pay for persons engaged upon projects under the Appropriation shall not be less than the prevailing rates for work of a similar nature as determined by the Works Progress Administrator with the approval of the President. The Walsh-Healey Act (Act June 30, 1936, ch. 881, 49 Stat. 2036, 41 U. S. C. A. Sec. 35 et seq.) sets up for supply contracts exceeding $10,000 certain minimum wage and other labor standards. The (Guffey-Snyder) Bituminous Coal Conservation Act of 1935 (August 30, 1935, ch. 824, 49 Stat. 991, 15 U. S. C. A., Sec. 891 et seq.), by Section 14 (15 U. S. C. A. 818), requires that no bituminous coal should be purchased by the United States, or any department or agency thereof, produced at any mine where the producer has not complied with the provisions of the bituminous coal code, and that each contract made by the United States, or any department or agency thereof, with a contractor for any public work or service shall contain a provision that the contractor will buy no bituminous coal to use in the carrying out of such contract from any producer not a member of the code. The code members are required by Section 4 (15 U. S. C. A., SEC. 808) to accept code provisions declaring and protecting the employees' right of self-organization and collective bargaining, and maximum hours and minimum wages agreed upon by certain majorities of the producers and employees. The Bituminous Coal Labor Board is set up with powers similar in certain respects to the National Labor Relations Act." Finally, the Bituminous Coal Act of 1937 (April 26, 1937, c. 127, 50 Stat. -), 15 U. S. C. A. Sec. 828 et seq., May 1937, Supplement), by Section 9 (15 U. S. C. A. Sec. 839), provides that no coal (except coal with respect to which no competitive bidding is required) shall be purchased by the United States, or by any department or agency thereof, produced at any mine where the producer failed at the time of production to accord his employees the rights of self-organization and collective bargaining set forth in such section. This array of statutes spanning close to half a century shows conclusively, a policy on the part of Congress to protect the health and economic security and the rights of persons in the employ of government contractors by using its proprietary powers to insert labor stipulations in such contracts even in fields where Congress has no general law-making power. In the Bituminous Coal Acts, this policy was extended to the protection of collective bargaining and self-organization of workers employed in the bituminous coal industry, through use of the power to include conditions in government contracts. From this it is but a step to the insertion of provisions in government contracts requiring compliance on the part of contractors and subcontractors with the provisions of the National Labor Relations Act. It is true that Congress has not as yet expressly provided for the insertion of such a clause but it seems to me that where the policy of the Congress is so clearly expressed, a special enacment is hardly necessary to give the required power to the administrative officer awarding the contract. The statutes cited make it fairly certain that, notwithstanding the provisions of Section 3709 of the Revised Statutes, Congress does not desire to reduce the cost of government contracts at the expense of the worker. The Comptroller General has held (10 Comp. Gen. 294) that where Congress has made the insertion of a certain type of labor stipulations in government contracts the subject of legislation by enacting specific provisions therefor in certain instances, "It is not open to administrative consideration to exact that preference where Congress has not seen fit to do so." On the basis of this rule, it may be contended that since Congress has provided for the protection of collective bargaining in the Bituminous Coal Acts in a limited class of cases, it is to be inferred that Congress did not desire that the principle be extended to other classes of cases. Such an inference, however, would not be reasonable. Since the Bituminous Coal Acts dealt only with a particular industry and set up special provisions and machinery for the protection of collective bargaining. it would have been anomalous for the government contract section thereof to provide for compliance with a general law rather than this special law.. IV. Conclusion. The conclusion is that on the several grounds stated above, it would be permissible for the Social Security Board to exact compliance with the National Labor Relations Act from contractors and subcontractors where these are subject The Act was held unconstitutional in Carter v. Carter Coal Company (298 U. S. 238). but the validity of the provisions relating to the government contract was not involved to the Act. A penalty should be provided for in the event of noncompliance. (10 Comp. Gen. 294; 13 Comp. Gen. 65; 13 Comp. Gen. 76). The clause should also provide for compliance with orders of the National Labor Relations Board and the decrees for the enforcement of such orders. THOMAS H. ELIOT, General Counsel. EXHIBIT NO. 1095 NATIONAL LABOR RELATIONS BOARD, Hon. HOWARD W. SMITH, Chairman, Special Committee to Investigate the National Labor Relations Board, House Office Building, Washington, D. C. MY DEAR CONGRESSMAN SMITH: Under date of February 12, in response to a request from you, I wrote you a letter giving the number of cases pending before the Board and its regonal offices on January 1, 1940, in which I stated in part as follows: "Of the 849 'R' cases pending, 212 were pending for one year or more." There was a footnote to this sentence reading as follows: "A large number of these cases are in the various stages of formal proceedings before the Board." My said letter of February 12 was placed in evidence by you on February 21, and appears in the record as Committee Exhibit 1011, at page III-146. The statement that 212 representation cases had been pending for one year or more was based on information furnished to me by one of our staff who aids the Board in compiling its statistics on the status of Board proceedings. Since the figure 212 was not broken down, and impressed me as needing amplification, I have had the information rechecked and am now able to give you the benefit of the information thus obtained. I find that as of February 12, 1940, there were 273 instead of 212 representation cases pending before the Board, including all the regional offices. The 273 cases fall into the following categories: Under investigation____ Investigation ordered but awaiting issuance of notice of hearing_ Hearing in progress 136 2 5 5 65 Hearing closed but awaiting Board decision__ Election ordered but awaiting holding of election_ Total 273 Seventy-nine of the 136 cases under investigation involved one group of cases affecting certain motion-picture companies in the Los Angeles region. This whole group of 79 cases was closed on February 27 and 28, 1940, leaving as of the latter date only 57 cases under investigation which had been pending more than a year. We have not attempted to analyze the reasons why these 57 cases have been delayed, but we know that many or most of them have been held up pending action upon unfair labor practice cases involving the same employer. Of the total of 65 cases in which hearings had been closed and which were awaiting Board decision, 50 were consolidated with unfair labor practice cases and 10 additional were consolidated with other representation cases. Of the 60 cases in which elections have been ordered but not held, 32 were consolidated with unfair labor practice cases and 10 additional were consolidated with other representation cases. Of the 5 cases in which notice of hearing was issued, but hearing not held, 3 were consolidated with unfair labor practice cases and 1 additional was consolidated with another representation case. It should be noted that representation cases which are consolidated with unfair labor practice cases, and which must therefore await the outcome of the unfair labor practice case, naturally take considerably longer to dispose of. It should be noted also that the 60 cases in which an election has been ordered but not held are clearly not being delayed through any fault of the Board, since the Board's facilities permit the holding of elections within a very short time after the election is ordered. In other words, the delay in the dis position of these cases is due to extraneous causes. The extent to which delay in the other cases is likewise due to extraneous causes can be ascertained only by an analysis of the files in each case, which we have not undertaken to do. Since this more detailed information is pertinent to the subject of your inquiry covered by my letter of February 12, may I ask that this letter be also made part of the record at a convenient point, as supplementing my letter of February 12. DEAR MR. DAVIDSON: This will confirm my telegram to you, under today's date, reading as follows: "The Board today dismissed you with prejudice, and without accrued annual leave for addressing a false and scurrilous letter to the Board, dated March 17, 1940." Subject: Weyerhauser Timber Co. XIX-C-382 (Trial Examiner: Davidson). The complaint alleges 8 (1) and (3) violations; there is one discharge allegation in the complaint. The entire case has to do with one alleged discriminatory discharge. Intermediate Report.--The first draft of the Intermediate Report did not in my opinion fully set forth all of the facts. I discussed the record with the Trial Examiner, who thereupon redrafted the report and set forth a good many more facts than in the first draft. The Trial Examiner dismissed the case. In my opinion there was a very clear 8 (3) discrimination case proved by the record. In fact it seems to me that the report as drafted by the Trial Examiner on its face demonstrates that there was an unfair labor practice committed. However, the Trial Examiner has fully considered all of the evidence, barring one very important part of evidence, which I am still of the opinion should have been included in the report. This has to do with the fact that the respondent company became aware of Paul Moore's "bad record" from the son of the man who had blacklisted him at Ludlow. The Trial Examiner attaches no significance at all to the blacklist, whereas, it seems to me that this is the key to the entire case, especially when it is considered that Moore was the president of the union and very active on the grievance committee. In fact at the time of his final lay-off, the union was having negotiations with the company concerning a contract, and the negotiations had been proceeding very slowly and haltingly. Comments.-The Trial Examiner should refrain from making too many comments during the course of the hearing. I refer especially to his habit of commenting on whether or not evidence means anything. In addition, he omitted to make the customary opening statement. EXHIBIT NO. 1107 (The following is the portion of the Exhibit not read into the record.) FEBRUARY 7, 1938. Messrs. FAHY, WITT, and PRATT. THOMAS I. EMERSON, Assistant General Counsel. COMMENTS ON THE RECORD Case.-H. E. Fletcher Co. and Granite Cutters Int. Assoc. (Cases Nos. C-381; R-378). Date of Hearing.-October 18 and 19, 1937. Trial Examiner.-Mapes Davidson. Regional Attorney.-Norman F. Edmonds. The record in this case comprises 361 pages of testimony covering 8 (1) and (2) charges and a petition for an investigation and certification of representatives. Although the record is short, ample evidence was adduced to sustain the complaint and to resolve the issues raised by the petition. The brevity of the record, in itself, indicates that the case was well prepared and presented. the hearing having proceeded without the introduction of extraneous evidence. The record appears to be incomplete in only two respects. Little testimony was introduced to show the position of "Employees of H. E. Fletcher" in the Employees' Representation Plan. Also there is little in the record to show the detailed operation of the Works Council. Neither of these deficiencies, however, is serious. DECEMBER 6, 1937. Mr. BENNET F. SCHAUFFLER, Calmar Steamship Corporation: Mr. Pratt would like a full, confidential report on the manner in which Mapes Davidson acted as Trial Examiner in the above-mentioned case. Please mark the envelope in which you reply "Personal and Confidential." EXHIBIT NO. 1108 United States of America. Before the National Labor Relations Board, Fifth Region. In the matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America. Case No. C-470 EXCEPTIONS OF THE EMPLOYEES' REPRESENTATIVE COMMITTEE OF THE NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY TO THE INTERMEDIATE REPORT OF JAMES C. PARADISE, TRIAL EXAMINER IN THE ABOVE-STYLED CASE 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, excerpts 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. 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. 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 interfered with their employees' membership in an independent Union or Labor Organization. 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 anl 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. 5. To the finding of fact No. 29 that the Employees' Representation Plan was illegal from its very inception. 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 By-Laws and rules for the employees over which the Shipyard has no control. The Trial Examiner underlined in his report the provision in the By-Laws that amendments to the contract shall be binding upon the Company unless 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 By-Laws 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. 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. |