Senator MUSKIE. Do they elicit other kinds of evidence or material? Mr. CROW. No, I believe not.

Senator MUSKIE. They must take the facts as found by the Board. They may interpret them differently, but they do not adduce new facts.

Mr. CROW. That is right.

If I could put the time on it, Senator, I could find cases in which the Board has easily gotten over this credibility point, they have disbelieved the finding of a trial examiner; in other words, a finding of fact which he stated he had found because he believed one witness as against another. And I think I could give quite an extensive documentation on that.

Senator MUSKIE. Although I am interested in current practices, what I am really interested in finding out is what you think should be the situation. Are you suggesting that there ought to be new findings of fact by the Board, or an opportunity for them?

Mr. CROW. No; I am not suggesting that at all.

Senator MUSKIE. Are you suggesting that the Board ought to review the facts with the possibility that they might interpret them differently?

Mr. CROW. My broad point is that they do it every day, it seems to me. Now, I must add there, I do not practice, Senator. It has been 20-some years since I practiced law, and I never have practiced before the Labor Board. But I try to keep current with Labor Board developments in performing my responsibilities.

Senator MUSKIE. Let me put it this way, what I am driving at. We both may be articulate, I don't know. But let me put to you what I am driving at. I have been around Washington just 22 years, and am gradually beginning to learn a little bit about how to get around. But I find it a great problem, that is faced even by a U.S. Senator, getting somebody's attention long enough to make a case. No matter how good your cause is, unless you can get his attention long enough to make it, you are in trouble. Here you have got a Board that is flooded with work. You have got 1 case there, you have got 10, and to you each one of those cases is all important. But how do you get the Board's attention long enough to make your case?

Now, what we are talking about here

Mr. CROW. That is what we are worrying about.

Senator MUSKIE. This means so organizing the Board's work so that the things that the Board ought to give attention to will be given attention by the Board. Now, if you have no control at all, if you have no traffic law, no signals to go by, then all of this is going to flood the Board, and whether they happen to pick up the important things is a matter of chance.

If, on the other hand, you give them a system which would insure that the really important things by some standards come to their attention, then those things are going to get the attention that they deserve. If you have a good case, you have a good chance of winning. Mr. CROW. If you can get to the Board.

Senator MUSKIE. What I am interested in finding from you is this. I think even you would agree, if we weren't concerned with a plan, we were just philosophizing in a bull session, I think you would agree that it would be desirable to have some traffic law which would in

some orderly way insure that the important things came to the attention of this Board. Wouldn't you agree with that?

Mr. CROW. In the abstract I would probably have to, Senator, but not in the case—in the broad view I would have to agree with that philosophically, but not in the case of this particular agency. And that doesn't mean that I am opposed to this agency. But you have posed some real good questions, Senator, and I agree with you completely as to the seriousness of the problem involved, and the seriousness of the problem you folks are trying to deal with. But let's keep in mind one thing, if I may say this, the National Labor Relations Board was not created by the Congress for the convenience of the National Labor Relations Board.

Senator MUSKIE. I couldn't agree with you more.

Mr. CROW. That is right. The Board was created to decide rights of people. And in my judgment that is what makes it unique among all the so-called administrative agencies of the Government. In this agency there is only one place on the face of this earth that an aggrieved person may go for a remedy. That is the National Labor Relations Board in the code of law that it administers. As distinguished, other agencies-for example, the Trade Commission-a fellow comes in who feels that someone is committing an unfair method of competition that is injuring him. He goes to the Trade Commission, and the Trade Commission may or may not proceed on the basis of that complaint. But that man still has a common-law remedy, he can go into the district court of the United States, or the State court, perhaps. But here there is no place literally no place to go, since in the area of jurisdiction exercised by the Board it is exclusive by the statutory scheme.

And secondly

Senator MUSKIE. I know of such cases under FTC, too, where there is no place to go if the Commission doesn't act.

Mr. CROW. There may be some, Senator. But I have a feeling that I could find a common-law remedy to prosecute as a plaintiff in areas where the Commission has jurisdiction, such as false advertising. If false advertising is hurting me, I think I can go in and find an action to proceed on.

Senator MUSKIE. Unfair competition?

Mr. CROW. Unfair competition-certainly, it is clear, the Clayton Act, any person can come into court for a remedy.

Senator MUSKIE. But that is not common law.

Mr. CROW. In that area; no. But the fact remains that the Congress has given another remedy to this individual. He doesn't have to lean solely on the Trade Commission.

I think you get my point. This is exclusive. There is no election of remedies available to a man here. He can't go to the State court and alleged violation of the labor law because of the preemption doctrine laid down by the Supreme Court. There is just no place to go. That is why I say in my judgment this is a completely unique experiment in Government.

The CHAIRMAN. May I ask you one question?
Mr. CROW. Certainly.

The CHAIRMAN. If I understand it-and correct me if I am wrong— I think we understand by trial de novo that the tribunal hears a case as if it had never been tried before?

Mr. CROW. Right.

The CHAIRMAN. And no proceeding had ever been had in the case. The review de novo would be to review the record made and not to take new testimony; is that right?

Mr. CROW. That is certainly my understanding, Senator.

The CHAIRMAN. In other words-what is this word about any substantial evidence? To get the facts reviewed, if you go to the court. Mr. CROW. I have the language right here, Senator.

The CHAIRMAN. But what I mean is, you are talking about if-for instance, the Board declines to review the decision that has been made by the trial examiner, a review is sought and the Board declines to review it, then the only remedy of the aggrieved is to go to court. Mr. CROW. Yes, sir.

The CHAIRMAN. But when he gets to the court, if there is any substantial testimony, not a preponderance, but if there is any substantial testimony to support the examiner's finding of fact, the court is bound by his finding. Am I right?

Mr. CROW. Exactly, Senator.

The CHAIRMAN. And here the findings of the Board with respect to a question of fact in this instance, if the Board didn't review, it would be the findings of the trial examiner.

Mr. CROW. Right.

The CHAIRMAN. The findings of the Board-and I might insert there, the trial examiner with respect to questions of fact supported by substantial evidence on the record considered as a whole shall be conclusive.

Mr. CROW. Conclusive.

The CHAIRMAN. Now, I am just trying to draw an illustration here. If three witnesses or four witnesses testify, and the majority of those witnesses say the thing happened, whatever it was. Maybe one says it didn't happen. The examiner, the trial examiner finds and says, well, what the one said is true. Now, that wouldn't be the preponderance of witnesses, it might still be the preponderance of credible testimony, of witnesses worthy of credibility.

Mr. CROW. That is right.

The CHAIRMAN. But that is the thing that couldn't be reviewed, because there would be substantial evidence, if it is only of one witness, to sustain it. Am I right?

Mr. CROW. You are right, Senator.

The CHAIRMAN. Now, the other three, or the other two, were just as credible and worthy of belief as the one. Then normally a court would set aside that finding of fact-I say normally, I mean if it is based on a preponderance of evidence-it would certainly set aside if you had two witnesses saying it was a certain time of day and another one saying it was a different time of day, and the two were just as credible as the one, that would constitute a preponderance of the evidence, maybe. But the point I am making is, there is no review of the finding of fact if there is substantial evidence to support that finding. Is that where the problem is here in this review of facts? Mr. CROW. In my mind that is the hub of the problem.

The CHAIRMAN. If they grant a review the Board doesn't have to take that finding of substantial evidence on the part of the trial examiner.

Mr. CROW. That is right.

The CHAIRMAN. They can rule that even though it is substantial, the preponderance of evidence was the other way, or they can just take the other as more substantial and make a review and reverse that finding. Your contention is, as I understand it, that the aggrieved, if the issue is a case of fact, not law-but here a group of witnesses testified on one side to one state of facts, and here are other witnesses testifying absolutely to the opposite, and the court is bound by the examiner's finding. The Board is not bound by that finding, the Board can review the facts. And if the Board refuses to review, your contention is that the litigant, the aggrieved has no place to go to get a review of the facts?

Mr. CROW. Absolutely.

The CHAIRMAN. And the final decision, therefore, rests with the trial examiner?

Mr. CROW. Right.

The CHAIRMAN. Is that your position? Mr. CROW. That is exactly my position, Senator. The CHAIRMAN. Now, that is a problem here. Of course, if the Labor Board accepts the review, then the authority under the statutes now is lodged in it, and it can review those facts. But if it declines, the point we are making is that there is nowhere the aggrieved can go to have those facts reviewed.

Mr. CROW. Exactly my point. And he can go clear to the U.S. Supreme Court and he will not get a review of that question.

The CHAIRMAN. That is the point I thought you were making. Now, the members of the Board are here, and if anybody disagrees with that, I want it pointed out for the record.

While we are on this question-and we want to get through, because we want to finish this afternoon if we can there are two questions I want to ask you submitted by Senator Mundt. I don't know whether they have been covered or not.

Question 1: As you know, the other reorganization plan proposed to authorize the agencies involved to delegate broad authority to the chairman of each agency. Plan No. 5 does not specifically authorize increased authority to be delegated to the Chairman of the Labor Board. Do you believe the same result can be achieved under plan 5 even though it does not contain a specific provision relating to the Chair?

Do you understand the question?

Mr. CROW. Yes, I think I do, because there has been earlier conversation on this question.

The CHAIRMAN. And you know what he is talking about then. All right.

Mr. CROW. In my judgment the same result could be brought about. The CHAIRMAN. Then will you state why briefly?

Mr. CROW. Well, I think that the literal language of plan would so provide. The only question is whether or not the Board as such would delegate this authority. But I say they can delegate it.

The CHAIRMAN. In other words, you wouldn't have the power under the language of the reorganization plan, but the language of the re

organization plan in your judgment empowers the Board to delegate to the Chairman such powers?

Mr. CROW. Yes; any and all of the functions that are included in section 1(a) of the plan, because to me it is like adding 2 and 2. I am not saying

The CHAIRMAN. I am not arguing, I am just trying to get a clear answer to this question.

Mr. CROW. I understand, sir. I am not saying this is what they will do. I am only contending that this is what they can do. The CHAIRMAN. You think they can?

Mr. CROW. In the plan it says that the Board may delegate any of its functions to a Board member, a panel, a member, and obviously the Chairman is a member. Therefore I have to conclude literally they can.

The CHAIRMAN. So your contention is, under this language the Board itself could delegate any power the Board possesses to the Chairman?

Mr. CROW. Yes, sir. That is my interpretation of it.

Senator MUSKIE. At this point may I ask this, Mr. Chairman? The CHAIRMAN. Yes, sir.

Senator MUSKIE. This question was raised this morning and testimony by Stuart Rothman, General Counsel for the National Labor Relations Board, before the House committee was offered in support of this conclusion. I think it is only fair to include at this point in the record a letter subsequently written by Mr. Rothman to Congressman Dawson on June 14, 1961, which appears in the hearings before the House Committee on Government Operations at page 18. I would suggest that this letter be made a part of the record.

I think this letter when we read the record will be helpful. The CHAIRMAN. The letter will be made a part of the record at this point.

(The letter referred to follows:)

NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., June 14, 1961.

Hon. WILLIAM L. DAWSON,
Chairman, Subcommittee on Executive and Legislative Reorganization of the
Committee on Government Operations, House of Representatives, Washing-
ton, D.C.

DEAR CONGRESSMAN DAWSON: I have read the transcript of my testimony before the subcommittee considering Reorganization Plan No. 5 for the National Labor Relations Board. My answer to one of Congressman Brown's questions concerning the power of the Board to delegate its functions to the Chairman (transcript, p. 26) may be misunderstood. I should like, therefore, to make

clear that as I read it, the plan empowers the Board to delegate any of its functions to the Chairman only to the same extent that the Board is authorized to delegate those functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board. The power to delegate under the plan, as I interpret it, is vested exclusively in the Board and may not be delegated to the Chairman or any other individual.

I shall appreciate it if this amplification of my remarks is included in the record.

Sincerely yours,

STUART ROTHMAN, General Counsel.

The CHAIRMAN. The next question, question 2 submitted by Senator Mundt, who couldn't be here this afternoon :

Questions have been raised as to whether the authority of the President to submit organization plans under the Reorganization Act in