Subsequently the A. F. of L. union added 8 (3) charges as to nine employees. A complaint was then issued. The company filed an answer raising as an affirmative defense the consent agreement. At the hearing, held from January 24 to February 5, 1938, the trial examiner struck out from the respondent's answer those portions raising the defense based on the agreement. The trial examiner thereafter issued an intermediate report finding 8 (1) and 8 (2) and 8 (3). When the case was reported to the Board by the review attorney, it decided that if the facts alleged by the company regarding the consent agreement were true, such facts constituted a complete defense to acts of the company occurring prior to the consent agreement. On December 15, 1938, the Board issued an order overruling the trial examiner insofar as he had stricken portions of the company's answer. In February 1939 the regional director filed pleadings in answer to the company's allegations which, in substance, admitted the facts alleged by the company with respect to the consent agreement. The case was further reported to the Board, and it decided to dismiss the "C" case on the ground that the consent agreement constituted a defense and that the record failed to show any violation by the company subsequent to the agreement. The Board also dismissed the "R" case. It dismissed the petition of the A. F. of L. union because it was filed within a few days after the consent election found by the Board to be a valid election. It dismissed the request of the company union for certification on the ground that 18 months had passed since the election and the circumstances might have changed. Mr. FAHY. When the Board decided to dismiss the "C" case did it have precedent in other cases in which it took such action because of an agreement made by one of its own employees? Mr. MADDEN. Yes; in the Shenandoah Dives Mining case (11 N. L. R. B. 885), decided March 2, 1939, the Board had already laid down the principle that it would be bound by the agreement of its agent not to press charges which were compromised by consent of all parties. Mr. FAHY. Was there also a precedent for the Board's dismissal of the "R" procedure in the Godchaux case? Mr. MADDEN. Yes. The dismissal of the A. F. of L. petition, filed immediately after the consent election, was in accordance with the Board's usual practice. The dismissal of the company union's request for certification, after the lapse of 18 months, is in accordance with the precedent of the Bamberger-Reinthal case (9 N. L. R. B. 1057) and the American France case (10 N. L. R. B. 1169), both decided shortly before the Godchaux case. Mr. FAHY. Mr. Madden, there has been some reference made to an alleged interest of Senator Ellender in the Godchaux case. Do you know what interest he had in it? Mr. MADDEN. It seems that Senator Ellender had requested a postponement of the original hearing in the Godchaux case. I knew nothing about that request. The record shows that the union had postponement, however. The first I knew of any interest of Senator Ellender in the case was during hearings on the amendments to the act before the Senate Committee on Education and Labor. These hearings began on April 11, 1938. On April 19, 1939, while I was testifying before that committee, Senator Ellender, who apparently had received a com His ques plaint from the company, questioned me about the case. tions and my answers appeared on pages 188 and 190 of the Senate hearings. Mr. FAHY. At the time of that discussion of the case, on the part of Senator Ellender and yourself, during the hearings, had the Board decided the case? Mr. MADDEN. The Board decided the case. The decision was in the process of being drafted and issued. Mr. TOLAND. Do you have any document to show that, Mr. Fahy? Mr. FAHY. Yes. I would like to introduce the original index card, similar to the cards involving other cases already in the record, kept by the associate general counsel in charge of review. Mr. TOLAND. Will you also state for the record who it was prepared that card and the notation that appears on it? Mr. FAHY. It was prepared by Mr. Emerson's office. Mr. EMERSON. It was prepared by my secretary on the basis of agenda sheets, in which Mr. Hawes wrote the action of the Board. (The index card entitled "Godchaux Sugar, Incorporated, Hearing Concluded 2/5/38," was received in evidence and marked "N. L. R. B. Exhibit No. 235," and is printed in the appendix of this volume.) Mr. TOLAND. I would like the record to show who put the record in there in the case of Mr. Smith prior to the testimony of Mr. Madden. Mr. MADDEN. I may say, Mr. Chairman, that I recall very distinctly what the status of the case was, and I testified before the Senate committee. I say without hesitation that the case had been dismissed at that time, as is shown by these records kept by our office. Mr. EMERSON. I would just like to state that there seems to be a typographical error on that card. In checking it back to the original documents it appears that the "R" case was dismissed on February 28. That card shows it was dismissed on February 23. That seems to have been a typographical error. Mr. FAHY. Mr. Madden, do you recall on what day Senator Ellender introduced his proposed amendment to the act dealing with unaffiliated unions? Mr. MADDEN. On April 11, 1939, the records show. Mr. FAHY. That was also after the Board had actually made up its mind in the Godchaux case as to how it would act on the question of dismissal? Mr. MADDEN. That is correct. Mr. FAHY. Did Senator Ellender in any way attempt to influence the decision in the case? Mr. MADDEN. Not at all, not in any way. Mr. FAHY. I will just state for the record that I have a copy of the amendment introduced by Senator Ellender which has been referred to. Now, Mr. Madden, another case previously testified about was the Talledega Cotton Mills case, and I call your attention to the record as it is. Exhibit 385 is a letter from Mrs. Stern, appearing in the record of these hearings at pages 459 and 460,1 to Attorney Prowell, requesting information as to what a witness would testify if the trial examiner had not excluded his evidence or proffered evidence, and exhibit 386, now appearing at pages 4591 and 460,1 is Mr. Prowell's 1 1 Indicates page reference to verbatim transcript of committee proceedings, January 10, 1940. reply to that inquiry. Will you please state why this inquiry was made as to what the witness would testify about if his testimony had not been excluded by the trial examiner? Mr. MADDEN. We had the situation where the Board's attorney had offered certain evidence and the trial examiner had excluded it. The offer was ambiguous, so that we could not intelligently rule as to whether the evidence should have been received or should have been excluded. We therefore directed the secretary to inquire of the regional office just what that evidence would have been had it been admitted; in other words, to clarify the offer. Mr. FAHY. Now, have similar situations arisen in connection with the work of the Board? Mr. MADDEN. I don't recall any situation exactly like that. I recall quite a number of incidents in which there has been new or additional evidence, or ambiguities in the record which caused the Board to consider whether it ought to reopen the case, and ordinarily before we do reopen the case we have this additional evidence investigated to see whether we would be wasting our energies in sending out a trial examiner to hold a further hearing or not. Mr. FAHY. Isn't that a necessary part of the work of the Board when circumstances arise which call upon the Board to determine whether or not it needs to reopen the record? Mr. MADDEN. Yes, it seems to me it would be just as necessary to investigate preliminary to additional evidence as it is to investigate the facts in the case before the first trial. Mr. FAHY. Do you consider that there is anything improper in such an inquiry, or a denial of any rights to any of the parties? Mr. MADDEN. None whatever. Mr. FAHY. Did the Board, as a matter of fact, reopen the Talledega case for further testimony? Mr. MADDEN. My recollection is that we did not, that the report from the regional attorney clarifying this offer indicated that the evidence was immaterial and therefore the Board did not reopen. Mr. FAHY. Can you state whether or not the Board, in its decision in that case, took into consideration any statements contained in Mr. Prowell's response to Mrs. Stern's memorandum, Mr. Prowell's response being Exhibit 388? Mr. MADDEN. It did not, any more than the ordinary judge takes into consideration evidence which is offered and excluded by him in the trial when he makes his decision. Mr. FAHY. And what disposition did the Board finally make of the case itself? Mr. MADDEN. The Board dismissed the complaint. I may say that on this general point of reopening, the language of the Supreme Court of the United States in Ford Motor Company v. National Labor Relations Board (305 U. S. 364 at 374–5) is— There is nothing in the statute or in the principles governing judicial review of administrative action, which precludes the court from giving an administrative body an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary or supplying findings validly made in the place of those attacked as invalid. The CHAIRMAN. Would it bother you if I enlarge on that a bit? What you were talking about, I take it, is directed to the subject of where it has been charged that the Board considered evidence not in the record. Mr. MADDEN. Yes. The CHAIRMAN. I want to ask you about the economics division. As a matter of fact, the Board does consider statistics and figures gotten up by your economics division in connection with your cases, does it not? Mr. MADDEN. Yes, we do. The CHAIRMAN. Isn't that evidence Mr. MADDEN (interposing). May I explain just a little bit there? Very often the economics division does a part of what one might call the review work, that is, the sifting and analysis of the record. They do it because they are expert with figures and with accounting systems, and that kind of thing. And so they assist us to come to the right subtraction or multiplication or average or whatever the mathematical problem is which may arise out of the data furnished in the record. Then the other principal thing, I suppose, which they do is to call to our attention these matters which every court feels free to take judicial notice of if it happens to know them, and if it doesn't happen to know them, if the judge's law clerk finds them in a reputable book somewhere, then the judge does know them and makes use of them in his decision, without reopening the record to have the book or part of the book put into the record. The CHAIRMAN. What I was getting at is, Mr. Saposs testified that on frequent occasions he was called on by the review division, or members of the review division, to get up statistics that they thought might be useful in the case. That is a fact, is it not? Mr. MADDEN. Well, I suppose so. The CHAIRMAN. I don't think there is any question about that, because he testified to it. What I am getting at is this: There are statistics and statistics, and people may very often and do very often have different opinions about what the figures mean. In other words, the matter of interpretation is a very large element in the matter of statistics. As I understand it, those statistics are given to these review attorneys and there is no opportunity afforded to either side in the case to analyze those statistics or to cross-examine the people who got them up. I wonder what you have to say relative to the due process subject on that. Mr. MADDEN. Well, I would say that the Board has not, in arriving at any decision, used any material which the economics division may have furnished unless it falls within these ordinary and legitimate uses of such materials; that is, either the kind of thing which, if we had happened to know it before the economics division called our attention to where it appeared in the books, we would have taken judicial notice of, or which are studies of matters which appear in the record; or occasionally we call upon the chief economist for advice as we would call upon any other of our principal staff members as to what a set of language in a labor union agreement, what a phrase in a labor union agreement, ought to mean or does mean. He makes his point to us in the same way that the general counsel would make his point to us if we asked him, "What do you think it means?" I think, Mr. Chairman, that we can't very well discuss the questions you have raised unless we take some specific instance of a job done by the economics section for the Board or for the review division of the Board and analyze it to see whether it falls within these principles which I have indicated to you. I can only say in general that we simply do not consider in making our decisions matters which are not matters of public information and which the economics division has taken out of private sources and presented to the Board inside and behind the backs of the parties. The CHAIRMAN. When you say that the Board doesn't consider them, of course, you speak only for yourself as one member of the Board? Mr. MADDEN. Well, I speak of the process of the Board in making its decisions. The CHAIRMAN. I have noticed, I believe in some instances, that Mr. Saposs has himself taken the witness stand and expounded his theoretical views. Of course, where he does that, then both sides have the opportunity to examine him and bring out whatever points they need. Mr. MADDEN. And usually The CHAIRMAN (interposing). But what I am getting at is the point where he gives to the Board information that neither party has an opportunity to cross-examine him about, and I wondered why you made him a witness in some cases and in other cases just called on him there in the office to supply you with figures. Mr. MADDEN. Well, I think on this matter of supplying us with figures there is a misapprehension about the effect of Mr. Saposs' testimony and that it would be found, if these matters were gone into carefully, that he doesn't supply us with figures unless those figures are either collations and analyses of matters that are already in the record or are matters which he gets out of the books from which the Board itself, if it had time and knew what books to look in, would also findin other words, the matter of judicial notice, again. The CHAIRMAN. That leads me to the final question, and that is, I would like to have your statement, in the light of section 4 (a), which says that Nothing in this act shall be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation, or for statistical work, where such services may be obtained from the Department of Labor. I would like a statement of your justification for the existence of an economics division of your Board under that language. Mr. MADDEN. Well, I suppose that the function of the Bureau of Labor Statistics in the Department of Labor is to collect and analyze and publish general statistics about matters properly relating to labor in the United States-numbers of unemployed, the number of strikes, and that kind of figures. I suppose that no other agency of the Government, such as ours, would have the right, except on a basis of mere accommodation, to go over there and say, "We would like to have you assign the necessary number of statisticians and economists to make a study of the labor records of the great steel companies to assist the Board in determining whether this company, in laying off employees or in rehiring employees, was following its alleged practice of seniority, or was discriminating against union people." In other words, we have constantly a lot of chores which are our special chores and they are not matters of interest to the public in the way of general informa |