And I said, "Well, Frank. I have very fixed convictions about this case. There is not an iota of substantial evidence in that record upon which to find this employer guilty of having violated the act. There is not a scintilla, there isn't even decent hearsay, and I won't change my report." Well, he talked some more and I refused again to change my report, and then, of course, he did slip in a protecting sentence. He said, "Well, of course, after all, you heard the case and it isn't my business how you dispose of it," and then he started to talk again, to try to persuade me to change my report; and finally, out of the side of his mouth, he said. "For Christ's sake, Mapes, what do you want a resolution from the board of directors that the guy was fired for union activities?" That's just the way he spoke; I am imitating his manner. Now, I said, "Frank, we could stay here all day, if you want to, and you can bring the devil himself down here and I won't change this report, because I am of the honest conviction that the employer is wholly innocent of any wrong. The substantial evidence shows that he is innocent, and there isn't an iota of evidence upon which to adjudge him guilty." Well, I went back-"well," he said. "All right, but the form of the report's wrong. I don't like the form. You didn't discuss some evidence here that you should have discussed to show that you considered it." "Well," I said, "If you are talking about that double hearsay, it isn't worth considering." "Well," he said, "nevertheless it has got to be in the report." So I said, "Well, you're the doctor." I rewrote the report and I cited that hash, as he required me to, and then said that it wasn't of any value evidentially and discarded it. He came into the room after that report was written, and he said, "I still want to ask you," he said, "whether you want a resolution from the board of directors of the Weyerhauser Timber Co. that that man was fired for union activities?" He said, "Can't anybody see on the face of it that he was?" I said, "No; I can't see it, and I don't think anybody else that is fair-minded could." "Well," he said, "of course, you were the trial examiner; you have got to sign the report. I can't tell you what you're going to sign." I said, “You certainly cannot, but I think you have been trying to." So, the report went out as I had written it the second time, recommending dismissal of the complaint against Weyerhauser. The next thing I knew, a couple of weeks later, while I was at home, in a batch of press releases I got a copy of a review report that he had written. I don't know whether it was ever intended for my eyes or not, because it was mixed up with a lot of Board decisions and press releases. Mr. TOLAND. I show you a copy of a memorandum from Mr. Bloom to Mr. Pratt, dated the 11th day of December, 1939, subject: Weyerhauser Timber Co., C-382, and ask you if that is the memorandum or the report that you now refer to? Mr. DAVIDSON. That is, sir. Mr. TOLAND. I offer in evidence the document identified by the wit ness. (The review report referred to, dated December 11, 1939, was received in evidence, marked "Exhibit No. 1106," and is printed in the appendix of this volume.) Mr. TOLAND. What, if anything, did you do after you received the report just offered in evidence? Mr. DAVIDSON. I wrote a rather bitter letter of protest to Mr. Pratt, a personal letter, in which I denounced this review report as being sheer untruth, and I pointed out to the chief trial examiner that on page 5 of my report, I had considered and mentioned this evidence which Bloom refers to, and discarded it as being worthless, and the report so shows, and I further protested against his comment that I should refrain from making too many comments in the course of the hearing. He said, "I refer especially to his habit of commenting on whether or not evidence means anything." Now, it has always been Bloom's pet doctrine that a trial examiner should sit on the bench like a stuffed shirt and say, "Objection sustained, "or "Objection overruled," as the case may be, and anyone who knows anything about court procedure knows that a man on the bench cannot conduct a hearing decently within those limitations. There are many times when a mere abrupt ruling would injure the sensibilities of the man making the objection, whereas on the other hand, if you explain why you are making a ruling in a courteous manner, and then make the ruling, it keeps the hearing running smoothly and everybody feels nicely; and that is one of the chief functions, as I see it, of a trial examiner, to keep a hearing running smoothly and with everybody feeling that they are being given courteous consideration, and I protested against that comment of his. It was nothing but spite because he had not been able to change my report and because he disliked me personally to a very marked extent. Mr. TOLAND. Do you know what happened in the Weyerhauser case from the standpoint of action by the Board thereafter? Mr. DAVIDSON. As far as I know, there has been no disposition, generally speaking, by Board order, unless there is some special hurry-up reason that doesn't come out for about a year or two after an intermediate report. Mr. TOLAND. So that as far as you know, the matter is still pending? Mr. DAVIDSON. As far as I know, sir. Mr. TOLAND. Did there come a time when you were also hearing a case as trial examiner for the Board, and a request for continuance was made by counsel or parties to the cause, and you took the matter up with Mr. Bloom? Mr. DAVIDSON. I think, sir, you are referring to the case of the Davidson Granite Company, heard in Atlanta, Ga., or partly heard, in July 1939. That case-I might add by the way that the Davidsons connected with the company were no relations of mine; complete strangers. We hoped to finish that case in a week, and on a Wednesday or Thursday morning, a partner of respondent's attorney, Mr. Cooper, came in and made a motion for a 30-day continuance, on the following grounds: First of all, during the night, Mr. Cooper's aged and ailing mother had suffered a stroke which was certain to bring about her death in a matter of hours. Mr. Cooper, according to his partner, was where he should have been, at his mother's bedside. The moving attorney said that Mr. Cooper, under no circumstances, would be available for at least a week and that all of the respondent's officers from that time, for a period of another 3 weeks, would be at a convention, would have to be at a convention, in Cleveland, an annual affair at which they wrote 95 percent of their business contracts for the following year, so that it would have been calamitous for them to have been kept in Atlanta. The adjournment was agreeable to counsel for the Board; likewise, to counsel for the C. I. O. union; likewise, to the C. I. O. delegate; likewise, to the American Federation of Labor attorney. Under the rules of the Board, the discretion of a trial examiner with respect to adjournments is limited to 24 hours. If a longer adjournment is desired, he is obliged, if he obeys the rules, to call his superior at Washington, state the facts and circumstances, make his recommendation and get the required ruling. Mr. Pratt was then away in Los Angeles, and Frank Bloom was acting chief trial examiner at Washington. I got him on the phone and I told him this story about the imminent death of this old lady and the rest of it, and he scarcely let me get my story out of my mouth but started to snarl. He said, "Wait a minute, Mapes, wait a minute! Are you guaranteeing death in this case?" He said, "You know cases have been known where patients recovered." "Well," I said, "Frank, all I know is that Mr. Cooper was here last night this morning he isn't here; his partner comes in and tells about the tragedy at home, Mr. Cooper can't be here, and everybody has agreed to this. Now tell me what you want me to do with it." Never a word of sympathy about the plight of the Cooper family or regret that a mother was passing away, maybe at that very moment. His sole concern was about the union. He said, "What are the unions saying about this?" I said, "They are willing to consent under the circumstances." He said, "I don't believe it." He said, "After the way the C. I. O. has been pushing for a hearing in that case, and now you are down there hearing this case," and he said, "You tell me they consent to a 30-day adjournment? I don't believe it!" "Well," I said, "Frank, I don't care whether you believe it or not. I'm on the ground, I've talked to the parties. I have just left the bench and I tell you they consent." "Well," he says, "What about the A. F. of L? What have they got to say about it?" I said. "I already told you they consented." He said, "I still can't believe that." "Well," he said, "I'll tell you what to do. You get back on the bench and," he said, "you just make them put it into the record from all aspects of the case that they consent. I want that record to show and show beyond any question of a doubt that there is complete and willing consent to that adjournment." So I went back on the bench and I addressed myself to the C. I. O. lawyer. I said, "Now, sir, you represent the C. I. O. I want you to state for the record, if such is the fact, that you freely and willingly agree to this adjournment." I am giving you the substance of what was said; I am not attempting to quote my remarks verbatim. The C. I. O. attorney replied in the affirmative, and then I spoke to the delegate. I said, "Sir, you are the delegate of the C. İ. O. in this case. Do you consent?" and he said, "I do." And I turned to the A. F. of L. lawyer and I said, "Do you consent?" and he said, "I do." Then I said, "Of course, the respondent having made this request, I assume the respondent consents?" and there was another "I do" entered on the record; and I said, "Of course, Board's counsel will be likewise agreeable?" and Mr. Woods said, "Of course, under the circumstances, there is nothing else to do." But the thing that struck me about that matter, and that stayed in my mind was that he never had the slightest concern about the people who were about to lose their mother. All he cared about was whether the C. I. O. union would consent, and I must say for the C. I. O., that they consented most readily under the circumstances. Now, that was in direct contrast to what Mr. Pratt would have done. I once had to call him in a similar situation from Omaha on an adjournment on account of death and Mr. Pratt's one thought was that we should do everything we could to lighten the load of the bereaved family, grant them any adjournment within reason. Mr. TOLAND. Had you finished, Mr. Davidson? Mr. DAVIDSON. Yes, sir. Mr. TOLAND. Will you tell the committee, Mr. Davidson, what you know of the practice of the Board on the comments or criticisms of review attorneys on the record and on the intermediate reports of trial examiners? Mr. DAVIDSON. Talking about the review division, not the review work in the trial examiners division itself? Mr. TOLAND. The review division. Mr. DAVIDSON. Well, I know that in the past they have constantly criticized the work of older and more experienced men, to say the least, and the criticism is invariably anonymous. You never found out the name of the case nor the name of the review attorney who criticized-at least I never did. In several instances they would read records, cold records, and that, coupled with the fact that a lot of them have never been in court a day in their lives so far as trying a case is concerned makes their comments rather ridiculous and wholly unfair in many instances. Mr. TOLAND. Based upon your experience as a trial examiner, would you tell the committee what your recommendations would be either to continue the system of having trial examiners review another trial examiner's intermediate report and record, or have that done plus having it reviewed by the review attorneys in the review division? Mr. DAVIDSON. Why, I would have the work done right in the trial examiners division. The men there, most of them, are experienced men and are competent and capable to do that work. Mr. TOLAND. Would you recommend the continuation of the review division or its abolition? Mr. DAVIDSON. I would recommend its abolition, unquestionably. Mr. TOLAND. With respect to the comments or criticisms, was it the policy of your superiors to advise you of any comments or criticisms. of your conduct, and to show you any written comment or criticisms by the review attorney, and disclose to you the name of the review attorney? Mr. DAVIDSON. Never in my experience. I never found out the name of a critic, nor the particular cases. Mr. TOLAND. I show you a file bearing your name containing comments on cases that you heard as trial examiner, and ask you to tell the committee if you acted as a trial examiner in the cases referred to therein, if you were ever advised or furnished with, or shown, the original or any copies of the memoranda contained therein. Mr. DAVIDSON. I never saw a single one of those communications. Mr. TOLAND. Did you appear and act as a trial examiner in the cases listed in the memoranda contained in the files? Mr. DAVIDSON. I did, sir. Mr. TOLAND. Mr. Chairman, I would like to offer in evidence, as one exhibit, and ask that it be printed, this file which is a file of the Board and might be described as comments by the review division, over the signature of Mr. Emerson, assistant general counsel in charge, to Messrs, Fahy, Watts, Witt, and Pratt. (File of the National Labor Relations Board containing comments by the review division on cases by Mapes Davidson was received in evidence, marked "Exhibit No. 1107," and is printed in the appendix of this volume.) The CHAIRMAN. You are not going to read it? Mr. TOLAND. No. Mr. Chairman, I would like to withdraw my answer and ask permission to have some of them read by Mr. Reilly. Mr. REILLY. Exhibit 1107: Messrs. Fahy, Watts, Witt, and Pratt. Thomas I. Emerson, assistant general counsel. AUGUST 22, 1939. Comments on the record: Dictaphone Corporation and Local 1237, United Electrical, Radio, and Machine Workers of America, C. I. O., R-1431. Hearing date: July 10, 1939. Trial examiner: Mapes Davidson. Review attorney: Emanuel Butter. The transcript is 59 pages in length. Most of the major issues in the case were agreed upon between the parties, and the Board's attorney obtained a stipulation covering those issues. The bearing was ably conducted by the trial examiner, and the Board's attorney presented the case clearly and concisely. (Signed) T. I. E. Reading from the same exhibit, also from Mr. Emerson to Messrs. Fahy, Watts, Witt, and Pratt, dated July 13, 1939: Messrs. Fahy, Watts, Witt, and Pratt. Thomas I. Emerson. Comments on the Board. JULY 13, 1939. Case: Matter of Times Publishing Company and the Newspaper Guild of Detroit, Case No. C-746. Dates of hearing: May 2, 3, 4, and 6, 1938. Trial examiner: Mapes Davidson. Trial attorney: Charles F. McErleen. Review attorneys: Richard H. Meigs and Louis Newman. Length of record: 486 pages. The record is satisfactory, except for undue, though perhaps unavoidable, use of hearsay. The trial examiner made perhaps too frequent comments during the trial of the proceeding, particularly by way of expressing suap opinions as to the weight of evidence. These comments served as the basis for a motion by the respondent to take further evidence after the intermediate report was issued. Still reading from the same exhibit: Messrs. Fahy, Watts, Witt, and Pratt. (Signed) T. I. E. JULY 13, 1939. |