(Document dated June 16, 1936, to Mr. Madden, Mr. Carmody, and Mr. Smith, from Heber Blankenhorn, was received in evidence and marked "Exhibit No. 1153," and is printed in the appendix of this volume.)

Mr. TOLAND. Then and now.

Mr. BLANKENHORN. Well, there are quite a number of statements in this memorandum. Do you want me to go through them all?

Mr. TOLAND. I would like you to read it, tell the committee when you wrote that whether you meant it or not and, if you did, whether you have changed your mind or whether your views are the same as contained in that report.

Mr. BLANKENHORN. This memorandum is directed to the members of the Board, and the subject is Curtailment of Board Hearings. The subtitle, (Especially in Manufacture).

I can say that the opening sentence is:

May I urge an opposite point of view? It includes the reason back of my suggestion yesterday of conferences with Green, Lewis, etc.

As I recall it, the Board was proposing to curtail hearings involving manufacture, on the ground that they were being continually enjoined. This was at the height of the period at which injunctions were being laid upon the Board. No sooner was a hearing set or an investigation started than an injunction would be sued out, and in general or very often upon the ground that manufacture was not included in interstate commerce. The injunctions, up to 101, were granted; so, as I understood it, the Board felt that they had better curtail the number of hearings or cases, charges entertained on that subject, and I wanted to urge the opposite point of view, that even though the activities of the Board were practically cut off, that the courts, by injunctions, were hamstringing, that nevertheless the Board should attempt to go ahead enforcing the law. That is what this opposite point of view was meant to be. Then, continuing to read:

Our two methods of enforcement are moral and legal. Disregarding the latter

that is meaning the formal decisions

labor still counts on the moral effects from hearings and Board decisions. Situations have been "saved," unions built up, strikes settled (labor says) partly by the effects of "the government says we're right,"-the government being this Board.

Then

"The courts will say different." But labor is used to "the courts being always against labor."

Mr. MURDOCK. May I interrupt there and just ask you whom you are quoting there, "the courts will say different"?

Mr. BLANKENHORN. The argument that there is no use in attempting to hold hearings. The courts will simply sue out an injunction, or allow an injunction to issue. You can see it is a very brief

Mr. MURDOCK (interposing). My question is, you have "the courts will say different" in quotation marks. Are you quoting someone else?

Mr. BLANKEN HORN. No; just summarizing the argument against holding hearings in manufacturing cases.

In short, the argument came down to this in my recollection, that the Board had a feeling that it could not proceed because of the injunctions being sued out against them, and I urged that hearings should be held, even in the face of an adverse court position, because of the moral assistance that it would give to the policy of the act. Then this memorandum continues [reading]:

Does hearing and deciding, knowing the courts will deny, constitute any part of "establishing the law," Yes. It clarifies the issue (especially the underlying constitutional issue). It raises hope, and resentment, among organized minorities, which is how laws get "established." Theoretically it is our business to sharpen the distinctions in the constitutional issue created by our law.

I don't know that anybody on the Board would share that view. It just happens to be mine. I think it is historically true. Continuing to read:

Practically, such procedure may have real effects in many situations e. g., Gadsden, Alabama. Local authorities don't read court decisions,-they are not all convinced "that Board is out of business,"-they dislike and fear "the Federal government intervening," as much as labor welcomes it.

That had reference to the case of the Goodyear Co. in Gadsden, Ala., where the organizers were mobbed-I am referring to facts brought out both in the La Follette committee hearings and in the Board's hearings-by mobs organized in the Goodyear plant and armed with blackjacks manufactured there, and the Board, in attempting at first to understake the case against Goodyear, was prevented by an injunction from proceeding.

My advice and what I urged here was that irrespective of the fact that the local authorities in Gadsden thought the Board had been put out of business, that we should nevertheless attempt to proceed with the case.

When the Board finally did proceed with the case, witnesses were so threatened, the entire case had to be picked up and transferred from Gadsden to Birmingham before the Board could complete its case. The local authorities were giving no protection, and that is one of the things I was referring to here, that local authorities don't report decisions, so they don't know the Board is out of business. Still reading:

Nor is this procedure "misleading the workers to substitute illusory government help for their own economic action,"-if we choose our situations." That is, one of the arguments against it was, you are misleading the workers if you propose that the Board can hold hearings and render decisions when you know they will be tied up with injunctions and the rest. Better leave them alone instead of taking cases.

We can make hearings consciously adjunctive to unionization drives, to strike preparedness, etc. All the while we have still the law's investigatory powers. Of which, we have made outstanding use in one case; why not in others?

In other words, in that hamstrung situation where we tied up in the courts, I felt that the Board could still choose to hold hearings and to make investigations in what I would call situations that were alive, where men were trying to organize, where a great many things were happening.

Then continuing to read:

NLRB at present sits on its triple throne a bit like the church shorn of its right to prosecute and hang. Despite the loss of temporal power, NLRB can still thunder from the pulpit and excommunicate from the congregation of the

righteous. That comforts the flock, disconcerts the heathen,-and marks down the latter against the day of wrath to come.

Relegate metaphysics to the Supreme Tribunal, and get on with good works. I would say that is more philosophical than anything else.

Mr. TOLAND. Are your views the same now as stated in that memorandum in 1936, based on a supposition of the same situation existing? Mr. BLANKENHORN. You mean as to what ought to be done, not as to what has been done?

Mr. TOLAND. As to what the Board should do.

Mr. BLANKENHORN. In general I should say that the Board's cases and activities should be related to those demands made upon it by workers who want to organize. That implies taking what you would consider the live cases.

Mr. TOLAND. Did there come a time when you advocated another suggestion to the Chairman of the Board, after the decision in the Guffey Coal case, or the Carter Coal case? Do you have any recol lection after the Supreme Court had declared the Bituminous Coal Act unconstitutional, did you advocate the Board's following a different procedure in order to aid unionization?

Mr. BLANKENHORN. I don't think I have any recollection.

Mr. TOLAND. Would you tell the committee when it was, so far as you know, the first time that a resolution or the resolution was introduced that created what is known as the Civil Liberties Committee?

Mr. BLANKENHORN. It was introduced, I think, March 23, 1936.

Mr. TOLAND. Do you have any recollection of advocating to the Board that they use, instead of holding hearings before trial examiners, that they hold hearings before the Senate committee and present the cases before the Senate committee and present the cases before the Senate committee?

Mr. BLANKENORN. Yes; I recall distinctly suggestions that certain of these cases that the Board was enjoined from holding hearings on, and which bore on the subject matter of Senate Resolution 266 should be presented to the Senate committee if the Senate committee invited it.

Mr. TOLAND. And that was before the committee was starting to function; isn't that true?

Mr. BLANKENHORN. My recollection of the date of the introduction of the resolution-I think I gave it to you, but I don't recall when.

Mr. TOLAND. I show you a photostatic reproduction of a memorandum from you to Chairman Madden, subject, "Adjunctive 'Enforcement' of Our Law," and ask you if you recall preparing that. Mr. BLANKENHORN. In general, that looks like mine. I have no recollection of it. I have no question that it is.

Mr. TOLAND. It has your name on it, "Blankenhorn memo, noted, E. S. S., noted-," what is that?

Mr. BLANKENHORN. J. M. C.

Mr. TOLAND. I offer in evidence the photostatic reproduction identified by the witness.

(The memorandum dated May 22, 1936, to Mr. Madden from Heber Blankenhorn was received in evidence, marked "Exhibit No. 1154," and is printed in the appendix of this volume.)

Mr. TOLAND. Now, Mr. Blankenhorn, will you tell the committee whether or not you have had conferences and discussions with labor leaders and correspondence with labor leaders at the time you were employed by the Board in connection with strikes, proposed strikes, unionization drives, and activities of the Board.

Mr. BLANKENHORN. Do you mean conferences with labor leaders in regard to actions they should take?

Mr. TOLAND. Well, as to the plans that they had.

Mr. BLANKENHORN. Oh, in regard to the plans that they had I made no endeavor to ascertain those, but I did discuss many situations with them in the course of obtaining information primarily on the investigation for the La Follette committee, in which I arrived at my own judgments as to what was going to happen.

Mr. TOLAND. Now I am not asking you about your duties with the La Follette committee. I am asking you whether while you were an employee of the Board, you had conferences with labor leaders at which conferences was discussed the proposed drive of a union or unions with the purpose in mind of importuning or bringing home to the Supreme Court of the United States a situation existing in the United States that might result in a favorable decision by that Court with respect to the constitutionality of this act?

Mr. BLANKEN HORN. May I please have that question read again? I got lost.

(The reporter read the last question.)

Mr. BLANKENHORN. The answer is in the negative.

Mr. TOLAND. Did you ever prophesy, and did you ever so advise the National Labor Relations Board or its Chairman, that simultaneously a drive in the automobile industry, that simultaneously a drive in the steel industry, that simultaneously strikes throughout the United States, might have an important bearing upon the decision of the United States Supreme Court with respect to the constitutionality of this statute?

Mr. BLANKEN HORN. I certainly recall several times making my own estimates of what was going to happen, particularly in about the winter of '36 and the spring of '37, in which I advised them in my capacity as a student of union organization that certain things in my belief were going to happen, and I have sufficiently clear recollection of it that I believe that I guessed fairly accurately some months ahead just when certain strikes or strike threats might come about, and I so advised the Board.

Mr. TOLAND. And was your prophecy that you made to the Board based upon conferences that you had with Mr. Lewis as to what was going to happen in the auto, steel, and coal industries, and as to the effect, if any, it might have in a favorable decision sustaining this act?

Mr. BLANKENHORN. I never discussed any such thing with Mr. Lewis. I did

Mr. TOLAND (interposing). Tell us what you have discussed with him.

Mr. BLANKENHORN. I have gone to Mr. Lewis, to Mr. Green, to one union after another, in investigating the subject which the Board had assigned me, asking for their information on that subject. That subject became the subject matter of S. R. 268, and I had continuous

conferences at different times with them, asking them virtually to assign people to go and dig up these facts, since I had no facilities of my own. In the course of that, they told me of events that happened during organization drives, but I did no advising with them about that. I wanted facts and information.

Mr. TOLAND. Tell us whan you talked with Mr. Green.
Mr. BLANKENHORN. What dates?

Mr. TOLAND. Approximately.

Mr. BLANKENHORN. You mean in this whole business?
Mr. TOLAND. On what you have just testified.

Mr. BLANKENHORN. The first conference I had with Mr. Green was on the eve of the Atlantic City convention in 1935, when I requested him to notify the unions of the A. F. of L that the Board was conducting an investigation along certain lines, primarily an investigation of espionage, strike-breaking agencies, deputy-sheriff systems, and labor-detective agencies.

Mr. TOLAND. Who was conducting that for the Board?

Mr. BLANKENHORN. I was.

Mr. TOLAND. Were you making reports to anyone at the Board during this period of time you talked about?

Mr. BLANKENHORN. You mean reports of the findings, that of the things you found?

Mr. TOLAND. Of the things you were doing.

Mr. BLANKENHORN. Oh, yes, of course; verbal reports all along. Mr. TOLAND. No written reports?

Mr. BLANKENHORN. I think there were some, and I showed them from time to time the reports of what I had discovered.

Mr. TOLAND. Did you ever correspond with Mr. Green?

Mr. BLANKENHORN. Yes.

Mr. TOLAND. In writing?

Mr. BLANKENHORN. I remember a letter or two from Mr. Green to the Board after I had seen him.

Mr. TOLAND. I mean between you and Mr. Green.

Mr. BLANKENHORN. No; I went to see him.

Mr. TOLAND. Dd you ever correspond with Mr. Lewis?

Mr. BLANKENHORN. I think that I have.

Mr. TOLAND. Quite frequently?

Mr. BLANKENHORN. NO.

Mr. TOLAND. Did you ever correspond with Mr. Denny Lewis? Mr. BLANKENHORN. I may have, I don't recall. Generally not. Mr. TOLAND. How many officials of the A. F. of L. do you recall corresponding with, yourself?

Mr. BLANKENHORN. That would be pretty hard to recollect now. Mr. TOLAND. Would you say 1 or 10 or 100?

Mr. BLANKENHORN. Most of my requests were made to them in conferences.

Mr. TOLAND. All right, that is with the A. F. of L.

Mr. BLANKENHORN. Yes.

Mr. TOLAND. Now tell the committee how many members of the C. I. O., officials of the C. I. O.

Mr. BLANKENHORN. I see what you mean.

Mr. TOLAND. Go ahead.

Mr. BLANKENHORN. In conferences I have requested information from Mr. Green a number of times, from Mr. Charles P. Howard,