N. L. R. B. EXHIBIT No. 370-P To: Mr. Maurice J. Nicoson. Subject: Wilson & Company, Inc., Case No. C-863. AUGUST 17, 190 The Board has set aside and vacated the Intermediate Report in th ordered the record reopened and the case remanded to the Regional Director issuance of an Amended Complaint with Notice of Further Hearing there... As per instructions of Mr. Witt in his memorandum of July 8, 1939, and Mr Shaw in his memorandum of July 22, 1939, Mr. Lester Asher, attorney for the Eighteenth Region, has submitted for approval a draft of an Amendment ↑ Complaint and Notice of Further Hearing in the above case as well as a draft of proposed Stipulation to expedite the new hearing for the approval of this of The Amendment to Complaint and Notice of Further Hearing appears to essform with the instructions and suggestions of Messrs. Witt and Shaw but pre posed Stipulation reflects the following variance: The copy of Mr. Witt's memorandum lists as item 2 of the evidence and te mony to be extracted from case No. C-1117, (same respondent) for the pape of inclusion and as a part of the above case "Testimony of Russell Wood pp. 434-435 and pps. 458 through 565” The draft of the stipulation submitted by Mr. Asher reflects this same item as "Testimony of Russell Wood pp. 434-435 and pps. 458 through 564" Of course there may have been a typographical error in Mr. Witt's memorat iz and may have been corrected by him on the original copy which he forwarded to the Regional Director. However, this item should be checked. The only question besides approval of Amendment to Complaint and the Stipulation submitted by Mr. Asher is whether or not the second amended charge should be attached to the amendment to complaint. In my opinion the secon charge should be attached to the amendment to the complaint. Section 5 of Article II of the Board's Rules and Regulations provides among other things "a copy of the charge upon which the complaint is based shall be attached to the complaint." Any amended complaint based upon an amended charge shou.: likewise have attached to it a copy of the amended charge upon which it is based It is noted that the proposed stipulation makes the Employees Club a partr to the stipulation add space for the approving signature of an officer of such c...“ is also provided. Mr. Shaw in his memorandum states that while it is prefers for the Employees Club to join in the stipulation nevertheless it "is not absoluteir essential since the material to be incorporated does not involve alleged comparv domination of the Employees Club." Therefore, if Mr. Asher is unable to sec „TR the approval of the Employees Club to the stipulation, but is able to secure the approval of the respondent, I suggest that the stipulation be redrafted and the Employees Club be deleted therefrom. Mr. Asher has received instructions from Mr. Shaw (memorandum of July 22, 1939) as to further proceedings in this case which I deem sufficient and need not be elaborated upon. Recommendation.-I recommend that the submitted Amendment to Company and Notice of Further Hearing and the proposed Stipulation be approved subject to the above suggestions. C. D. D. CDD/MJ N. L. R. B. EXHIBIT No. 370-Q JULY 22, 1939. To: Lester Asher, Attorney, 18th Region. Subject: Wilson and Company, Incorporated, Case No. C-863. Your memorandum of July 13, 1939, directed to Mr. Halliday, has been referred to me for answer. You are correct in asserting that an amended complaint completely displaces an original complaint and that any record built up upon the old complaint becctles invalid for supporting matters alleged in the amended complaint. Therefore, you should issue a supplement to the complaint or an amendment to the complaint which incorporates the amendment directed by Mr. Witt's memorand au of July 8, 1939. I have discussed this with the Secretary's office and they give their concurrence. You should exert great effort to secure the participation of counsel for the Employees' Club in any stipulation agreeing that the said exhibit and testimony in C-1117 may be included in the record in C-863. However, this is not absolutely essential since the material to be incorporated does not involve alleged company domination of the Employees' Club. You will recall the parallel practice of some trial examiners to limit the participation of an intervening union, allegedly company-dominated, to the issue of company domination. If the respondent will not stipulate that the specified evidence shall be considered part of the record in C-863, you need make no showing of the availability of witnesses who testified in the C-1117 in order to introduce photostatic copies of the testimony of these witnesses in C-1117. The record in Board proceedings comes within the "reported testimony" exception to the hearsay rule and may be used in subsequent proceedings provided (1) the subsequent proceeding involves the same parties upon a related issue (2) counsel for the parties against whom the prior testimony is offered is permitted to recall old witnesses or to call new witnesses upon an offer to demonstrate that the prior testimony was given in a context which qualifies or negates its evidentiary value in the present proceeding. If counsel for respondent should make such an offer and calls witnesses for this purpose, you should, of course, object to any general fishing expedition or to any line of questions which does not bear on his offer. On the point of recorded testimony in prior hearings you may want to consult Pennsylvania R. Co. v. United States, 40 Fed. II 921 (Dist. Ct. Pa., 1930) which involved the I. C. C. See also Stephens, "Administrative Tribunals and the Rules of Evidence", pp. 29-30. DCS:dak D. C. S. N. L. R. B. EXHIBIT No. 370-R Re: Wilson & Co., Inc., XVII-C-136. Mr. MARSHAL WIEDEL, 4100 South Ashland Avenue, Chicago, Illinois. OCTOBER 13, 1938. DEAR MR. WIEDEL: I am writing in response to your letter addressed to Thurlow Smoot, dated July 11, 1938, with respect to certain corrections of the transcript in the above entitled proceeding. I have checked with the reporter and submitted the matter to Mr. Smoot, and I am authorized to stipulate this matter with you. We are perfectly willing to have all the corrections mentioned in your letter of July 11, 1938, made in the record, with the exception of the reference in the fourth paragraph on the second page to the statement of Mr. Quinn in the sixth line from the bottom of the page on page 1156. The reporter informs us that after checking his original notes, the statement appears correctly transcribed and, therefore, should stand. I trust that this is a matter of no great moment in any event. You may use this letter as our agreement with the corrections you suggest. LL:lb N. L. R. B. EXHIBIT No. 370-S MARSHAL WIEDEL ATTORNEY AT LAW LEE LOEVINGER. 4100 South Ashland Avenue Telephone Yards 4000 Re: Fairbault Labor Board Case. Mr. THURLOW SMOOT, CHICAGO, July 11, 1938. Regional Attorney, National Labor Relations Board, New Post Office Building, Minneapolis, Minnesota. DEAR THURLOW: I am sorry to have neglected writing you before concerning a few errors in the transcript of the above-entitled case, but I have been trying to go through it and I have just now completed reading it. The transcript is well clear of errors and there are only a few that I have to mention, most of which are merely typographical errors. I am sending a copy of this letter to Mr. Shefter and if you agree to the corrections that I have indicated, I am sure that we ca have the transcript corrected by him. On page 85 appears a statement by Mr. Cooney apparently directed to the Tra Examiner which now reads: "I remember the testimony ver well. That is cre thing you are not specialized in." Besides correcting the spelling of the word "very", I am sure that Judge Cooney said "That is one thing I have specialized in," and did not say what he is alleged to have said. On page 171 in the 7th line, the word "he" has been omitted and the line reads now: "incidentally, is an employee of the company.' In the stipulation beginning on page 462, the percentage of eggs purchased in the State of Minnesota is not stated probably through an oversight of Judze Cooney although, perhaps, through omission, and this should show that 100% of the eggs were purchased within the State of Minnesota. On page 1044, beginning in the 4th line from the bottom, there is the follow.g statement: "If they did not join it lose their jobs immediately and if they did jo`n it would just be a question of time, consistent with their past conduct, until the produce plant would be again closed up." I believe this statement should rest "If they did not join it, they would lose their jobs immediately and if they did join, it would just be a question of time" etc. This statement appears is a argument of Judge Cooney and refers to the newspaper clipping exhibits; the "it" referred to is the CIO. On page 1084, the 3rd line from the bottom reads: "That while he was president or ahead of all the Albert Lea unions" etc. The word "ahead" should be changed to "head." On page 1085, the 14th line starts out: "(there) was no will will" etc. Th should read "ill will". On page 1091, the 14th, 15th and 16th lines read: "That as far as he has beer able to learn, Ellis and his associates and the Independent Union of All Workers brought up and inaugurated the first so-called sit down strike" etc. The word "brought" should be "thought". On page 1156, 6th line from the bottom, the statement attributed to MQuinn is confusing. It reads: "That is objected to in view of counsel's crossing up the date" etc. Perhaps this statement is correct but it does not sound right to me. Page 1265, second line now reads: "transferred eggs frp. tje cases into the buckets." This is a typographical error and should be corrected so that the words read "from the". Page 1318, the 8th line begins: "(my) finger is sort." This should be changed to "sore". Page 1389, 12th and 13th lines read: "What has been your understanding reistive to the persons possession power to hire or fire" etc. The word "possession" should be "possessing". Page 1521, the 13th line, 3rd word should be "rats" instead of "rates". Page 1561, the 6th line should read: "I got a mind of my own". As it now reads, the word "mind" is "mine". On pages 1586 and 1587 is a statement attributed to you which reads: "Mr Cooney represents the respondent and is not attempting to prove that the respondent is not guilty of unfair labor practices." While it may be your opiniɔn that Mr. Cooney did not succeed in proving that, I am sure that you will adm. t that he at least attempted to prove it. In other words, the first "not" should be stricken. On page 1710 in the last line the word "Mr" should be changed to "Mrs." as it was Mrs. Hensel who was on the stand at that time. Page 1825, in the 10th line from the bottom, the word "subjected" shouli read "subject" so that the sense of the statement is that the evidence of the Board fails to show that the employees of the respondent who are subject to the complaint, etc. I trust that these corrections will meet with your approval and that the transcript may be corrected forthwith. If they do meet with your approval, I will make the corrections in my own copy. Very truly yours, MW: S /s/ MARSHAL WIEDEL CC: Mr. Nathan Shefner, c/o Shipley & Zellner, 155 No. Clark St., Chicago. N. L. R. B. EXHIBIT NO. 371 WILSON & Co. N. L. R. B. EXHIBIT No. 371-A Mr. ROBERT J. WIENER, WILSON & Co., INC., Albert Lea, Minn., May 4, 1939. National Director, National Labor Relations Board, New Post Office Building, Minneapolis, Minnesota. DEAR SIR: Yesterday in your office we gave you a copy of notice which we advised you we intended to post today in compliance with the order of the National Labor Relations Board dated June 20, 1938, as modified by the United States Circuit Court of Appeals for the Eighth Circuit. This is to advise that we have posted said notice on the bulletin boards of the plant and that they will remain posted thereon for a period of thirty days. We have also advised the Wilson Employees' Representation Committee that we have, pursuant to said order as modified by the Circuit Court, withdrawn all recognition of the Wilson Employees' Representation Plan as they represented the Albert Lea, Minnesota, employees. Yours very truly, WILSON & Co., Inc. /s/ H. W. EASTWOOD, H. W. Eastwood, General Manager. N. L. R. B. EXHIBIT No. 371-B To all Wilson & Co., Inc. Employes, Albert Lea, Minnesota: Wilson & Co., Inc. at Albert Lea, Minnesota, in compliance with an order of the National Labor Relations Board dated June 20, 1938, as modified and enforced by the United States Circuit Court of Appeals for the Eighth Circuit hereby gives notice to all of its said employes as follows: That it will not dominate or interfere with the administration of the Wilson Employes' Representation Plan or with the formation or administration of any other labor organization of its employes and will not contribute financial or other support to the Wilson Employes' Representation Plan or any other labor organization of its employes. You are further notified that the company has withdrawn all recognition of the Wilson Employes' Representation Plan as a representative of its Albert Lea, Minnesota employes. Dated May 3, 1939. H. W. EASTWOOD, Manager. N. L. R. B. EXHIBIT No. 371-C MAY 9, 1939. To: National Labor Relations Board. Supplementing my memorandum of May 5, in which I enclosed the company's statement of compliance, I would like to point out at this time that neither the company's letter of May 4 nor the notice to employees makes any mention of those portions of the Board's order directed towards the 8 (1) violation. Sincerely, Airmail To: Mrs. B. M. Stern. N. L. R. B. EXHIBIT No. 371-D From: Robert J. Wiener, Director, Eighteenth Region. Subject: Wilson & Co., Inc., C-483. MAY 11, 1939. Enclosed is another copy of the company's letter of May 4, and also the notice to employees dated May 3. I hope it will not bore you if I again point out that neither the company letter nor the notice makes any mention of the 8 (1) violation. Sincerely, N. L. R. B. EXHIBIT No. 371-E AUGUST 8, 1939. Re: Wilson & Co., Inc., Case No. C-483. General Manager, Wilson & Co., Inc., Albert Lea, Minnesota. DEAR MR. EASTWOOD: As you are aware, on June 20, 1938, the Nationa Labor Relations Board handed down a Decision and Order in the Matter w Wilson & Co., Inc., relating to the activities of the Company at its Albert Lea, Minnesota, Plant. A copy of the Board's Order is attached hereto for yoz information. As you further know, on April 12, 1939, the United States Circuit Court of Appeals for the Eighth Circuit delivered an opinion modifying the Boards Order and enforcing the Order as modified. The modifications ordered by the Court involved the deletion of subsections (a) and (b) of Section 2 of the Board Order and imposed a specific construction upon the word "disestablish” in subsections (c) and (d) of Section 2 of the Board's Order. As thus modified the Order was enforced. On May 4, 1939, you transmitted to us a copy of a notice to your employers which purported to be in compliance with the requirement of subsection d of Section 2 of the Board's Order, as modified. The notice, however, stated mere's that the Company would not dominate or interfere with the management of the Wilson Employes' Representation Plan or any other labor organization, and tṭa' the Company had withdrawn all recognition from said Plan. This apparete constitutes compliance with subsection (2) of subsection (d) of Section 2 of the Board's Order. However, you will note that subsection (1) of subsection (d) of Section 2 d the Board's Order, as affirmed, required the Company to post notices that it would cease and desist as set forth in subsections (a), (b), and (e) of Section 1 of the Board's Order. Subsection (e) of Section 2 requires the Company to notify the Regional Director for the Eighteenth Region in writing what steps the Conpany has taken to comply with the Order. The only report of compliance t`st has been made so far is your letter of May 4, 1939, together with a copy of the notice attached thereto dated May 3, 1939. Clearly, this does not constit ze full compliance with the Order of the Board, as affirmed by the Circuit Court of Appeals. I shall appreciate a prompt report from you stating what further steps, if any. the Company has taken to comply with the Order of the Board as affirmed by the Court. Very truly yours, Registered Mail. Return Receipt Requested. ROBERT J. WIENER, CC Judge J. D. Cooney, Wilson & Co., Inc., Chicago, Illinois. |