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limit the otherwise broad connotation that might be put uppon the phrase "or other unit." The proviso, however, was subject to some misconstructions, and the conferees have agreed that the simplest way to deal with the matter is to strike out the undefined phrase "other unit." It was also agreed to insert after "plant unit" the phrase "or subdivision thereof." This was done because the National Labor Relations Board has frequently had occasion to order an election in a unit not as broad as "employer unit," yet not necessarily coincident with the phrases "craft unit" or "plant unit;" for example, the "production and maintenance employees" of a given plant.

Senator ELLENDER. Mr. Gall, yesterday you made mention of subpena procedure that you think might be adopted by the Board. I wonder if you would help the committee out in suggesting such rules of evidence, if you care to, as you think would be conducive to having this matter properly presented by both sides in any case, and also the extent to which you would provide for the issuance of a subpena duces tecum insofar as the unions are concerned?

Mr. GALL. Yes, sir; Mr. Chairman, you have in mind that I might submit something to the committee later on?

Senator ELLENDER. Yes; in other words, it has been testified on two or three occasions that the Board has sufficient authority under the present law to formulate its own rules of evidence. Now in view of your knowledge of the subject and the experience you have had, I am just wondering if you couldn't suggest a set of rules of evidence that you think would turn the trick, in other words?

Mr. GALL. Senator, I am very glad indeed to put myself at the disposal of the committee for any proposal of that kind. Any sugges tion that I may make during the course of this hearing, if I can help to reduce it to concrete form I will be glad to do it. I was here when Mr. Caldwell testified, and I recall you made a similar request of him. I am very well acquainted with Mr. Caldwell, and I will get in touch with him and cooperate with him in the development of this matter that you just mentioned.

Senator ELLENDER. That will be very fine.

I would be much interested, if you care to discuss it now, in the extent to which you think subpenas duces tecum should issue in order to force a union to produce its membership records?

Mr. GALL. I would like to give that further consideration because I think you will realize that perhaps I haven't had the trial experience such as Mr. Caldwell has had.

Senator ELLENDER. Will you bear that in mind in proposing your rules of evidence, and I would like to have a discussion as to why you think the rules ought to be the way you will propose them?

Mr. GALL. All right; I will be very glad to do that, Senator.

I had reached the point, Mr. Chairman, on page 5 of my statement, where occurs the question:

Did Congress intend that the National Labor Relations Board should act in any instance as organizer for the unions, seeking to persuade or induce employees to join them, and seeking to persuade employers to enter into agreements with the unions?

Mr. Chairman, I think some of the clearest cases or instances of that are all a matter of record here. I will refer in particular to the testimony of the witness Blakey, counsel for the independent unions in the Beloit Iron Works case, who quoted directly from the transcript of the record of the hearing of that case where the Board's

attorney undertook, while the witnesses who were members of the union, the independent union, while they were on the stand, to persuade them that they ought to join the A. F. of L. or the C. I. O., and get out of the independent unions because the A. F. of L. or the C. I. O. would pay certain strike benefits, and so on, that they could not get from the independent union.

You had the same testimony in the case of a member of the independent union of the A. F. Gallun Co., who appeared here and who said that when he and other members of the independent union in the Gallun Co. went over to the regional representative of the National Labor Relations Board to discuss their problems with him, that he tried to persuade them to get out of the independent union and to join the other union, the outside union.

In the testimony before the House committee, and I suppose it is proper to refer to that because it is now a matter of record, an instance was cited where a group of employees of a company in St. Louis whose place of business was being picketed by C. I. O. members went over to Miss De Schweiness, the regional representative of the National Labor Relations Board, and asked her what the Board could do for them to protect them against this, and her response was that she supposed that if they would go over to the C. I. O. in a body and join the C. I. O. the picketing would stop.

Mr. Madden endeavored to explain that by not denying the fact, but by saying that he did not think she meant what other people thought

she meant.

Senator ELLENDER. Did not most of the cases to which you have referred occur in 1936 and 1937 when this act was just being made effective?

Mr. GALL. No, sir; I think not. I will give you instances in 1938late in 1938.

Senator ELLENDER. I realize this, that a great many of these young lawyers, these young upstarts did a lot of things that probably should not have been done, and to my way of thinking purely from ignorance and nothing else. They were trying to make a record, I presume. Senator BURKE. Of course, Miss De Schweiness would hardly come in that class, as she was a regional director.

Mr. GALL. You have had some testimony here also, Mr. Chairman, as you recall, the testimony of Mr. Hill, the president of the Air Associates, which is typical, where he told about his various conferences with employees of the Board who were named in the record and who had tried to persuade him to go over and make a deal with the union so that the Board would cease what he called persecuting his company, so that I think the record is clear and supports the proposition that the employees of the Board at various times and places have tried to persuade employers that the way to get rid of the Board and to get rid of their union troubles was to sign up on some basis that would be satisfactory to the union.

Senator ELLENDER. Do you have knowledge of any case of that kind that was sanctioned by the Board itself? These cases that you cite represent the conclusions of the hirelings of the Board, but have you any case where the Board O. K.'d such a procedure?

Mr. GALL. I am not sure that I could even find such a case if I went out to look for it. I could not say definitely, because something may

occur to me during the testimony and I might wish to go back to it. Normally that kind of thing would never come before the Board for sanction. It is the kind of thing that comes before the regional directors at their offices.

Senator BURKE. Might I interrupt you there? In a note on page 4 of your prepared statement you say "wherever the term 'Board' is used it, of course, includes agents and employees of the Board, just as the employer is held responsible for the acts and statements of his employees." It seems to me that it is a little hard to escape from that conclusion that the evidence does show that the Board directs and instructs the examiners and attorneys before they go out into the field and is in constant touch with them. There is a great deal of evidence in the record already that in the course of the trial the attorneys and the examiners are in telephone communication with the highest officials here in Washington, so that I think it would be pretty hard to clear the Board on the ground that the agents were acting without their approval or authority.

Senator ELLENDER. In many cases, Senator, that have been brought to our attention I know that the Board did not know a thing about it. Senator BURKE. In many instances, but not as a general thing. Mr. GALL. I would like to say, though, Mr. Chairman, that, again referring to appendix A of this statement, in every one of those cases that went to the circuit court of appeals or to the Supreme Court, the misconduct in the handling of the case had been called to the attention of the Board after it had taken place in the hearing of the case before the trial examiner, and in those cases-shall I put it the other way-in none of those cases does it appear that the record of the Board showed that it did anything to reprimand the employees who had been guilty of that conduct.

Senator ELLENDER. Maybe not publicly, Mr. Gall, but they were probably recommended not to do it any more; in other words, it is my understanding that the Board is doing all it possibly can now to educate these regional directors, trial lawyers, and other employees so that they may have a little more uniformity of procedure, and as far as I am able to see, I have no doubt that the machinery is going to be perfected.

Mr. GALL. I certainly would not take issue with you on that, Senator, because I have no way of knowing.

Senator BURKE. In all of these cases where the circuit court of appeals has acted, not only did the Board not disapprove of, or recommend the people, but they put their stamp of approval on the wrongful conduct, and it remained for the parties after they had the opportunity to go into a court and have the Board set them straight in the matter; they had the opportunity when the examiner's intermediate report was before them to correct it, and not only did they not correct it but they said that it was perfectly all right. Senator ELLENDER. What have you in mind, Senator Burke? Senator BURKE. All of these cases in the circuit court of appeals that are cited in the appendix A in this record, and I think that there are others.

Senator ELLENDER. You mean where evidence was introduced without law or without authority? What do you mean?

Senator BURKE. Where the conduct of the hearing before the examiner showed all of the things in one form or another that the witnesses objected to-efforts to compel unionization in an outside union in some cases, and everything of the whole nature that is being discussed. If you will read those cases, you will see it.

Senator ELLENDER. That is as to the nature of the evidence produced, though. If somebody produces such evidence and it is made a part of the record, the Board can either take it with a grain of salt, as it were, or take cognizance of it.

Senator BURKE. It was not so much a matter of evidence as the circuit court of appeals said in the Union Pacific Stages case, but that the Board is building up a background-you could not put your finger on anything, but they had in the evidence what they built as a background and drew an erroneous conclusion from it.'


Senator ELLENDER. That results from a lack of uniform rules of evidence, and I really believe that if we can, if the Board can be persuaded to adopt rules of evidence so as to have uniformity throughout the 22 districts, that such a condition as you have complained of will not occur because both sides would be very well protected. In other words, you as opposing counsel will know what the rules are, and you will have to live within them, and so will the prosecutor.

Mr. GALL. Well, Senator, on this question of whether or not the Board is responsible for what is done by these employees and agents of the Board, I don't care which way we take it, whether the Board should be held responsible for what they do or not, if they will only be consistent. But I am going to show you some cases later where they hold the employer responsible for all kinds of unauthorized acts and statements on the part of minor employees, where there is no evidence whatever in the record that the employer sanctioned these things, yet when we are talking about the Board, they don't want us to criticize the Board for what their agents do, unless we can prove the Board sanctioned them—and I think the rule ought to work both ways.

Senator ELLENDER. That is what I am seeking to do, that is what I am suggesting. If we could draft these rules and make them apply to both sides equally so that all will know the rules that they are to be governed by, that will be very helpful.

Mr. GALL. Senator, without laboring this point, there is just one other document I would like to submit on it. I said that I would refer to an instance in late 1938. I have here a very brief letter from a lawyer in Detroit, Mr. Leroy W. Dahlberg, who is counsel for the Michigan Tool Co., a company that had a strike in August of 1938, and thereafter had some negotiations with the union in the offices of the National Labor Relations Board there in Michigan. Mr. Dahlberg has written me a letter which I think the committee would really be interested in seeing, and as it is very brief, I will ask that it go into the record. The only part I want to read to you bears directly on the point I have been making, and that is, as to what the attitude of the regional directors and other employees of the Board in the field is, as to what their function is, and what their or what this act was intended to do. Here is a verbatim extract, because this was taken down by a court reporter at this conference in the office of the Na

tional Labor Relations Board on the 8th day of August 1938. This was the official representative of the National Labor Relations Board who is named in this letter [reading]:

On the other hand, I don't think anybody is being discriminated against for joining the union, but it is for not joining the union. There is that element there. The purpose of the Board is to protect union organization and not to protect these fellows that don't want to join the unions. You don't need any protection for them, because they have always been protected.

The Board is not set up to protect those men that do not want to join. The only theory of this act is that unionization is the necessary thing, and the possibility of the individual workman to deal with the corporation and to deal with the company officials and so on; so that the theory is that in the past, workmen have been discharged for attempting to organize, which the United States Government feels is not a good thing. They feel that from the standpoint of general welfare, labor unions should be encouraged, and that they are necessary to give the workmen a square opportunity to deal with the employer, so we are not attempting to protect the people who do not want to join, but the people who want to organize.

Now, the point in that which this lawyer emphasizes to me, and I think properly so, is that this agent of the Board said that the only theory of this act is that unionization is the necessary thing. Now, that was said to a group of employees in this conference with the employer before the National Labor Relations Board's agents, and I offer that letter for the record at this point.

Senator ELLENDER. It may be inserted. (The letter is as follows:)


Counsel, National Association of Manufacturers,

DETROIT, June 14, 1939.

Investment Building, Washington, D. C.

DEAR MR. GALL: In August 1938 a strike was called at the plant of one of our clients, which client is also a member of the National Association of Manufacturers. Not knowing the real cause of the strike and seeking to cooperate to the fullest toward its termination, we agreed with the proposal of the union's representative that discussions between the management and the union be held in the office of the National Labor Relations Board and in the presence of a representative of the Board. Meetings were held in this manner and gave rise to the two situations which I wish to bring to your attention.

First, as to stenographic record of discussion: There was no objection by the union or by the Board representative to the presence of a stenographer at the first and second meetings. At the third meeting, however, the union refused to proceed unless the transcript of the stenographic record be delivered to them free of charge. The company insisted that the union pay for its copy. Believ ing that the union was trying to manufacture a case of some kind or other for the purpose of increasing its membership and bringing payment of dues up to date, we refused to meet unless our discussions were recorded so as to be available for future reference; it seemed that a stenographic record would facilitate in bringing matters to issue and in avoiding misunderstandings. The meetings were, as a consequence of the difference of opinion as to the presence of a stenographer, discontinued. The regional director called me to his office and stated that it was an established practice to forbid the presence of a court reporter at these informal discussions.

The importance of the record was evidenced shortly thereafter when the union, on behalf of all employees, claimed that the men had been locked out and were entitled to benefits under the unemployment-compensation laws. The transcript of the discussions at the first two meetings clearly established that a strike had been in progress. Without the record, we would probably have been unable to successfully oppose the union's contention that a lock-out was the cause of cessation of plant operations, with the result that our future rate would have been improperly higher. This, it is believed, offsets the argument that the presence of a stenographer is inconsistent with the theory of informality of discussion.

I wish you would do what you can to obtain recognition of the propriety of making stenographic record of informal discussions between management and

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