INTER OFFICE COMMUNICATION NATIONAL LABOR RELATIONS BOARD JULY 1, 1939. Personal and Confidential. To: Philip G. Phillips, Ninth Region. Subject: Arbitration. In your memorandum of June 29, addressed to Mr. Rosenberg, concerning the testimony of Griffin of the Selby Shoe Company, you state that you were chosen as the arbitrator in the most recent contract between the company and the C. I. O I do not understand this reference inasmuch as previous instructions to Regional Directors are to the effect that they are neither to act as arbitrators nor are they to appoint arbitrators. Perhaps your statement means merely that you were asked to serve as an arbitrator. In any event, I would like this clarified. N. W INTER-OFFICE COMMUNICATION JULY 11, 19:39. Personal and Confidential. To: Philip G. Phillips, Ninth Region. From: Nathan Witt. Subject: Arbitration. On page 22 of the original Instructions to Staff Members (September 17, 1935), you will find an instruction to the effect that no staff member should act as an arbitrator without first securing authorization from the Board. It is true that the second paragraph of this section apparently authorizes the appointment of others as arbitrators; however, whenever the question has come up since, the Board has decided that as a matter of policy staff members should neither act as arbitrators nor appoint others to do so. N. W. JUNE 5, 1:39. To: Mr. Wagner, Charleston. Subject: Standard Ultramarine. George Ansell sent me a copy of the decision of the West Virginia Board of Review in the Employment Compensation Division stating that Riley Clovis Jenkins had been unjustifiably discharged. I am ready to hand down my award but am holding up in view of that, so I can notify the company he sent it to me and give them an opportunity to reply. I wish they wouldn't do things like this, it simply embarrasses me and does them no special good. I realize, of course. that the unions don't mean any ill by it. gf To: Mr. Martin Wagner, Charleston, W. Va. Subject: Standard Ultramarine. APRIL 24, 1939. Mr. Wright is still raising cane that I am biased. I attach herewith copies of correspondence we have had. I wish I could get in to see him and will do so as soon as possible. Apparently he is doing his best not to bring me into the situation. gf MISCELLANEOUS 1935 To: Mr. Ralph A. Lind, Ninth Region. From: B. M. Stern. DECEMBER 26, 1935. Referring to your informal report of December 21, 1935: It would appear that you are making a practice of investigating cases prior to the filing of charge. I would suggest that you follow the most recently defined procedure and make no investigation of any case until the charge has been filed. If I don't write to you again within the time limit (which would be incredible since Dick is away), Happy New Year to you and yours both office and home. Considerable delay has been caused in Representation cases by the lapse of time between the conclusion of the hearing and the submission of the Trial Examiner's report. This report should be an informal one, since it is not issued to the parties, and should really be a short summary of the Examiner's reactions to the testimony, his impression of the witnesses, and his recommendation (based on his recollection of the hearing rather than a study of the record) regarding the proper decision in the case. You must make every effort to get the per diem Trial Examiners appointed in Representation cases to submit their informal report to the Board within three days from the conclusion of the hearing. B. W. Memorandum. NATIONAL LABOR RELATIONS BOARD WASHINGTON JANUARY 15, 1936. To: Ralph A. Lind, Regional Director, 9th Region. On September 21 the Board instituted the temporary policy of having all cases submitted to it by the Regional Directors for its approval before any complaints were issued. The Board has been studying the work you have done to date, and feels that you now have sufficient experience under the National Labor Relations Act to assume the responsibility for the issuance of complaints. Hereafter you will follow the procedure outlined in pages 4 and 5 of the Book of Instructions and issue complaints after you have investigated charges and discussed the question of legal sufficienty with the Regional Attorney. We wish to caution you on one thing. Complaints should be issued whenever the companies' activities are not obviously outside of our jurisdiction, because of the absence of interstate commerce, and the union's cases are not completely lacking in merit. You should not limit the issuance of complaints to those cases in which you are sure the charges will finally be sustained. Such a method would really be prejudging each case. In the final analysis the Trial Examiner and the Board will be able to determine whether a case has merit. The mere fact that a case falls for lack of proof is no sign that the Region Director or Regional Attorney did not do a good job. This does not, of course, excuse the failure to have made the most complete preparation possible before the hearing date. In representation cases, you will continue your present practice of accepti: z petitions and recommending the issuance or non-issuance of orders by the Board directing an investigation and hearing. Where cases are adjusted before complaints are issued or before hearings are held, you will please send us forthwith a brief but comprehensive accout of the facts in the cases and the terms of settlement. These reports shoud be sent in addition to the regular weekly reports on cases. The work of the Board has advanced to the point where the Regional offices wil now be able to follow the regular procedure set forth in the Instructions. This involves a greater responsibility on the Regional staff, but we are confident the responsibility will be ably borne and the work will be promptly and successfully accomplished in the Regional offices. This memorandum must be kept highly confidential and should be seen only by members of your staff whose work may be affected thereby. The Board for some time has been faced with a steadily increasing docket and there are many cases which have already been heard in which decisions should be issued. Due to a lack of funds, and the resulting inability to increase the staff, the situation has become sufficiently pressing to make it imperative that fewer cases be heard for a while. Furthermore, the Guffey decision makes it desirable that the cases which we take be subject to a more careful scrutiny than they have been in the past. The Regional Directors should redouble their efforts to adjust cases without issuing complaints. More time should be spent on the investigation of cases both on the unfair labor practice features and the commerce features. If the cases seem weak, you should make every effort to get the unions to withdraw their charges, or petitions, explaining to them the undesirability of holding hearings on the cases which the Board might have to decide against them because of lack of jurisdiction. The Board has been receiving approximately twice as many cases as it can adequately handle with its present staff, and to enable it to get abreast of its work, the number of hearings will have to be decreased by about one-half Certain types of cases will have to be completely eliminated for the present. and others must be discouraged as much as possible. The strongest type of case, and the one which should get first preference in preparation and hearing, is that involving interstate transportation and communication, such as bus lines, trucking, pipe lines, shipping, telephone and telegraph, radio, etc. Another type of case which, while not as strong as the first type. should receive preferential treatment in the Regional Office is that in which the respondents are stockyards, packing houses, grain elevators and milling companies. Industries similar in character, although not quite as good because they have not been considered as frequently by the Court, are textile comverting, printing and dyeing of textile cloth, canning, etc. All such cases are good only if the bulk of the goods come from outside the state to respondent's plant, and are thereafter shipped out of the state to a further destination. Manufacturing cases are in general less desirable than those we have already discussed. But within this category there are gradations of desirability. In certain industries, the process is really an assembling process rather than a manufacturing process. Various kinds of parts come to the plant from other states, are put together, with no real change in the various parts, into the finished products, which are then shipped out of the states. The automobile industry is an example of this type. Some industries are composed of large and highly integrated units, where the company supplies its own raw material, transports it to the plant, processes it. sends it to another of its plants for further processing, and then sells the final product, or sometimes a semi-finished product. Steel companies would come within this class. In some companies, everything is so scheduled that an interruption of commerce is particularly harmful. Raw material comes in on regular schedule, is immediately processed, and is then shipped out on schedule, possibly to another plant which does similar time-scheduling. Any interruption in such a plant would have an immediate widespread disruptive effect. Many automobile-parts factories operate in this matter. Cases involving firms such as those just described, in the automobile, steel or auto-parts industries, or in the rubber indutry, are good manufacturing cases in which to issue complaints or hold hearings on petitions. A type of case which is also desirable, and is probably peculiar to the garment industry, is that in which cloth comes into a state, is cut, or sewn, or semi-finished in a plant in that state, and is then sent to another state for completion into a finished garment. Often this work is done on a commission basis, and the respondent never owns the materials on which he works. In the general mass of manufacturing cases, a number of factors must be considered, in determining whether it is desirable to issue complaints. The number of complaints and notices of hearings issued must be reduced and the following may help you to decide which cases go to a hearing. A case where the respondent manufactures mostly to order is preferable to one where manufacture is mostly for stock. A case where the process of manufacture is uninterrupted, the complete process is rapid, and the degree of conversion from raw material to finished product is comparatively small is preferable to one where the manufacturing process is lengthy and complicated and involves a great change in the form of the raw material. The type of employees affected by an unfair labor practice should be considered, since a case involving shipping clerks, or clerical workers who handle orders. or employees who are connected with purchase and sales departments, is preferable to one involving production or maintenance workers. The question of a stoppage of the flow of commerce must be considered. A case where a strike is in progress and has actually stopped or considerably reduced the shipment of raw materials from out of the state to the plant, and has had a similar effect on the outgoing shipments of finished products, or an imminent strike which would have the same effect, is preferable to a case where there has been no stoppage of commerce, and the likelihood of such stoppage is problematical. The size of the firm with relation to the industry must be considered, as must its importance in the community. The location of respondent's plant in one state and its sales office in another strengthens a case. Neither complaints nor notices of hearings in representation cases should be issued unless the bulk of the raw material used by the respondents come to their plant from other states and, in addition, the bulk of the finished product is shipped outside of the state of manufacture. No complaint or notice of hearing should ever be issued where the raw material does not cross state lines in its journey to respondent's plant, or where the finished product does not move out of the state after the completion of the manufacturing process. Certain manufacturing industries fall into this category, as do mining, quarrying, oil wells, construction, most wholesale and retail distribution, printing and publishing, etc. In cases involving the service trades, amusements, intrastate transportation, and similar local enterprises, our past policy of not issuing complaints will be continued. There may be cases in which, in view of the foregoing instructions, you would ordinarily refuse to issue a complaint, but in which, because of special circumstances, you think it extremely desirable to hold a hearing. Some cases may be of particular importance to labor in a community. In certain cases the respondents, because of their position in an industry or locality, may be leaders whose actions will be used as a guide or model to be followed by other employers. In some cases, a public hearing on especially vicious unfair labor practices will have a salutary effect on the community. These and similar factors must be taken into account in determining whether to issue complaints, but you must always remember the vital necessity of reducing the number of complaints now being issued. The cases covered by this paragraph should rarely arise. Each time you issue a complaint, you must send us a resume of the facts, showing the unfair labor practices and the commerce aspects of the case. If you are in any doubt regarding the advisability of issuing a complaint, you can send us such a resume before you issue the complaint, and we will give you what advice we can concerning it. When you send in your weekly reports, you should add to the "New Case" reports a brief statement showing the type of commerce involved As a result of these restrictions in the holding of hearings, it will probably be somewhat more difficult to retain the confidence of Labor in the Board and in your office. This can be done, however, and we count on your complete cooperation. By direction of the Board: In going over again what I said regarding hearsay evidence in my confidential instructions to Trial Examiners, I find that perhaps I gave the impression tha: the hearsay rule should be adhered to as strictly as possible. In view of the provision of the Act that the rules of evidence in our proceedings should not be controlling, and in view of the problems we face in eliciting testimony, this is not the proper emphasis. It is certainly true, as a general proposition, that the best evidence we cas obtain in most of our cases is evidence which is obtainable only from the em ployers, superintendents, foremen, etc. However, we do not in fact obtain the evidence from such sources, and must usually rely upon union witnesses. This is a fact which we can amply demonstrate from the experience of this Board and its predecessors. This being so, we should have in mind relying on this experience when we contemplate court review of our rule on hearsay; in any event we should push our rule as far as we can in an effort to get at all the facts and if the courts limit us we will at least know that we have gone as far as we can. With respect to specific applications of the rule, hearsay should be admitted where, under all the circumstances of the case, the witness is testifying to what is a normal experience for a person in his position. To take an example from one of our cases, a member of a union should be permitted to testify as to the genera. atmosphere which surrounds union meetings and as to the belief of the members as to why certain of them stay away. If the belief is that the employer is spying on meetings, and if the witness can testify that this belief is pretty general or held by certain members besides himself, he should be allowed to so testify. Other examples follow: 1. Assume that a foreman has made an anti-union statement to Employee A who thereupon repeated it to Employee B. If the foreman is not available or will not testify, and if Employee A will not testify, I think that Employee B should be permitted to testify in the normal case. Of course, in a case like this, as in all other cases concerning the application of the hearsay rule, much depends upon the general background and upon the type of witness you are dealing with. In any event, if a case involves more than one such incident testimony concerning them, even though technically hearsay, should be admitted. 2. Assume that in your case the company is charged with having formed a com pany union, and that there is some direct evidence that this is so, for example, a letter from the company. Once a foundation of this kind has been laid, the employees should be permitted to testify to other incidents in the same field even though such testimony may technically be hearsay. For example, no employee in a case of this kind should be permitted to testify that it is generally known that a certain employee, who is prominent in the alleged company union, is friendly with a particular foreman, is often seen in his company, etc. Other examples could be given, but I think the above illustrates the approach sufficiently. The major considerations should be the type of case, the general background, the kind of witness, and whether the things the witness testifies to are those things which usually concern workers who are interested in selforganization and in the general employment situation in the factory. The principal consideration on the other side is to guard against records which include too much hearsay, or which include hearsay on too many vital issues. |