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motions, briefs, etc., in the appellate courts in connection with the numerous cases in which the Board must petition such courts for enforcement of its orders, as has been described under the hearing of litigation work.
INCREASE IN NUMBER OF CASES COMING BEFORE BOARD
Mr. EDWIN S. SMITH. The crux of the situation is the tremendous increase in business, over which the Board itself can exercise no control, that is coming to us since the Supreme Court decisions on April 12. As you will note from the figures given in the justifications, in the 18 months preceding April 12, 1937, we had an average of about 124 cases per month, while in the 2 months since that date, the number of cases coming before the Board has averaged 1,255 per month. That is really the answer to this request for additional money. It is due to a 10 times increase in business, which shows no sign of slackening.
Now, the reason for that increase is pretty obvious: Until the Supreme Court decisions, there was great uncertainty in the minds of both employees and employers as to whether the act applied at all in the field of production. For that reason, a great many cases which otherwise would have been brought before the Board were not brought. They were discouraged by the publicity given as to the limitations of the Board's jurisdiction, and that sort of thing; but once the Supreme Court gave us the decisions which it did give that is, the decisions in the three manufacturing cases—there was, inevitably, this flood of new business. So far that increase has kept up with remarkable uniformity. This is due not merely to a backing up, or accumulation of cases before April 12, but week by week that situation has continued. We have no control as to what comes to us. The statute requires the Board to take certain action when charges are brought before it. We do not go out and seek these cases, but they come to us, and when they come to us we are obliged to handle them. We cannot pick and choose among various customers, but we have to take the cases as they come. It is very hard to differentiate among our cases, to determine what is important and what is not important. In some instances, the discharge of a single active union leader may precipitate a whole series of events, leading to labor disturbances, whereas, in another case, you might have some evidence of some labor difficulty, such as a strike, but the consequences in the long run of the first may be more serious than those in the second. In any event, the Board has no discretionary power, but we are simply asked to take action on these unfair labor practices, so far as we can under the terms of the statute, as they come before us.
PROCEDURE IN HANDLING CASES Mr. WOODRUM. What are some typical illustrations of some of these cases?
Mr. Edwin S. Smith. The most common sort of case is the claim that certain individuals have been discharged, not for legitimate reasons urged by the employer, but because of their union affiliations or activities.
Mr. WOODRUM. In that case, what is the procedure, or what is the routine procedure?
Mr. Edwin S. Smith. The routine procedure is this: The Board's work is now divided among 21 regional offices. The place where our business is initiated is in the 21 regional offices.
Mr. WOODRUM. At this point, put in a list of those offices, showing where they are located.
Mr. EDWIN S. SMITH. I will be glad to do so. (Said list is as follows:)
LIST OF REGIONAL OFFICES
First region, Boston, Mass.
Thirteenth region, Chicago, Ili. Second region, New York City.
Fourteenth region, St. Louis, Mo. Third region, Buffalo, N. Y.
Fifteenth region, New Orleans, La. Fourth region, Philadelphia, Pa. Sixteenth region, Fort Worth, Tex. Fifth region, Baltimore, Md.
Seventeenth region, Kansas City, Mo. Sixth region, Pittsburgh, Pa.
Temporary subregional office at Denver, Seventh region, Detroit, Mich.
Colo. Eighth region, Cleveland, Ohio.
Eighteenth region, Minneapolis, Minn. Ninth region, Cincinnati, Ohio.
Nineteenth region, Seattle, Wash. Tenth region, Atlanta, Ga.
Twentieth region, San Francisco, Calif. Eleventh region, Indianapolis, Ind. Twenty-first region, Los Angeles, Calif. Twelfth region, Milwaukee, Wis.
Mr. Edwin S. Smith. An organization representing the employees in the particular plant involved comes before the director of the regional office. The director then invites them to make a formal charge on a form we have for that purpose. He listens to their story. Then, either by telephone, or preferably in person, if he has time to do so, he gets in touch with the employer and learns his side of the case. The next step ordinarily is to bring both sides together to see whether the matter can be agreeably settled without further formal proceeding. If that fails, the director, through himself or through one of the field examiners, makes a more intensive investigation. If he finds, as a result of the investigation, and by communicating with both sides, that there is a prima-facie case that the employer has committed an unfair labor practice, as charged, he issues a complaint and notice of hearing, as he is authorized under the rules and regulations of the Board to do. A trial examiner is sent out from Washington designated to preside over the hearing.
The employer, of course, under the rules, is given an opportunity to answer the complaint, and that becomes a part of the formal pleadings in the case. The hearing is held, with the employer represented by his witnesses, and the Government represented by its witnesses, and the whole case proceeds more or less like a lawsuit, but with somewhat less formality. The hearings, incidentally are public, and, of course, a stenographic record of them is made.
At the conclusion of the hearing, the trial examiner makes an intermediate report to the Board, saying what his findings of fact are and what his recommendations as to action are. This intermediate report is served on the parties. If his findings are to the effect that the employer has committed an unfair labor practice, by discharging the president of the union, for instance, he will recommend that he should be restored to his job, with back pay granted to him from the date of his discharge. If the employer sees fit to comply with that recommendation, that would dispose of the case. If the employer takes exception to the report of the trial examiner, the whole record, including the intermediate report by the examiner, together with the exceptions, comes before the Board for analysis and decision. The
employer, if he so desires, has the opportunity to file a brief, and, also, customarily the opportunity to have oral argument. After the Board has read what is before it, and has listened to what is said to it on the case, we make our decision.
In the hypothetical case we are discussing, if our decision is in accordance with the findings of the trial examiner, we make, first, a finding of fact relative to the Board's jurisdiction; second, a finding of facts on the merits of the case; third, a conclusion under the law, and, fourth, an order directing that the employer shall return the employee to his job, and that he shall pay him back pay for the time he has lost; also, that he shall not in the future interfere with the organization of his workers by actions of this sort. The employer then either subscribes to the order, or he has the opportunity to carry the whole proceeding into the circuit court of appeals, as has also the Board, for the purpose of deciding whether the decree will be enforced or whether it shall be modified. Thereafter, the case takes the usual course, and if the circuit court of appeals affirms the order of the Board, it issues a decree to that effect. The employer, of course, would be in contempt of court if he refused to obey that decree. The Board itself has no power of enforcement. There is no actual enforcement that enters into the picture until there is a decree by the circuit court of appeals.
Mr. WOODRUM. If the Board renders a decision adverse to the employer, and he refuses to comply with it, then the case goes to the court.
Mr. EDWIN S. SMITH. Yes, sir; either side may take it to court.
Mr. WOODRUM. Going back to the beginning, when the employee came originally with his representations or with the statement of his complaint, are there instances where he has been advised that he does not have ground for complaint and has been discouraged from proceeding?
Mr. EDWIN S. Smith. Yes, sir; there are a great many such instances. As I recall the figures, the number of cases in the first year in which charges were withdrawn because of the reasons suggested, represent about 20 percent of the total number of cases brought before the Board. For the best of reasons, the figures cannot be exactly accurate, but in an additional 15 percent of the cases the matters have been settled by agreement between the employer, the Board, and the complaining union.
DISPOSITION MADE OF COMPLAINT CASES
Mr. WOODRUM. How many decrees have been rendered as a result of these proceedings?
Mr. EDWIN S. SMITH. At the time the formal exercise of jurisdiction commences quite a number of employers and unions in the interest of industrial peace prefer these settlements, and our Board, so far as possible, permits a less formal handling of the cases. That is both because we are seeking for better results in the enforcement of the orders, and, because, obviously, it would save to the parties a great deal of time and money:
Mr. WOODRUM. Of the decisions rendered by the Board, what percentage was in favor of the employers and what percentage in favor of the employees?
Mr. Edwin S. Smith. I do not know the exact figures, but in a great majority of cases the Board has sustained the original com
plaint against the employer. That, I am very confident, does not indicate any partisanship which may be charged. I will say, in regard to that, that we try to be exceedingly careful not to issue any complaint until a thorough investigation has been made.
Mr. Wolf. Out of 2,382 cases closed, as of June 1, 324 were dismissed either by the regional director or the Board before formal action was taken.
Mr. TABER. They were dismissed before what?
Mr. Wolf. Before formal action was taken, either by the Board or regional director. That was because formal action did not seem to be justified.
Mr. WOODRUM. Can you give us any further break-down of these cases?
Mr. WOLF. This includes 1,297 cases that were closed by agreement of both parties.
Mr. TABER. Is that exclusive of the 324?
Mr. Wolf. Yes, sir; 602 cases were withdrawn by the petitioning parties. That is done frequently upon the advice of the regional director that they actually do not have a case. One hundred and sixty-three cases were closed in various other ways.
Mr. WOODRUM. How many were carried to court?
Mr. Taber. Would that be in addition to the figure you have given?
Mr. WOLF. They are included in the 163 cases closed in various
Mr. TABER. Of these 100 cases, how many did you decide in one way and how many in the other?
Mr. Wolf. I would say that a great majority of them were decided in favor of the petitioning unions. Of course, there has been a weedingout process up to that point.
Mr. WOODRUM. Give the cases that have gone to court.
Mr. WOODRUM. That is, cases in which the Board is seeking to enforce its orders against employers?
Mr. Fahy. A few of them are cases where the employer has petitioned to set aside the Board's order.
Mr. WOODRUM. Is that the total number that has been carried to court?
Mr. Fahy. That is approximately correct, but the number is increasing day by day. During the first year, and really up to April 12, we took into court relatively few Board decisions for enforcement. We were awaiting the carrying through the Supreme Court of the test cases. In other words, there seemed to be no need for a great many cases in court until a final ruling by the Supreme Court was made. There were some that we had to carry into court.
Mr. WOODRUM. Have decrees of court been filed in any of those cases?
Mr. Fahy. Yes, sir; five of those cases were finally decided by the Supreme Court. Those were the cases that were decided on April 12,
and as a result, this great influx of business came in. Now, in addition to those five cases where we have had final decrees of the Supreme Court we have had in the circuit courts of appeals cases in which we have final decrees, as follows: In the circuit court of appeals for the second circuit, in one case; in the third circuit, in two cases; in the fourth circuit, in three cases; in the fifth circuit, in one case; in the sixth circuit, in one case; in the seventh circuit, none, although there are cases pending there now; none in the eighth circuit, but there are some pending for decision; and in the ninth circuit there are three cases which have been argued and briefed.
Exclusive of the last mentioned three cases in the ninth circuit, all of those cases I have mentioned have gone to final decree. We are carrying others up from time to time, to determine the questions involved, so that there are currently additional cases going into court. The total number has reached approximately 25. The number is added to almost constantly, from day to day; that is, where orders will not be complied with. That calls upon the Board, from day to day, to go into court for determination of the enforcement of its decisions. Our circuit court of appeals work, in the enforcement of decisions, will now be much greater than it was prior to the Supreme Court decisions, not only because of the increase in the number of cases handled by the Board, but, also, because some of the older decisions were not taken into court. We were not trying to enforce all of the Board's orders until we had a decision by the Supreme Court.
Mr. Donald W. Smith. It might be well to mention that, in addition to the 25 cases in which the Board is involved before the circuit court of appeals, during the first 20 months of operation there were approximately 85 injunction actions brought against the Board, which the Board had to defend, and which also went to the circuit court of appeals.
Mr. Fahy. The cases I mentioned are exclusive of the injunction suits.
Mr. Edwin S. Smith. Mr. Chairman, I think I had concluded about all I had to say when I stopped previously but I will state again that we urge upon our directors—and we have every reason to feel that they are conscientious in all these matters—that they must make thorough investigations, or see that through investigations are made, before a complaint is issued. As a matter of fact, self-protective interest would direct their work along that line, because they have more business than they can handle adequately. They are not anxious to issue complaints.
We have also established an informal cooperative relationship, so to speak, with the unions in the sense that whenever we have had the opportunity, we have urged them to sift very carefully any charges brought to them by members of the unions alleging unfair labor practices by employers, and not to bring anything before the Board unless they are absolutely sure in their own minds that they have good cause. I think their cooperation has been exceedingly helpful in that regard.
Mr. Fahy. In what I said about cases pending in court, I referred to cases that were actually pending, and not to cases that we will have to take into court. We have before us now Board orders in about 53 cases, each of which we are under the necessity, we have reason to assume, of taking into court for enforcement. That number will increase as Board decisions are rendered and are not complied with.