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Mr. Fuchs. My actual litigation experience, as regards trying cases myself, is rather limited. I tried possibly a half dozen or a dozen cases in the lower courts in New York City, several divorce cases, but I didn't have any extensive litigation experience.
Mr. TOLAND. I show you committee exhibit 2, being a list of the review attorneys and the cases that they worked on, and I ask you if that represents a true and accurate number of the cases that you worked on as a review attorney. If not, would you state for the record any that are not thereon?
Mr. Fuchs. According to my present recollection, that is accurate, Mr. Toland.
Mr. TOLAND. Now will you tell the committee, Mr. Fuchs, what your duties are now as supervisor, as distinguished from what your duties were when you were a member of the review division staff?
Mr. Fuchs. The committee is familiar with the duties in general of the review division. The difference between the duties of a supervisor and the duties of the ordinary review attorney lie in this, that the review attorney has primary responsibility for reading the entire record and preparing to report a summary and analysis of the entire record to the Board. The supervisor's function is to see to it, as far as possible, that such summary and analysis are accurate, and in performing his duties the supervisor applies a number of checks upon the accuracy of the review attorney himself. He reads carefully the pleadings and the briefs and the exceptions in the intermediate report; then he cross-questions the review attorney before the review attorney presents his report to the Board itself. He tests the accuracy of the statements of the review attorney by direct reference to the record itself, Those, primarily, are the differences.
Mr. TOLAND. During the course of your conferences with members of the review division staff that are under your supervision will you tell the committee—take the most recent case that you have in mindas best you can as to what the review attorney said to you, the name of the case, what he stated to you, and the length of the conference and the approximate date.
Mr. Fuchs. I am afraid I can't do that, Mr. Toland. I have conferences with attorneys every day, and I don't have any photographic recollection of our discussion.
Mr. ToLAND. Well, you are a supervisor, and you have men that are directly responsible to you. What I would like you to tell the committee—and take any case or any review attorney-give the committee an example, using your best recollection as to what he said, not about the merits but about how he described what he had done, how he described to you what the record was, what you said to him, if anything, in order that the record may have a picture of just what you do in the performance of your duties.
Mr. Fuchs. You want this in relation to a specific case, and not in general?
Mr. TOLAND. Yes, but I would prefer not to have any case that you are going to say what the decision is that hasn't been issued by the Board. I would like-I will ask it again--you to tell us what you do. You are a supervisor. Give us a typical example of what you do, and what the man that is under your supervision tells you he did, how he describes what he did, what he says to you, and what you say to him. Mr. Fuchs. I can do that in a hypothetical case. I don't recollect any recent conferences on a case in which the decision has been issued.
Mr. TOLAND. Let's take some case. I would like the record to show that your recollection is based upon some actual happening as to what your duties are.
Mr. Fuchs. Well, the review attorney, when first making his report on the case to me, brings with him generally the formal files containing the formal pleadings, the intermediate report and briefs, and perhaps a volume or two of the transcript that he wishes to discuss with me, specifically certain items in the testimony, and he reports to me first the formal aspects of the case, the procedural aspects, when the charge was filed, when the complaint was filed, whether or not an answer was filed, who heard the case, who the trial examiner was, which of the Board's attorneys presented the Board's case, and
Mr. TOLAND (interposing). This is all oral. He has nothing written, has he?
Mr. Fuchs. He has notes from which he reports.
Mr. Fuchs. We discuss, then, the pleadings and the issues as framed by the pleadings and by the exceptions to the intermediate report if there were exceptions, and thus, after some preliminary discussion, we frame the issues. Before doing that we touch upon any problems in procedure, such as the possible failure of notice or the possible failure of the pleadings to include all the issues which are tried, the effect of motions made at the hearings, and so on.
Having accomplished that preliminary step, the review attorney then reports to me his summary of what was testified on behalf of the Board and on behalf of the respondent, sometimes on behalf of the union. He discusses it with me at somewhat greater length perhaps than he ultimately presents his report to the Board. We sift the evidence, we accumulate it-the cumulative evidence-we recognize and make a point of what conflicts exist, and generally that is the way it is done.
Mr. TOLAND. Do you distinguish between direct and what is not direct evidence in the record? Is there any description of that when the summary is made?
Mr. Fuchs. Do we distinguish between competent and incompetent?
Mr. TOLAND. Yes.
Mr. Fuchs (interposing). We point out that there is evidence to a certain effect but that it is hearsay, or that it is secondary.
Mr. TOLAND. And is there any discussion at these conferences as to the credibility of witnesses ?
Mr. Fuchs. Rarely; there is sometimes, yes. Mr. TOLAND. Rarely. Are there any comments ever made on the evidence of any party as to whether it is worthy of belief or not?
Mr. FUCHS. Occasionally.
Mr. TOLAND. Now, let me ask you what your practice was yourself when you were a review attorney-and I want you to try to distinguish between your duties and those of a supervisor, and tell the committee what policy you pursued in carrying out the duties when you were a member of the review staff and you examined the record and other things in the case; I will give you the exhibit
Mr. Fuchs (interposing). Well, I don't really understand what you mean by policy, what policy I pursued.
Mr. TOLAND. Well, when a case was assigned to you and you were a member of the review staff, what did you do in the performance of your duties?
Mr. FUCHS. I read the pleadings in the case, and I read the intermediate report in the case, and I read the exceptions, if there were exceptions; I read the exhibits and I read the transcript. I attempted to accumulate a set of notes which would serve in reporting the essentials to my supervisor.
Mr. TOLAND. Would you use those same notes when you reported to the Board, plus anything further that the supervisor might have directed you to use?
Mr. Fuchs. Not necessarily, but possibly.
Mr. ToLand. Well, what was the purpose of the preparation of notes? Was it only to report to the supervisor or to the Board, or to both?
Mr. Fuchs. I would say my purpose in recording notes was to learn the case, and I didn't have, when I was a review attorney, any finely designed technique for the use of those notes. I was experimenting with them.
Mr. TOLAND. Well, how did you report to the Board in a case on which you had worked as a review attorney; would you go in and tell them everything that was in the record and the exhibits and the summary without any notes or references at all ?
Mr. Fuchs. I always had notes with me but I don't believe I always referred to the notes throughout the report.
Mr. TOLAND. Well, can you tell the committee if it is possible for you, and if it was possible while you were a review attorney, to examine a record of 5,000 to 10,000 pages, and make notes, appear before the Board without the notes, and give the Board a complete summary of the testimony and exhibits?
Mr. Fuchs. I don't believe I ever appeared before the Board without notes.
Mr. TOLAND. Without notes
Mr. TOLAND. And when you did appear, will you tell the committee what you did when you appeared before the Board in a case that you were working on, when you had your notes with you? Would you go with the supervisor, would you go alone, or both?
Mr. Fuchs. To the best of my recollection, I always went to the Board in the company of my supervisor. I don't think there is any exception to that, when I was a review attorney. I would state to the Board my conception of the issues in the case, which was also subject to check by my supervisor, and then launch on a discussion of the testimony
of the case.
Mr. TOLAND. Did you do that by reference to any notes that you might have as to what the issues were, the pleadings and so forth?
Mr. Fucis. Well, of course, along the line, I would. There was no—I didn't read from notes; that is the point I was trying to make.
Mr. TOLAND. I beg your pardon!
Mr. TOLAND. Was it possible for you to report to the Board any case according to your best recollection without reference to those notes you had made?
Mr. Fuchs. I think there were some cases in which it was possible for me to do that.
Mr. TOLAND. Will you give us a typical illustration, of your best recollection, as to any case you reported to the Board without reference to any notes as to what the pleadings and the issue were?
Mr. Fuchs. Yes: I think the case of the Osgood Co. was one such. I don't recall whether I reported that case without notes, but it certainly would have been possible for me to report it without notes.
Mr. TOLAND. You wouldn't say you did or didn't? Mr. Fuchs. That's right. Mr. TOLAND. Well, now, at the time that you were assigned to review the case and all during your examination of the pleadings and the record and the exhibits and other data in the case, you were acting simply in the performance of your duties in what you were doing; is that right?
Mr. FUCHS. Yes.
Mr. ToLAND. Did you at any time in the performance of your duty as a review attorney characterize or make a comment as to the weight, the credibility, and the merit of the case of any parties to the cause ?
Mr. Fuchs. Of course, I did.
Mr. TOLAND. Will you tell the committee what your best recollection is in the cases that you did work on, and the comments or characterizations that you made, or the conclusions that you reached ?
Mr. Fuchs. I haven't any recollection of what comments or conclusions I reached.
Mr. TOLAND. Have you any recollection of characterizing any testimony as “baloney”?
Mr. Fuchs. Now that you mention it, I think I must have; it sounds familiar.
Mr. TOLAND. Have you ever characterized the position of a party in the cause or the testimony of any party in the cause as “nuts“?
Mr. Fuchs. Very likely, sir. Mr. TOLAND. And you say that in the performance of your duties, when you were examining the record of cases assigned to you, that you were taking the part of the employees of the United States?
Mr. Fuchs. Emphatically; yes, sir.
Mr. TOLAND. While you were so employed as a review attorney, among other cases you were assigned the Newport News Shipbuilding case; isn't that true? Mr. Fuchs. That is true. Mr. TOLAND. Mr. Chairman, I would like to give, before I interrogate the witness further, a brief chronology of the case that I am about to question him on-the Newport News Shipbuilding Co. case:
NEWPORT News C-470
June 4, 1937, charge filed by the I. U. M. S. W. A., affiliate of the C. I. O., setting out 8 (1, 2, 3).
June 16, 1937, complaint was authorized.
Hearing was held August 30 to September 8, 1937, at Newport News, Virginia. The Board, the Company and the Independent participated.
March 9, 1938, Trial Examiner filed his intermediate report sustaining the complaint and its 8 (1, 2, 3) features with the exception of one employee, Darling.
March 21, 1938, exceptions were filed by the Independent.
March 22, 1938, case transferred to Board upon the filing of intervenors exceptions to the intermediate report.
March 24, 1938, exceptions filed by the company.
February 28, 1939, The Circuit Court of Appeals amended the order of the Board and stated that that portion of the Board's order which required the withdrawal of recommendation of the independent and its disestablishment should be stricken from the order.
December 4, 1939, the Supreme Court sustained and affirmed the original order of the Board, heretofore referred to.
Mr. TOLAND. Now, Mr. Fuchs, will you tell this committee, while you were a member of the review staff, if you ever went outside the record at the time that you were assigned to the case and were analyzing or summarizing the testimony?
Mr. Fuchs. You will have to particularize what you mean by going outside the record.
Mr. TOLAND. You don't understand me? When you are a review attorney and you have a record before you upon which you must report to your supervisor and to the Board, do you go outside of that l'ecord ?
Mr. Fuchs. Well, I certainly never report to the supervisor or to the Board that there is anything in that record that isn't in the record.
Mr. TOLAND. Did you ever, while you were a review attorney, request information in connection with any case that you were working on, that was not part of the record ?
Mr. Fuchs. I once, at the instruction of the Board, at least once, asked the regional office to ascertain whether there was any more evidence in its Newport News case which might be made part of the record.
Mr. TOLAND. As a matter of fact, while you were considering that case, reviewing it for the Board itself, isn't it a fact that two investigations were conducted by the Board to determine if there was any more evidence?
Mr. Fuchs. That is a fact.
Mr. TOLAND. Now, will you tell the committee who instructed, who authorized, the investigation! Tell the committee about each investigation—what you wanted, what more evidence you wanted that was