NATIONAL LABOR RELATIONS ACT

SATURDAY, APRIL 27, 1940

HOUSE OF REPRESENTATIVES,

SPECIAL COMMITTEE INVESTIGATING

THE NATIONAL LABOR RELATIONS BOARD,

Washington, D. C.

The committee met at 10:15 a. m., pursuant to adjournment on Friday, April 26, 1940, in room 362 of the Old House Office Building, Representative Howard Smith, chairman, presiding.

Present: Representatives Smith of Virginia, Abe Murdock of Utah, and Harry N. Routzohn of Ohio.

Edmund M. Toland, general counsel to the committee.

Charles Fahy, general counsel to the National Labor Relations Board.

The CHAIRMAN. The committee will be in order.

Mr. TOLAND. Mr. Fuchs.

TESTIMONY OF HERBERT FUCHS, ATTORNEY, NATIONAL LABOR RELATIONS BOARD, WASHINGTON, D. C.-Resumed

Mr. TOLAND. I show you paper writing which was found in your file of notes in the Newport News Shipbuilding case, and ask you if that is your handwriting.

Mr. FUCHS. That is, sir.

Mr. TOLAND. I offer it in evidence.

(Paper writing identified by the witness was received in evidence and marked "Exhibit No. 1111" and is printed in the appendix of this volume.)

Mr. TOLAND. I also show you paper writing found in your file of notes on the Newport News Shipbuilding case, and ask you if that is in your handwriting.

Mr. FUCHS. That is.

Mr. TOLAND. I offer the document in evidence.

(Paper writing identified by the witness was received in evidence and marked "Exhibit No. 1112" and is printed in the appendix of this volume.)

Mr. TOLAND. Now, Mr. Fuchs, I show you exhibit 1112 and I also show you the transcript of the record in the Newport News Shipbuilding and Drydock Company case, date of hearing September 3, 1937, and I ask you to tell the committee the statement that appears in exhibit 1112 that I am directing your attention to. I ask you to tell the committee what that statement is.

Mr. FUCHS. Mr. Toland is pointing to a line of handwriting on exhibit 1112 which reads, "Direct for intervenor is baloney, W. Exc. 897."

Mr. TOLAND. Now I ask you to turn to page 897 and to the whole direct referred to, and ask you to tell the committee where there is any baloney in the record on those pages.

Mr. ROUTZOHN. Perhaps we should have a definition of baloney to know what is being alluded to.

Mr. FUCHS. I fail to find any baloney in the record at this point. Mr. ROUTZOHN. What do you mean by baloney? Let's get your idea of the significance of that word, as you use it.

Mr. FUCHS. As I used it in my notes?

Mr. ROUTZOHN. Yes.

Mr. FUCHS. I shall try to reconstruct what I meant at that time by looking at the record.

Mr. ROUTZOHN. I guess that is what Mr. Toland had in mind.

Mr. TOLAND. Yes; I didn't want to ask him a question; I wanted to ask Mr. Fuchs to tell the committee where the baloney is that he referred to.

Mr. FUCHS. I should think, Mr. Chairman, that I meant by characterizing the portion of the transcript from pages 871 to 876 in the record as baloney, that the record between those pages had no materiality or bearing on the issues in the case.

Mr. TOLAND. Will you state for the record, Mr. Fuchs, that you have examined your record and will you state the number of pages of direct testimony that is covered by the witness, and that relates to exhibit 1112, where you made the statement in your notes that you heretofore read at my request into the record?

Mr. FUCHS. The number of pages which I have now examined is five, and those pages are represented by colloquy between the counsel and the trial examiner.

Mr. TOLAND. The total number of direct pages of that witness is only five pages?

Mr. Fuchs. The total number of pages of the testimony of this witness were not characterized by me as baloney, but I will state for the record what that total is. The witness is Frank Smoet Beazlie, and it appears from the index to the volume that he was examined directly on pages 866 to 868, cross-examination from 868 to 871, redirect from 871 to 875, recross at 875, witness excused at 876.

Mr. TOLAND. Now, keeping the same volume before you, I show you another paper writing found in your files, of your notes in the same case, and ask you if that is in your handwriting?

Mr. FUCHS. That is.

Mr. TOLAND. I offer the document in evidence identified by the witness.

(The document referred to was admitted in evidence, marked "Exhibit 1113," and is printed in the appendix of this volume.)

Mr. TOLAND. Now, Mr. Fuchs, I direct your attention to exhibit 1113 and ask you to tell the committee what is the statement that appears, the last statement on the exhibit?

Mr. Fuchs. The last statement on this exhibit is "Direct for intervenor is baloney; witness excused 897.”

Mr. TOLAND. So wasn't that statement made by you with respect to all of the direct testimony of that witness?

Mr. FUCHS. No. Mr. Toland, it was not.

Mr. TOLAND. Well, what did you mean when you said "Direct for

intervenor is baloney"? Do you mean part of the direct or all of the direct?

Mr. FUCHS. It appears from the notes that these were witnesses for the respondent who first testified for the respondent and were crossexamined by the Board and at the very end were cross-examined on behalf of the intervening labor organization who charged that the employer dominated them. The reference seems clearly to be to the last part of the examination of these witnesses.

Mr. TOLAND. And the statement made by you, isn't it a fact, is as follows: That direct for this witness, regardless of who called him, when he testified on behalf of the intervenor, you said was baloney? Mr. FUCHS. I think that is a misconstruction of the sentence. Mr. TOLAND. I didn't ask you for a construction; I asked you if you didn't state it?

Mr. FUCHS. I did not.

Mr. TOLAND. Well, tell this committee what you said.

Mr. FUCHS. As I have already read into the record, the lines which Mr. Toland has pointed to reads "Direct for intervenor is baloney." This appears at the end of the half-page of finely written notes in my handwriting.

Mr. TOLAND. Now, I show you another paper writing found in the same file and ask you if that is in your handwriting?

Mr. FUCHS. That is, sir.

Mr. TOLAND. I offer that document identified by the witness in evidence.

(The document referred to was admitted in evidence, marked "Exhibit No. 1114," and is printed in the appendix of this volume.)

Mr. TOLAND. Now, Mr. Fuchs, I show you exhibit 1114 and ask you to tell the committee the last statement that appears thereon.

Mr. FUCHS. At the bottom of the page of finely written notes, there appear the words, "Direct for intervenor is baloney; witness excused 954."

Mr. TOLAND. Now, Mr. Fuchs, will you look at page 897, the direct testimony of the witness, Evans, and tell this committee where there is any baloney in the direct testimony of that witness, or what you concluded to be baloney?

Mr. FUCHS. I should say, first, Mr. Chairman, that the expression, "direct," in each of these statements is a misnomer. The reporter of the proceedings refers to the examination of these witnesses on behalf of the intervenor, which is really the third examination to which each of them was subjected, as direct testimony. These were witnesses for the respondent who testified first on its behalf, then testified on crossexamination for the Board, and finally testified very briefly in response to questioning by the attorney for the intervening labor organization. In this instance, the testimony to which my notes referred consists solely of the statement that the witness, since 1927, had been unaware of any activity on the part of the management of the shipyard to influence employees in the selection of their representatives. The answer of the witness to the question was he aware of any such actions is "No." That is the only question asked, and I should think that my comment was intended to reflect back that I considered that testimony immaterial to the issues in the case.

Mr. TOLAND. Notwithstanding the fact that the charge against this

company was a violation of section 8 (2), that it had sponsored, dominated, or instigated, or all of the violations of section 8 (2) with respect to this union, and this witness, being called by the respondent, after being cross-examined by the Board, then the attorney for the independent union questions him, and asks him whether or not the company had ever interfered with, dominated, or sponsored the organization so far as he knew, and his answer was "none whatever," and you took that testimony as to be immaterial to the issues in this case, and therefore concluded that the testimony of this witness, under oath, was baloney?

Mr. FUCHS. Oh, I don't think I intended to characterize it as untrue. You might get a lot of people to testify that they hadn't seen one person kill another.

The CHAIRMAN. Let's have a pretty direct answer. You were reviewing this testimony for the benefit of the Board, who were to decide this case, and I am particularly interested in seeing how you weighed that evidence. Now, based on Mr. Toland's question-and if you don't recall it I will have it repeated to you-I want to know how you reached the conclusion that such evidence as that was not material in the issue which was being tried in that case.

Mr. FUCHS. I would like to have the question repeated. (The question was repeated.)

Mr. FUCHS. That is right, sir.

I would like to state to the committee that the issue in this case was the domination of a specific labor organization which was admittedly created by the company about 8 years prior to the effective date of the act, admittedly continued in effect by the company for several years after the effective date of the act, and thereafter amended and revised by the company and the officers of it in concert, and while the Board was fully apprised of the facts a number of witnesses testified that they were unaware that the respondent had in any way interfered with the activities of its employees in this organization, and the fact that the company had created this union, was supporting it, was continuing to support it, was found by the circuit court of appeals and the Supreme Court to overweigh the testimony of individual witnesses that as far as they knew they had not been coerced.

The CHAIRMAN. Then it was your opinion that if an independent union, or a company union, had been formed many years before the act went into effect, and the company had continued that domination for a time, that notwithstanding the fact that that domination ceased when the act went into effect, all other facts relative to the cessation of the company domination of that union were immaterial?

Mr. FUCHS. No; that was not my opinion, sir.

The CHAIRMAN. What was your position? I understood that to be what you have just said.

Mr. FUCHS. I should not say that that was incorrect.

The CHAIRMAN. Did you say what I said was incorrect, or was it correct, or what was it?

Mr. FUCHS. I should have to have that read back, Mr. Chairman. The CHAIRMAN. I will state it over again. In that case you found a company dominated union created 8 years before the act went into effect, and assuming that that domination had continued for a period of years, can you consider evidence immaterial to tend to show that after the act became effective, the company undertook to sever its

relationship with the union and subsequently did nothing to dominate or interfere with the employees in the formation and in the conduct of that union. Now, is that question clear to you?

Mr. FUCHS. That question is clear.

The CHAIRMAN. Let's have an answer, then.

Mr. FUCHS. The answer is that I do not consider that such evidence would be immaterial.

The CHAIRMAN. Now then, distinguish between that and the actual case that was before you. Why wasn't the evidence material, then in this case which you have just been talking about?

Mr. FUCHS. In the case which I was talking about, the company had continued its domination of the union for several years after the effective date of the act; to the extent that the Board so found, the facts were practically stipulated. There was no conflict in testimony as to the acts which the Board later found constituted domination after the effective date of the act as well as before.

The CHAIRMAN. Would you mind, for my information, telling me what those acts were?

Mr. FUCHS. Yes; as I recall now

The CHAIRMAN (interposing). Subsequent to the effective date of the act?

Mr. FUCHS. Yes, Mr. Chairman. I must say that I haven't thought about this case for a couple of years, but they were this: Having set up the plan, this form of employee representation plan, before the effective date of the act, the respondent in later years participated with the plan in effectuating certain amendments to its form, and thereby interfered with it, and as I recall, although I am not certain as to this, the emergent plan was still of such a nature that the Board found that it was an employer dominated plan.

The CHAIRMAN. I want to know what facts you found that showed company domination after the effective date of the act.

Mr. FUCHS. To the best of my present recollection it was in part the participation of the company in the amendment of the union itself. The Board, I think, has found that employers cannot participate in molding the form of labor organization, which this employer had done as late as 1937, as I recall it.

The CHAIRMAN. Is that true in your construction of the law, even where those amendments consist in divorcing the company entirely from any connection with the union?

Mr. FUCHS. I should prefer not to express an opinion on that in the form in which you have stated it.

The CHAIRMAN. Wasn't that the situation in this particular case? Mr. FUCHS. No, sir.

The CHAIRMAN. Then what were the amendments to the form of the union that the company participated in?

Mr. FUCHS. I don't recall that. I should have to look at the decision.

Mr. TOLAND. Now, Mr. Fuchs, I show you also paper writing found in your file of notes on this case-I will show you two-and ask you if they are both in your handwriting?

Mr. Fucнs. They are.

Mr. TOLAND. I offer the documents identified by the witness in evidence.