Nature or review: All cases: Exhaustive, de novo review of findings of fact, conclusions of law and recommendations. This entails detailed reading and analysis of the hearing record, intermediate reports, exceptions thereto, briefs, and statement in support of intermediate reports or reply briefs, if

any.

Thus, any single panel or nonpanel member may bring the case to the full Board for discussion. However, it will require the vote of two members to grant review.

Nature of analysis of Request for review: Request for review, and supporting exceptions and briefs, opposition thereto, trial examiner's decision and cited pages of the transcript are analyzed in relationship to the grounds for review relied upon.

Nature of review: Where review is granted: Exhaustive de novo review of those matters as to which review has been granted, including full examination and consideration of relevant findings of fact, conclusions of law and recommendations. In relation thereto there will be an analysis of the hearing record, initial decision, request for and opposition to review, pertinent exceptions, and supporting and opposing briefs.

MATERIAL SUBMITTED PURSUANT TO REQUEST OF COMMITTEE STAFF

Inquiry concerning the relationship between section 7(a) of the Administrative Procedure Act (60 Stat. 241) and the provisions of Reorganization Plan No. 5 involving the National Labor Relations Board.

Specifically, how does section 7(a) presently affect the operations of the National Labor Relations Board?

Section 7(a) of the Administrative Procedure Act specifically provides that adjudicatory proceedings under section 5 of such act shall be tried before a board member or a hearing examiner appointed under section 11 of such act. As all unfair labor practice cases are adjudicatory matters under section 5, section 7(a) is applicable to such cases.

Section 7(a) provides that the presiding officer, if not a board member, be appointed consistent with section 11 of the Administrative Procedure Act. Section 11 provides, among other things, that such officers, traditionally called trial examiners at this Board, shall be appointed subject to civil service and other laws, shall be assigned to cases in rotation so far as practicable and shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission after opportunity for hearing and upon the record thereof. It also provides that their compensation shall be prescribed by the Commission, independently of the Board.

Section 7(a) further provides that the proceedings presided over by such officers shall be conducted in an impartial manner in conformity with section 8 of the Administrative Procedure Act. Section 8 provides, among other things, that the trial examiner's decision shall include a statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record.

To what extent does section 7(a) of the Administrative Procedure Act offer protection against unwarranted delegation under Reorganization Plan No. 5?

The express retention in Reorganization Plan No. 5 of section 7(a) of the Administrative Procedure Act is assurance that the presiding officer in the trial of every unfair labor practice case shall be one or more members of the Board or a trial examiner appointed in accordance with the provisions of the Administrative Procedure Act.

What requirements of section 7(a) of the Administrative Procedure Act are saved in Reorganization Plan No. 5?

All provisions of section 7(a) of the Administrative Procedure Act are expressly retained in Plan No. 5.

The CHAIRMAN. The committee will stand in recess until 10:30 in the morning. I believe we can conclude by starting at 10:30 instead of 10.

(Whereupon, at 3:55 p.m. the committee adjourned until 10:30 a.m., Wednesday, June 7, 1961.)

REORGANIZATION PLANS OF 1961: NO. 1, SECURITIES AND EXCHANGE COMMISSION; NO. 2, FEDERAL COMMUNICATIONS COMMISSION; NO. 3, CIVIL AERONAUTICS BOARD; NO. 4, FEDERAL TRADE COMMISSION; NO. 5, NATIONAL LABOR RELATIONS BOARD

WEDNESDAY, JUNE 7, 1961

U.S. SENATE,

COMMITTEE ON GOVERNMENT OPERATIONS,
Washington, D.C.

The committee met, pursuant to recess, at 10:35 a.m., in room 3302, New Senate Office Building, Senator John L. McClellan (chairman) presiding.

Present: Senators McClellan, Jackson, and Muskie.

Also present: Walter L. Reynolds, chief clerk and staff director; Ann M. Grickis, assistant chief clerk, and Eli E. Nobleman, professional staff member.

The CHAIRMAN. The committee will come to order.

Senator Hruska, we are very glad to have you this morning. I know you are the author of one of the resolutions the committee is considering, S. Res. 147. Is that true?

Senator HRUSKA. That is true.

The CHAIRMAN. Let the record show that Senator Roman L. Hruska appears in support of Resolution 147 and in opposition to plan No. 4.

All right, Senator, you may proceed. Do you have a prepared statement?

Senator HRUSKA. Mr. Chairman, I have no prepared statement.
The CHAIRMAN. Very well. That is all right; just proceed.

Senator HRUSKA. It is a result of the occupational hazard of inordinate demands on one's time. I have some notes here and an outline which I shall follow.

The CHAIRMAN. I understand that. Just go right ahead.

STATEMENT OF HON. ROMAN L. HRUSKA, U.S. SENATOR FROM THE STATE OF NEBRASKA

Senator HRUSKA. Mr. Chairman, I appear here on behalf of the resolution of disapproval for plan No. 4, which has for its objective the reorganization of the Federal Trade Commission.

It was with interest that I read the Presidential message to Congress on all four of these plans. Some of the language read like this: "This plan will provide for greater efficiency in the dispatch of the business of the Federal Trade Commission."

143

At another point the President's language is: "The plan provides for greater flexibility in the handling of business before the Commission, permitting its disposition at various levels so as better to promote the efficient dispatch" and so on and so forth. I am quoting there. Not only in the message of the President, but likewise in previous testimony constant references are made to the need for dispatch, flexibility, and the elimination of undue delay. References are made to the serious problems of delay which now exist. I do believe that as legislators, as lawyers, and certainly as thoughtful citizens, we appreciate that the problem of volume in the Federal Trade Commission is great and it is important to try to expedite the business and eliminate delays. But I am sure, also, that we would not want to obtain any of these things by sacrificing quality in the administration of justice.

Delays which are unwarranted should not be suffered, but, on the other hand, we must have a day in court. We must have a fair trial. We must have a trial at the hands of properly constituted and qualified personnel who will sit in judgment on the people who are brought before that particular bar of justice. I believe it is agreed by most of those who have testified here, and perhaps by most of those who have some acquaintance with this field, that there will be a need for more manpower, Mr. Chairman. I don't think that is escapable. The volume has grown, and the staff has not increased proportionately. When Commissioner Sigurd Anderson testified on that point, he probably voiced the sentiment of all the members of the present Commission.

I should like to turn first to the question as to how much additional power is being granted to the Chairman. I noticed in reading the transcript of the evidence that there have been suggestions that plan No. 4 doesn't give the Chairman very much additional power; that it is really an extension of plan No. 8 which has been on the books for 11 years authorizing the Chairman to transfer or assign all of the 800 personnel of the Commission except perhaps the six or seven bureau heads and the Commissioners. So the suggestion is made that there isn't any great change or great increase in power.

I do believe that if we read the language of plan No. 8 and consider what was done there and what is now proposed, there is a vast and radical change being proposed. It is quite clear that there is. Plan No. 8, after all, was limited to the transfer from the Commission to the Chairman of the Commission the certain executive and administrative functions of the Commission. This transfer of functions is then followed by four or five subparagraphs in the reorganization plan which are not grants of power, but, rather, are restrictions upon that transfer of power from the Commission to the Chairman which limit it to executive and administrative functions. It is quite clear and I should ask consent at this time

The CHAIRMAN. You are speaking now of plan 8?

Senator HRUSKA. I am speaking about plan 8 and I should like, Mr. Chairman-I think it would be helpful to have in the record at this point the text of plan 8, so it can be compared by those who will peruse the record at a later time; so it can be compared in its language with the proposed plan that is before us.

The CHAIRMAN. The pertinent part of the text as selected by the staff may be included in the record at this point.

(The pertinent text of plan 8 is as follows:)

[H. Doc. No. 512, 81st Cong., 2d sess.]

MESSAGE FROM THE PRESIDENT OF THE UNITED STATES, TRANSMITTING REORGANIZATION PLAN NO. 8 OF 1950, PROVIDING FOR REORGANIZATIONS IN THE FEDERAL TRADE COMMISSION

To the Congress of the United States:

I transmit herewith Reorganization Plan No. 8 of 1950, prepared in accordance with the Reorganization Act of 1949 and providing for reorganizations in the Federal Trade Commission. My reasons for transmitting this plan are stated in an accompanying general message.

After investigation I have found and hereby declare that each reorganization included in Reorganization Plan No. 8 of 1950 is necessary to accomplish one or more of the purposes set forth in section 2(a) of the Reorganization Act of 1949. The taking effect of the reorganizations included in this plan may not in itself result in substantial immediate savings. However, many benefits in improved operations are probable during the next years which will result in a reduction in expenditures as compared with those that would be otherwise necessary. An itemization of these reductions in advance of actual experience under this plan is not practicable.

THE WHITE HOUSE, March 13, 1950.

HARRY S. TRUMAN.

REORGANIZATION PLAN No. 8 or 1950

Prepared by the President and transmitted to the Senate and House of Representatives in Congress assembled, March 13, 1950, pursuant to the provisions of the Reorganization Act of 1949, approved June 20, 1949.

FEDERAL TRADE COMMISSION

SECTION 1. Transfer of functions to the Chairman.-(a) Subject to the provisions of subsection (b) of this section, there are hereby transferred from the Federal Trade Commission, hereinafter referred to as the Commission, to the Chairman of the Commission, hereinafter referred to as the Chairman, the executive and administrative functions of the Commission, including functions of the Commission with respect to (1) the appointment and supervision of personnel employed under the Commission, (2) the distribution of business among such personnel and among administrative units of the Commission, and (3) the use and expenditure of funds.

(b) (1) In carrying out any of his functions under the provisions of this section the Chairman shall be governed by general policies of the Commission and by such regulatory decisions, findings, and determinations as the Commission may by law be authorized to make.

(2) The appointment by the Chairman of the heads of major administrative units under the Commission shall be subject to the approval of the Commission. (3) Personnel employed regularly and full time in the immediate offices of members of the Commission other than the Chairman shall not be affected by the provisions of this reorganization plan.

(4) There are hereby reserved to the Commission its functions with respect to revising budget estimates and with respect to determining upon the distribution of appropriated funds according to major programs and purposes.

SEC. 2. Performance of transferred functions.-The Chairman may from time to time make such provisions as he shall deem appropriate authorizing the performance by any officer, employee, or administrative unit under his jurisdiction of any function transferred to the Chairman by the provisions of this reorganization plan.

SEC. 3. Designation of Chairman.-The functions of the Commission with respect to choosing a Chairman from among the membership of the Commission are hereby transferred to the President.

Senator HRUSKA. That would be sufficient, and I am grateful to the Chairman for granting that request.