from membership therein, although there is no indication that their suspension was formally acted upon by the I. L. G. W. U.

The I. L. G. W. U. maintains that the complainants were not recommended for reemployment on October 31, 1938, because they had conducted a "wild-cat strike, in violation of the no-strike provision in the I. L. G. W. U. contract I claims that it will reinstate them as members and will consent to their reeu pof ment if they sign a written statement to the effect that they "will live up to their obligations and responsibilities as members of the Union." It is to be noted, however, that all but two of the complainants did sign such a stateger" following the October 11 strike. The complainants appear to be willing to accept reemployment.

The Company claims that it cannot reinstate the complainants without the I. L. G. W. U.'s consent to the lay-off of an equal number of present employes all of whom allegedly have been employed since before the October 11 k the Company having since reduced its total working force. The I. L. G. WI however, has consistently refused to discuss a settlement of the case.

CONCLUSIONS

On the foregoing facts there is some argument for the existence of an 13 violation because of the circumstances under which the I. L. G. W. U. contrac was executed. On the other hand, more than a majority of the respondents employees, between May 29 and June 1,1o executed cards designating the C. I 0 as their bargaining agent and at that time the I. L. G. W. U. was a C. I @ affiliate with jurisdiction over such workers. Moreover, the respondent and the union and its members, including the individual complainants herein, lived u: der the contract without anyone questioning its validity for a period of almost 1s months before the dispute and strike which led to the refusals to reinstate Under these circumstances, both on legal and policy grounds, it is doubtful that the Board should proceed on a theory predicated upon the invalidity of the contract. Furthermore, if the contract was valid as the respondent and the union contend, in view of the language of Mr. Justice Roberts in The Sands M'g Co. case, the existence of a basis for an 8 (3) finding is dubious since the strike constituted a breach of contract which justified discharge.

For the reasons enumerated above, I recommend that the Board sustain the Regional Director's refusal to issue a complaint.

EXHIBIT NO. 1630-AI

NATIONAL LABOR RELATIONS BOARD

Attention: Mr. Madden.

2-26-40: Complainants advised Board has sustained Regl. Dir. action in refusing | to issue complaint.

2-28-40: Case dismissed.

Committee has files.

(Written notation:)

The Board.

Mr. Witt.

Since October 1938 the complainants have formed an independent union. There some indication in the file that they have been receiving financial and legal assistant, from the U. M. W. There is also an indication that the complainants have been boycotted by employers in Henderson and that the Company has threatened to discharge preset" employees who have affiliated with the independent union.

The exact date of the designations is not shown by the files.

The file shows that this designation was intended to apply to a C. I. O union of appropriate jurisdiction, although the signers did not know which C. I. O union bid jurisdiction over them.

12 Mr. Justice Roberts, speaking for the Court, said: "Respondent rightly understood that the men were irrevocably committed not to work in accordance with their contract It was at liberty to treat them as having severed their relations with the corpu"t because of their breach and to consummate their separation from the company's «ni, cof by hiring others to take their places. The Act does not prohibit an effective dis here for repudiation by the employe of his agreement, any more than it prohibits such charge for a tort committed against the employer." (Citing 7 Compare Vational LaM Relations Board v. Fansteel Metallurgical Corp., No. 436, Oct. T.. 1938, p. 6 f.) Labor Relations Board v. Sands Manufacturing Company, 306 U. S. 332,

National

NATIONAL LABOR RELATIONS BOARD

Attention: Mr. Smith.

Leiserson.
Witt.

From: J. W. M.

Date: 3-19-40.

Fox & GORDON

LAWYERS

Madisonville, Ky.

MARCH 15, 1940.

Re Cornbleet Bros. and Bobbie White, et al., Case No. XI-C-499.

NATIONAL LABOR RELATIONS BOARD,

Washington, D. C.

GENTLEMEN: On January 18, 1939 the Complainants filed charges in the above matter with Mr. Robert H. Cowdrill, Regional Director. Within a short time thereafter a Field Representative of the Board came to Henderson and made an investigation of the facts of this matter. On September 4, 1939 we addressed letter to the Board, making inquiry as to when a complaint would be issued in this matter. Mr. Estelle S. Frankfurter, Administrative Assistant replied to that letter stating that the matter is presently being considered by the Board looking towards the issuance of a complaint and holding of a hearing, and suggesting that we keep in touch with the Indianapolis Office for further development, which we did.

On November 25, 1939 the Complainants received notice from Mr. Robert H. Cowdrill, Regional Director, stating that his investigation reveals that the case is not sufficiently strong to warrant the issuance of a Complaint by his office.

On November 30, 1939 we mailed to the Board Petition of Complainants for a Review of the Action of Mr. Robert H. Cowdrill, Regional Director, in declining to issue a complaint. On the same day we mailed to Mr. Robert H. Cowdrill copy of the Petition for Review. On December 4, 1939, Mr. Frankfurter wrote us that the Petition had been received, and that he was on that day notifying the Regional Office at Indianapolis to forward its files for the Board's study, and we assume that was done. We have not had further information about the matter.

(Written notation): Why not?

We realize, of course, that the members of this Board are necessarily burdened with work in looking after the many charges filed with it from all over the entire United States. We also realize that during the past few months a Congressional Committee, aided by certain interests in an attempt to destroy the Wagner Act and also the Board, has been causing the members of the Board to devote some of their time in meeting the issues raised. But it is very unfortunate that there should be such delays in issuing and trying complaints. These delays constitute the very worst thing that could happen to labor. In the instant case about thirty-five employees were discharged about 18 months ago. This is very discouraging to the other employees, and they fear to assert their rights under the Act for the reason they need to work in order to make a living.

We have never been able to understand why Mr. Robert H. Cowdrill, Regional Director, could conclude that the case is not sufficiently strong to warrant the issuance of a complaint. We of course, do not know what the Field Agent reported to the Regional Office. We furnished to him some 27 or 28 affidavits, also gave him the names of some ten or a dozen other witnesses. We assume he interviewed those witnesses. In addition to many other important facts, the evidence of those witnesses would establish beyond any sort of doubt that the contract entered into by the Cornbleet Bros. with the International Ladies' Garment Workers' Union was entered into in St. Louis, Mo., prior to the time that any of the employees of Cornbleet Bros. were members of that Union; and that immediately following the execution of the contract, Cornbleet Bros. caused a meeting of some of its employees to be held at the Soaper Hotel in Henderson, Kentucky, and that only about fifty of their employees attended this meeting; that the Supervisors and Foremen of Cornbleet Bros. attended this meeting; and dictated who should be elected as officers of the Local Union; and then the following morning when the factory opened before any employee

These

was permitted to enter the factory they were required by the Supervisors to sign a paper joining the International Ladies' Garment Workers' Union. facts will not even be denied by either Cornbleet Bros., or the Officials of the International Union. In fact it will be proven that one of the high officials of the International Union admitted this to be true.

We assume the Field Agent discovered all these facts, and that those facts are shown in the records in this case. If these facts do not appear in the record, we hope the Board will make inquiry of the Field Agent who made the investigation.

We know that the labors of the Board are so arduous that many matters nee essarily have to be handled by its subordinates, and cannot perhaps receive the direct attention of the Board members, and that on that account many delays may occur for which the Board is not directly responsible.

A newspaper report under an article with headline of Washington, dated December 11, 1939, published the following:

"A third point brought out was the dissatisfaction of David Dubinsky. Leader of the Independent International Ladies Garment Workers' Union. over an unfavorable board decision and the appointment of Leiserson to the board by President Roosevelt."

"During the course of the hearing, Committee Counsel Edmund Tolan presented document after document to develop that:

"1-Leiserson regards N. L. R. B. Secretary Nathan Witt as incompetent and untrustworthy and at least twice has attempted unsuccessfully to get the board to discharge him."

"2-Dubinsky complained to Witt by telephone that President Roosevelt did not do a 'good thing' when he named Leiserson to the labor board and told Witt 'that isn't what we pay our money for'!"

And under a Washington heading, dated December 12, 1939, concerning the testimony of Mr. William M. Leiserson, a new member of the Board among other items reported as follows:

"The second involved a case from Alpena, Michigan in which the Board with Leiserson participating rendered a decision adverse to the position of the International Ladies Garment Workers. A memorandum from Witt to J. Warren Madden, the chairman of the Board, said that David Dubinsky, the President of the Union, protested in a telephone conversation with Witt and asserted: "That isn't what we pay our money for.'"

Of course we know nothing of the truthfulness of these newspaper reports. and we do not believe the members of this Board are guilty of any wrongdoing But when it is remembered that David Dubinsky is the President of the Union involved in this case, and also remembered that, according to newspaper reports, Dubinsky felt authorized or justified in making the statements he is alleged to have made to Secretary Witt; then considering the delay in the present case, it at least furnishes some ground of suspicion that through some subordinates of the Board, Dubinsky may be causing a delay in this case.

(Written notation:) delay-letter approving refusal to issue compl. sent 2/26/40

We think the facts of this case, which cannot be disputed, are more than sufficient to cause a complaint to be issued; and we urge and insist that a complaint may be issued in the near future.

Citizens Bank & Trust Company, Madisonville, Kentucky.

DEAR MR. GORDON: I have been asked by the Board to acknowledge your letter of March 15, 1940 and to advise you that on February 26 of this year the Board

decided, after carefully reviewing the facts in this matter, to affirm the refusal of the regional director to issue a complaint.

I find that through an inadvertence, letters notifying them of the disposition of the case were sent out to Bobby White, Noka Ekdahl, Margaret Kellough, and Ann Fambrough, instead of to you who represented them.

I am very sorry this mistake occurred and that you were not advised formally of the Board's action at the time it was taken.

Here is another squawk out of your baby, so I think you may want to apply the remedy. Yes?-or shall I answer?

NATIONAL LABOR RELATIONS BOARD

E. S. F.

Attention: Mrs. Stein.

From: E. S. S.

Date: 7/1.

(Written notation:) B. M. S.: I suppose this should be checked through to see whether all the facts alleged were covered in the report. E. S. S.

DEAR SIR: We have yours of March 23, notifying us that on February 26 the Board decided, after carefully reviewing the facts in the matter, to affirm the refusal of the regional director to issue complaint. This is our first official notice of the action of the Board.

We are not advised as to whether the Regional Director or the Board has ever made any written analysis of the facts of this case. If so, we would appreciate a copy of such analysis. It seems that all the Regional Director or the Board did, so far as we are informed, was just to say there were not sufficient facts to justify a complaint.

We have heretofore practiced more than fifteen cases before the Regional Director and the Board, all of which were decided in our favor. We have read every case decided by the Supreme Court of the United States and many of the cases decided by the Circuit Courts of Appeals, and if we are not greatly in error the facts of the present case are much stronger than any case we have practiced or read. We may be dumb, but the fact remains we are unable to conceive by what process of reasoning the Board could conclude that the facts of this case do not justify issuing a complaint. We feel that, as attorneys for the complainants, we are entitled to know how the Board analyzed these facts and reached a conclusion that the facts did not justify a complaint.

We assume that the facts discovered by the Field Agent of the Board who investigated this matter were reported by him to the Board. If so, they show o particular fact which would certainly justify the issual of a complaint, and tha fact is this:

Prior to the time that any one of the employees of Cornbleet Bros. was a member of the International Ladies' Garment Workers Union, Cornbleet Bros. entered into a contract in St. Louis, Mo., with the International Ladies' Garment Union, of which Mr. David Dubinskey was President, with respect to wages, hours and working conditions in its factory. After this contract was entered into then the facts stated in our petition for a review of the Regional Directors ruling, ou pages 2, 3 and 4, took place. These facts can be established beyond any question, and will not be denied by Cornbleet Bros. or the International Ladies' Garment Workers Union. These facts were admitted by one of the National Officers of the International Ladies' Garment Workers Union. After this contract was entered into Cornbleet Bros. caused a meeting of some of its employees to be held at the Soaper Hotel in Henderson, Ky., at which 48 out of its 400 employees attended The foremen of Cornbleet Bros. were present and dominated this meeting; and caused local No. 290 to be organized. The factory then opened and all the remaining 350 employees were compelled to join this Union before they would be admitted to the factory.

If these facts were not reported to the Regional Office and to the Board, then the Field Agent of the Board should be interviewed by the Board; and the Board will find these facts to be true.

We are unable to understand how the Board could conclude the facts do not justify the issual of a complaint, even if there were no other facts connected with the case. However, if these facts were stricken from the record, the record shows other facts sufficient to justify the issual of a complaint.

Certainly it is not the intention of the Act that the Board should arbitrarily refuse to issue a complaint if the facts justify the issual of a complaint; and we assume the Board will not take such a position.

We are filing this as a Petition for a Rehearing, and now move and request the Board to give us a rehearing, and that the Board again review the record in this matter; and if the recited facts do not appear in the record that the Bord require the Field Agent who investigated this matter to amend his report and give to the Board all the facts discovered by him in his investigation; and we believe when the Board fully understands the full facts, it will then issue a complaint.

DEAR SIR: We have yours of the 3rd in answer to our letter of March 29, 1940, You did not state whether the Board had made any written analysis of the facts; and that was one thing we were requesting. You only say that the Board considered all the facts in reaching its conclusion that the Regional Director should be affirmed in his refusal to issue a complaint. Unless the Board made a written analysis of the facts, and unless we had that before us, we would not know whether the Board had before it all of the facts which the Field Agent discovered. In your letter you state the following: