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Case: Joe Lowe Corporation and Independent Union of Confectionery Workers. Local 1, R-1331.
Dates of hearings: March 20 to March 30, 1939.
The record would have been considerably shorter had the trial examiner refused to admit the quantities of evidence presented as to alleged unfair labor practices, and had he put off the record the numerous and lengthy discussions between counsel. The trial examiner was, however, complimented at the close of the hearing by the attorneys on his kindness, courtesy, and impartiality.
Several witnesses who testified with regard to the appropriate unit apparently understood that an employee was or was not a production worker according to whether or not he ever did any manual work. I believe that if the Board attorneys had pointed out some of the distinctions between production workers and certain classes of employees whom the Board customarily excludes, it would have made a rather involved unit question somewhat less involved.
(Signed) T. I. E. Reading from the same exhibit:
JANUARY 23, 1939. Messrs. Fahy, Watts, Witt, and Pratt. Thomas I. Emerson, assistant general counsel. Comments on the record,
Case: May Manufacturing Co., Inc., and United Optical Workers Union, Local No. 208, case No. R-1149.
Hearing date: December 6, 1938.
(Signed) T. I. E. Reading from the same exhibit:
DECEMBER 5, 1938. Messrs. Fahy, Watts, Witt, and Pratt. Thomas I. Emerson, assistant general counsel. Comments on record.
Union Premier Food Stores, Inc., and United Retail and Wholesale Employees of America, Case No. R-859.
Dates of hearing: June 16, 17, 20, and 21, 1938.
Although there was great rivalry between the unions represented, the hear. iug was conducted expeditiously. The record does not clearly indicate whether the unions desire their locals or internationals to appear upon the ballot or the exact bargaining unit requested by each union. Subsequent to the hearing, correspondence with the attorneys for two unions reveals that locals which did not appear at the hearing claim to represent employees of the companies.
(Signed) T. I. E. From the same exhibit:
JULY 18, 1938. Messrs. Fahy, Witt, Watts, and Pratt.
Thomas I. Emerson, assistant general counsel.
Case name: Times Publishing Co. and the Newspaper Guild of Detroit, case No. C-746.
Date of hearing: May 2, 3, 4, and 6, 1938.
2. The question of interstate commerce was handled by a meager stipulation and further developed by examination. 3. The record is satisfactory.
(Signed) T. I. E. 218054-40-yol, 19
Still reading from the same exhibit:
JULY 18, 1938. Messrs. Fahy, Witt, Watts, and Pratt. Thomas I. Emerson, assistant general counsel. Comments on the record.
Case name: Times Publishing Co, and the Newspaper Guild of Detroit, case No. R-771.
Date of hearing: May 2, 4, 5, and 6, 1938.
2. The question of interstate commerce was handled by a meager stipulation and further developed by examination. 3. The record is clear and concise,
(Signed) T. I. E. Still reading from the same exhibit:
APRIL 20, 1938. Messrs. Fahy, Witt, Watts, and Pratt. Thomas I. Emerson. Comments on the record.
Case: Calmar Steamship Corporation and National Maritime Union of America, Cases Nos. C_417, C-418, C_419, C-420, C-421, (-423, (-424, C-425, C-426, C-428. Calmar Steamship Corporation and Marine Engineers Beneficial Association No. 5, Case No. C-422.
Date of hearing: December 6 to 17, 1937, and January 20 to 26, 1938.
This hearing involved the discharges of crews on 10 of the respondent's ships. Considering the difficulties involved in securing witnesses because many of the men had gone to sea again, the case was well tried.
In my opinion, the regional attorney placed too much emphasis on the hearsay testimony of Patrick Whalen and Charles Hansen. However, much of that was corroborated by crew members who testified, and the case can be based on their testimony rather than the testimony of Hansen and Whalen.
At the end of the hearing, counsel for the Board moved to dismiss the cases as to those seamen named in the complaint who had not testified at the hearing and the motion was granted by the trial examiner. That motion was in line with the usual policy of the Board not to find a person discriminatorily discharged unless he testified at the hearing. It does not seem that it was necessary to follow that procedure here. The entire crew of each boat was discharged under the same circumstances. If the respondent was guilty of discriminating against one member of a crew, it was guilty of discriminating against the entire crew. I am informed that another charge has been filed by seamen who were not present at the time of the hearing, and, if action on that charge is necessary, it will mean another hearing in which substantially the same facts will be presented.
Counsel for the Board and for the respondent stipulated at the end of the hearing the names of the persons whose cases had not been dismissed and the names of those whose cases had been dismissed. That stipulation was incorporated in the record and is very helpful to the review attorney.
Both counsel for the Board and the trial examiner performed their duties well throughout the hearing. The trial examiner kept control of the hearing at all times and solved one or two difficult situations in a very nice manner.
(Signed) T. I. E. Still reading from the same exhibit:
APRIL 20, 1938. Messrs. Fahy, Witt, Watts, and Pratt. Thomas I. Emerson. Comments on length of transcript. 3,004 pages plus 408 pages of depositions.
Case: Calmar Steamship Corporation and National Maritime Union of America, Cases Nos. (-417, (-418, C-419, C-420, C-421, (-423, (-424, C-425, C-426, C-428. Calmar Steamship Corporation and Marine Engineers Beneficial Association No. 5, Case No. C-422.
Hearing: December 6 to 17, 1937, and January 20 to 26, 1938.
The record in these cases is long because of the number of persons involved in the charges who were called as witnesses. Counsel for the respondent added
a good deal by examining each witness with respect to his individual conduct on board the ship and with respect to the conduct of the crew in general. The conduct of individuals does not seem to be relevant because each crew was discharged in a body. However, it would not have been possible to exclude that evidence without committing error, because the respondent was entitled to try to show incompetence on the part of a crew or any of its members and to claim that as the reason for the discharge.
Unless it would have been possible to have eliminated a number of the seamen as witnesses and to have allowed their reinstatement to depend upon the testimony of other members of the same crew, I do not believe the record could have been materially shortened.
(Signed) T. I. E. Reading from the same exhibit :
MARCH 12, 1938. Messrs. Fahy, Witt, Watts, and Pratt. Thomas I. Emerson. ('ase : ('lyde Mallory Lines, Case No. R-550. Hearing: January 11, 12, 1938, New York City. Trial examiner: Mapes Davidson. Counsel for Board : John T. McCann.
The Board's case was well prepared, and the record covers all the issues adequately.
The only criticism is that Board's Exhibit No. 4, consisting of the company's pay roll on the date of the hearing, is missing. The reporter states that the exhibit was to be sent directly to the Board, but no trace of it has been found either here or in the regional office in New York.
(Signed) B. A. Reading from the same exhibit:
FEBRUARY 25, 1938. Messrs. Fahy, Witt, Pratt, and Watts. Thomas I. Emerson. Comments on the record : McNeely & Price ('0., Case No. R-523 and C-354. Date of hearing: November 17-December 2, 1937, inclusive. Trial examiner: Mapes Davidson. Attornes for the Board : Geoffrey J. Cunniff. Length of record : 1,561 pages.
This case involved a great many fact situations which had to be brought out and clarified at the hearing, due to the fact that there were negotiations and strikes extending over a period of almost a year. I find that the trial examiner and the Board's attorney succeeded nicely in eliciting all available information on these matters.
At the same time I feel that the record was unnecessarily long due to the fact that too much time was spent on certain minor matters. For example, much time was derated on both sides to testimony as to the sanitary conditions at the Company's plant. Apparently the only purpose of this evidence was to show the background of the labor controversy and the reason why organizational work was started in the plant. While this evidence is surely relevant it was gone into in far greater detail than was necessary.
Similarly with regard to the matter of violence perpetrated on both sides during the last strike and after the plant reopened, in many cases that the Board has heard, the Company has attempted to use the strikers' acts of violence as an excuse for not rehiring the strikers. There was no such use made of the evidence in this case, as there was no allegation nor intimation that the Company was relying on such acts of violence to refuse reinstatement. In fact, it appears that testimony as to acts of violence is merely interesting and relevant to the extent that it assists one to get a picture of the entire situation, but it is of little or no importanee in determining the issues in the case. I believe that the attorney for the Board should have objected to the introduction of much of the evidence on this matter unless and until it could be shown that it would be tied in with the issues of the case.
Lastly, there were one or two occasions when both the trial examiner and attorney for the Board let fall the robes of judicial dignity and quibbled unnecessarily about whether one said that the other said that a question was or was not important, etc. As a whole, however, the hearing moved along smoothly and in a proper judicial atmosphere.
(Signed) A. G. K.
Mr. TOLAND. Now, Mr. Davidson, did you know, or were you advised, after you testified before this committee on the 16th day of January, 1940, whether you were eligible or not for a raise, or that you had been considered or recommended for a raise after your testimony here?
Mr. DAVIDSON. I heard nothing about the question at all, sir, one way or the other.
Mr. ToLAND. You never had any discussion with any of your officials?
Mr. Davidson. No, sir; none to my recollection. The only hearsay that ever came to my ears about the subject of a raise was some time about a year ago, when I heard, just as a matter of gossip in the office, that Mr. Pratt had recommended all of us for a raise except three men, and only a few had got a raise.
Mr. TOLAND. That is all.
The CHAIRMAN. Mr. Davidson, I wish you would stay here until Mr. Healey comes back. You are excused for the present, but he wanted to ask you a few questions.
Mr. DAVIDSON. You will want me later on; is that it?
(The following, which transpired upon the return of Representative Healey, was inserted in the record at this point):
Mr. HEALEY. Mr. Chairman, I would like to say that at this time. before I went to the House to answer a quorum call, I requested that I be given an opportunity to examine the witness, Davidson. I expected, before I examined him, to have an opportunity to look at the record as to his previous testimony. I have not had that opportunity, and unfortunately, I have been able to hear but a fragment of his direct testimony here this morning. But in view of the fact that he was a witness here before and made certain statements at a previous hearing, I would like to have that opportunity of checking his previous testimony with his testimony here this morning, and then have the opportunity to examine him.
The CHAIRMAN. What would you like to do about it, Mr. Healey? Mr. HEALEY. Well, I would like to ask the witness some questions concerning his testimony here this morning, but before doing so, I would like to have an opportunity to check those statements which he made this morning with his previous testimony.
The CHAIRMAN. Well, that would necessitate his coming here again.
Mr. HEALEY. I presume that would mean that he would have to come here again.
Mr. TOLAND. I would be glad to show you what you said when he testified before, Mr. Healey.
Mr. HEALEY. Well, I have some recollection that I did ask the gentleman some questions before, and I don't have any clear recollection of just what they were, but I would like to have an opportunity to consult or look over the record of his previous testimony.
Mr. TOLAND. The only question you did propound to him at that time was in reference to certain letters of recommendation that you asked leave to introduce into the record, and at that time you said, "Because of my observation of the witness, I think they are well merited.”
Mr. HEALEY. That is very true. Well, he can come back.
The CHAIRMAN. Very well, then, Mr. Davidson can come back next week on Tuesday, at 10 o'clock.
Mr. TOLAND. Mr. Fuchs.
TESTIMONY OF HERBERT FUCHS, ATTORNEY, NATIONAL LABOR
RELATIONS BOARD, WASHINGTON, D. C. (The witness was duly sworn and testified as follows:) Mr. TOland. Mr. Fuchs, will you give the reporter your name? Mr. Fuchs. Herbert Fuchs. Mr. TOLAND. Where do you reside, Mr. Fuchs? Mr. Fuchs, 5410 Cathedral Avenue NW., Washington, D. C. Mr. ToLAND. What is your present business or occupation?
Mr. Frcus. I am an attorney in the employ of the National Labor Relations Board.
Mr. TOLAND. And what status, if any, do you have as an attorney? What division are you connected with?
Mr. Fuchs. I am a supervisor in the review division.
Mr. TOLAND. Will you tell the committee how long you have been employed as an attorney by the National Labor Relations Board?
Mr. Fuchs. I was employed by the Board on October 16, 1937. I became a supervisor in December 1938, and have occupied that position since then.
Mr. TOLAND. Will you tell the committee, please, your entrance salary and the present salary that you receive?
Mr. Fuchs, I entered the Board's employ at the salary of $3,600 a year. I am now being paid $4,200.
Mr. TOLAND. Now will you tell the committee briefly your prior education, the schools you attended, and what prior professional or business experience you had prior to your appointment to the Board ?
Mr. Fuchs. I was born in New York City on September 20, 1905. I received my primary education in the public schools and the public high schools of that city and entered the College of the City of New York and was graduated from that college with the degree of B. S., and entered the Law School of New York University, and graduated from that school with the degree of J. D., and was admitted to the bar in 1929.
From 1929 to the spring of 1935 I was engaged in private practice in the city of New York. In the spring of 1935 I accepted a position with the firm of Rosenberg, Goldmark, and Colin, 165 Broadway, and engaged in the preparation for trial of some litigation involving the Ivar Kreuger match swindles.
Mr. TOLAND. Was that a bankruptcy proceeding?
Mr. Fuchs. Yes. In July 1936, I accepted an appointment to the staff of the Senate Committee on Interstate Commerce, known as the Wheeler Committee, investigating railway finance. I remained there until my entry into the employ of the Board in October 1937.
Mr. TOLAND. Prior to your appointment did you yourself actively participate in the practice of law by appearing in the courts and hanilling matters yourself, personally?