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knowledge about it. It is due to the fact of his age and, I think, his residence in Massachusetts where Harvard, of course, is located. I rather felt that probably before he went into his teaching career and remained as long as he did, he may have practiced law.

Mr. ROUTZOHN. But you know of no law firm or anything of that kind that he may have been associated with?

Mr. FAHY. No; I do not.

Mr. ROUTZOHN. No actual practice of the law?
Mr. FAHY. No: I do not.

Mr. TOLAND. Do you know, Mr. Fahy, of your own knowledge during the time that he was general counsel to the Board that he appeared in court and argued or tried any cases under the old Board or the new Board, either before an examiner, a district court, appellate court?

Mr. FAHY. No; I don't know about that. There weren't a great many cases under the old Board. I have said very little about him. I have simply answered questions. I do want to say to the committee and its counsel in all sincerity that Mr. Magruder is an unusually able lawyer, well qualified to hold the positions that he has; and if you knew him, I am sure you would agree. And a fine character.

Mr. ROUTZOHN. That may be true, Mr. Fahy, but after all, there are other things besides our own personal opinions of a man. He must have made good in some line of endeavor, at least that has always been the case prior to the present regime, before he could be elevated to the bench.

Mr. FAHY. I think that is true. I think he did, you see. He came under the observation, in this Government work, of many people who must have formed from knowledge of him an opinion about him.

Mr. ROUTZOHN. I know of no instance prior to the present administration where a man was placed on either the district court in the United States or any appellate court where he did not have prior experience as a lawyer, practicing lawyer. I would like to have you mention someone right now who ever was placed on the district court of the United States or a circuit court of appeals of the United States or the Supreme Court who had never had experience as a trial lawyer. Yet I can name you plenty of them who have been placed on there since this present regime started.

Mr. FAHY. Well, I thing of Mr. Justice Cardozo.

Mr. ROUTZOHN. Mr. Justice Cardozo, Mr. Fahy, was on the Supreme Court of the State of New York.

Mr. FAHY. I mean before he was appointed to the Supreme Court of the State of New York. I think he did engage in the private practice of law.

Mr. ROUTZOHN. Yes.

Mr. FAHY. But his reputation and I believe his career was concerned with being what is called a "lawyer's lawyer" and not a career in which he actually tried cases. I don't mean by that that he never did, but he was one of those rare examples.

Mr. ROUTZOHN. I am not trying to embarrass you, because you are not responsible for that, but on the other hand as a lawyer who has come up over 35 years of experience, it is rather hard to have someone come out of law school, where we know they are too im

practical, so impractical that they can't possibly practice law on the outside and make a living, and be placed on some Federal

bench.

Mr. FAHY. I don't think it is so much a question of ability to earn as some professors in law schools earn very respectable remuneration. Now, I think with you that all other things being equal, experience as a practitioner lends something to the man's ability as a judge. I do think, Judge, though, that there is definitely place also for eminent students and professors of law on the bench, that they have something to contribute, too.

Mr. ROUTZOHN. Without putting you in the position where you are answering a question, may I observe that there has been just too much of the other in the last 7 or 8 years.

Mr. FAHY. Well, I think each individual_appointee or appointment, rather—must stand on its own feet. If you were to mention a particular

Mr. ROUTZOHN (interposing). Well, I happen to know a man who has to have a $2,000 a year man at his right hand to tell him what the procedure is. I happen to know that, I could mention his name. Mr. FAHY. He may have qualities of another kind.

Mr. ROUTZOHN. Yes.

Mr. TOLAND. Does he have a review attorney?

The CHAIRMAN. Mr. Fahy, as I read this decision, it reverses the Board on the question

Mr. FAHY. I beg your pardon, Judge?

The CHAIRMAN. As I read this decision, it reverses the Board.

Mr. FAHY. No, Mr. Chairman; they only reversed the Board on the question of payment to relief agencies of that part of the back pay which might have been supplied by Government agencies through employment during the period that they were not employed by the company which refused to employ them.

Now, with respect to this opinion and the fact that Judge Magruder wrote it: He calls attention in his opinion to the fact that the controlling principle of the decision has been discussed in an opinion by Judge Learned Hand of the second circuit, and they find themselves in agreement.

The CHAIRMAN. Judge Hand didn't say anything at the time.

Mr. FAHY. In a later decision than the National Casket he said that except for the fact that the court in the National Casket case had made the rule for that court, he would now hold that it was a violation of the statute not to employ men who had never been employees if the reason was their union activity. Now, I hope this case will go to the Supreme Court, and I rather suppose that it will.

The CHAIRMAN. Yes; I think that if the Supreme Court will affirm it, it might stimulate Congress to do something about the situation. Mr. FAHY. In volume III, page 598,1 Mr. Smith was questioned about committee Exhibit 1280, appearing at pages 599 and 600, of the testimony of May 2, consisting of a letter of January 8, 1938, from Mr. Bridges to Mr. Smith, concerning Mr. Eagan and Mr. Edises, Board employees. Mr. Eagan was regional director at Seattle, and Mr. Edises an attorney in our office at San Francisco. The records of the Board show that notwithstanding Mr. Bridges' recommendation

1 Indicates reference is verbatim transcript of committee proceedings, May 2, 1940.

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regarding Hawaii and his comments as to the necessity of Mr. Edises remaining in San Francisco, Mr. Eagan was not sent to Hawaii after Mr. Bridges letter to Mr. Smith. He had been there previously and had returned and was not sent back after the suggestion was made by Mr. Bridges to that effect.

As to Mr. Edises, notwithstanding Mr. Bridges' expressed desire that he remain in San Francisco or go to Hawaii, he did neither, but was transferred from the San Francisco office to the Board's enforcement staff in Washington.

Mr. TOLAND. When?

Mr. FAHY. April 14, 1938, where he still is, and in order that there might be no implication against Mr. Edises, I would like to read into the record the following list of cases tried by Mr. Edises and which have been decided by the courts, on the records made by Mr. Edi-es as trial attorney for the Board:

National Labor Relations Board v. Mackay Radio Company. 304 U. S. 333; Santa Cruz Fruit Packing Company v. National Labor Relations Board, 303 U. S. 453: National Labor Relations Board v. Pacific Greyhound Lines, 303 U. S. 272: National Labor Relations Board v. the American Potash and Chemical Company, 98_F. (2d) 448 (CCA-9), cert. den. 306 U. S. 643: National Labor Relations Board v. Idaho-Maryland Mines, 98 F. (2d) 129; American Federation of Labor v. National Labor Relations Board, 308 U. S. 401.

He argued for the Board in the Circuit Court of Appeals the Mackay case; the Oregon Worsted case, 94 F. (2d) 671: the Americơn Potash case to which I have referred: the Carlisle Lumber case. 3 F. (2d) 92; and several cases in the District Courts during the period of the injunction litigation.

Mr. TOLAND. Mr. Chairman, Mr. Fahy has just made a statement about Mr. Edises, and he has read a list of cases that he participated in. I would like to make an observation for the record at this time, that at the hearing on August first, I offered in evidence the files of the Board in the Salinas case, a case that Mr. Edises tried, and it appears in that case, Mr. Chairman, that in some manner Mr. Edises came into possession of the proposed decision of the Board, or its conterts, and that he didn't like the proposed decision of the Board, and he commu „cated with the Board and asked permission to prepare the decision. In addition to that, the records disclose that he was here in Washington, that he discussed the merits of the controversy with Mr. Hias, who was preparing the decision for the Boarl, and that Le lewe discussed the proposed decision in that case with the Beanitself.

Mr. RUTA HN Will you please state who Mr. Edises ist

Mr. T. LAND. Mr. Ei, as Mr. Fally has described him, is an attorney for the Bani, oor tev tevi with the litigation or the enforce ment diviset of t» Bani.

Mr. ROUT:CHN. Isle de ce who had to do with Harry Bridges in correction with HowAT

Mr. T. GANG H

Mr. FARY. B: Mr. Blove t fora. As a

the letter of Bridges to

Sale Shiran in CaliBand brit im to Washington.

Now, at the last hearing, during the testimony of Mr. Yates of the Comptroller General's office, I stated that the Board had requested the formal opinion of the Comptroller General as to the legal question involved in the division of economic research, or the technical service division. We have received that opinion. I think it would probably be just as well that it be made a part of the record, Mr. Chairman.

The CHAIRMAN. What case is that?

Mr. FAHY. This was the question of the right of the Board to continue the division-the Comptroller General's opinion.

Mr. TOLAND. Mr. Chairman, in that connection I understand the Board has had correspondence with the Committee on Appropriations. I think at the same time that that opinion is offered in evidence, either to be printed or not printed, that the correspondence between Judge Tarver, of the House of Representatives, and the National Labor Relations Board should be made a part of the same exhibit and should be offered together.

Do you have copies of the correspondence with you?

Mr. FAHY. No, I do not, Mr. Toland.

Mr. TOLAND. I would like permission, Mr. Chairman, at a later date to offer it and have it printed in connection with that letter. Mr. ROUTZOHN. Does it all connect logically?

Mr. TOLAND. It relates to the same division.

Mr. FAHY. Why can't we have an understanding; I hand it to you and you put it in the record at this point if you desire.

(The communication dated August 21, 1940, to the Chairman, National Labor Relations Board, from Comptroller General of the United States, was received in evidence, marked "N. L. R. B. Exhibit No. 308," and is printed in the appendix of this volume. The correspondence between Representative Tarver and the Board was received in evidence and is on file with the committee.)

Mr. FAHY. At pages 592-593 of volume III of the record of May 2,1 there was discussed the Hearst Consolidated Publications case, and reference was made to a settlement of the case. The case went to a consent decree, signed by the three judges of the Circuit Court of Appeals for the Fourth Circuit, April 28, 1939. I offer in evidence a copy of the decree, and copy of the Board's decision so that they may be compared.

Mr. TOLAND. Those are not to be printed?

Mr. FAHY. The decree is very short. I should like for the decree to be printed and the decision of the Board filed.

(The decree of fourth circuit court in National Labor Relations Board v. Hearst Consolidated Publications, Inc., was received in evidence, marked "N. L. R. B. Exhibit No. 309," and is printed in the appendix of this volume.)

(The decision and order of the Board in the above case was received in evidence, marked "N. L. R. B. Exhibit No. 309-A," and is on file with the committee.)

Mr. FAHY. Mr. Chairman, on August 13, 1940, Allan R. Rosenberg, who was a witness before the committee and is an attorney of the Board, wrote you a letter about comments in the majority report on his professional work with the Board.

1 Indicates reference to verbatim transcript of committee proceedings.

regarding Hawaii and his comments as to the necessity of Mr. Edises remaining in San Francisco, Mr. Eagan was not sent to Hawaii after Mr. Bridges' letter to Mr. Smith. He had been there previously and had returned and was not sent back after the suggestion was made by Mr. Bridges to that effect.

As to Mr. Edises, notwithstanding Mr. Bridges' expressed desire that he remain in San Francisco or go to Hawaii, he did neither, but was transferred from the San Francisco office to the Board's enforcement staff in Washington.

Mr. TOLAND. When?

Mr. FAHY. April 14, 1938, where he still is, and in order that there might be no implication against Mr. Edises, I would like to read into the record the following list of cases tried by Mr. Edises and which have been decided by the courts, on the records made by Mr. Edises as trial attorney for the Board:

National Labor Relations Board v. Mackay Radio Company, 304 U. S. 333; Santa Cruz Fruit Packing Company v. National Labor Relations Board, 303 U. S. 453; National Labor Relations Board v. Pacific Greyhound Lines, 303 U. S. 272; National Labor Relations Board v. the American Potash and Chemical Company, 98 F. (2d) 448 (CCA-9), cert. den. 306 U. S. 643; National Labor Relations Board v. Idaho-Maryland Mines, 98 F. (2d) 129; American Federation of Labor v. National Labor Relations Board, 308 U. S. 401.

He argued for the Board in the Circuit Court of Appeals the Mackay case; the Oregon Worsted case, 94 F. (2d) 671; the American Potash case to which I have referred; the Carlisle Lumber case, 83 F. (2d) 92; and several cases in the District Courts during the period of the injunction litigation.

Mr. TOLAND. Mr. Chairman, Mr. Fahy has just made a statement about Mr. Edises, and he has read a list of cases that he participated in. I would like to make an observation for the record at this time, that at the hearing on August first, I offered in evidence the files of the Board in the Salinas case, a case that Mr. Edises tried, and it appears in that case, Mr. Chairman, that in some manner Mr. Edises came into possession of the proposed decision of the Board, or its contents, and that he didn't like the proposed decision of the Board, and he communicated with the Board and asked permission to prepare the decision. In addition to that, the records disclose that he was here in Washington, that he discussed the merits of the controversy with Mr. Haas, who was preparing the decision for the Board, and that he likewise discussed the proposed decision in that case with the Board itself.

Mr. ROUTZOHN. Will you please state who Mr. Edises is?

Mr. TOLAND. Mr. Edises, as Mr. Fahy has described him, is an attorney for the Board, connected with the litigation or the enforcement division of the Board.

Mr. ROUTZOHN. Is he the one who had to do with Harry Bridges in connection with Hawaii?

Mr. TOLAND. His name was mentioned in the letter of Bridges to Smith.

Mr. FAHY. But Mr. Bridges thought he should remain in California. As a matter of fact, the Board brought him to Washington. It did not follow Mr. Bridges' suggestion.