board. I would like, also, to be advised of any experts from government departments, or any place else, who have been utilized by the Board in correcting or changing the filing systems. Very truly yours, EDMUND M. TOLAND, General Counsel. EXHIBIT NO. 1608-AN NATIONAL LABOR RELATIONS BOARD, EDMUND M. TOLAND, Esquire, General Counsel, Special Committee to Investigate the National 535 Old House Office Building, Washington, D. C. DEAR ME. TOLAND: Mr. Hinkel, of your staff, over the telephone a few days ago requested that I furnish you with press releases, statements, and addresses made by Board members or employees in criticism of the courts. I enclose copy 218054-41-vol. 24, pt. 2— 5 of a statement issued by the Board under date of May 8, 1940, in criticism of the truly remarkable decision of the Circuit Court of Appeals for the Ninth Circuit in the Sterling Electric Company case, rendered in defiance of the previous decisions of the Supreme Court and in which, with one judge dissenting, the Ninth Circuit attacked the Board and through the Board the National Labor Relations Act, the Congress and the Supreme Court of the United States. I think this is the only statement that the Board has ever issued in criticism of a particular decision of a court. When the Circuit Court of Appeals for the Seventh Circuit in the Inland decision dropped its judicial mantle, again with one judge dissenting, and characterized the Board as judge, jury, prosecutor and executioner, I made some remarks to a group of newspaper reporters to the effect that this statement was non-judicial, that such combination of functions as resided in the Board were like those residing in other agencies and were placed there by Congress; and that since no order of the Board was enforceable until approved by the court it was hardly proper to characterize the Board as "executioner." It may be entirely possible that in public addresses, copies of which you have, there have been statements about judicial decisions and trends in relation to the development of labor law. You are familiar, of course, with Blankenhorn's personal and private memorandum regarding the decisions of the Supreme Court in the test cases of the Board, which memorandum the Board publicly repudiated when it was publicized by yourself under such circumstances as to lead some to believe that Mr. Blankenhorn expressed the sentiments of the Board. If further or more detailed information is desired, please let me know. In conclusion may I say that while the Board and its employees, if I may interpret their views, have the highest devotion to the judicial arm of the Government, which has played such a notable and vital part in the establishment of the principles enacted by Congress in the National Labor Relations Act, nevertheless, they reserve the right guaranteed by the Constitution to comment with propriety on court decisions, particularly where such comment seems desirable in the interest of clarification of matters affecting the administration of the National Labor Relations Act. DEAR MR. FAHY: This will acknowledge receipt of your letter of May 22. Will you be good enough to send me several copies more of the statement of the Board of May 8, 1940, concerning the decision in the Sterling Electric Company case? Will you, also, advise me if the Board authorized the statement that you made prior to the time that you made it concerning the decision of the Circuit Court of Appeals for the Seventh Circuit Court in the Inland Steel Company case? Your characterization of the Blankenhorn memorandum as personal and private is, of course, your own. These memoranda were found in Mr. Blankenhorn's file at the National Labor Relations Board together with memoranda from him to members of the Board. The original was not in his file. The record clearly establishes Mr. Blankenhorn's recollection as to whether the memorandum in question was prepared for members of the Board or not. The Committee will draw its own conclusions concerning the memorandum in question. Of course the members of the Board, when they are called again to the stand, undoubtedly, will be questioned concerning this memorandum and others found in the files of Mr. Blankenhorn. The Committee will also be advised as to the comment made concerning the decision in the Sterling Electric Company case. My own opinion is that such a statement as this can hardly be said to be a fair comment. Very truly yours, EDMUND M. TOLAND, General Counsel. EXHIBIT No. 1608-AO NATIONAL LABOR RELATIONS BOARD Washington, D. C. Immediate release, Wednesday, May 8, 1940. STATEMENT OF NLRB REGARDING DECISION OF 9TH CCA IN STERLING ELECTRIC PRODUCTS, MAY 7, 1940 A majority of the Circuit Court of Appeals for the Ninth Circuit has refused! to enforce an order of the National Labor Relations Board, requiring the dis-establishment of a union found after hearing to have been the subject of unlawful interference and domination by the Sterling Electric Motors Company, on the ground that the requirements of due process and a recognition of civil liberties required that the Board should make the dominated union a party to the proceedings before it. The Board said: "The language of the majority opinion is both intemperate and unjudicial and has already been repudiated as ‘unnecessary' and 'ill advised' by one member of the Court. The Board regards the majority opinion as in reality a repudiation of and challenge to the decisions of the Supreme Court of the United States which foreclosed the issue adversely to the majority opinion of the Circuit Judges in the Greyhound cases, and again in National Licorice Company v. National Labor Relations Board, decided in March of the present Term. "In the belief that the majority opinion is both erroneous and wholly unwarranted, it is the intention of the Board immediately to request of the Solicitor General that a review of the decision be sought in the Supreme Court." The decision of the Ninth Circuit Court yesterday was preceded by an earlier decision in the case of the Sterling Electric Motors Company on January 9, 1940, based upon the same case and also denying enforcement of the Board's order. The Circuit Court subsequently withdrew its own decision and referred the case back to the Board. Meanwhile, on March 4, 1940, the Supreme Court handed down its decision in the National Licorice Company case which involved the same issue of whether or not the Board is compelled to serve notice of hearing on a labor organization allegedly dominated by the employer. In the National Licorice case the Supreme Court said: "As the National Labor Relations Act contemplates no more than the protection of the public rights which it creates and defines, and as the Board's order is directed solely to the employer and is ineffective to determine any private rights of the employees and leaves them free to assert such legal rights as they may have acquired under their contracts, in any appropriate tribunal, we think they are not indispensable parties for purposes of the Board's order and the statute does not require their presence as parties to the present proceeding and there was no abuse of the Board's discretion in its failure to make them parties." In a footnote to the above language the Supreme Court pointed out that the January 9 decision of the Ninth Circuit Court in the Sterling Electric Motors case was contrary to its current ruling in the National Licorice case. EXHIBIT No. 1608-AP NATIONAL LABOR RELATIONS BOARD, EDMUND M. TOLAND, Esquire, General Counsel, Special Committee to 535 Old House Office Building, Washington, D. C. DEAR MR. TOLAND: This will acknowledge your letter of May 23 in which you request several additional copies of the statement of the Board of May 8, 1940 concerning the decision in the Sterling Electric Company case. I enclose herewith six additional copies. You also ask that I advise you if the Board, previous to my making the statement, authorized the statement that I made concerning the decision of the Circuit Court of Appeals for the Seventh Circuit in the Inland Steel Company The Board did not have anything to do with this statement. Without prior consultation with the Board, I made the statement orally to a group of reporters who asked me for my comment on the decision. case. You state that in your opinion the statement of the Board in the Sterling Electric Company case is not a fair comment. I think if you knew the full history of this case and if you will study the decision carefully in the light of the history of the Greyhound cases and the National Licorice Company decision, the latter cases being decisions by the Supreme Court, you will conclude that the comment of the Board was fair. Yours very truly, CHARLES FAHY, General Counsel. EXHIBIT 1608-AQ NATIONAL LABOR RELATIONS BOARD, EDMUND M. TOLAND, Esquire, General Counsel, Special Committee to Investigate the National Labor Relations Board, 535 Old House Office Building, Washington, D. C. DEAR MR. TOLAND: I have your letter of May 21 in reply to mine of May 20 regarding the Grower-Shipper Association informal file, case No. C-178. You state it is difficult for you to understand the need of a review attorney for the informal file in connection with the preparation of a brief. In my request of May 20 I wrote you that the attorney working on the brief needed the file, not that the review attorney needed the file. Notwithstanding your supposition that a brief is based upon the record the fact is that we desire the informal file for the purpose simply of checking the record before it is certified to the Court to be absolutely certain as to the accuracy of the record certified. The briefing attorney also desires to look through the file and if he wishes to do so I certainly have no objection. Since you have no responsibility for the brief I can not accept your view as to the limitations of the studies an attorney may make in connection with briefing a case in Court after Board decision. Yours very truly, CHARLES FAHY, General Counsel. CONGRESS OF THE UNITED STATES, CHARLES FAHY, Esquire, HOUSE OF REPRESENTATIVES, SPECIAL COMMITTEE TO INVESTIGATE General Counsel, National Labor Relations Board, Washington, D. C. My position is the same with regard to the attorney preparing the brief. It has always been my understanding that briefs are written from the record and the pleadings. The formal file contained the pleadings. I have no objection to the briefing attorney looking in the informal file, and I likewise do not have responsibility and neither do I care to have any concerning his action or his work. My position is that, until the case is presented, the informal file will be kept intact by this Committee and will not be available for his examination. Very truly yours, EDMUND M. TOLAND, General Counsel. EXHIBIT No. 1608-AR EDMUND M. TOLAND, Esquire, NATIONAL LABOR RELATIONS BOARD, General Counsel, Special Committee to Investigate the National Labor Relations Board, 535 Old House Office Building, Washington, D. C. DEAR MR. TOLAND: Under date of April 1, on request of Russell Whitesell, I sent you a mimeographed copy of the Procedural Report of the Legal Survey Committee, together with a copy of the dissenting report by Edward Schneider. I wish you would please have Mr. Whitesell examine the "Committee on Administration" file which was sent to you from Mr. Madden's files and see if the original Legal Survey Committee Procedural Report is in that file. The reason I am asking this is that the mimeographed copy sent you April 1st was changed somewhat before final submission, and should be compared with the report finally submitted. Yours very truly, CHARLES FAHY, General Counsel. EXHIBIT No. 1608-AS NOVEMBER 8, 1939. To: The Board. From: Legal Survey Committee. Subject: Procedural Report. I. PROBLEM The problem submitted to this Committee for its consideration is a study of the method now used by the Board in deciding cases, with a view to expediting their issuance and still maintaining the high level of quality which has heretofore obtained. This problem has been presented in two aspects: (1) How to dispose of the back log of cases now in the Review Division awaiting decision; (2) an examination of proposed methods for expediting the decision process. All comments made by the Committee apply only to complaint cases, since it is understood that no problem exists with reference to representation cases. II. OBJECTIVE The Committee believes, after a study of the entire problem, that the objective of the Board should be a system under which, in the average case, 1 month would elapse between the close of hearing and issuance of the Intermediate Report, 1 month from Intermediate Report to oral argument and report to the Board, and 1 month from that point to issuance of the final decision. III. ANALYSIS OF THE PRESENT SYSTEM A proper understanding of the problem requires a description of the manner in which the present system operates. A. DESCRIPTION OF PRESENT SYSTEM The procedural steps involved in the present system are indicated on the following chart: |