Note that all pertinent data in these reports have been included in the tabulation referred to above.

Yours sincerely,

CHARLES FAHY,
General Counsel,

TABULATIONS SUMMARIZING DETAILS OF NATIONAL LABOR RELATIONS BOARD'S EMPLOYEES TO SENATE CIVIL LIBERTIES COMMITTEE BY YEARS 1936-1939

N. L. R. B. staff employees detailed to Senate Civil Liberties Committee

Detail of National Labor Relations Board staff to Senate Civil Liberties

*Since being reassigned to the Board Mr. Blankenhorn has been recalled to frequent conferences with the Senate Committee.

WORK ON INDEXES

The Board has approved a budget for completing the index of the Senate Civil Liberties Committee's record, intended for the use of the Board and other Government agencies, as well as the Senate Committee, which calls for the employment of a supervisor and clerk-stenographers for a period not to exceed 6 months at the following grades of pay: CAF-11-$3,800; CAF-9-$3,200; CAF-5$2,300; P-2-$2,600.

Secretary, Federal Trade Commission, Washington, D. C.

DEAR MR. JOHNSON: This will acknowledge receipt of and thank you for your letter of March 13 which was received while I was on a short vacation trip to Florida.

Very truly yours,

EDMUND M. TOLAND, Esq.,

EDMUND M. TOLAND,

General Counsel.

FEDERAL TRADE COMMISSION
OFFICE OF THE SECRETARY

WASHINGTON, March 13, 1940.

General Counsel, Special Committee to
Investigate the National Labor Relations Board,

House of Representatives, Washington, D. C. DEAR MR. TOLAND: This will rpely to your letter dated February 6, which, however, is postmarked March 8 and did not reach me until March 9.

In reply to your letter to him under date of February 13, Mr. W. T. Kelley, the Commission's Chief Counsel, by letters to you dated March 2 and March 12 furnished specific information relating to the subject matter of your letter to me. Under the circumstances, I assume that there is no necessity for me to appear before your Committee. If, however, you desire any information in addition to that submitted by Mr. Kelley, the Commission will be pleased to supply it. By direction of the Commission.

OTIS B. JOHNSON, Secretary.

CONGRESS OF THE UNITED STATES

HOUSE OF REPRESENTATIVES

Mr. OTIS B. JOHNSON,

SPECIAL COMMITTEE TO INVESTIGATE THE
NATIONAL LABOR RELATIONS BOARD,
Washington, D. C., February 6, 1940.

Secretary, Federal Trade Commission, Washington, D. C. DEAR MR. JOHNSON: There is enclosed herewith a stenographic copy of the Proceedings of this Committee of February 1, 1940.

On page 394, columns 1 and 2, reference is made to the accomplishments of other governmental departments before the Courts. The Committee is desirons of knowing whether you would desire to appear before it to submit any further information along this line?

EDMUND M. TOLAND, ESQUIRE,

General Counsel, Special Committee to Investigate

the National Labor Relations Board, House of Representatives, Washington, D. C. DEAR MR. TOLAND: This will supplement my letter of March 2, and further reply to your letter of February 13.

There is attached hereto a table showing for the years 1936 to 1939, inclusive, the number of cases in which hearings were held and testimony taken by the Federal Trade Commission, the total number of pages of testimony taken in such cases during that period, the total number of days' hearings in which such testimony was taken and the average number of pages of testimony taken at each day's hearing. As these figures include all of the cases in which testimony was taken during the period referred to, it is impossible to obtain from them either the total or the average number of pages of testimony taken in each of such cases, since the taking of testimony in some of them was begun prior to 1936 and in others was not concluded by December 31, 1939. For this reason I have caused an additional compilation to be made dealing only with cases in which testimony was taken under complaints issued since 1936 and concluded by December 31, 1939. This compilation shows the following:

During the period 1936 to 1939, inclusive, the Commission issued 1306 complaints. In two of these cases the complaints were rescinded, 409 are still pending and 895 were concluded and disposed of. Hearings were held and testimony taken in 450 of these 895 cases. The total number of pages of testimony taken in the 450 cases was 105,208 pages, the average number of pages of testimony taken in each of the cases being 234 pages. No testimony at all was taken in 445 of the 895 cases concluded and disposed of. In 92 of them the facts were stipulated by agreement between respondents and the Commission in lieu of testimony and evidence, and in 287 the respondents formally admitted the facts alleged in the Commission's complaints. The remaining 66 of the 445 cases in which no hearings were held or testimony taken, were either consolidated with other cases or closed.

Apart from the 66 cases last referred to, it will be noted that in a total of 379 of the 895 cases concluded and disposed of no testimony at all was taken This was brought about principally through conference and consultation with respondents after joinder of issue. We are always glad to sit down and go over our cases with respondents and arrive at an agreement as to the facts, if possible. in lieu of trying the cases. This is highly in the public interest, as it saves expense to both the Government and the respondents, and enables the Commission to proceed more expeditiously not only with these cases, but with other work as well. The fact that the respondents formally admitted the facts alleged in the Commission's complaints in 287 of the 895 cases concluded and disposed of

might also be especially noted as indicative of the essential correctness of the basic facts developed by the Commission's investigations prior to the institution of proceedings.

I have not given you the number of pages of testimony taken in each case in which testimony was received, as that would require a very lengthy statement. However, if you desire this information and will let us know, we shall be glad to furnish it.

With kindest personal regards, I am
Sincerely yours,

Enclosure.

W. T. KELLEY,

Chief Counsel.

Cases in which hearings were held and testimony taken January 1, 1936, to December 31, 1939

MY DEAR MR. KELLEY: Thank you very much for your letter of March 2 setting forth the court record of the Federal Trade Commission. The Committee is very anxious to have the information that was requested in the first paragraph of my letter.

I am directed by the Committee to inform you that your cooperation is greatly appreciated.

With kindest personal regards, I am,

Sincerely yours,

EDMUND M. TOLAND, Esq.,

EDMUND M. TOLAND,
General Counsel.

FEDERAL TRADE COMMISSION
OFFICE OF THE CHIEF COUNSEL

WASHINGTON, March 2, 1940.

General Counsel, Special Committee to Investigate

the National Labor Relations Board,

House of Representatives, Washington, D. C. DEAR MR. TOLAND: I wish to acknowledge receipt of your letter of February 13 requesting, for the years specified therein, the court record of the Federal Trade Commission and other data.

As you are undoubtedly aware, it is impossible to appraise accurately the work of the Federal Trade Commission by a consideration of its court record alone. The number of our orders reaching the courts constitutes but a negligible fraction of the number of matters investigated and reviewed by the Commission, and the proportion of our orders reviewed by the courts to the number of cases in which the Commission has taken corrective action is small indeed. Statistics prepared by the Commission at the request of, and for use by, the Temporary National Economic Committee show that during the period from January 1, 1933, to April 30, 1939, the Commission investigated and reviewed 22,038 cases,

accepted 3,379 stipulations to cease and desist and issued 1,218 cease and desist orders. Although any respondent aggrieved by any order of the Commission has the absolute right to appeal to a circuit court of appeals of the United States. our circuit courts reviewed only eighty of the Commission's cease and desist orders during the period January 1, 1933, to April 30, 1939.

In assembling the statistics requested in the second paragraph of your letter, namely the court record of the Commission for the years 1936 to 1939, inclusive, we have excluded from consideration petitions for rehearing, motions for resettlement of orders and other interlocutory matters. We have also excluded cases in which the Commission has requested the Department of Justice to act to procure judgments to enforce and collect penalties for failure to furnish information required by the Commission or for violation of the Commission's orders.

The court cases to which the Federal Trade Commission was a party have been divided into two classes. The Commission's court record on its case and desist orders, with respect to which appeals have been taken to the circuit courts of appeals, either by the Commission for the enforcement of its orders or by respondents to review and set aside such orders, has been considered separately from its record in miscellaneous court proceedings to which it was a party. During the years 1936 to 1939, inclusive, sixty cases involving cease and desist orders have been decided on their merits by our circuit courts. It may be fairly stated, in my opinion, that the decisions in fifty-four of these sixty cases were in favor of the Commission and the decisions in three of the remaining six cases were more favorable than otherwise to the Commission. During this period only three of these sixty cases were decided adversely to the Commission and one of these three cases did not involve the validity of its order.

In thirty-nine of the aforementioned fifty-four cases, the courts affirmed the orders of the Commission as written, and in fourteen of them slightly modified the Commission's orders and affirmed them as modified.

Included among the fourteen cases in which the courts slightly modified the Commission's orders are four cases (see one opinion covering these four cases, F. T. 8. vs. A. McLean & Son, 84 Fed. (2d) 910, respondent's petition for certiorari denied, 299 U. S. 590) in which the Circuit Court of Appeals for the Seventh Circuit modified two paragraphs of the orders of the Commission by striking the the word "may", and substituting the words "are designed to". However, in the consideration of three later cases (National Candy Co. vs. F. T. C., 104 Fed. (2d) 999, respondent's petition for certiorari denied, 60 S. Ct. 174), the court disapproved and, in effect, reversed its position on the question involved in all seven of these cases, sustaining the Commission's orders using the word "may" in the later

cases.

Also included among the fourteen cases in which the Commission's orders were slightly modified are one case which was decided by the Circuit Court of Appeals for the First Circuit (F. T. C. vs. Charles N. Miller Co., 97 Fed. (2d) 563) and five cases which were decided by the Circuit Court of Appeals for the Ninth Circuit (Helen Ardelle, Inc. vs. F. T. C., 101 Fed. (2d) 718), in all of which the question involved was the same as that in the McLean case. These cases were decided be fore the Seventh Circuit's reversal of its position. The Second and Tenth Circuits have had occasion to consider both positions of the Seventh Circuit. The Tenth Circuit has approved the second position of the Seventh Circuit, affirming the Commission's order without modification (Ostler Candy Company vs. F. T. C. 106 Fed. (2d) 962). The Second Circuit slightly modified the wording of the Commission's order in Sweets Company of America, Inc. vs. F. T. C., decided January 29, 1940.

The remaining four cases in which the orders of the Commission were only slightly modified by the courts are: F. T. C. vs. Army & Navy Trading Company. 88 Fed. (2d) 776; California Rice Industry vs. F. T. C., 102 Fed. (2d) 716; H. N Heusner & Sons vs. F. T. C., 106 Fed. (2d) 596, and Educators Association. Inc. rs F. T. C., 108 Fed. (2d) 470, see also opinion on rehearing, February 27, 1940.

Among the fifty-four cases decided in favor of the Commission is one case in the Second Circuit in which the Commission applied for and was granted certiorari (F. T. C. vs. Standard Education Society, 86 Fed. (2d) 692, certiorari granted 301 U. S. 674), to review several modifications of its order. The Supreme Court reversed the circuit court and sustained the order of the Commission as drawn, with the exception of one minor modification. (F. T. C. vs. Standard Education Society, 302 U. S. 112.)

The Commission was sustained in taking corrective action in two other cases, in which, however, its orders were substantially modified by the courts. (Bear Mill Manufacturing Co. Inc. vs. F. T. C., 98 Fed. (2d) 67, and Belmont Laboratories, Inc. vs. F. T. C., 103 Fed (2d) 538.) In an additional case which we have treated