Mr. ROUTZOHN. Why didn't you write something more? Mr. HEALEY. As a matter of fact, you were simply analyzing the petition that was before you and this language which you incorporated in your notes I presume suggests to you that there wasn't anything at all to the argument. Mr. FUCHS. Exactly, sir. Mr. HEALEY. That was your way of expressing it in your own confidential notes? Mr. FUCHS. It is a form of shorthand. Mr. ROUTZOHN. And any bureaucrat or radical New Dealer would understand that language better than logic and reasoning? Mr. FUCHS. I am not sure that any other bureaucrat would understand it. Mr. HEALEY. As a matter of fact, let's establish whether or not you have ever used that language, ever quoted verbatim from that memorandum which you have there, when you discussed this case with the Board. Mr. FUCHS. I never did, sir. Mr. HEALEY. That is definite, is it? Mr. FUCHS. Yes, sir. The CHAIRMAN. Go ahead. Mr. FUCHS. Reading now from the exceptions: 9. To the finding of fact No. 39 that the activities of the respondent as set forth in Section 2 of the Trial Examiner's report occurred in connection with the operation of the respondent for a close, intimate and substantial relation to trade, traffic, and commerce among the several states and foreign countries and have led and tends to lead to labor disputes burdening commerce and the free flow of commerce. Exception is taken on the ground that the respondent is not engaged in interstate commerce and is not subject to the provisions of the National Labor Relations Act. Reading now from the notes: 9. Commerce. Reading from the exceptions: 10. The intervenor excepts to the conclusion reached by the Trial Examiner as set forth in No. 2 of his report under the title of, "Conclusions and Recommendations", and states that the same is not supported by the evidence in the case. Reading from the notes: 10. Nuts. Reading now from the exceptions: 11. The intervenor excepts to the recommendations of the Trial Examiner in Section 2 of his recommendations and insists that the respondent is not dominating or interfering with the formation or admissions of the plan known as the Employees Representation Plan and they deny further that the respondent is contributing financial or other support to the said plan. Reading now from the notes: 11. Ditto. Mr. TOLAND. That is still to "Nuts," is it? Mr. FUCHS. That is again to "Nuts." Mr. Toland. Further, under 11 on the notes, "Down the line. Demands oral argument." Would you like to have the rest of these exceptions read into the record? Mr. TOLAND. All of them. Mr. FUCHS. Reading now from the exceptions: 12. The intervenor excepts to sub-section C and D of Recommendation 5 in withdrawing from the "Representation of Employees" recognition as representatives of its employees for the purposes of dealing with the respondent concerning grievances, labor disputes, rates of pay, wage, hours of employment and other conditions of employment, and that they required notices to be posted that the labor organization known as "Representation of Employees" is disestablished and that the respondent will refrain from any recognition thereof for the reason that these recommendations are not in accordance with the weight of the evidence and would abrogate a valid existing contract between the respondent as employer and the intervenor as representatives of the employees, that was entered into in good faith and is a binding and valid agreement. 13. The intervenor excepts to the finding of the Trial Examiner that the Employees Representation Plan is dominated, controlled and interfered with by the respondent and that the same is receiving financial aid and other assistance of support from the respondent. The intervenor requests permission to file written brief in this matter with the Board and permission to argue the case orally before the Board. Respectfully submitted. 3/19/38 EMPLOYEES' REPRESENTATION COMMITTEE, By FRANK KEARNEY, Counsel. Mr. TOLAND. Before I proceed further with the same case, can you tell this committee whether or not in any other case you made similar characteristic conclusions as to pleadings, testimony of any party? Mr. FUCHS, I have made similar notes in other cases, I am sure. Mr. TOLAND. Now I show you, in the same case, a sheet from a pad and ask you if that is in your handwriting. It was found in your notes in this case. Mr. FUCHS. That is. Mr. TOLAND. I offer in evidence the document identified by the witness. (Sheet of paper headed "Respondent's case, L. Rhinesmith," etc., was received in evidence and marked "Exhibit No. 1110" and is printed in the appendix of this volume.) The CHAIRMAN. Mr. Toland, we will have to adjourn now. Mr. TOLAND. May I just get this one in and quit? The CHAIRMAN. You won't be able to read it. Mr. TOLAND. I will read one line. Will you tell the committee for what purpose exhibit 1110 was prepared by you? Mr. FUCHS. This exhibit appears to be a partial summary of the testimony of a witness in the case. Mr. TOLAND. Do you have any recollection as to whether or not you prepared this for use in the report to the Board, or in connection with the preparation of the decision in the case, or both? Mr. FUCHS. I imagine that I prepared it in connection with my first review of the record for the purpose of learning the case. I don't recall that I ever used it in reporting to the supervisor or reporting to the Board, of both. Mr. TOLAND. All right, then. Mr. HEALEY. Just one question. Mr. Fuchs, this case was reviewed by the circuit court of appeals. That is true, isn't it? 218054-40-vol. 19- -9 4182 Mr. FUCHS. Yes, Mr. Healey. Mr. HEALEY. And the findings of the Board were sustained in that decision, although the court modified the order of the Board, is that correct? Mr. FUCHS. That is correct, sir. Mr. HEALEY. But later on, on appeal to the Supreme Court, the Supreme Court reviewed the record of this case, and in a unanimous opínion delivered by Mr. Justice Roberts sustained the order of the Board. Mr. FUCHS. It sustained the Board's order in its entirety. Mr. HEALEY. And the exceptions of the respondent were part of the record that was reviewed by the respective courts? Mr. FUCHS. As well as the exceptions of the intervenor. Mr. HEALEY. And evidence of record was before the courts in that review? Mr. FUCHS. That is right, sir. Mr. TOLAND. Now I am putting in the record what was not in the record before the Supreme Court. Mr. HEALEY. We are sort of a super-Supreme Court. Mr. TOLAND. No, we are not; we are investigating what was done. Now, Mr. Fuchs, will you tell the committee what exhibit 1110 discloses with respect to your conclusion of the testimony of this witness on behalf of the intervenor? Mr. Fucнs. The page appears to be a transcript of the testimony of one L. Rhinesmith, called on behalf of the respondent. There is some closely hand-written notation followed by the word "Cross" and then some more notations, and then the words "Direct for intervenor is baloney. Witness excused 866." Mr. TOLAND. So are you excused until tomorrow morning. The CHAIRMAN. We stand adjourned until tomorrow morning at 10 o'clock. (Whereupon, at 1 p. m., the hearing was recessed until 10 a. m. of the following day, April 27, 1940.) APPENDIX EXHIBIT No. 1093 STATE LABOR RELATIONS ACTS Utah Acts 1937 Chap. 55. Mass. Acts 1937 Ch. 436, Amended Acts 1938 Chap. 345/ and 1939 Chap. 318. N. Y. Acts 1937 Chap. 443. Penn. Acts 1937 Chap. 294, Amended 1939 Chap. 162. Wisconsin Acts 1937 Chap. 51, Amended 1939 Chap. 57. Mich. Public Acts 1939 No. 176. Minn. Acts 1939 Chap. 440. Subject: Report on Two Conferences-Sorg Paper Company, IX-R-185 (R. 633).. Sept. 12th. Conference between Sam Sponseller, business representative of the C. I. O.,. and Mr. Phillips. Mr. Sponseller raised the point that it was believed among his members in the above plant that even though all contentions of the company were considered with regard to challenged ballots, the Union could still win the election as this membership had information that in the election it had challenged certain voters whose ballots would be in favor of the Union. The company had contended that the challenges were improper. To this Mr. Phillips stated he would be glad to arrange a meeting between Mr. Brown, the company's attorney, and if he was agreeable to bargain with the Union if it received a majority, giving the company the full benefit of its contentions with regard to the challenged ballots, the ballots would be opened and counted as such action would expedite matters in that a hearing on the challenges would not be necessary. Mr. Sponseller then stated that even though he had this information he was not certain that the ballots would be so cast, and he asked Mr. Phillips if he would open the ballots and check it so he could be certain, telling him how it could be done without anyone knowing it. Mr. Phillips refused to open the ballots, saying he would not do it even for his own information, much less for passing such information to one of the contesting parties. Sept. 13th. Conference between Mr. Phillips; Mr. Brown, attorney for the company; Mr. Sponseller, business agent for C. I. O..; and Mr. Julius Holzberg, attorney for C. I. O. Mr. Phillips presented the question discussed during the conference reported above, to the two attorneys. He asked Mr. Brown if all the company's contentions with regard to challenged ballots were considered and the challenged ballots were opened and counted and it was found, even considering all these contentions by the compaany, the Union still represented a majority, would he agree to proceed no further and from this point bargain with the Union as the sole collective bargaining agency for the employees. Mr. Brown said that he would not, that he was anxious to appear before the Board on the question of the twelve blank ballots and that until that time he would not feel free to bargain with the Union. A lengthy discussion followed. It is pretty clearly shown that the purpose of the company was to seize every technical point and, by doing this, break the Union. CSA/eh CHARLES S. ARMISTEAD. N. L. R. B. EXHIBIT NO. 237 TABLE 1.-Strikes in the United States, 1881 to 1905 and 1914 to 1938 Number of- 1 The number of workers involved in strikes between 1916 and 1926 is known for only a portion of the total. However, the missing information is for the smaller disputes and it is believed that the total here given is fairly accurate. No information available. 1 |