SEPARATE STATEMENT BY MR. BURTON A. ZORN The undersigned concurs in the report of the majority except as to its approval of the proposed Smith amendments numbered (2), (4), (6), (7), (8), and (9) in the report. BURTON A. ZORN. CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES SPECIAL COMMITTEE TO INVESTIGATE THE Miss FANNIE M. BOYLS, Apartment 303, 3446 Connecticut Avenue, Washington, D. C. DEAR MISS BOYLS: This will acknowledge receipt of the copy of your letter to Judge Smith. I want you to know that every consideration will be given by me to the statements contained in your letter. Just as soon as the Committee takes the matter up I am sure they will communicate with you. Very truly yours, EDMUND M. TOLAND, General Counsel. Hon. HOWARD W. SMITH, APARTMENT 303, 3446 CONNECTICUT AVENUE, Chairman, Special Committee to Investigate N. L. R. B., Washington, D.C. House Office Building, Washington, D. C. DEAR CONGRESSMAN: I direct your attention to Section II D of the Intermediate Report of the majority of your Special Committee to Investigate the National Labor Relations Board and especially to statements therein which footnotes bearing my name would indicate that my testimony supports. Feeling deeply the unfairness and misleading character of some of these statements, and realizing that I may not have an opportunity to appear before your Committee in person to reply to the accusations made in the Intermediate Report, I am appending hereto my sworn statement in reply to these accusations. I am making this statement not only because I believe that an injustice has been done to the Labor Board, but also because I feel that some of the statements in the Intermediate Report reflect seriously upon my personal professional standing. I trust that you will give due consideration to the attached statement in connection with rendering the final report of your Committee or in connection with further action which your Committee may take. Yours very truly, FANNIE M. BOYLS. ec. Hon. Abe Murdock, Hon. Arthur D. Healey, Hon. Harry N. Routzohn, Hon. Charles A. Halleck, Mr. Edmund M. Toland. DISTRICT OF COLUMBIA: 88: Before me, a notary public in and for the District of Columbia, on this day personally appeared Fannie M. Boyls, who having been by me duly sworn, deposes and says: The findings and conclusions in the first three paragraphs under "Misconduct of Review Attorneys" at page 48 of the Intermediate Report of the Special Committee to investigate the N. L. R. B. are based upon an erroneous premise, a misconception of the nature of the instructions to review attorneys in regard to informal files. Relevant parts of the instructions read as follows: "Effective April 3, 1939, review attorneys will not be permitted to inspect the informal files of any case to which they are assigned any correspondence or papers with which the review attorney is concerned will be forwarded to him through the Secretary's office with the formal file only. Mr. Kaminstein of the Secretary's office will act as liaison officer between the Review Section and the Secretary's office upon these matters." (Italics supplied.) No correspondence or other papers which are to be filed or have been filed in an informal file except a formal inquiry concerning the cause of a delay, requests and replies to requests for oral argument, transmittal letters attached to briefs or excep tions of the parties, and other such papers with which I am properly concerned as a review attorney have been seen by me since instructions in regard to the informal files have been issued. In paragraph 1 under "Misconduct of Review Attorneys," at page 48, is the following statement: "Although the review attorneys summoned before the committee testified that they did not have any informal files in their possession after that date. nevertheless documents identified as taken from these informal files, with various of the review attorneys' names written thereon, were produced in evidence." Following this statement is a footnote citing as an example committee exhibit 399. I 524, a formal inquiry concerning the cause of delay in the Schwarze Electric Company case upon which I was working, which I identified as having seen and initialed, and also citing as an example committee exhibit 447, I 613 (2), a seur rilous statement found in the informal file of a case which was assigned to Miss Landy, which statement Miss Landy testified that she positively had not seen The statement and footnote in the Intermediate Report is misleading and malevolent In its implications. It implies that the names of review attorneys appearing upon papers in informal files were the signatures of such review attorneys or that the appearance of such names is an indication that they have seen the papers. neither of which implication is true. I am informed by file clerks with the N. L. R. B., and believe, that these names are written by them and that the appearance of a review attorney's name upon a paper has no relation whatever to whether or not he has seen it. As I explained to the Committee when testifying. I mark my initials upon all correspondence which I have seen. [I 524 (2)] This practice of initialing papers is in accordance with instructions issued to all review attorneys on December 20, 1938. I did not write my name upon any of the papers taken from the informal file and which are in evidence. I have never violated either the spirit or the letter of the instruction referred to in the Committee's Intermediate Report. Paragraph 2 under “Misconduct of Review Attorneys," on page 48, states, "Where such documents displayed the handwriting of review attorney witnesses, they admitted having seen them, even after the prohibiting instruction of the Board had been issued.” A footnote purporting to support this statement reads, “See Boyls, I 524 (3),” This statement is palpably unfair and misleading and is not supported by the testimony referred to in the footnote. As I have already pointed out, the "prohibiting instruction" applied to informal files and not to all documents or papers which might properly be filed in the informal file, for the instruction specifically stated that "any correspondence or papers with which the review attorney is con cerned" would be forwarded to him. The letter upon which my initials appeared in my own handwriting and which I identified as having seen is the same one discussed in the preceding paragraph. It was transmitted to me by the Associate General Counsel in charge of the Review Section and was clearly a paper properly referred to me. In the first paragraph on page 49 of the Intermediate Report it is stated: “In at least one instance the "off-the-record" material was decisive in determining the issue in the case." A footnote supporting this statement lists "Boyls, I 52," This statement is not accurate, as a reference to my testimony will disclose. In the case about which I testified, a representation case, there appeared an ambiguous statement in the transcript which could have been interpreted to mean that a union other than the petitioning union might have been in existence at the plant. To make sure that every union which might have an interest in the representation proceeding had an opportunity to present its claims, the Board conducted an investigation to ascertain whether there might be a union other than the petition ing union at the plant. The investigation disclosed that no other union claimed to represent any of the employees, and the Board thereupon found appropriate the unit claimed by the petitioning union and directed an election. In footnotes number 27 and 28, page 49, I am cited in support of the statement "that review attorneys unhesitatingly discussed cases with * * litigation division and regional directors." As my testimony before the Committee will show, I have discussed points of law with the Assistant General Counsel in the litigation division. I was expressly instructed by my supervisor to do so. It has never been suggested to me that it is improper to discuss legal questions with any member of the litigation division. Concerning the charge that I discussed cases with regional directors, this is absolutely false, and my testimony does not support such a conclusion. I have never at any time discussed any case with a regional director. At page 50 in the first and second paragraph under the title, "Preparation of Cases for Presentation to the Board," there appear the following statements: "The approved method of preparing cases for the Board would seem to require the consideration of all the documents in the record, and no others. "Several review attorneys reduce this labor by merely considering the pleadings and transcript of testimony and exhibits, failing to consider exceptions to the trial examiner's report or the briefs of the parties. And certain of the witnesses failed to testify that they used the trial examiner's report." The name "Boyls, I 520" is cited in footnotes purportedly supporting the last two statements. My testimony does not support either of these statements. I have never failed to consider the entire record in any case assigned to me. The record includes the trial examiner's report and exceptions to the trial examiner's report. (Art II, Section 32, N. L. R. B. Rules and Regulations, Series 2). Likewise, I have never failed to consider all briefs filed in cases assigned to me. No brief was filed by any of the parties in the Schwarze Electric Company case to which the footnotes bearing my name referred. FANNIE M. BOYLS. Subscribed and sworn to before me by Fannie M. Boyls on this 15 day of April 1940. [SEAL] JOHN A. NEVROS, Notary Public, District of Columbia. My commission expires Aug. 15, 1943. Exhibit No. 1628-A-1628-AD [Introduced into evidence in Volume 24, Part I, August 1, 1940] BERCUT-RICHARDS PACKING COMPANY, ET AL., C-883 THROUGH C-898 BRIEF CHRONOLOGY Charge filed by United Cannery, Agricultural, Packing and Allied Workers of America, alleging violation of Section 8 subsections (1) and (3) of the Act. March 7, 1938: Amended charge. March 11, 1938: Complaint issued. March 15, 1938: Order consolidating cases, April 2, 1938: Order designating Charles A. Wood trial examiner. April 11, 1938: Hearing which proceeding became ex parte upon withdrawal of respondents and intervenor. September 17, 1938: Order transferring proceedings to Board. June 5, 1939: Order setting aside record in case. September 23, 1939: Second amended charge. September 25, 1939: Amended complaint. October 20, 1939: Order designating Batten trial examiner in place of Wood. 218054-41-vol. 24, pt. 2- -49 October 23, 1939: Second hearing. January 3, 1940: Stipulation agreed upon by company and Board. April 11, 1940: Petition to enforce Board Order filed in Circuit Court of In the consolidated cases of Bercut-Richards Packing Company, et al. California Processors and Growers, Inc., cases numbers XX-C-362 to XX-C-377 Trial Examiner Charles A. Wood today made order denying Board counsel's motion to dismiss intervention by A F of L unions and State Federation of Labor who are interveners in the case but stated he was referring matter to Chief Trial Examiner for final ruling, Trial Examiner Wood however over objec tion by respondents and interveners made the further order prohibiting interveners from continuing with the presentation of their witnesses or case at the present time and directing that respondents immediately proceed with and complete the presentation of respondents' case. Some weeks ago at the conclusion of Board's case it was agreed by all counsel and expressly authorized by the Trial Examiner that interveners' counsel and respondents' counsel could alternate or arrange the order of proof and the order of witnesses as they might mutually agree upon. Respondent's counsel and interveners' counsel so arranged their plans and preparation and the trial to date has proceeded accordingly. Such arrangement and procedure was and is essentially necessary to enable an orderly logical and adequate presentation of the defense to the charges and to preserve and protect the rights of the parties involved. The main gist or substance of the Board's complaints which were based upon charges by a CIO union, is that the intervening A F of L unions who represent thousands of cannery workers in California were organized, and the collective bargaining agreements between the employers and such unions were entered into as a result of collusion between the employers and such A F of L unions and the intervener State Federation of Labor. By the very nature of the case a large part of the burden of defending the charges necessarily falls upon the interveners and officials and members thereof, who have prepared to present their case. At the present stage of the case interveners were engagd in presenting their witnesses and would have continued to present a number of such witnesses prior to the calling of any further witnesses by respondents. Today's ruling by the Trial Examiner interrupting such order of procedure and requiring respondents to proceed at this time to complete respondents' case and leaving the matter up in the air as to whether interveners will be entirely dismissed from the proceeding is highly prejudicial to the respondents. If interveners' intervention is to be dismissed then the burden will fall upon respondents to prepare and offer if possible testimony and evidence heretofore contemplated and understood should and would be presented by interveners' counsel. Such burden necessarily will require a considerable period of time in order to enable respondents' counsel to be prepared and able to present such testimony and evidence. Following the aforementioned rulings of Trial Examiner Wood today respondents' counsel requested a continuance of the trial to enable such preparation or until some final ruling would be made by the Chief Trial Examiner or by the Board. Such request was denied and the trial ordered to proceed Friday morning. It is respectfully requested first, that the question of whether interveners' intervention shall be dismissed, which question was referred by the Trial Exami ner to the Chief Trial Examiner for ultimate decision, be immediately disposed of and, secondly, that the order made today by the Trial Examiner that re spondents be required to complete their case before interveners' witnesses testify be rescinded. If these requests be denied a continuance of the trial for at least one month is requested so that respondents' counsel may make the preparation necessitated by the Trial Examiner's rulings today. Re cannery cases. For your information, intervener's witness, Vandeleur, turned testimony into attack on CIO. In argument on motion to strike intervener's counsel made statement "this is the whole case. It is a dispute between the CIO and AFL". Trial examiner requested correction in light of pleadings. Intervener refused to correct and offered to prove assertions. I moved to dismiss intervention as intervener's case immaterial and Board without jurisdiction to hear it. After argument and submission of briefs motion denied and trial examiner states entire matter to be submitted to Board for review. Pending Board's decision respondent directed to come forward with its case. Hearing continued until Friday, July 29. EXHIBIT NO. 1628-D MCTERNAN, N. L. R. B., 20th Region. NATIONAL LABOR RELATIONS BOARD TWENTIETH REGION 1095 Market Street, San Francisco, California Re Cannery Cases. OAKLAND, July 31, 1938. DEAR NAT: I read in this morning's papers the most recent thunder of Padway to the effect that each unfavorable decision will be countered by intervenor-respondent resistance to an enforcement order, thus precipitating a new case for each adverse decision. It reminds me of the bald threats made by Padway in the Mt. Vernon case last fall. The discredit-the-Board attack has opened up here in Cannery, but (and this is important) it opened up at a moment which caught respondent-intervenor off-guard and prematurely exposed the play. Thus their play on the record is weak. More than that, it is a blemish so far as their appeal is concerned. While the case strategy is clear, the Board will not, of course, overlook ultimate case strategy, which ultimate strategy is, by a cry of anti-A. F. of L. bias, to persuade the Board to take the intermediate report away from the trial examiner, and thereafter to put formidable pressure on the Board never to issue a decision. To satisfy, despite injustice, the demands of the respondent-intervenor will not, in my opinion, aid the Board. The real battle, of course, is on a congressional front, and in starting to run from anything one merely exposes one's flank to attack. So far as the recent "mandamus" attempt, the play of respondent-intervenor in Cannery is to take all eyes away from the record itself (which they cannot attack) putting the pressure not against the record in the case, but simply against the Board, without allowing time for the Board to advise itself by reading the transcript. The Board ought to read the record immediately, but to continue the case while it does so prejudices the record because the delay alone of a continuance will serve respondent-intervenor in pointing out, on appeal, that whether or not the Board's appeal argument rebuts any prejudicial error the Board nevertheless thought there might be |