Now, do you wish to comment on that testimony of Mr. Saposs? Mr. EMERSON. Yes; I think Mr. Saposs' testimony in that connection is misleading. In no case that I know of has the review section sought, or the Board considered, facts outside the record which relate to the labor policy or particular practices of a specific company involved in the case before the Board.

Mr. FAHY. Would that be true whether or not it is in printed form? Mr. EMERSON. Yes, that is right; whether or not it is in printed form, we haven't considered the facts outside the record dealing specifically with a particular respondent before the Board where matters in which the court could take judicial notice have not been considered by the Board.

Mr. TOLAND. I don't like to interrupt you, but isn't it a fact in the Newport News Shipbuilding case, while the case was being considered by your division, that an investigation was made in that case? Mr. EMERSON. I think so, yes.

Mr. TOLAND. And without the knowledge of the respondent?

Mr. EMERSON. As I remember we reopened the record to take testimony in that case.

Mr. FAHY. It was a stipulation.

Mr. EMERSON. We obtained stipulation as to that testimony.

Mr. TOLAND. Wasn't there more than one investigation conducted by your division of the Board in the Newport News Shipbuilding case before the decision and after the examiner's report?

Mr. EMERSON. I don't recall the facts of that case very well, but I do remember that there was some question in the case as to whether all the facts were in the record with respect to the question of jurisdiction. I am quite sure that we obtained a stipulation incorporating the remaining facts into the record, and as far as I know that is all the review section or the Board did with it at that time.

Mr. TOLAND. Do you have any recollection as to the trial examiner's report when investigation was made that there had been any evidence obtained to support discrimination involved in that case?

Mr. EMERSON. Yes, I remember something about that now. We did, I think as I remember there were several discrimination cases which the Board considered rather doubtful on the facts in the record, and there was indication in the record that there was some additional testimony which was not included, and the Board instructed the regional office, as I remember it, to make the further investigation with reference to the fact as to whether or not the record should be reopened.

As has been testified here before, we have frequently made investigations from the point of view of determining whether to reopen the record or not. That was one of these cases.

Mr. TOLAND. Isn't it a fact in these discrimination cases you refused to dismiss them; that after the trial examiner's report there was an investigation made while the case was in your division to ascertain whether or not there could be additional evidence to sustain discrimination charges, and that later you were unable to find or obtain any further information and the Board reversed the trial examiner with respect to discrimination cases?

Mr. EMERSON. Yes; I think the Board did find eventually that the discrimination cases were not supported.

Mr. FAHY. The record of that case will show that the Board dismissed all the discrimination cases.

Mr. EMERSON. As I remember the regional office did make an investigation on the question of whether to reopen the record.

Mr. TOLAND. And didn't they make another investigation while it was in your department on a letter assigned by Mr. Houston as to whether or not the union

Mr. EMERSON (interposing). I don't recall.

Mr. TOLAND. When we resume we will take that up.

Mr. FAHY. The record on which the case was decided was before the Supreme Court.

Mr. TOLAND. We will produce the records of your files.

Mr. EMERSON. Incidentally in the Newport News case the circuit court of appeals took in consideration certain evidence which was not in the record. We objected to that, but the Supreme Court reversed it.

Mr. FAHY. I will also call your attention to the following in Mr. Saposs' testimony, page 53,1 volume III of the record of this committee:

Q. When you referred to writings that might be investigated by your division outside of the record of the case, might not that include, or has it included. writings of the company in the nature of pamphlets, articles, or magazine articles directly connected with the company itself?

A. Yes; sometimes it would be literature issued by the company.

Q. And would that sometimes include literature issued by the company that had not been actually offered in evidence in the trial of the case?

A. Yes; it would be literature that was in general circulation.

Do you care to comment on that?

Mr. EMERSON. Yes; I think that testimony also was misleading. I know of no case where the review section has received literature in connection with the determination of any fact concerning a respondent. I am certain the Board has never taken such literature into consideration. We have never sought, nor, so far as I know, obtained, literature published by a company in connection with any fact arising in the case where that company was before the Board. Mr. FAHY. Are you familiar with the practice of attorneys in briefs submitted to courts to request the court to take judicial notice of economic data similar to that which the Board obtains from its economics division?

Mr. EMERSON. Yes, perhaps the most famous example of that is the brief submitted by Mr. Louis D. Brandeis before his appointment to the Supreme Court in the case of Muller against Oregon. In his brief he devoted a very few pages to an analysis of the legal problems and the remainder of the brief consisted of a factual and economic analysis of the question, whether the 10-hour law for women then under consideration was a reasonable measure. He also used the same type of brief in Bunting against Oregon, somewhat later, and economic briefs of that sort containing various social and economic data are very frequently submitted to the Supreme Court. Mr. FAHY. And have the courts taken notice of such data in deciding the cases?

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

Mr. EMERSON. Yes, in the case of Muller against Oregon the court itself took notice of the facts, especially took notice of the facts in Mr. Brandeis' brief. There is a full discussion of this question in a recent article in the Chicago Law Review, entitled "The Use of Economic Data in Labor Cases," by David Ziskind. The University of Chicago Law Review for June 1939, page 607.

Mr. FAHY. Mr. Emerson, have you obtained from the reporter Exhibit 331?

Mr. EMERSON. No, I have not, but I have examined that exhibit and am familiar with it.

Mr. FAHY. Well, do you recall that on that exhibit there was a pink memorandum which contains the words "Does this change our decision?" Do you recall?

Mr. EMERSON. Yes, that was in my handwriting. I wrote that. Mr. FAHY. What did you have in mind?

Mr. HALLECK. Are you leaving the question?

Mr. FAHY. Yes.

Mr. HALLECK. I have a question, but I don't care to interrupt if you have some other things.

to

Mr. FAHY. Well, I yield.

Mr. HALLECK. We undertook to give you the day and I don't want

Mr. FAHY (interposing). I know you are very much interested in this particular problem. I do not mind if you interrupt now. Mr. EMERSON. Suppose I finish this American Radiator case. Mr. FAHY. Could I finish this one incident we started on? Will you finish your statement, Mr. Emerson?

Mr. EMERSON. I would just like to explain what I meant by my writing of the pink memorandum in Exhibit 331. The situation was this. The record showed that the plant of the company had been closed down in the draft of the decision; the review attorney had prepared an order for the reinstatement of an individual which read "if the plant reopens, reinstate so-and-so." The memorandum of the regional director revealed that the plant had reopened and there consequently was no need to put the language in the order "if the plant does reopen." Consequently by my memorandum I meant to call the attention of the review attorney to the fact that the language "if the plant reopens" should be eliminated from the order. It was a purely immaterial matter, purely a question of wording of the order, and I would have done the same thing if I had read in the newspaper that the plant had reopened, and it had nothing whatever to do with the merits of the case.

Mr. FAHY. Was the memorandum brought to the attention of the Board itself, as far as you know?

Mr. EMERSON. No; it was not; it was never taken into consideration by the Board.

Mr. FAHY. All right, Mr. Halleck, would you like to inquire? Mr. HALLECK. I don't want to precipitate a legal argument as to what judicial notice is, but as I understand it, Mr. Emerson, the authority for the Board to consider any of these matters such as you say make up the bulk of the work of the economics division, is where? Mr. EMERSON. Well, the work connected with our section. As a

matter of fact as Mr. Saposs testified, most of their work is not concerned with the review section.

Mr. HALLECK. I misunderstood you there and I am glad to get that clarified, but the consideration about which you have been talking has to do with facts or circumstances that are outside of the actual record of the case?

Mr. EMERSON. Yes.

Mr. HALLECK. And it is your view of it that they are matters of which the Board may take judicial notice?

Mr. EMERSON. Yes.

Mr. HALLECK. I take it, though, that they are generally speaking, and in the majority of cases, matters that require the special skills and abilities of trained economists in the research division?

Mr. EMERSON. To a large extent the collection of the material, yes, requires a trained person.

Mr. HALLECK. Isn't it one of the first principles governing the right of a court to take judicial notice of facts outside the record, that they must be of outstanding notoriety or such facts as are known generally to all the people?

Mr. EMERSON. Yes: I think these facts are such facts.

Mr. HALLECK. How can you harmonize that definition, then, Mr. Emerson, with this other type of facts that are developed and presented to the review attorneys and then in turn to the Board by these people who make special investigations?

Mr. EMERSON. Well, it is obvious that the courts have interpreted the words "general knowledge" to mean something in addition to what they ordinarily mean. The courts themselves have very frequently taken judicial notice of facts which could only be determined by careful study of certain problems.

Mr. HALLECK. What is your definition, if you will, of judicial notice as you understand it, as it is applied generally in the law?

Mr. EMERSON. Well, I would say facts of common knowledge. At least that is the usual definition, I suppose. Really it means facts which are available through recognized sources.

Mr. HALLECK. Now, then, as a fact, referring to the testimony of Mr. Saposs, I take it that you have read it, but he said at one place, maybe at several places, in explanation of this procedure, that they knew that their sources of information were authentic and correct. Would that of itself bring the evidence thereby adduced under the rule of judicial notice?

Mr. EMERSON. No, I don't think so. The mere fact that a source was authentic wouldn't necessarily mean taking judicial notice of it. Mr. HALLECK. Is Bouvier's Law Dictionary a rather well-accepted work?

Mr. EMERSON. I think so, yes.

Mr. HALLECK. On the laws of evidence and the rules of evidence? Mr. FAHY. It is pretty old.

Mr. HALLECK. Maybe it is.

Would you quarrel with this paragraph, the first paragraph in his definition of judicial notice:

"A term used to express the doctrine of the acceptance by a court for the purposes of the case, of the truth of certain notorious facts without requiring proof."

Mr. EMERSON. Yes, I think that certain facts coming within that definition you could take judicial notice of, yes.

Mr. HALLECK. And then he further states:

"It is the process whereby proof by parol evidence is dispensed with, where the court is justified by general considerations in assuming the truth of a proposition without requiring evidence from the party setting it up. This power is to be exercised with caution. Care must be taken that the requisite notoriety exists. Every reasonable doubt should be resolved promptly in the negative."

Mr. EMERSON. I don't think that the Board has in any sense gone beyond what the courts have commonly done in this connection. If the Supreme Court is entitled to take notice of this sort of material, I think the Board should be.

Mr. HALLECK. In referring to the testimony of Mr. Saposs in answer to some questions asked by me, you said that you thought the testimony misleading.

Mr. EMERSON. Yes.

Mr. HALLECK. Was his testimony incorrect insofar as the facts stated are concerned?

Mr. EMERSON. I wasn't quite sure what he meant by it. If he meant that the Board took into consideration pamphlets, articles published by a company which was then before the Board as respondent, that would be incorrect. We have never done any such thing as far as I know.

Mr. HALLECK. As I recall, when we had this matter up before, there was some suggestion on the part of the committee that the memoranda prepared by the research division and submitted to the review attorney was to be filed and got together for the use of the committee. Has that been done?

Mr. FAHY. Yes.

Mr. EMERSON. Yes, that has been submitted. (Representative Healey now presiding.)

Mr. HALLECK. Are these findings or determinations of the research division reduced to writing?

Mr. EMERSON. Practically everything they have sent to the review section, yes, has been in writing. There may have been telephone calls, but I am sure that they don't amount to much, because it has been the practice of the economics section to reduce it to writing.

Mr. HALLECK. I seem to have gotten the impression, Mr. Emerson, from either your testimony or that of Mr. Saposs, that certain information furnished by the research division, in instances like these, has involved labor practices of the particular company under charge. Mr. EMERSON. Yes that is what I meant when I said his testimony was misleading. He did say something about that.

Mr. HALLECK. Has that been done?

Mr. EMERSON. No; that has not been done.

Mr. HALLECK. Well, that wouldn't be misleading; he just was incorrect.

Mr. EMERSON. I said it was misleading because I wasn't sure what he meant by that. If he meant that that had been done he was incorrect; yes.

Mr. HALLECK. You have undertaken, as I get it from the testimony, to generally characterize the type of assistance that the research division has given to the review attorneys and the Board.

Mr. EMERSON. Yes.

Mr. HALLECK. And do I understand that insofar as you are con