TESTIMONY OF THOMAS I. EMERSON, ASSOCIATE GENERAL COUNSEL IN CHARGE OF THE REVIEW SECTION, NATIONAL LABOR RELATIONS BOARD, WASHINGTON, D. C.-Resumed

Mr. FAHY. Mr. Emerson, will you describe generally the type of material or other assistance rendered to the review section and to the Board by the economics division of the Board in connection with the decision in cases or in connection with the review work on the cases? Mr. EMERSON. Yes; the material and assistance rendered to the Board by the economics division, in connection with the decision of cases falls into three principal categories: First, the assistance in the analysis of the material which is already in the record; second, the rendering of expert opinion or advice upon issues of labor relations; third, furnishing of material as to which the Board can take judicial notice.

Mr. FANY. Taking the first matter you mentioned, the assistance and the analysis of material in the record, will you give an example of what the economics division does in such a case?

Mr. EMERSON. We have before us now a case in which the question is raised as to whether or not there has been a violation of 8 (3) in connection with a large number of employees-that is, whether or not a number of employees have been discharged or refused_reinstatement because of their union activity. The principal evidence or some of the principal evidence relating to that question are the employment records of the company. These records are very voluminous. We have, therefore, requested the assistance of a member of the staff of the economics division to assist the review attorney in analyzing those records. As I say, those records are in evidence in connection with the case. We felt that a person with some experience in employment records would be of valuable assistance in its analysis. Mr. FAHY. Now, will you give an example of the second type of assistance which you referred to, rendered by the economics division, namely, the furnishing of expert opinion or advice on issues in labor relations.

Mr. EMERSON. A short time ago we had a problem involving several cases before the Board. That question related to the interpretation of a contract made by a number of shipping companies with a certain union. There was some doubt as to the meaning of this contract, and at the request of the Board, I asked the advice or opinion of Mr. Saposs as to his interpretation of the particular contract provision. We felt that with his knowledge of labor relations, his opinion as to what that particular clause meant would be of assistance to the Board in making its interpretation of contracts.

Mr. FANY. It is the kind of assistance the Board might have rendered to itself if it had expert knowledge which was available to it through one of its employees?

Mr. EMERSON. That is true.

Mr. FAHY. Now, as to the third type of material furnished by the economics division?

Mr. EMERSON. That is material which the Board may take judicial notice of

Mr. FAHY. Will you give an illustration?

Mr. EMERSON. Information of this type constitutes the bulk of the material which is furnished by the economics division, and I think it

can be made clearer if I group it under several headings. First, the economics division has furnished material as to the geographical facts, population statistics, and like matters.

In the Remington Rand case, for instance, they furnished statistics as to the population of the towns in several towns in which various plants of the company were located. Those geographical facts and populations of districts are, of course, typical subjects of judicial notice.

Second, the economics division has furnished facts of general knowledge relating to the date of formation of the labor organization, its affiliation, its name and change of name or affiliation, general jurisdiction of labor organizations. An example of that is in the Kelly Springfield Tires case. There have been a series of national and local unions in the rubber industry, and the testimony in that case refers to a number of these different organizations. The economics division furnished us with the names of the national organizations that operated in the rubber field so that the testimony would be clear as to which organization was referred to.

Those facts that have been furnished are facts which are generally known to any person informed in the labor field. Another example, they furnished us with the date on which the Committee of Industrial Organizations changed its name to the Congress of Industrial Organizations.

Third, in connection with judicial notice, they have furnished definitions of occupational terms, description of skills, description of technical processes in an industry.

Mr. FAHY. Such as would be available in a book or dictionary or encyclopedia?

Mr. EMERSON. Material which the Board itself could acquire from looking at a dictionary or encyclopedia for a treatise. The Board, of course, doesn't have the time to do all that it might in connection with such cases, and it was the purpose of the economics section to assist the Board in that connection.

An example of that type of information is already in the record in connection with the Ford-St. Louis case. There the review attorney requested information as to the definition of various occupational terms which were used in the record.

Fourth, as a matter of judicial notice, the economics section has furnished us with the name of a company, its structure, location of its plants, as shown by such sources as Moody's Manual, S. E. C. registration statements, and similar things. These are matters as to which there is no possibility of dispute and which are obtained from recognized sources, such as Moody's Manual. We have felt that we should take judicial notice of facts of that sort.

Fifth, the economics division has furnished statistical information, historical information, and material on known practices or customs in labor relations.

Mr. HALLECK. Known customs and practices of whom?

Mr. EMERSON. Of employees and employers generally in labor rela

tions.

Mr. FAHY. Give an example of that.

Mr. EMERSON. An example of that came up in connection with a case where the issue was this-an employer had met with a union and had negotiated with it on terms of employment. The employer, how

ever, had refused to enter into a bilateral agreement or a contract with the union. It had insisted upon posting the results of the negotiation on the bulletin board in the form of a notice. The question before the Board was whether or not that constituted violation of section 8 (5) of the act, which requires an employer to bargain collectively. The economics division furnished us with various material showing the custom and practice in negotiating contracts between employers and employees.

Other instances in which material of that sort has been furnished

Mr. HALLECK (interposing). You mean, negotiating of the customs and practices of a particular company that is then under investigation?

Mr. EMERSON. No, of employers in general and unions in general, not related to the particular company under investigation.

Mr. FAHY. Mr. Emerson, would that material have anything to do with the facts, that is, the merits?

Mr. EMERSON. No, this material had nothing whatever to do with any finding of fact made by the Board in respect to the company involved in the case before it. It was solely used as a basis regarding the conclusion of law founded upon customs and practices of collective bargaining. It was material which again might have been obtained by consulting an encyclopedia, a history of labor relations, a standard treatise on labor problems.

Mr. TOLAND. Couldn't the Board save a lot of money, if that is true, and look at the encyclopedia or dictionary?

Mr. FAHY. The Board doesn't have a very large library.

Mr. EMERSON. Well, of course these matters are not matters which we can just find out very often by walking to the library. It would take some time and a whole research to know what to look for. It is perfectly proper, we have felt, for the Board to use the services of the economics division to point out or bring that material to their attention.

Mr. HALLECK. I think the real issue is whether or not it is proper for the Board to consider these things outside of the record, rather than whether it would be proper for its employees to consider them. The thing I am interested in is whether or not it would be proper for the Board itself.

Mr. EMERSON. That is true.

Mr. ROUTZOHN. All of this information was requested and received after the hearing in each particular case you are describing?

Mr. EMERSON. In these cases I am talking about, this information was obtained, yes, after the hearing. The final type of case in which the economics section has furnished the Board with material of which they felt judicial notice should be taken is matters of semilegal research. For instance, in one case the economics division made a study of the decisions of state unemployment insurance agencies who had ruled upon the question of the effect of distance, on the issue of whether an employee had obtained a substantial equivalent of employment; that is, the issue of whether if an employee had to obtain employment in a plant some distance away, that employment was substantially equivalent within the meaning of the act. That same issue arises under various unemployment compensation laws, and a study of the decisions of state agencies was made by the economic section.

Mr. FAHY. The Mooresville case would be an illustration of that? Mr. EMERSON. Yes; we used that material in connection with the problem we had in the Mooresville Cotton Mills case.

Mr. FAHY. Mr. Emerson, in addition to the three general types of information you mention, does the economics division furnish any other material assistance to the review section or the Board in connection with decision in cases?

Mr. EMERSON. The three general categories I have just described cover virtually all the information that has been furnished us by the economics division in connection with decision of cases by the Board. Occasionally the Board, through the review section, has sought information with a view to determining whether or not to reopen the case. Once or twice apparently review attorneys seemed to have telephoned the economis section and to have followed down some lead of their own out of, apparently, curiosity. The testimony of Mr. Cellery in respect to the Kansas Light and Power case apparently was one of those instances. That is very rare.

Mr. HALLECK. Is that the Chamber of Commerce?

Mr. EMERSON. Yes. So far as I can see that had no relation to any issue the obtaining of that information could not possibly have been used by the Board without reopening the record. It was not presented to the Board and was not considered by the Board and the only purpose in obtaining it apparently was a matter of curiosity. He called up the economics section and asked about it. That may have happened in one other case.

Mr. FAHY. In those two cases could you say whether or not the information obtained was considered by the Board?

Mr. EMERSON. No; that material would not be considered by the Board in those cases. It was never even presented to the Board. Mr. FAHY. When material is sent to the review section from the economics division, who determines whether the material is of such character that it can profitably be used by the Board?

Mr. EMERSON. The determination is made in the first instance by the review attorney and a supervisor, though ultimately the question is decided by the Board itself. The determination is not made by the economics division. As Mr. Saposs testified, the staff of the economics division are not lawyers and they have no judgment upon whether or not material is such that the Board can properly take judicial notice of it.

Mr. FAHY. Now, would it be correct, then, to say that the memoranda from the economics division may contain information which is not used by the Board?

Mr. EMERSON. Yes; very frequently the review section receives from the economics division memoranda which contain a good deal of material which, as I say, is not presented to the Board. That material may be material which we, as attorneys, consider the Board could not take judicial notice of. The economics section not being attorneys, may include that in their memoranda.

Mr. TOLAND. I don't like to interrupt, but you are talking in general terms.

Is it possible for you to give this committee now, or sometime later, the details of all of the testimony that you are now giving with respect to the cases that you decided with good thought given

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to judicial notice to the material that you received, that you could give judicial notice; the number of requests made upon the economics division; the number of memoranda; the number of the cases; the names of the cases? Is this based upon a study of everything that was done?

Mr. EMERSON. Well, we have only one day's testimony, and you have all the material, so I am trying to summarize in the limited time I have.

Mr. TOLAND. Is your summary based upon an examination of everything that has been done by that section?

Mr. EMERSON. It is based upon an examination of the material furnished to the review section by the economics section up to January 1, 1940, all of which material was given to the committee.

Mr. TOLAND. How do you know whether we have all that ma terial?

Mr. EMERSON. Because I took it back from you in order to make this summary of it.

Mr. TOLAND. You took it back when?

Mr. EMERSON. Yesterday or the day before.

Mr. TOLAND. And that represented all of the material furnished by the economics section to members of the Board, the review division, the trial examiners' division, the litigation division?

Mr. EMERSON. No, no. As I said, it represented material furnished by the economics section to the review division.

Mr. TOLAND. Merely to the review division?

Mr. EMERSON. Yes.

Mr. TOLAND. Since July 5, 1935, down to and including the 1st of January this year?

Mr. EMERSON. Yes; I relied upon Mr. Saposs' collection of that material. We didn't in the review section have a collection of it in any particular file. The memoranda which were sent us are now in the various case files.

Mr. FAHY. That is the information you asked for.

The CHARMAN. All right; go ahead."

Mr. FAHY. Aside from the matters of which the Board can take judicial notice, has the Board ever taken into consideration any fact or information obtained by the economics division from sources outside the record, except as you have outlined?

Mr. EMERSON. No; not to my knowledge.

Mr. FAHY. Now, Mr. Saposs testified at page 51' of volume III as follows:

Q. (by Mr. HALLECK). What type of material do you develop for the use of the Board where you go outside of the record?

A. It is mostly of a descriptive or statistical nature dealing with some particular phase of the work of the Board. Take for instance, it might be with reference to the general set-up of a particular labor policy.

Q. You mean by that whether or not it was union or anti-union?

A. Well, that wouldn't be quite as simple as that. It is just a question of what they have done, what their policies or policy has been with respect to particular practices, if they have expressed themselves with reference to certain types of unions as against other types of unions. If that is printed and available, then we would probably prepare that.

1 Indicates page reference to verbatim transcript of committee proceedings, February 14, 1940.