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Mr. TOLAND. Mr. Chairman, in that connection I would like to offer in evidence, to be printed, a copy of the opinion of the Supreme Court of the United States on January 2, 1940, National Labor Relations Board, petitioner, v. International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, Local Union 876.

Acting Chairman HEALEY. All right, that may be done.

(Copy of opinion of the Supreme Court of the United States on Janary 2, 1940, in the Matter of National Labor Relations Board, petitioner, v. International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, Local Union 876, was received in evidence and marked "Exhibit No. 1081" and is on file with the committee.)

Mr. TOLAND. I ask that that be printed.

Mr. Fahy. Mr. Toland, I just wanted to ask that the record could show at this point in the text that the Supreme Court set aside the injunction granted by the sixth circuit.

Mr. TOLAND. Yes; I am going to read it.

At the same time, Mr. Chairman, I would like to offer in evidence decision of Mr. Justice Black on the same day in the case of the National Labor Relations Board v. The Falk Corporation.

Acting Chairman HEALEY. What is the purpose of that?

Mr. TOLAND. These are all for the purpose of showing, in this particular case, based upon the testimony of Dr. Leiserson, based upon the testimony of Mr. Madden, that the Supreme Court has decided that there is no right of review in "R" cases, and Dr. Leiserson, you recall, took an opposite view from the members of the Board as to their right to hold these run-off elections. Mr. Madden testified that they invented this policy of run-off elections. I have his testimony right here, Mr. Fahy.

Acting Chairman HEALEY. Do you intend to offer those decisions to be printed in the record ? Mr. TOLAND. To be printed.

Acting Chairman HEALEY. Mr. Toland, the committee feels that if you will just use a citation of reference and put those in the record, rather than put the full decision, you would meet your objective in that way. You would accomplish the same thing:

Mr. TOLAND. Why not file them as exhibits without being printed?

Acting Chairman HEALEY. That is perfectly all right, but make reference to the citation.

Mr. TOLAND. I would like to offer in evidence the decision of the Supreme Court of the United States on the National Labor Relations Board v. The Falk Corporation, January 2, 1940.

(The document entitled “Decision of the Supreme Court of the United States on the National Labor Relations Board v. The Falk Corporation, January 2, 1940,” was offered in evidence and marked "Exhibit No. 1082" and is on file with the committee.)

Mr. TOLAND. I would like to offer in evidence the decision of the Supreme Court of the United States, American Federation of Labor, International Longshoremen's Association No. 38, Petitioners, v. National Labor Relations Board, dated January 2, 1940.

(The document entitled "Decision of the Supreme Court of the United States, American Federation of Labor, International Longshoremen's Association, No. 38, Petitioners, v. National Labor Relations Board, dated January 2, 1940,” was received in evidence and marked "Exhibit No. 1083" and is filed with the committee.)

Mr. TOLAND. I would like also to offer in evidence decision of the Supreme Court of the United States, dated February 12, 1940, in the case of National Labor Relations Board, Petitioner, v. Waterman Steamship Corporation, and ask that they be filed as exhibits.

(The document entitled "Decision of the Supreme Court of the United States in the case of National Labor Relations Board, Petitioner, v. Waterman Steamship Corporation, dated February 12, 1940, was received as evidence and marked "Exhibit No. 1084," and is filed with the committee.)

Mr. TOLAND. The purpose of the offering of proof of testimony is twofold. One is to show that the Supreme Court has construed the present act, that under section 9 unions do not have any right of review.

In connection with the problem of run-off election, Mr. Madden testified as follows, on page 554, on the 3d day of February, 1940. I will not read all the paragraph, but I will read parts of it. (Reading:)

It seems to me that it is the problem that you have in any multiple candidate election where the statute requires a majority to elect, that you have got to invent some kind of an elimination device, and if you invent it and then operate it regardless of consequences, why of course each party has the same opportunity to get a plurality in the first election and thereby be the candidate which gets a second chance.

And then he continues: The suggestion is often made that while there should be a run-off election, that run-off election should have on the ballot the names of the two unions and eliminate the “neither.” That is, it should, say, give a place to both the A union and the B union, but no place for the non-union vote.

It seems to me that if it is proper for the Board to disfranchise the non-union vote, it should do it by leaving the "neither" off the first time, and there is no point in allowing the “neither” people to vote and then, when 25 percent of them vote that way, set up another ballot in which they have no place to vote, and compel them to make a selection between two unions when they have already indicated that they don't want either of them.

Then he continues further:

If the gentlemen of the Congress want to—if they want to provide for a ballot, with no opportunity for non-union rote, where there are two union candidates, I suppose that that would greatly please the unions, but it hasn't been the way the Board has operated under the present statute.

Now then, when Dr. Leiserson testified in connection with Exhibit 60, he stated as follows, in his dissent, or in his statement to the Board (reading):

I am not convinced that the law gives us authority to order run-off elections. If we may order such elections, if we have authority to do this, we would also have authority to order voting on the basis of proportional representation, such as is used in Cincinnati and New York, or we could order some other form of preferential roting. I think the Board goes beyond its powers in this decision. However, since I did not participate in the three previous election orders, I do not need to participate in this one.

I would like to read the chronology into the record of this case, to show the effect that the decision has had on the members of this organization.

a

On the 2d day of February, 1938, a petition was filed by the I. B. E. W., being the International Brotherhood of Electrical Workers affiliated with the American Federation of Labor.

On August 12, 1938, there was an order by the Board directing an investigation. There was a hearing held by the Board on August 28 and 29, 1938.

On November 8, 1938, the Board directed an election to be held within 45 days.

On November 23, 1938, the direction of the election was amended to provide for an election within 60 days.

A motion was filed to amend the decision on November 21, 1938, by the U. W.0. C.

There was an order of the Board denying in part and granting in part, the motion of the U. W.O.C. on November 29, 1938.

There was an oral argument held on December 19, 1938, on the question of including crew foremen.

There was a second amendment to the decision of the Board on December 22, 1938, excluding crew foremen and providing for election within 70 days.

An intermediate report on the election was filed on January 30, 1939, indicating a plurality of 92 votes for U. W. 0. C., being the C. I. O. affiliated union.

On February 24, 1939, there was a hearing on the petition by the I. B. E. W. for a place on the ballot in the run-off election.

There was a supplemental decision and direction of election on March 1, 1939, providing that only the U. W. 0. C. affiliated with the C. I. O. be placed on the ballot.

On April 5, 1939, the I, B. E. W. filed its petition in the Sixth Circuit Court of Appeals.

On April 10, 1939, the Sixth Circuit Court of Appeals issued its order staying the election, and on June 28, 1939, it issued its order and decision setting aside the Board's supplementary decision.

On October 9, 1939, the Supreme Court of the United States granted a writ of certiorari upon the petition filed by the Board.

The opinion of the court already offered in evidence was issued on January 2, 1940, reversing the decision of the Sixth Circuit Court of Appeals.

The decree of the Sixth Circuit Court of Appeals was issued on February 14, 1940.

On February 16, 1940, the Board issued its notice of intention to amend its decision to provide for an election to be held within 45 days, and that is the present status in this case.

Acting Chairman HEALEY. Just for the purpose of record, Mr. Toland, is it a fact that no election has been held?

Mr. TOLAND. There was originally one.
Acting Chairman HEALEY. No run-off election.

Mr. TOLAND. No run-off election has as yet been held, but the Board on the 16th day of February, 1940 has now issued its order ordering an election to be held within 45 days at which time on the ballot, the name of this particular union will not appear.

Now, Mr. Gill, has your union been served, do you know, with the notice of the intention of the Board to amend its decision, issued on the 16th day of February, 1940, in regard to the run-off election that is to be held ?

Mr. GILL. We have had some notice of that. As to what that was,

I don't know.

Mr. TOLAND. At the same time, I think the record should show that in connection with the petition filed by this Union, on the same day a petition was filed by the C. I. O. charging violations of 8 (1) and 8 (2) against the respondent. This charge was filed by the United Electrical and Radio Machine Workers of America on the identical day that the A. F. of L. filed its petition asking for an election.

On May 5, 1938, the Board issued its complaints alleging violations of 8 (1) and 8 (2) in respect to the domination of the Independent Power Employees Association. As I previously pointed out, no action was taken by the Board on the petition of the A. F. of L. for an election or for certification filed on February 2 until August 12, 1938.

There was a hearing held in the "C" case in Jackson, Mich., from May 12, 1938, to July 28, 1938, before Charles W. Whittemore, the trial examiner. An amended complaint was filed on the 2d of August, 1938, and the case was transferred to the Board on the 3d day of August, 1938. Proposed findings of fact, proposed conclusions of law and the proposed decision of the Board were issued on December 2, 1938. Original decision finding the respondent guilty of violation of section 8 (i) and (2) of the act was issued on the 8th day of November, 1938. On the 4th day of January, 1939, a petition to review and set aside the order of the Board was filed by the respondent in the Sixth Circuit Court of Appeals, and I am advised the record does not disclose that any action has been taken with respect to that case since that time, that the case is still pending and there is nothing in the record so far as I am advised to disclose whether the record has been certified to the court or not.

I would like to ask Mr. Fahy if he knows if the Board in response to petition filed by the respondent has filed and certified the record in the “C” case with the Sixth Circuit Court of Appeals.

Mr. Fahy. When was the petition filed?
Mr. ToLand. On the 4th day of January, 1939.

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Mr. Fahy. In the “C” case?
Mr. TOLAND. In the “C” case.

Mr. Fahy. I assume the record is there. I would have to see in order to state categorically.

Mr. TOLAND. Is there any way while the witness is on the stand, that you can call the Board and find out?

Mr. Fahy. Yes.

In view of the statement of Mr. Toland, I would like to make a very brief statement on the chronology.

Acting Chairman HEALEY. All right, sir.

Mr. Fany. There was one incident that happened that wasn't stated in the chronology that I think the attention of the committee should be called to at this point. That is, after the original election at which neither union received a majority, but the C. I. O. received a plurality, the records of the Board will show that the C. I. O. union requested the Board to certify it on the basis of that election, and the Board replied that under its policy of course no union having received a majority, the C. I. O. could not be certified.

Mr. TOLAND. That is true. I don't want the record to show that the Board itself ordered the run-off election but that it acted upon the request of the C. I. O. union.

Mr. Fahy. The C. I. O. requested first to be certified, which could not be done. The Board denied that request. Then the C. I. O. under the practice which had already been established asked for a run-off and was granted the run-off with the C. I. O. against the field, the C. I. O. being the high man on the original ballot.

Mr. MURDOCK. May I interrupt right there and see if I have followed you?

After the election at which neither the C. I. O. nor the A. F. of L. received the majority, after that then the C. I. O. petitioned to be certified ?

Mr. Fahy. Requested to be certified on the basis of that election. Mr. MURDOCK. And the Board refused to certify them?

Mr. Fahy. Because it had only a plurality and not a majority, and then they requested the run-off and the run-off was held as Mr. Toland has outlined in the form in which it has been stated.

There is only one other fact that attention should be called to this time. The complaint case, the chronology of which Mr. Toland has given with respect to its getting into court, it will be noted did not hold up the election, you see. The election was held, notwithstanding that the complaint case had not yet been disposed of by the court. The delay after the original election was held was not due

. to the pendency of the complaint case but due to the pendency of the suit in the circuit court which was finally decided by the Supreme Court and filed by the I. B. E. W. to prevent the holding of the run-off.

Mr. MURDOCK. Mr. Chairman, may I straighten myself out and ask Mr. Fahy this question: If a request has been made for an election, such as was made in this case, and then a complaint case is filed, isn't it the policy of the Board, and hasn't it been the policy of the Board, to dispose of the complaint case prior to the election?

Mr. Fahy. Yes; unless the union that asks for the election is willing that the election be held notwithstanding the pendency of a complaint case. Now, that was the situation here. Neither union wanted the election delayed because of the pendency of the complaint case, and it was not delayed.

Mr. MURDOCK. As I understood Mr. Toland, the complaint case was disposed of before the election was held.

Nr. Fahy. By the Board but not by the court, that is correct.
Mr. TOLAND. That is correct.

Mr. MURDOCK. It seemed to me that in former evidence it was developed that it would be rather futile to hold an election after the filing of a complaint case with reference to the company domination of a union until that question has first been settled, am I right in that?

Mr. Fahy. You are right in that.
Mr. MURDOCK. And that has been the policy.
Mr. Fahy. That has been the policy.

Mr. MURDOCK. And that was the status here, that you had a complaint case pending as well as a request for election and the complaint case had to do with company domination of the independent union.

Mr. Fahy. That is right.

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