for the reason that such employees being supervisory employees of the company, the company was responsible for their statements even

though they acted contrary to the specific instructions of the company and even though other foremen stated that it was their personal view that such employee should join the union.

It is my personal view after more than 30 years' experience of associating with and negotiating with labor organizations that no employer of labor could enforce a rule which would prevent any employee, whether he is a foreman or what position he holds, from expressing his own personal views on anything, particularly in the mining regions in Colorado or any other part of this country.

The evening before this case was called for hearing, the United States Circuit Court of Appeals for the Ninth Circuit held in what is known as the Idaho-Maryland Mines Coporation decision, that where the mill treated only ores produced within the State of California and the mill in turn sold its product therefrom, namely, bullion, to the mint at San Francisco within said State, that such mill was not engaged in interstate commerce. The respondent company upon the following morning move dto dismiss this case for want of jurisdiction, basing such motion upon the decision in the IdahoMaryland Mines Corporation case. At the conclusion of the argument upon this motion the trial examiner announced that he would continue the hearing until such time as he could get advice from the Labor Board at Washington as to what position to take in view of this decision.

Some 2 days later, the trial examiner announced that he had heard from the Labor Board and that therefore he would proceed with the taking of the evidence in the case, and in the findings submitted by the trial examiner on this question held, that while the evidence conclusively showed in the instant case that the respondent, Golden Cycle Corporation treats only ore that comes from Colorado, and is sold only in Colorado, and therefore is not engaged in interstate commerce, but that he felt that it was not realistic or legalistic to hold that such business did not affect interstate commerce and therefore he would not be bound by such decision and hence held that the respondent company was under the jurisdiction of the act; the Idaho-Maryland decision was not appealed from the Labor Board and was a final and only decision on this question at the time the examiner's report was written.

The respondent company filed its objections to the examiner's report in October 1938, and within the time provided by the rules of the Board, and also filed separate motions for leave to file a brief in support of their objections, and for leave to make an oral argument before the Board in support of such objections, and was advised by the secretary of the Board that such objections were in proper form and that the respondent would be advised in due course as to when it should file its brief and what time would be assigned for oral argument, since which time the respondent has heard nothing further about the case.

It is difficult for me to understand why a trial examiner should feel that he was bound by a decision of his own Board with which he does not agree as to one point in a case and then refuse to be bound by the only decision of the courts upon another point in the same case simply because he does not agree with that decision.

Another thing which seemed to us unfair was that while the Government had been preparing its case against us for more than 1 year, yet when their complaint was filed against us we were required to answer within 5 days and go to trial thereon within 3 days thereafter, although our company is engaged in a business which requires a 24-hour operation, and the only way that counsel could ascertain the facts with reference to the matters charged against the company was through the employees in charge of the operation of the company, drawing them away from their employment during this 24hour period. We think that a respondent should have more time in which to answer so that it may know what it is in position to deny and what it should be required to admit as to charges contained in the complaint, and we think further that when that complaint is heard it should be heard before a court, and not before the same tribunal that causes the complaint to be filed.

In my opinion, the act should be amended to provide a more orderly procedure which will apprise the employer of the nature of the complaint against him in sufficient time to enable him to be properly represented at a hearing; that employers should be permitted to counsel and advise with their employees so long as they refrain from coercive tactics; that the Board's procedures should be speeded up to provide for early hearings upon exceptions to reports of trial examiners and that the machinery of the act should not be used to force contracts upon employers which in the language of the examiner in the Golden Cycle case will

subject the respondent to choice of continuing operations at a loss or of closing the mill and throwing all employees out of work, or of cutting wages and subjecting themselves to liability for breach of contract suits and charges of unfair labor practice.

And 1 most sincerely protest against the provisions which combine the functions of accuser, prosecutor, and judge in a single board. Now, I would like to add one thing, if the committee please.

I think the provision in the act that permits to be introduced hearsay evidence is not conducive to the ascertainment by the Board of what the facts are in the case, because in the first place, from time immemorial it has been recognized by the courts, by the experience they have had, that hearsay evidence is the most dangerous kind of evidence for a court to consider in an effort to arrive at truth; and further, for the main reason, I don't know how anybody on earth can prepare themselves to meet hearsay evidence.

Now, in this instant case, I have no complaint with the ruling of the trial examiner on the point I am now discussing, because I cannot see how he could have ruled any other way. I would make an objection upon the hearsay testimony. His ruling right along was, “Mr. Strickler, I know that your objection, under well-known and wellestablished rules of law, is well taken, but it seems to me that under the terms of this act I am required nevertheless to admit it, but I wish to assure you that I will only give that evidence such weight as I think it is entitled to in view of your objection."

Now, I couldn't quarrel with him over that ruling, because I think he was bound to make that ruling. I am quarreling with the provisions of the act in that respect that required the trial examiner to make that ruling.

Another thing I would like to say, I don't want to be unfair in my testimony. This particular trial examiner, while I quarrel with his decisions, I have seen reports in the newspapers of arbitrary conduct upon the part of trial examiners in other Labor Board cases, but I had no such experience in this case. This gentleman, Mr. Griffen, was a man around 65 or 70 years of age; he certainly conducted himself as courteously and as fairly and as decently as any court I was ever before. I don't agree with his decisions, but I want to say that so far as his conduct and his treatment of counsel and treatment of witnesses are concerned, there could be nothing more asked for. Senator ELLENDER. What is the status of that case now?

Mr. STRICKLER. It simply stands, Senator, in the Labor Board, upon our objections to the report of the trial examiner.

Senator ELLENDER. Did you question the jurisdiction of the Board? Mr. STRICKLER. Oh, yes.

Senator ELLENDER. I was just wondering under what section of the law-in other words, the bargaining agency was selected, wasn't it? Mr. STRICKLER. Yes.

Senator ELLENDER. And it was a question of agreement between the union and your company?

Mr. STRICKLER. That is right, and we had agreed, if the Senator please, there was no dispute between us as to wages or hours or anything of that kind.

Mr. CALLAHAN. May I say also, Senator, with regard to this question of jurisdiction, that the Idaho-Maryland Mines Corporation case, to which Mr. Strickler referred, was to have been decided at the time of this hearing, was not appealed from the decision of the ninth circuit, so it is final.

Mr. STRICKLER. It is final, and so far as I am advised it is the only decision of our Federal courts upon that particular question, and what I quarrel about is, I can't see how a trial examiner who is an agency of government, can, in a finding upon a hearing in which he was charged with making a report, will say upon one point, "I think the respondent is right in his contention," but because of a certain decision of the Labor Board itself not by the courts, which he interpreted to the contrary, and as far as I am concerned, I think he wrongly interpreted it, because I don't think it is to the contrary, and I don't think it is to the point, and he impliedly admits it in his report when he says that it may not be wholly in point-and then upon the question of jurisdiction holds that our motion was not well taken because he doesn't agree with the only decision of the courts upon that question-I think that the trial examiner ought to be bound by the courts as well as everybody else.

The agencies of government should comply with the decrees of courts, whether they agree with them or not, the same as any citizen. Senator BURKE. As I understand it, aside from the question of jurisdiction of the Labor Board, the only other point involved in this case is whether the company was guilty of an unfair labor practice as charged in that you did not reach an agreement on the one point as to the duration of the contract, is that correct?

Mr. STRICKLER. Yes; and one other point, the other point being that we were guilty of coercion because one of our men-pardon me, two

of our men, our foremen-when asked by employees without the knoweldge of the company, what they thought as to whether they should join the union or not, they answered, "I am instructed by the company to state that it is immaterial to the company whether you join or don't join, and if you will join it will not affect your standing with the company, but my personal view is that you won't get any benefit out of it."

With the evidence also this, that other foremen, when asked the same question by the employees, answered advising them to join. For instance, some of the foremen that so advised them-I don't know whether you know the history of the labor troubles in Colorado, but in the Bull Hill war-Moyer, Pettibone, and Haywood-one of those foremen was one of those strikers, and he says, "Yes, boys, join the union," and he said that the company knew he said that, and understood he had a right to say it, which he did.

Senator ELLENDER. But you hadn't stated that particular reason in your statement?

Senator BURKE. Oh, yes.

Mr. STRICKLER. Yes; I said that other foremen had advised him to join the union.

Senator ELLENDER. But you didn't state that specifically as such? Senator BURKE. Yes; I think it is set out in his statement.

Senator ELLENDER. But not as a reason. As I understood his testimony, it was interference on the question of time only, and that is what he emphasized. I am sorry if I misunderstood you.

Mr. STRICKLER. The other is in here, Senator.

Senator BURKE. What is the condition of the property now? Are you working?

Mr. STRICKLER. We are working. It never has stopped, and there is no trouble of any kind.

Senator BURKE. But you have no collective-bargaining agreement? Mr. STRICKLER. No. Understand, in these negotiations we agreed to certain increases in wages, and we have carried that out; and we agreed to certain changes in working conditions, conditions of employment, and we have carried them out.

The CHAIRMAN. Thank you, Mr. Strickler; and I am sure that our whole committee is very sympathetic with your suggestion about keeping hearsay testimony out of any kind of a hearing, even this hearing, if we can. It would relieve us of a lot of time, if nothing else.

Mr. CALLAHAN. Mr. Chairman, Mr. H. P. Henderson, the president of the Texas Mining & Smelting Co., of Laredo, Tex., is the next witness.

The CHAIRMAN. Mr. Henderson, will you make whatever introductory remarks you wish and then proceed in whatever way you see fit! STATEMENT OF H. P. HENDERSON, PRESIDENT, TEXAS MINING & SMELTING CO., LAREDO, TEX.

Mr. HENDERSON. My name is H. P. Henderson, and I reside in Webb County, Tex., 211⁄2 miles north of the city limits of Laredo. I am a mining engineer and president of Texas Mining & Smelting Co.

Texas Mining & Smelting Co., hereafter called the company, is a Delaware corporation organized in 1930, which owns and operates an antimony smelter in Webb County, Tex., 211⁄2 miles north of the city

limits of Laredo. This plant, called hereafter the Laredo smelter, was built in 1930 and started operation December 30, 1930.

Antimony is a metal used mainly in alloying with lead and other metals to make such alloys as storage-battery plates, babbitt, and other bearing metals, type metals, and electric-cable sheathings. It is also used in the form of oxide as a white pigment for special paints and also fused enamels. It also has some direct military uses. The Laredo smelter makes both antimony metal and oxide.

The antimony ore supply of the Laredo smelter comes mainly from Mexico, though small tonnages have been received from the United States and South America.

A few antimony smelters started in the United States during the World War, but they closed soon afterward and have not reopened. The United States depended for about three-quarters of its antimony supply on China, where wages were about 1 United States cent per hour, but a fall in Chinese exchange has recently reduced wages to about one-half cent per hour. Chinese antimony is the main competitor of Laredo antimony, and we have thus been competing with wages of one-half to one cent per hour.

Antimony is one of the strategic minerals necessary for national defense in which the United States is deficient. We have been informed that we have contributed to better national defense.

I quote the following statement of Director John Wellington Finch of the United States Bureau of Mines from the report of hearings before a subcommittee of the Committee on Military Affairs, United States Senate, on S. 3460, May 3, 1938, pages 74-75.

We no longer are dependent on Asiatic sources of antimony. The United States now has a smelter at Laredo, Tex., which is equipped to supply substantial tonnages of antimony derived from Mexican ores. In recent months the supply of ore has been threatened seriously. Since this plant represents an important contribution to national defense it is in the nature of a national asset and merits Government support in every possible way.

The CHAIRMAN. That bill has now become S. 572 and was passed by both Houses of Congress, as I understand.

Mr. HENDERSON. From the beginning of 1931 when the company started operation to November 1937, we never had any single instance of disturbance of any sort in our labor relations. Our minimum wage at 20 cents per hour was two or three times alternative local wages. Our wages and other working conditions were approved by N. R. A. Jobs at the smelter have always been regarded as the best available in the vicinity. There was no C. I. O. in the Laredo area and no N. L. R. B.

Our first knowledge except mere rumor of a local C. I. O. union, the International Union of Mine, Mill, and Smelter Workers, Local 412, hereafter called the C. I. O. union, was on November 14 or 15, 1937. Our first knowledge except mere rumor of a local independent union, the Free Employees Association, hereafter called the F. E. A., was on December 7, 1937. The N. L. R. B. first came in contact with the company in a telegram dated December 11, 1937, from Dr. Edwin A. Elliott, regional director at Fort Worth.

Under date of November 14, 1937, a letter was received purporting to be signed by two officers of the C. I. O. union, claiming a majority of the company's employees as members and requesting recognition as exclusive bargaining agents for the company's employees. The