The CHAIRMAN. I want to get it straight, now. There isn't any particular glory about being a union in this matter, is there? Suppose I, as an individual, came down to the Board and said, "There is a company-dominated union in the Squeedunk Hauling Co. in Washington. Would the Board undertake to go into that matter and determine whether there was, whether there was any controversy or not? Mr. FAHY. Exactly, your Honor, it would. That is its duty under the statute. The CHAIRMAN. Irrespective of whether there is any disagreement between employer and employee? Mr. FAHY. Yes. It isn't a question of disagreement between the company and its employees. It is a question of whether the law is being violated. The CHAIRMAN. Even if everybody is happy and there is no trouble? Mr. FAHY. That goes to the administrative discretion of the Board as to whether it goes into a particular case. Mr. ROUTZOHN. That comes within the purview of the National Labor Relations Act, for the Board to interfere in cases where no complaints or charges have been filed? Mr. FAHY. No, no, no; I never Mr. ROUTZOHN (interposing). I mean so far as any representation is concerned. Mr. FAHY. Representation is a different question. Mr. ROUTZOHN. That is the only thing the Board would be interested in there. If it is a company-dominated union Mr. FAHY (interposing). No, no, no; you cannot properly solve the question of representation until you have eliminated unfair labor practices if they exist. There is no question of representation here under section 9; it was a question of violation of a provision of section 8 (2). Mr. ROUTZOHN. Then how would any question come up as to the union? Mr. FAHY. The union filed the charge. The union has the right to file a charge; an individual has a right to file a charge. Mr. ROUTZOHN. Some union that has no interest in the company itself can file representation charges? Mr. FAHY. This union-I can't state for this union-in this industry has an interest in seeking to organize employees engaged in and doing the work that is done in this plant. Now, they filed a charge that in this plant the law was being violated by the company dominating the inside organization. That properly presented the matter to the Board, notwithstanding the fact that the union did not claim that it represented a majority of the employees, which was a separate type of proceeding. The CHAIRMAN. The next question I want to ask, and I will get through with this as quickly as I can, is this: The circuit court out there in the injunction proceedings, after hearing the evidence, as I understand it, ruled that there was an unlawful conspiracy and a secondary boycott of this plant, and during the time that that boycott was going on the Board was entertaining, at least, charges at the instance of a union that had no interest in the employees of the plant. I would like to know your justification, if any, for the Board to intervene in a situation of that kind, where the necessary effect was to aid in a boycott. Mr. FAHY. The decision granting the injunction on the ground of conspiracy, and so forth, was a district-court decision which was ultimately set aside by the Supreme Court because the court had not been properly constituted to issue an injunction, and the question involved in that first case, which went to the Supreme Court, as I understand it, is now pending undecided before the Circuit Court of Appeals for the Eighth Circuit. The CHAIRMAN. But there isn't any question about the fact that this union was putting on a boycott against the Donnelly Garment Co. Mr. FAHY. I have no knowledge of that at all. The CHAIRMAN. And you are not familiar with the record? But let's assume that there was a boycott. I do not think the fact that the union may have violated the rights of the respondent and been subject to an injunction under other statutes precludes the Board from preventing the employer from violating the rights of the men under the National Labor Relations Act, and that is all that we were concerned with. The CHAIRMAN. Well now, what rights of the men are being violated if the men say, "We are satisfied with the union we have, and we don't want the Labor Board or the national unions to be messing in our affairs"? Mr. FAHY. If the men say that? The CHAIRMAN. If the employees say that-women. Mr. FAHY. If the men say that, under conditions absent from violations of the National Labor Relations Act, the Board has nothing to do with it. The CHAIRMAN. That brings me to the next question as to the evidence. Mr. FAHY. Yes? The CHAIRMAN. How are the employees themselves, or the employer, going to be able to convince your Board of that fact, if the Board won't permit them to introduce evidence by the employees who say they have not been dominated? Mr. FAHY. That raises a question of the materiality of the evidence which was excluded and which is contained in the offer of proof. We may differ about whether or not that evidence was material; my views may or may not be right. But in support of the trial examiner's position in the hearing, I call the committee's attention to two decisions of the courts: One, the recent decision of the fifth circuit in the Brown Paper Mill case, in which a very eminent jurist, Judge Hutchinson, seemed to me to say in his opinion that whether or not there is company domination of a labor organization in a plant does not depend upon the fact that some of the employees testify that they were not coerced into the independent union; that the crucial point in such a case is whether the acts of the company as are shown by the evidence do constitute interference, restraint, or coercion, and not whether some of the employees subjected to that interference, influence, and coercion say that it had no such effect on them. The CHAIRMAN. You refer to Judge Joseph Hutchinson? The CHAIRMAN (interposing). From Texas? Mr. FAHY. From the fifth circuit. The CHAIRMAN. That is Joe Hutchinson. Mr. INGRAHAM. Mr. Chairman, could I just say that Mr. FAHY (interposing). Let me proceed. I think the same reasoning is found in the decision in the Supreme Court in the Newport News case, that it was variously contended there by the company, just as it is contended in this case, that the employees themselves felt that they had not been subjected to coercion; that is, some of them which the company wanted to put on the stand, and they introduced in evidence the result of an election. But the whole course of that case and its final decision by the Supreme Court was to the effect that the evidence otherwise showed domination, and that being present in the case, the Board had a right to require the disestablishment of that union, notwithstanding some of the employees might testify that they were not coerced. That is the situation there. The CHAIRMAN. Now that is a very able argument, but I want to ask you your opinion as a lawyer. What evidence is better as to whether I am being dominated and coerced than my own statement? Mr. FAHY. Oh, I think in these cases there is-let me illustrate The CHAIRMAN (interposing). Let's stick to the Donnelly Garment case. There is where the proof was offered. I don't know how many of the employees were willing to testify to that fact. Mr. FAHY. I don't know, either. The CHAIRMAN. I don't know how many he offered to have testify to that fact, but assuming that every employee of that plant was willing to go on the witness stand and state under oath that this company had in no wise interfered with or assisted in the organization, conduct, domination, or any sort of interference with this union, do you mean to say that any other evidence would be superior to that? Mr. FAHY. Oh, yes. The CHAIRMAN. And do you mean to say that under any circumstances those people, who are the people that I submit the act was intended to protect, should not be permitted to testify? Mr. FAHY. Well now, that is a different question. The CHAIRMAN. That is the question that was in this case. Mr. ROUTZOHN. I think we can epitomize what you are stating by saying that the Board is willing to accept as gospel truth a statement by an employee that he is being imposed upon and denied his rights, whereas the Board will not accept a statement from an employee that he is not being interfered with in his rights. Mr. FAHY. That really isn't the issue here. Mr. ROUTZOHN. I think it is and has been. Mr. FAHY. I think the chairman has properly stated the question. You have stated an extreme case, where all the employees, we will assume, testify that they were not coerced. I answered simply that that was not the strongest proof. Now, in order to illustrate my answer, let me give an extreme case. Suppose under those same circumstances the Board proved from the employer's own mouth that he himself had set up that union and was then currently contributing to its support. I say, if that were true, that is the evidence upon which the Board should require that union to be disestablished, notwithstanding the fact that the employees working in that plant would take the stand and say that that activity of the management and that support of the management really had nothing to do. The CHAIRMAN. Then let's come back to the question which is the real question here, as to the admissibility and relevancy of that evidence. Mr. FAHY. I think that is a closer question. I would hesitate to say. The CHAIRMAN. Is it a close question? I am asking your opinion as a lawyer. Mr. FAHY. I think it is a debatable question. I am not willing categorically to say that such evidence is not admissible or that such evidence doesn't have some bearing on the question. I think, in certain circumstances, it may very well be. I am not willing to say, either, because I haven't studied this record, that the exclusion of the particular evidence in this case was material error, because the acts of domination and support may be such that the fact that a few witnesses from inside the plant would testify that it had no effect on them might well be immaterial to determination of whether the company had been guilty of unfair labor practices. The CHAIRMAN. Now let's put the shoe on the other foot and let's assume that these employees want to come before your Board and testify that they are company dominated. Mr. FAHY. I don't think that is proof of it. The CHAIRMAN. I am not talking about proof. I am talking about the relevancy of it. You wouldn't refuse to permit them to testify. Mr. FAHY. I would do the same way. The CHAIRMAN. Would you under any circumstances deny to the employee the right Mr. FAHY (interposing). I think I would. The CHAIRMAN. Wait until I finish my question-the right to testify that his union was company dominated? Mr. FAHY. I think I would, because that was his statement of a conclusion. I think the proof, which is the essential matter which these cases are directed to, are the acts of the company, and not what the witness on the stand says was his subjective reaction to those acts. Mr. ROUTZOHN. That isn't what the witness was testifying to here this morning at all, Mr. Fahy. As I understood him, he said he was offering evidence on behalf of the company, by calling these witnesses to disprove the claims or charges that had been filed. So that wouldn't be confined to the conclusion of the witness at all. Mr. FAHY. That is something we haven't been discussing at all. We haven't discussed testimony. Mr. ROUTZOHN. That is what the witness was discussing. The CHAIRMAN. Will you finish your answer, because I would like to have Mr. Ingraham's statement. He's been trying to make one. Mr. INGRAHAM. I wanted to say that I offered or announced that I was going to call every employee in the plant, and the examiner said: Why, we will be here until Christmas, and I won't stand for anything like that. I offered, oh, say five or six employees, and he would stop them on these different, specific acts that we were charged with doing, and say that he wouldn't allow that testimony, and then he finally stopped me after about six witnesses and said that was all he cared to hear. The CHAIRMAN. I'd like to have the record in that case and let's see what is in the record. Mr. TOLAND. We sent for it. We don't have it here. May I file it as an exhibit of the committee so it will be a part of the record? Mr. ROUTZOHN. In calling these witnesses, was it your purpose to ask for conclusions of the witness, or to have the witness testify as to facts? Mr. INGRAHAM. As to facts. Mr. TOLAND. May I proceed, Mr. Chairman? Mr. FAHY. I don't want to leave any decision in my own mind one way or the other as to the statement of whether the trial examiner was correct or incorrect. I think that would depend on study of just what occurred. I assume, Mr. Toland, you will not object to admitting the Board's decision in the case? Mr. TOLAND. No. I will offer it as a committee exhibit. (Document entitled "United States of America, before the National Labor Relations Board, in the matter of Donnelly Garment Co. and International Ladies' Garment Workers' Union and Donnelly Garment Workers Union, party to the contract, Case No. C-1382, decided March 6, 1940," was received in evidence, marked "Exhibit No. 1359," and is on file with the committee.) Mr. TOLAND. Mr. Chairman, may we recess for 2 minutes? The CHAIRMAN. Yes. I am just wondering whether we will come back and have an afternoon session. Mr. TOLAND. I think everybody would prefer to go right along. The CHAIRMAN. I want to conclude this case today and I want to get what's in that record. If you can do it before we adjourn, all right; if not, I'd like to have an afternoon session. Mr. TOLAND. The record will be here. It is on its way. TESTIMONY OF JAMES A. REED, FORMER UNITED STATES (The witness was duly sworn and testified as follows:) Mr. TOLAND. And you reside in Kansas City in the State of Missouri, Senator? Mr. REED. Yes, sir. Mr. TOLAND. You have been present, have you not, this morning while Mr. Ingraham, your associate, testified with respect to the Donnelly Garment Co. case? |