tion. They are necessary to the carrying on of a lawsuit, and we have never understood that section of the statute to mean that we were given. as a matter of right, the right to use the Bureau of Labor Statistics on call, which we do need to do in order to carry on our work.

The CHAIRMAN. Well now, the statute says quite plainly that you shall not employ anyone for statistical work where that work can be obtained from the Department of Labor. I take that to be the mandate of Congress, and I want to ask you if you have ever applied to the Department of Labor for statistics of any kind that would be useful in your work that the Department of Labor has declined to furnish?

Mr. MADDEN. No; I think not. I don't know of our having applied to them for very much, except the strike statistics, which we know that they collate for the public.

I don't believe, Mr. Chairman, that there can be any misunderstanding of this provision of the law. I think we got our chief economist out of the office of Dr. Lubin, the head of the Bureau of Labor Statistics. We have never had the slightest complaint or reflection from over there that we were trespassing on their functions. The matter was a question of whether we should have such a division and the number of people in it is taken up constantly with the Civil Service Commission, which has authorized every position which we have in this division, and so it seems as if everybody concerned has supposed that we, like other administrative agencies, had the right to have the help that we needed.

The CHAIRMAN. Of course, some of us in Congress think that Congress had something to do with this thing, and when Congress says you shall not employ an economist when you can obtain the work from the Department of Labor, I am wondering whether you have carried out what I regard as a mandate to get that information from the Department of Labor where it is possible, rather than employing an economics division when there is apparently a prohibition in the statute against that.

Mr. MADDEN. Well, Congressman, certainly if we thought that what you suggest is prohibited, is prohibited, that is exactly what we would do, but when we do have these special jobs over there which need to be done, we have taken the statute to mean that we were not to duplicate the activities of that division in the Department of Labor, and we haven't done it in the slightest degree.

The CHAIRMAN. But you have not applied to the Department of Labor to see if they could supply you with all the economic data that you needed.

Mr. MADDEN. Well, we haven't to tell the truth, but we know perfectly well that they couldn't supply it to us without themselves hiring the men who are doing the job.

The CHAIRMAN. Then what did you think Congress meant when it told you not to employ an economist where the statistical work could be obtained from the Department of Labor?

Mr. MADDEN. I thought it meant just what I said a moment ago, that we were not to set up over there a division which would duplicate the work of the Department of Labor in gathering strike statistics and unemployment statistics and the other things which the Department of Labor does. In other words, if the information is

already over there we shouldn't think, "Well, we can do that better, and therefore we will do it again."

The CHAIRMAN. That's all.

Mr. FAHY. Mr. Chairman, the economics division has been set forth each time there has been occasion for discussion of the appropriations needed by the Board with the Budget and the Appropriations Committee of Congress, and its functions outlined year after year to the Congress through the appropriations and the supporting data for the appropriations.

Mr. Madden, another case previously referred to is the Schwarze Electric Company, at pages 5191 and following. I refer particularly to Exhibit 395 in the record, which is a memorandum from Mr. Witt to the regional director at Detroit, Mr. Bowen, asking Bowen to obtain a stipulation as to certain facts. That exhibit contains the following: Not to be included in the stipulation, but only for our information, we should like to know the number of employees named in the complaint who have been reinstated subsequent to the hearing.

Do you recall the purpose for which this information was requested? Mr. MADDEN. I do not remember the incident clearly at all. My notion, as I look at the record of it now, is that we may have sought that information to determine whether there had been compliance with the Board's order and whether there was a possibility of settling the

case.

Mr. FAHY. Can you state whether or not the Board took into consideration in its decision in that case the information requested?

Mr. MADDEN. I know that we did not.

Mr. FAHY. In the same case, on pages 522-5231 of the record, occurs the following. This is when Miss Boyls was on the stand:

Q. Do you think, Miss Boyls, as a member of the bar, that it is proper in the course of the performance of your duties to have before you or to ask for information not contained in the record or not contained in the stipulation?-A. Under some circumstances, yes, to get a general picture of the situation.

Q. Would you tell the committee in what circumstances that it is perfectly proper to go outside of the record and outside of the stipulation while you are deciding or preparing a decision in a case to get information, to consider it?A. Well, I am not sure, but I think probably in this particular case there was no harm in obtaining the information requested. I can't see where there would be any harm. It would help to complete the general picture, I think.

Do you care to comment on that testimony of Miss Boyls?

Mr. MADDEN. Yes. Miss Boyls was giving her own view there, apparently, and not the view of the Board. The Board does not consider matters outside the record in arriving at its decisions, either to complete the picture or for any other purpose.

Mr. FAHY. In the General Leather Products case, referred to in the testimony on pages 525,1 and following. I call your attention to Exhibits 404 to 411, inclusive, which are memoranda and letters indicating the Board sought information as to the existence of another union in the company plant. Do you recall the circumstances and the purpose for which that information was sought?

Mr. MADDEN. Yes. The case was a representation case. The company involved was a manufacturer of leather goods. The record made some reference to another union in the plant in addition to the union.

Indicates page reference to verbatim transcript of committee proceedings, January 11. 1940.

which had been made a party to the case. If this union really existed, its interests would have been affected by the Board's ruling on the appropriate unit. Consequently we sought to discover from the regional office whether there was such a union. If there was another union, we would have reopened the record so that it could have been heard on the unit issue. This is clear from Exhibit 411, a letter from the regional director, which states:

Please let us know as soon as you can if the letters Mr. Moscovitz sent you on February 5th in connection with the case are satisfactory and render it unnecessary for us to hold any further hearing in the matter.

Mr. FAHY. So the inquiry was really to determine whether the Board had the proper parties before it?

Mr. MADDEN. Yes.

Mr. FAHY. In that case, did the Board attempt to go outside the record in making its decision or to decide the case on evidence not in the record?

Mr. MADDEN. It did not.

Mr. FAHY. Turning to the Sorg Paper Co. case, do you recall, in connection with that case, that there was a petition submitted to the Board, after the hearing, purporting to contain the signatures of certain employees requesting not to be included in the bargaining unit?

Mr. MADDEN. I do. That case was a representation case. The company operated two plants, a few blocks apart, one making paper and the other paper bags. One of the questions in the case was whether the appropriate unit consisted of both plants. After the hearing had closed, the company submitted a petition that purported to be signed by a majority of the employees in the bag plant and which requested a separate unit for the bag division. The company asked that the petition be admitted to the record.

Mr. FAHY. What action did the Board take on this petition?

Mr. MADDEN. It did not reopen the record, but it did consider the petition submitted by the company as in the nature of an offer of proof. This is apparent from the fact that in discussing the new issue and its decision, the Board expressly mentions that the petition containing the purported signatures was submitted.

Mr. FAHY. Do you recall the facts relating to the formation of an unaffiliated union at the plant and its petition for certification as representatives?

Mr. MADDEN. Yes. After the hearing there was formed an unaffiliated union which filed a petition with the Board requesting to be certified as representative of the employees in the bag division. Remember, this was after the hearing was concluded. The C. I. O. filed a charge alleging that this union was company dominated, and that case is still pending for decision. The petition of the unaffiliated union was dismissed without hearing, on the ground that it requested a unit of bag division employees only and the decision in the original case found that both the paper division and the bag division constituted an appropriate unit.

Mr. FAHY. Did the other affiliated union request to intervene in the original "R" case?

Mr. MADDEN. It did not. It apparently wasn't in existence at that time, but whether it was in existence or not, it made no request to intervene.

Mr. FAHY. Now, is the action of the Board in the Sorg case, in not reopening the original "R" case after the unaffiliated union was formed, consistent with the Board's action in the General Leather case just previously referred to, in seeking to learn whether there was another union which should be a party to the case?

Mr. MADDEN. Yes. The distinction is that in the General Leather case there was some indication of another union which had been in existence all the time, whereas in the Sorg case the new union sprung up after the hearing. In the Hyatt Roller Bearing Co. case, recently decided, where the C. I. O. started organizing after the hearing, the Board refused to permit them to take part in the run-off election.

Mr. FAHY. Mrs. Stern testified this morning, in the Sorg case, with respect to a telegram, Exhibit 427, inquiring of the C. I. O. of the desire to proceed with election on the prior case. Was there anything, in your opinion, in any way improper in making that inquiry? Mr. MADDEN. There was not. It occurs rather frequently. If an election has been directed in which the XYZ Union is the only union on the ballot, then the XYZ Union files a charge the company is permitting unfair labor practices, we would always ask that union whether or not it desired us to proceed with the election while this charge was pending, because if we did go ahead with the election, with the charge pending, and then the union lost the election, it would claim that it lost it because there were current unfair labor practices of the employer. So we want the union to make up its mind whether or not it desires to risk the election in that situation.

Mr. FAHY. Exhibit 429, page 537 of the record, is the request from Mr. Phillips, regional director at Cincinnati, for a decision in the Sorg case. Did this request influence the Board in any way in its decision as to the time element in the Sorg case?

Mr. MADDEN. It did not. We get out all our decisions as soon as we can and as soon as they are ready, and the Lorillard case was not ready for issuance until many months later. Mr. Phillips, of course, would not have known anything about the progress in either of those cases in the Washington office, he being in Cincinnati.

Mr. FAHY. In the Sorg case, do the Board records show when the company filed its objections and when the company's objections to the election were considered by the Board?

Mr. MADDEN. Yes. They were considered on September 21, 1938. Mr. FAHY. Were the challenged ballots ever opened?

Mr. MADDEN. They were not. It is a constant practice of the Board not to open and count challenged ballots. When making any assumption you please as to what those ballots contain, they would not affect the results of the election.

Mr. FAHY. I would like to state, on the record, that we have here available for inspection the challenged ballots in the Sorg case and that file shows that they have never been opened.

Mr. MADDEN. In other words, they were sealed in that envelope in Cincinnati and are still in the same condition.

Mr. FAHY. That is correct.

Mr. MADDEN. So we haven't the slightest idea now how those people voted and it was unnecessary for us to ascertain because however they voted wouldn't have changed the results of the election.

Indicates page reference to verbatim transcript of committee proceedings, January 11, 1940.

Mr. FAHY. Isn't it also a fact, Mr. Madden, that our files show that the C. I. O. offered to have the challenged ballots opened and counted if the company would agree to bargain collectively with the union if the C. I. O. then had a majority, and that the company declined the offer?

Mr. MADDEN. That is a fact.

Mr. FAHY. I offer in evidence the supporting data from the file in the Sorg case, referring to the last question, being a memorandum for the files from Mr. Armistead of a report of conferences which he had on that subject, dated September 16, 1938.

(Interoffice communication of the National Labor Relations Board from Charles S. Armistead to "The File," dated September 16, 1938, was received in evidence and marked "N. L. R. B. Exhibit No. 236" and is printed in the appendix of this volume.)

Mr. FAHY. Referring to the Ford Motor Co. case at St. Louis, to which reference was made in the record (p. 6121 and following) why did the Board write to the regional office for information from the court records in that case?

Mr. MADDEN. Because we wanted to know what the outcome of the court proceedings had been, so that we could take judicial notice of that outcome and give effect to it.

Mr. FAHY. Mr. Madden, do you recall the so-called Elder affidavit, which is copied into the record now as Exhibit No. 447?

Mr. MADDEN. I do recall it.

Mr. FAHY. Could you say whether you saw that affidavit?

Mr. MADDEN. Yes; I saw it. It passed across my desk at some stage. I can't remember, as I sit here, whether I read that story first in a Detroit newspaper or in the affidavit, but I saw it in those two places.

Mr. FAHY. As far as you know, does it have any bearing on the issues in the Ford-St. Louis case or in the St. Louis Ford case or any other Ford cases?

Mr. MADDEN. There is nothing in it that seems to have any relation to that or any other Ford case that I know of.

Mr. FAHY. In the Utah Copper case, I show you Exhibits 644, 648, and 643, and ask you if you have seen them before.

Mr. MADDEN. If I have seen their contents, which I don't recall at all, it was in the proceedings of this committee, and not before. Mr. FAHY. Were they taken into consideration by the Board in its decision in the Utah Copper case?

Mr. MADDEN. They were not. As a matter of fact, the Board had already decided that case when these exhibits, according to their dates, were received, although the Board's formal decision was not issued until a few days later.

When that

Mr. FAHY. The Kansas City Light & Power case. case was reported to the Board, did the review attorney, Mr. Sullery, discuss with the Board the question of whether any of the company officials were members of the Kansas City Chamber of Commerce?

Mr. MADDEN. I have no recollection of his having done so, and apparently it would have nothing to do with the case, so I say that he did not.

1 Indicates page reference to verbatim transcript of committee proceedings, January 12, 1940.