object to any such reopening without prior consultation of this office unless it is on a proper showing by respondent or some other party. The procedure the Board has followed here exposes us and the Board to acute embarrassment rising from the complete omission from the order of any specification of subjects upon which the additional evidence is to be taken and without any limitation whatever as to the scope of the reopened hearing. Under this order the hearing is reopened on every issue framed by the pleadings. We cannot object to any offer of any relevant evidence. The respondent will not be obliged to make any showing whatever of previous unavailability of evidence nor will we be able to compel any explanation of the mysterious production of new evidence decisive of the issues. We will be remitted solely to cross-examination of damn well-coached witnesses to discover the origin of the new defense. The form of the order reopening this case is inexcusable in this regard. Furthermore, this order is on the Board's own motion after it had denied respondent's motion to reopen for a specific purpose. Thus we have a picture of the Board refusing to reopen for a properly specified and limited purpose and later, without any explanation, on its own motion reopening without limitation of any kind. Incidentally, we never received copies of respondent's motion to reopen nor of its supporting affidavits, and know of the same only from the Board's order denying the motion. It would seem that if the motion was to be entertained at all by the Board we might have been consulted as to what we knew of the facts alleged in the supporting affidavits. The most embarrassing feature of this procedure is your private communication advising us of four specific points on which additional evidence is desired. Apparently no copy of this memorandum went to the parties and it is not a limitation of the order. Counsel for respondent and for the union have both inquired as to what subjects are to be developed on the reopened hearing. We have had the choice of (1) falsely stating that we don't know, (2) admitting that we are in on the Board's secret and will let them in on it in due course, i. e., when the hearing is convened, or (3) evading. Thus far we have managed to adhere to the third course. The following paragraphs set out our views on the specific deficiencies of the record as itemized in your memorandum of February 17, and state our reasons for urging that, if it is in any way possible, the order should be rescinded: 1. Paragraph numbered one of your memorandum does not state explicitly what it is about "The statements attributed by Jean Evarts to Henry E. Buter, formerly in charge of city circulation for the respondent" that needs to be "clarified." If your memorandum means anything at all, it means that we should call Buter to ask him whether he made the statements. It is indeed difficult to speak of this suggestion with restraint. The record is clear that at the time Buter made the statements he was an executive of the Company. Respondent had its opportunity to produce him and failed to. From your memo randum it appears that he is one of the witnesses the Company wanted to produce when it moved to reopen. I am here setting out McErlean's report on this item in full: "The first point in the memorandum concerns the testimony of Jean Evarts in which she attributed various statements to Henry E. Buter, formerly in charge of city circulation for the respondent. In this connection the memorandum points out that one of the affidavits of the respondent in support of its motion to receive further evidence, filed July 20, 1938, and denied by the Board, was executed by Buter indicating that Buter will be available as a witness at any further hearing that is held. This office was apparently never served with a copy of the Motion to Reopen or copies of the affidavits so I am unable to state what they contained. No request was made at the hearing or on the record by the respondent for a subpena for Buter or to hold the record open until such time as they could locate Buter, nor does the record show that Buter was not available at the time of the hearing. My own recollection is that Buter was in the city at the time of the hearing because I contemplated bringing him to the hearing myself but later decided that, in view of the fact that he had been an executive of the Company, I would leave that to the Company if they wished to take advantage of any of his testimony as I felt that his statements as an executive to Jean Evarts, who testified for us, was sufficient. In this connection I might further state that at the time of the hearing, as will appear from the record, the Company's position was that it was not responsible for Buter's statements because the Company had not authorized them, and, further, he was not an executive in the department in which Leon Evarts was employed." This suggestion of yours is almost identical with one of the suggestions for reopening Thompson Cabinet, supra, i. e., that we are obliged to call company executives to testify as to the anti-union conduct imputed to them by our witnesses. Maybe I have been all wet all these years on trial practice, but I suspect rather that you have some infants in the review section without any trial experience whatever who have no business trying to re-try a case by remote control. (The duplicate carbon of your memorandum of February 17 indicates that it was dictated by someone other than yourself). If we are to try cases on the theory that the respondent and his agents are going to be gentlemen and Boy Scouts and answer our questions truthfully, I wish to be definitely instructed to that effect. Thereafter we will save the Board a very great deal of money. We will simply call in employers who are complained of, administer an oath and interrogate them as to the charges. If they deny them we will dismiss the case and beat hell out of the union men for lying to us. Administration will be greatly simplified. Of course Buter will be available as was deducted by the author of your memorandum from the affidavits filed by respondent in support of its motion. He was available all the time. But why should we call him? In addition to what McErlean reports as above, the fact is that we knew before the hearing that Buter was breaking his neck to get his old job back with the Company, from which he had been fired, and that he would be very unlikely to be a reliable witness for us. He refused to respond to repeated requests from the Union to accompany them to this office. My practice with regard to minor executives and officials to whom our witnesses impute unlawful conduct is not ever to interview them on those specific matters unless I have some well-founded reason for believing in advance that they will tell the truth. Sometimes such persons had given clear indication to our witnesses that they do not intend to lie for the company and we risk an interview with them. We had two excellent witnesses of that type in Consumers Power, one of them a foreman and the other a superintendent, but there is a risk involved. If we do interview them and they deny the acts imputed to them and we thereafter fail to call them as witnesses, respondent invariably calls them and makes a great point of the fact that we knew their story but tried to "supress" it. That has happened to me and will happen again if I stick my neck out and ask for it, as your memorandum directs me to do in this case. I might add that I sometimes recommend interviewing such executives when we do not have any real evidence against them. We may have a suspicion. In such a case we have everything to gain and nothing to lose. If they admit anything we put them on the stand. If they deny the subject matter of our suspicion we offer no evidence against them anyhow and the respondent does not have any chance to accuse us as above indicated. Do we have to try both sides of the case even when respondent is represented by perfectly competent counsel? I recognize to the fullest extent the duty that rests on us, as it does on a prosecutor (by most of whom the duty is much less observed than it is by us), to produce all the evidence-whether it supports the complaint or not-and never to supress anything relevant, and that the duty exists in its highest degree when the respondent is not represented, but that duty does not require calling the respondent or his agent to testify as to the unlawful acts charged against him if we have decided that under all the circumstances our witnesses against him are entitled to credit. Only a dischargee with a big backpay award in sight has any degree of personal interest in the result comparable to that of the respondent or his agent. I do not consider in the usual case that the executives' denial is credible evidence. Why, therefore, am I compelled to produce it? 2. On your second paragraph I set out here McErlean's report in full. Please note that all of the testimony you refer to was stricken at the hearing on respondent's motion. On reopening the hearing are we to open up again on this topic with a secret knowledge, which we may not communicate to respondent, that the Board has decided to overrule the Trial Examiner and reinstate Jean Evarts' testimony as a basis for our further pursuit of the matter. The main point here is that the only possible reason for establishing Henry Anderman's connection with respondent is to qualify Jean Evarts' testimony concerning her conversation with Henry Anderman and it seems perfectly obvious to us that even if qualified (rendered competent) her testimony isn't worth a pretzel. We 218054-40-vol. 22- -2 put her on the stand believing from prior interviews that she would put a slightly different twist to the statements she imputed to Anderman but on the stand she did not do so. Her testimony added nothing of any real value in deciding the case. Why then must we reopen the hearing to insure that a proper foundation is laid to qualify her testimony for consideration in deciding the case by making a laborious search of the exact nature of Henry Anderman's admittedly anomalous connection with respondent. McErlean's paragraphs follow: "The second point in the memorandum concerns the conversations which Jean Evarts testified she had with Henry Anderman, brother of the respondent's publisher, William E. Anderman, and the connection, if any, between Henry Anderman and the respondent, as well as the conversation itself, should be brought out clearly if it is to have any significance. The testimony concerning this appears starting on page 97 of the record and concluding on page 104, most of the space being taken up by arguments as to whether or not Mr. Henry Anderman was an employee of the Company. The testimony was that Mr. Auderman met Miss Evarts in the Times Building and requested that she come to his new offices which were located in the tower of the Times Building. It appears that Miss Evarts obtained permission to go to Mr. Anderman's office during working hours from her immediate superior, and when she got to his office, among other things, he asked her why she thought her father had been fired. She told him for union activities. Anderman replied, 'No, that isn't so,' and said it was because her father was argumentative and that he was always keeping things in an uproar, that his brother would not have him in the building any more. The testimony shows that Mr. Henry Anderman was instrumental as far back as 1929 in having Mr. Leon Evarts returned to his job when he was discharged at that time, and, in addition to the above, that he asked Miss Evarts if she could do different kinds of work, that, is, the kind of work he needed in his office, although he did not directly offer her a job. "This evidence of Jean Evarts concerning Henry Anderman was striken from the record at the close of the Board's case on motion of the respondent. It seems clear to me that the evidence is not worth very much. We put it in the record for what it was worth and to round out the picture in that it happened about a month before the hearing and we thought it might mean something in view of the fact that they were questioning Leon Evarts' daughter concerning the reasons she felt he had been discharged. If we could have developed it further (but we could not), it might have shown that the Company was carrying on a campaign to convince its employees that they should not believe that Evarts was discharged because of his union activities." 3. In all honesty I am simply unable to understand what your paragraph 3 means. Certainly it is clear that if the 8 (3) case is good it amounts also to an 8 (1) violation. If all you mean is that the proof of independent 8 (1) violations is weak, why weren't we consulted, before the case was reopened, as to whether we can make any better showing. The following is MeErlean's report on this item. It is especially revealing and I concur heartily in the final sentence of his first paragraph. "The third point in the memorandum concerns the evidence bearing generally on the allegation that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. The memorandum states 'The record as it now stands supports this allegation sufficiently to raise a serious question, but the indirect nature of the testimony makes it difficult for the Board to arrive at a definite conclusion.' I am at a loss to know what they mean when they state The record as it now stands supports this allegation sufficiently to raise a serious question.' The words 'serious question' mean nothing to me in their use in this paragraph of the memorandum. Does it mean there is sufficient evidence to support an 8 (1) order or that there is not sufficient evidence to support an 8 (1) order. In any event we put in everything we had." "As to the 8 (1) violation independent of the 8 (3), I might state that the record shows that specific instructions were given to Evarts and notices posted in the departments that the Guild was organizing stopping them from talking about the Union on the company property during working hours while, at the same time, the record shows that no such instructions were given to the mechanical departments which were organized, and the record shows that considerable union talk went on in these departments during working hours and that the Union collected its dues on the company property. It would seem to me that that amounts to a discrimination within 8 (1) because the Company should treat all employees alike, and when they fail to do so regarding union activities, it appears to me, and I believe the Board has held on more than one occasion, that it is a violation of Section 8 (1)." 4. I confess to simple amazement at the language of your paragraph numbered four. If I can still read English it means, and can only mean, that the evidence offered by respondent in defense of the discharge of Leon Evarts was too inconclusive to overcome the inference of unlawful discharge flowing from the evidence offered by the Board and that the case is therefore reopened not only to permit respondent to perfect its defense but to enable us to assist respondent in doing so. If the evidence as to Evarts' "penchant for arguing with his superiors" is not purely and simply a matter of affirmative defense it is time I quit trying to supervise a staff of attorneys. I here set out most of McErlean's report on this item. "In reading the record, I have discovered, besides Mr. Henry Anderman's statement to Jean Evarts that her father was argumentative which, of course, was stricken from the record, that one other reference to the subject is made and that appears starting at the bottom of page 444 and continuing on to page 445 in response to a question by the Trial Examiner during the direct examination of Jack M. Stenbuck who is the circulation manager at the Detroit Times. He was testifying that the whole situation was better as to efficiency after Mr. Evarts left. The Trial Examiner interrupted and asked if he meant that he got more work out of two men than he did out of four men previously. He said that that wasn't exactly what he meant and asked to be permitted to explain, and he explained as follows: "It is not that we have more work because I would say the work-we have less work right now than what we had. We are not promoting as much as we did, but I used to have to spend considerable time arguing with Evarts because Evarts has a peculiar personality, and he always thought I had no slant on the art work, and he was more interested in putting in fancy things that I did not feel had any merit in selling the product we were after, and I would invariably object to it and say, "Now, do it this way," and then he would give me an argument. I don't have that any more. I get work that is satisfactory when it is presented rather than sending it back all the time.' "I do not believe that it is the job of the attorney for the Board or for the Union to elaborate on such a reference by the respondent as it certainly is a matter of defense, and the respondent at the time of the hearing certainly could not have thought much about it because I cannot find any place in the record where they put in any evidence concerning it, and that evidence which does appear was brought out by the Trial Examiner who, in this particular case, apparently thought his designation as Trial Examiner also gave him the authority to try the case for the Board as the record will show he was continually butting in on all attorneys in attempting to regulate the presentation of their case, and you know that is not only distracting to all parties but breaks the attorneys' chain of thought, particularly on cross-examination. "Although the record may show that the respondent attempted to raise various reasons for its discharge of Evarts, its primary reason was one of economy, and the record shows statements attributed to the publisher, Anderman, that he did not consider Evarts incompetent and I do not believe that these were refuted by Anderman. Some of the executives more directly in charge of Mr. Evarts attempted to bring in defenses other than economy in the course of their testimony, but their major defense was one of economy. As to Evarts' competency as an artist, we called Mr. James Goldi, a commercial artist in business for himself in the City of Detroit, who testified concerning Mr. Evarts' competency, and we also called Mr. Abraham Bulkin, an artist in the editorial department in the Detroit Times whose main work is retouching photographs, who also testified concerning Mr. Evarts' ability." In conclusion: This is the second time that suspicions, apparently originating in the review section, that we should have tried a case differently or that the case would be stronger if the Board had a little more evidence, have caused a very considerable diversion of time and energy in this office to no purpose at all. In both cases the entire record has had to be read through and analyzed in order to make any kind of an adequate response to your memorandum. I do not object to being queried as to the advisability of reopening. I think that is the correct practice, although the reasons advanced for reopening Thompson Cabinet were, on their face, inadequate. In this case, without any better reason, the case is reopened without any prior consultation with us as to what we could do with it after reopening. I earnestly request that this practice be reconsidered and discontinued. I also suggest that the order in question be rescinded. There will be considerably less embarrassment for the Board in rescinding this order without explanation than there will be in our fumbling around with it on a reopened hearing. If the record as it now stands will not support an order the proper course is for the Board to dismiss the complaint. Attached to that is a pink memo: (Signed) HAROLD A. CRANEFIELD, Regional Attorney. Mr. TOLAND. Do you have any recollection, Mr. Newman, of having any discussion with the Board after this letter had been received? Mr. NEWMAN. As I recall, that letter was presented to the Board, but was not discussed particularly. If I may I should like to comment very briefly on some of the remarks in that letter. Mr. TOLAND. About the inference? Mr. NEWMAN. No. In the first place, it was not the determination of the review section to reopen the case. It was a decision of the Board, and it was not a reflection by the review section on the trial work of the regional office, but it was rather an attempt by the Board to settle the case one way or another. The Board was not trying to give the regional office an opportunity to put in further evidence to bolster the case. The Board had found it impossible to make up its mind on the basis of the testimony as it was, and it reopened the record in order to give all of the parties involved an opportunity to put in whatever further evidence they had available, so that it would be possible for the Board to decide the case. Another misconception which I would like to correct is that the instructions issued by the Board to Bowen and Cranefield were in any way secret. As a matter of fact, Bowen was explictly instructed to communicate with the respondent before the hearing was reopened, in order to advise it of the points on which the Board was doubtful, so that all of the parties would have an opportunity to introduce evidence. Mr. TOLAND. Why didn't you send the respondent the same notice, the same letter, that you sent to the regional director? Mr. NEWMAN. I was just about to explain that. We did not include in the order, copies of which were served on all the parties, the limitations which we indicated in the letter to Bowen, because we felt that since the Board was reopening the case on its own motion, it would be unfair to the respondent and to all the parties if the Board in any way limited the scope of the testimony which the parties could introduce upon the reopening of the hearing. The Board wanted parties to be free to introduce whatever testimony they thought relevant. Mr. TOLAND. Let's get this straight, too. I want you to have an opportunity to explain the exhibit. I also feel you are entitled to make any statement as to the Board's action. But I don't think you should argue on behalf of the Board unless you know of your own knowledge what was in the mind of the Board and why they took the action that they did. |