cising their rights guaranteed by the statute. In the case of the S. L. Allen Co., Inc., of Philadelphia, Pa., the Enamelling and Stamping Co. of (?) and the Fansteel Co. of North Chicago, Ill., the association mobilized all of its resources to defeat orderly collective bargaining procedure and to substitute a labor policy based upon labor espionage, company unions, and strikebreaking. The National Metal Trades Association through these tactics carried over from 20 years ago, has sought to nullify the National Labor Relations Act and to deprive workers of their rights under the statute.

Mr. SWIREN. Senator, to the extent that that embraces the Fansteel Metallurgical Corporation, it is absolutely untrue, and let me state why.

Senator ELLENDER. I am just wondering why you joined it, why you were so anxious to join an association that carried on such work? Mr. SWIREN. I have often wondered, Senator, when I have seen some of the lawlessness of some of the C. I. O. unions why men wanted to join those unions, but apparently they do, and we cannot always account for human reasons. Now, let me just say this, so far as my client is concerned. I am not here to defend, to justify, or explain the National Metal Trade Association, and I take it that the committee does not care to place that burden upon me. I am interested, however, in making the record perfectly clear so far as Fansteel is concerned. Apparently they were not interested in the same point of view so far as the association was concerned with respect to the National Industrial Recovery Act, because from the very first day Fansteel signed the President's agreement, it inaugurated the conditions of that agreement, and they have remained in full force and effect; they never varied. The decision. of the Supreme Court holding that law unconstitutional did not change the position of the company one iota.

In the second place, the National Metal Trades Association had no part, no part whatever, in the labor policy, or the conduct of the defense against the sit-down strike of the Fansteel Co. That stands undenied in this record.

So far as espionage is concerned, assume that the man that we discussed was a spy of the worst order; the fact still remains that he was discharged 3 months before the trouble started, that no man was interfered with or disciplined, or discharged, or threatened with discharge for union membership or union activity. That is a record. that very few employers in this country can equal, and I do not think we need be ashamed of that kind of a record.

So far as the company union was concerned, this record discloses that in September 1936 the new plant superintendent-he had been away for about 5 years and was recalled-circulated a petition for the endorsement of an employee-representation plan. He got much more than a majority of the employees to sign and he brought it up to Mr. Aitchison, and Mr. Aitchison said, "We don't want to have anything to do with it, throw the petition away." That was the sole testimony with respect to a company union in the Fansteel plant before the sit-down strike, and I think that that constitutes a very complete answer to the indictment that the Senator read.

May I continue, Mr. Chairman?

The CHAIRMAN. Yes.

Mr. SWIREN. We were discussing the ingenious technique developed by the trial examiner for casting obstacles in the way of the company.

Throughout the hearing the trial examiner sought to limit and minimize the testimony respecting the violence and other illegal acts attendant upon the sit-down strike. As a matter of fact, in his intermediate report the trial examiner gave no consideration whatever either to the sit-down strike activities nor to the discharge of the men for their illegal conduct.

Rules of evidence were found to be variable. For the Board they were completely relaxed; for the company they were strictly applied. While limiting cross-examination by counsel for the company to the subject matter of direct examination, the trial examiner extended to the Board's attorney the widest possible latitude and unlimited scope in his cross-examination. At one point the trial examiner went so far as to threaten to exclude me from the hearing if I persisted in stating not only my objections but the grounds therefor, as required by the Board's own rules.

It is, of course, utterly impossible by a mere recital of certain of the most obvious items, to re-create the atmosphere of hostility, the lack of judicial temperament, the absence of a fair opportunity for uncovering all of the facts, that characterized the actual hearing. Accepted judicial standards were freely discarded and no stone was left unturned to obstruct or impede a proper defense on the part of the company.

The CHAIRMAN. Did the reviewing courts comment on that procedure?

Mr. SWIREN. Senator, it became unnecessary. We dealt primarily with two subjects. The principal subjects of contest were, first, the reinstatement of the sit-down strikers and those who aided and abetted them, and, secondly, the refusal to bargain and the recognition of the C. I. O. union. The United States Circuit Court of Appeals on its merits reversed the entire order, and, therefore, there was no occasion for considering the lesser question of whether the hearing had been unfair, or whether there ought to be a new hearing. The court held on the evidence as submitted that the Board was wrong, so there was no occasion to go into the procedural questions.

Similarly, in the Supreme Court, while we discussed the subpena question, we wanted a decision on the fundamental questions involved. On the question of employees' discharge for partícipating in a sitdown strike directly or indirectly, and on the question of the recognition of the C. I. O. union, the Supreme Court ruled with us and therefore there was no occasion to go into these questions.

To continue: Consistent with these procedural methods are the substantiative conclusions reached by the Board. Fair-minded people everywhere were shocked to find a quasi-judicial agency frankly condoning the sit-down strike and rewarding the participants therein by restoring them to their original jobs. Equally difficult to understand was the Board's order of reinstatement of employees whose jobs had been completely abolished in a plant-wide reorganization. The Board declined to "concern" itself-and I am now using their termwith the fact that the jobs no longer existed and directed that the reinstatement be carried out and thereafter the reduction in force be effected.

Regarding the latter aspect of the order as ambiguous, I appealed to the regional director and regional attorney in Chicago for an interpretation. The order appeared to require simply a futile gesture permitting the company to rehire the people at one instant and to discharge them again at the next. Both the regional director and regional attorney refused to discuss the meaning or purport of the order. They suggested that I take the matter up with the union saying that if I arrived at an understanding with the union there would be no difficulty about it. My insistence that I was entitled to a frank explanation from the Board which had issued the order proved to be of no avail and thereupon we took steps at once to appeal the order to the United States Circuit Court of Appeals.

What has happened since then is widely known. The circuit court of appeals reversed the entire order of reinstatement and such reversal was in all important respects sustained by the Supreme Court. Public opinion, generally, was shocked at the necessity of carrying litigation all the way to the Supreme Court to establish the illegality of the sit-down strike and to sustain the employers' right to discharge those who illegally seize his plant.

The CHAIRMAN. Was the question of the sit-down strike as such carried all the way up, or were you interested primarily in your damages?

Mr. SWIREN. Senator, we had no way of recovering damages in this proceeding.

The CHAIRMAN. I do not mean it in a technical way.

Mr. SWIREN. You mean the matter of the reinstatement of these men?

The CHAIRMAN. Yes.

Mr. SWIREN. It was more than a question of compensation to these men. It would mean complete demoralization to our whole plant to introduce them into the plant at this time. Do not_forget that for every man that was in the plant during the sit-down strike-and about half of them were in there without their consent whatever there were three employees on the outside anxious to go back to work. There were about 60 men that were wholly responsible in the common feeling in the community for the entire enterprise. What do you think would happen if those 50 men were introduced into the plant with 350 others?

The CHAIRMAN. Have we a definition out of this decision of what constitutes a sit-down strike?

Mr. SWIREN. I think that we have gotten this characterization of it, that it is a seizure of a plant by employees for the purpose of coercing an employer into yielding to their demands. After all, it is really a word of art that has grown up since the instrumentality came into use during 1936.

The CHAIRMAN. There is a technique, I imagine, that could be developed if we get into the fine points of what constitutes the right kind of a strike and what constitutes the wrong kind of a strike. It is a thing that I would hope and pray would never get into our country. It is not a line of action but a line of attitude. Your law declares that the right to strike shall never be curbed, for example. Well, there is not much of a definition there, and we do not want

much of a definition. If we start defining we get into all kinds of trouble, but have we gone so far as to anticipate, for instance, a situation where the labor people are going to be able to know just what they can do in a strike and what they cannot do, and that kind of a case has got to be argued in the courts?

Mr. SWIREN. Senator, are not strikers really in the same position that all the rest of us normal human beings are? We ought to know when we go out into the street whether what we are doing is lawful or not. We know that we cannot go along and throw stones in the window of a store, and the mere fact that I may be a worker and on strike does not confer that right on me to violate the law. It seems to me that the principle is simple. The application may be difficult, but strikers just do not have any more right to engage in violence or lawlessness than anybody else.

The CHAIRMAN. That is fine. There are, of course, and always have been approaches to a violence of this kind even before the Fansteel case was decided, and they have been used.

Mr. SWIREN. Well, of course, there was always the police remedy, and the question that an employer must face in a situation of this kind is whether that remedy is adequate. Now, for example, one of the sit-down strikers was picked up by the police in the driveway of Mr. Aitchison's home at 3 o'clock in the morning. He happens to live on a dead-end street a mile and a half from the highway, and about 25 miles from the city in which that sit-down striker lives. He could not find that place in the dark without having been there before or having a map. His excuse was that he was driving from Evanston, which is a suburb of Chicago, to North Chicago, and was lost. I cannot imagine that Mr. Aitchison would be very comfortable about having that kind of a man continue to work in his plant. That is the problem that you have got apart from the police punishment. He was punished by the local police court, but that did not solve the problem.

Senator TAFT. The big question in this case was not what is a sitdown strike and what is not, but whether or not the Board can restore a man who was discharged for participating in the illegal conduct or a sit-down strike.

Mr. SWIREN. There are really two questions in that respect, Senator Taft. You have named one of them, and the other is whether the Board is compelled to respect an affirmative discharge by an employer of an employee for engaging in illegal activities, and both of those questions were decided adversely to the Board by the Supreme Court.

Senator BURKE. You do not overlook the fact that there were two judges of the court, however, who dissented to that proposition.

Mr. SWIREN. I noticed that dissent, Senator. Needless to say, I am not completely in accord with that.

I think we might sum up the whole picture so far as the substantive decision of the Board was concerned and how it was arrived at, in the words of Chief Justice Hughes, who stated:

I think that a clearer case could hardly be presented, and that whatever discretion may be deemed to be committed to the Board its limits were transcended by the order under review.

It is important to recognize that in criticizing the procedure and decision of the National Labor Relations Board in the Fansteel case, I am in no respect departing from the policy which the Wagner Act was designed to establish. The Wagner Act was originally passed as a means of carrying on with proper legal sanctions the work so well begun and the principles already enunciated by the previous labor boards. Without the slightest hesitancy both of the old boards, one of which was headed for a time by none other than Senator Wagner himself, repeatedly held that an employee's violence or lawlessness during a strike was sufficient to bar his reinstatement, notwithstanding the employer's unfair labor practice. That principle was completely ignored by the present Board in the Fansteel decision where it went far afield in a deliberate attempt to excuse and condone violence and property destruction as a proper industrial weapon.

Waging the battle against the sit-down strike with all of the resources of the Government, acting through the Labor Board, arrayed against it has been expensive for Fansteel Metallurgical Corporation. The direct damage occasioned by the sit-down strike approximated $60,000. The additional expense of obtaining restoration of property, litigating the contempt proceedings, and, most important of all, contesting the Labor Board's case through the trial examiner's hearing, the Board hearing, the U. S. Circuit Court of Appeals, and the Supreme Court, added a further burden of more than $75,000. And we are talking about a small company here.

It is this heavy expense burden which explains all too many of the so-called settlements that the Labor Board is able to effect with the small and moderate-sized businessman. Protracted and expensive hearings constantly indulged in by the Board, the long delays, and unsettled industrial conditions that prevailed in the meantime, the obvious and unconcealed hostility of the "kid-crusaders" so commonly employed as the Board's representatives, and the distraction from normal business affairs that Board controversies require are persuasive factors in encouraging the acceptance of any possible compromise in lieu of a contested Board proceeding. A Board proceeding is a luxury that few small-business men can afford.

The CHAIRMAN. I suppose that you are giving there a pretty good reason why you affiliated yourself with the National Metal Trades Association, aren't you?

Mr. SWIREN. No; I don't think so. The complete answer to that, Senator Thomas, is that we never got any financial or other help from them. If we had called on them when our need was greatest, namely, during this strike period, the answer would necessarily have been in the affirmative.

Before more specifically correlating the experiences of Fansteel, let me refer to the case of the Thompson Cabinet Co., in which the Board recently entered an order directing reinstatement of certain discharged employees. A part of the confidential file in that case has come to my attention and is very illuminating on the manner in which the prosecuting and reviewing staffs function together. The Board has repeatedly insisted that the staff engaged in prosecution is completely insulated from the staff engaged in judicial review for recommendation of orders of the Board. That was definitely not true