not in the record, that was before you at the time you were preparing your decision? Mr. Fucнs. My recollection of the case is not too clear, but I do recall that there was some thought on the part of the general counsel that the record in the Newport News case as to the facts in support of the Board's jurisdiction over unfair labor practices by that company was not as complete as it could have been, with the result that I was instructed to get the regional office to seek a stipulation on such jurisdictional facts, to be added to the record. That was done. That was one of the two instances to which Mr. Toland refers. The other instance has to do with some 8 (3) cases, that is, some cases of alleged discriminatory discharge, and I shall have to tell the committee some of the facts in the case in order to make it intelligible. Mr. HEALEY. May I ask a question before you do that? What was the date of this case? Mr. TOLAND. The case was just decided by the Supreme Court last December. Mr. HEALEY. I mean, what was the date of these instances that the witness is testifying to? Mr. FUCHS. The Board's decision, Mr. Healey, was issued on August 9, 1938. Mr. HEALEY. And you are testifying from memory now? Mr. FUCHS. That is right. Mr. HEALEY. Without assistance of any data at all or anything that refreshes your recollection? Mr. FUCHS. That is true, sir. Mr. TOLAND. Well, Mr. Healey, I am just asking him what he did. I am not trying to pin him as to any date. I am asking what he did in the performance of his duty as an employee of this Board, assigned to review this case, and while he was reviewing it for the Board, what he did, who authorized him or who instructed him to do it, and what investigations were made and what was the purpose, and then I will take up with him what were the results. Mr. HEALEY. I just wanted the record to show that his testimony is based clearly on recollection, on memory, and that he hasn't the aid of any data to refresh his recollection whatsoever before him, as he is testifying now; and that these instances happened in August 1938. Mr. Fucнs. Prior to that. The CHAIRMAN. All right, we have got that. Mr. FUCHS. In the record of that case, in support of charges of discrimination against a number of employees, was the testimony of one employee that in the employment office of another employer, subsequent to his discharge, he overheard a telephone conversation between the employment manager of that other employer and somebody purportedly speaking on behalf of the Newport News Co., in the course of which some of his fellow union members were referred to as "agitators" or "troublemakers" or something of that sort, and I forget exactly why now, but the truth or falsity of that evidence seemed to the Board extremely material. On the other hand, the evidence was clearly hearsay. The Board determined that it would not find the fact unless the evidence could be substantiated by further evidence, and it directed me to inquire of the regional office whether it would be possi ble to get the testimony of the employment manager of the other employer; that is, the employer other than the Newport News, and I did that. Mr. TOLAND. Was respondent, the intervenor, advised of the investigations of the Board which it was making in this case while you were working on it? Mr. FUCHS. Not by me, sir. Mr. TOLAND. Were the investigations predicated on the statement that the trial examiner had made about the merits of the controversy! Mr. FUCHS. That I don't recall, except that I do recall the trial examiner found for these men. Mr. TOLAND. But do you have any recollection of a communication from him after he had filed his report, the communication being in the files, that the cases were weak but that he wasn't going to dismiss them? Mr. FUCHS. I don't have any present recollection. Mr. TOLAND. You don't have any recollection of that? Mr. FUCHS. No, sir. Mr. TOLAND. Have you any recollection in connection with the investigations, the two investigations that were made, if the investigation also did not inquire into or ascertain or attempt to ascertain matters and information concerning the independent union? Mr. FUCHS. No, I have no recollection of that at all. Mr. TOLAND. Do you have any recollection of having an investigation made after the case was heard, to determine the set-up of the new independent organization? Mr. Fucнs. I don't recall anything of that kind, sir. Mr. TOLAND. Now, let me take your own notes, and let me ask you if you have any recollection as to the number of pages of testimony in the Newport News Shipbuilding case? Mr. FUCHS. I don't have, but I can refer to this exhibit. The exhibit states that there were 1,285 pages in that record. Mr. TOLAND. One thousand two hundred and eighty-five? Mr. FUCHS. Yes. Mr. TOLAND. Do you have any recollection about your conferences with the supervisor or with the Board on this case? Mr. Fuchs. My recollection is that I had conferences with him. Mr. TOLAND. Do you have any recollection as to whether or not at the conferences you had your notes? Mr. FUCHS. Not to my knowledge. Mr. TOLAND. Did you say-— Mr. FUCHS (interposing). I have no present recollection. Mr. TOLAND. Do you have any recollection as to whether or not during those conferences with the Board, if there were more than one, that you made references to your notes when you were presenting the summary of the evidence to the Board? Mr. FUCHS. I would say that I did, but I have no recollection. Mr. TOLAND. I show you the exceptions filed by the intervenor, the independent union in this case, and ask you if you have any recollection of seeing that before. Mr. Fuchs. I have no present recollection of having seen it. Mr. TOLAND. Would you say you did or did not see the exceptions in this case. Mr. Fucнs. I did. Mr. TOLAND. I offer in evidence exceptions of the independent union, the intervenor, in the Matter of Newport News Shipbuilding and Dry Dock Company, and Industrial Union of Marine and Shipbuilding Workers of America, Case No. C-460, which was found in the formal file of the case at the National Labor Relations Board. Exceptions in the Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America were received in evidence and marked "Exhibit No. 1108" and are printed in the appendix of this volume.) Mr. HEALEY. When was that filed, Mr. Toland? Mr. TOLAND. March 21, 1938. Now I show you a paper writing and ask you if that is in your handwriting. Mr. Fucнs. It is. Mr. TOLAND. I offer in evidence the document identified by the witness. (Undated paper writing identified by the witness was received in evidence, marked "Exhibit No. 1109" and is on file with the committee.) Mr. TOLAND. Now, Mr. Fuchs, I want you to take Exhibit 1109 and I want you to take Exhibit 1108, and I want you to read the first exception in that exhibit and then I want you to read what you wrote down after you read it. Mr. FUCHS (reading): Pursuant to the National Labor Relations Act and the Board's Rules and Regulations, Series 1, as Amended, the Employees' Representative Committee of the Newport News Shipbuilding and Dry Dock Company, referred to in the Intermediate Report and hereinafter referred to as the intervenor, without waiving any objections or exceptions heretofore taken in the course of the hearing excepts to the Intermediate Report made in this case by the Trial Examiner, said exceptions being as follows: 1. To the action of the Trial Examiner in rejecting the petition filed at the hearing asking that the forty-three (43) duly elected representatives of the Employees Representation Plan be designated and certified for the purposes of collective bargaining as representatives of the employees of the said Shipyard. The uncontradicted evidence was that on June 15, 1937, 5,718 workers out of 6,300 eligible workers present on the day of election and out of 7,175 on the rolls of the Company, including furloughed employees, voted for the names attached to the petition as their representatives. Now, reading from what purports to be notes on these exceptions Mr. TOLAND (interposing). Is it or is it not? Mr. FUCHS. It is in my handwriting, Mr. Toland. Mr. TOLAND. Isn't it your notes? Mr. FUCHS. It is notes made by me, yes. Mr. TOLAND. Right. Mr. FUCHS (reading): 1. Rejection of petition. Mr. TOLAND. Now read No. 2 on the petition, and read your com ments on it. Mr. FUCHS (reading now from the petition): 2. To the statement on page 2 of the Trial Examiner's report that in 1927 the respondent in cooperation with its employees aided in putting said organization into effect, "and that it lent its moral support and encouragement to the formation and continuation of the said organization." The National Labor Relations Act went into effect July 5, 1935. Prior to that time any relationship that existed between employer and employees is immaterial. And the action of the employer and the employees in entering into an arrangement for bargaining purposes between the employer and the employees eight years before the Act went into effect is not a proper subject to be criticized or to be adversely commented on by the Trial Examiner. Reading now from the notes: 2. To historical material before 7/5/35. Reading now from the exceptions: 3. To the statement on page 5 of the said report under paragraph 5, "Prior to his discharge there was no active local of the Union in Newport News." The evidence was there was local machinist Union affiliated with the American Federation of Labor and that the employee, John M. Darling, Jr., at one time belonged to that union. The undisputed evidence was further that the respondent at no time objected or interefered with their employees' membership in an independent Union or Labor Organization. Reading now from the notes: 3. Nuts. Reading now from the exceptions: 4. To the findings of the Trial Examiner that the Employees' Representation Plan was illegal by reason of the manner of its adoption, that the provisions of the amended plan and its manner of operation are contrary to the Act. When the plan was first put in force in 1927 it constituted an agreement between the employer and the employees and this agreement is in full force and effect now and constitutes a contract between the employer and the employees. To hold that this contract should have been terminated and a new one written rather than to amend the contract to conform with the requirements of the National Labor Relations Act is frivolous. The Trial Examiner takes the position in his report that the arrangement between the employer and the employees should have been scrapped and a new arrangement made. In 1927 the arrangement between the Yard and its employees was perfectly legal and lawful and showed that a very desirable relationship existed between the employer and the employees. It is the contention of the intervenor that the amendment made in June 1937, made the contract between the employer and the employees perfectly proper and conformed to the requirements of the National Labor Relations Act. Reading now from the notes: 4. Nuts. Reading now from the exceptions: To the finding of fact No. 29 that the Employees' Representation Plan was illegal from its very inception. Reading now from the notes: 5. "Illegal from inception." Reading now from the exceptions: 6. To the finding of fact No. 30. The Trial Examiner in his report has ignored the contention of the intervenor that the copy of the Plan constituted, first, a contract between the Shipyard and its employees with respect to who would be recognized by the Shipyard as the legal representatives of its employees, and secondly, the plan provides certain Bylaws and rules for the employees over which the Shipyard has no control. The Trial Examiner underlined in his report the provision in the Bylaws that amendments to the contract shall be binding upon the Company uniess disapproved by it within fifteen days. This provision applies only to matters affecting the Company and not to the Organization of the employees. It is conceded that confusion might result because the contract between the Shipyard and the employees is contained in the same written instrument as the Bylaws of the Employees' Representation Plan. In matters affecting only the employees, the Shipyard has no control or say. In actions affecting the existing agreement between the Shipyard and the Employees' Representation Plan the Shipyard shall have a say, but as the plan is written it is most advantageous to the employees for the reason that they can take action, notify the Shipyard of the same, and unless objection is made thereto it becomes binding on the Shipyard. It is submitted that it cannot be contended that it is illegal or a violation of the National Labor Relations Act to have a provision in an agreement between employer and employee providing how changes in the agreement shall be made and it is respectfully submitted that this is all that Section 1 of Article 9 of the Plan means. Answer exception argument that IX, Sec. 1 means "agreement" changes. 7. To the finding of fact in No. 33 that the respondent and its officers and agents on June 1937 and down to and including the present time formed and sponsored a plan known as the "Representation of Employees". The undisputed evidence was that the plan was put into operation by a vote of the employees in 1927 in which 2,430 votes were cast in favor of putting the plan in operation to 204 against it, and that the amended plan became effective June 30, 1937, was adopted on June 15, 1937, by an overwhelming vote of the employees free from any interference or domination by the employer. Reading now from the notes: 7. Nuts. Reading now from the exceptions: 8. To the finding of fact in paragraph 34 that the respondent is dominating and interfering with the administration of labor organization and its employees by its acts, and in contributing financial and other support to the said labor organization for the reason that this finding of fact is not supported by the evidence. Reading now from the notes: 8. Ditto. Mr. TOLAND. What was the ditto to? Mr. ROUTZOHN. Do I understand that these are the notes that you took in before the Board and the Board relied upon for its decision? Mr. Fucнs. I doubt it, Mr. Routzohn. I don't think you should understand that. Mr. ROUTZOHN. I am just wondering. You were telling a while ago that you took certain notes in before the Board and used those notes as memoranda, and I was just wondering if that is the kind of memorandum that the Board used for its decisions. Mr. FUCHS. I can state for the record that it is not. Mr. ROUTZOHN. I wouldn't have asked you this question except for the fact that you seem to be just a little bit proud of this dignified language on your part. Do you think it is in conformity with your position to use that kind of language when someone is arguing his points in a case? Mr. FUCHS. Mr. Routzohn, these are notes which are my own shorthand, and express to me what I think of some of these arguments. They are not used in any published form and the only time they have ever been published is by counsel here. Mr. ROUTZOHN. And that is the summation of your reasoning and logic? Mr. FUCHS. I don't believe it was a complete summation at all. |