cludes authority to submit plans dealing with agencies such as the National Labor Relations Board. Would you express an opinion on this?

First, let me ask you if you are a lawyer?
Mr. CROW. Yes; prima facie.
The CHAIRMAN. Very good.
will assume you are qualified.

I will let you express an opinion. I

Mr. CROW. Prima facie, Senator.

Again I feel that there is a serious question

The CHAIRMAN. Just give a brief opinion and give us your reasons for it. I want to move along here.

Mr. CROW. I understand, sir. And I will do my best on it.

I think there is a serious question as to whether the type of reorganization plan embodied in No. 5 particularly is covered by the organic act and by that I mean, of course, the Reorganization Act as extended. To get to this conclusion I rely on the definition of agencies in the Reorganization Act itself, which is found in section 7 of that act, and I am reading from your report to accompany Senate Resolution 147, which dealt with the Trade Commission.

The CHAIRMAN. How does that act define "agency"?

Mr. CROW. I was just about to read that. That section 7 defines an agency as

Any executive department, commission, council, independent establishment, Government corporation, board, bureau, division, service, office, officer, authority, administration, or other establishment, in the executive branch of the

Government.

The CHAIRMAN. That is the question that is raised as to whether this Board is in the executive branch of the Government?

Mr. CROW. Yes.

The CHAIRMAN. That raises the issue?

Mr. CROW. In my judgment it does very clearly, Senator. And may I take just a moment more on that?

When the Wagner Act was enacted in 1935, the Senate bill had language-well, perhaps the easiest way and the most clear-cut way to present this is to read from the conference report on the part of the House on the legislation which became the Wagner Act of 1935. For citation and record purposes, that is conference report to accompany Senate bill 1958, House Report 1371, 74th Congress, 1st session, page 4. Now, section 3 (a) of the Senate bill provided-and this is a quote from the bill:

There is hereby created as independent agencies in the executive branch of the Government a board to be known as the National Labor Relations Board.

House amendment No. 6 strikes out the phrase "as an independent agency in the executive branch of the Government." The Board as contemplated in the bill is in no sense to be an agency of the executive branch of the Government.

The CHAIRMAN. What are you quoting when you say that?

Mr. CROW. The conference report on the Wagner Act on Senate bill 1958 of the 74th Congress.

The CHAIRMAN. That is the act originally creating the Board?
Mr. CROW. Exactly, sir.

It is to have a status similar to that of the Federal Trade Commission which, as the Supreme Court pointed out in the Schecter case, is a quasi-judicial and quasi-legislative party. The conference agreement accepts this amendment.

Now, with respect to the Trade Commission, there is very little in the decisions, at least that I have found, on what manner of creature have you here. But I think this conference report indicates certainly that Congress did not intend the National Labor Relations Board to be a part of the executive branch of the Government. I think that is just so clear that it doesn't require further argumentation.

Now, with respect to the reference made by the conferees in the report citing the Trade Commission cases, the Supreme Court, rather, in relation to the Trade Commission, in Humphrey's Executors v. United States, which was a case arising as to whether or not the President had authority to remove a Commissioner just because he wanted to replace him, and not alleging the grounds as stated in the statute for removal, in that connection this is what the Supreme Court had to say:

Thus, the language of the Trade Commission Act, the legislative reports, and the general purposes of the legislation as reflected by the debates, all combine to demonstrate the congressional intent to create a body of experts who shall gain experience by length of service, a body which shall be independent of executive authority, except in its selection, and free to exercise its judgment without the leave or hindrance of any other official or any department of the Government.

Continuing to quote from the same decision but in a different area of the opinion:

The Federal Trade Commission is an administrative body created by Congress to carry into effect legislative policies embodied in the statute, in accordance with the legislative standard therein prescribed, and to perform other specified duties as a legislative or as a judicial aid. Such a body cannot in any proper sense be characterized as an arm or an eye of the Executive. Its duties are performed without Executive leave, and in the contemplation of the statute must be free from Executive control.

Both these quotations, both these paragraphs are from Humphrey's Executives v. United States, 295 U.S. 602. The first one is at page 626, and the second quote is at page 628.

The CHAIRMAN. You raised a question here of the authority of the plan-whether authority exists for the plan to be submitted. Now, if you are correct in that, anything that is done under this plan that differs from the existing statute would be an illegal act.

Mr. CROW. It would be a nullity.

The CHAIRMAN. In other words, it would be subject to court attack. Mr. CROW. Certainly. And in this question, for example, which is basic and I have no doubt will be raised the first time anyone has an opportunity to raise it-and all these others, how in the world do you expect to eliminate delay by putting into effect a plan which is bristling with problems of this character?

The CHAIRMAN. That is all right, I want the staff to make some check on this question, pursue these authorities cited here and make some check on it, because if that question was raised it would actually resolve itself in a matter of opinion no doubt among the Members of the Senate.

But you raise a question here that hadn't occurred to me. There is no authority-in other words, there is a lack of jurisdiction--if not, then you go on to the merits of it. And, of course, nobody is going to decide what action will be taken on this plan except the Senate itself. Later the Court may have to decide some question.

Senator MUSKIE. May I ask-I suppose the staff has some idea-the Reorganization Act itself

The CHAIRMAN. I thought we ought to get this legal question. Senator MUSKIE. I would like to get the witness' reaction.

The CHAIRMAN. He has it here.

Mr. CROW. I don't have it, I have the Administrative Procedure Act.

Senator MUSKIE. I have listened to your citations here, and as the chairman pointed out, this question has not been raised with this documentation before. So let me ask you this.

I think maybe you have already covered this point in your testimony. I was going to refer to section 7 of the Reorganization Act, which is Public Law 109, 81st Congress, which reads as follows-and I think maybe you have already put this language in, but let me read it anyway:

When used in this act, the term "agency" means an executive department, commission, council, independent establishment, Government corporation, board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government, and means also any and all parts of the municipal government of the District of Columbia except the courts thereof.

This language raises a question with regard to the executive branch. But the use of the words "commission," "board," and "independent establishment" up to this point at least has persuaded me that

The CHAIRMAN. The only question is whether it embraces their being in the executive branch of the Government.

Senator MUSKIE. The question I raise is, how can an establishment be "independent" and also in the executive branch?

Mr. CROW. Senator Muskie

Senator MUSKIE. Let me ask you this. This is an interesting thing. On the Federal Maritime Commission plan there is this language in section 101 of Reorganization Plan No. 7, as follows:

The Commission shall not be a part of any executive department under the authority of the head of any executive department.

There is still a question of whether or not it is part of the executive branch.

Mr. CROW. Right.

Senator, if I may say this, naturally as a lawyer, when I was examining this plan

Senator MUSKIE. You make a living out of confusion of the words? Mr. CROW. No. I don't mean it that way at all. I repeat, I don't practice, so I can't create confusion, you see, even assuming that that is the purpose. But as a lawyer, the first thing I did was to inquire, is this the executive branch of the Government. And I came to this definition of "agency" that you have just read, and stopped-and I am referring now to my testimony on the House side of this very plan. And when I came to the term "independent establishment" I stopped, because I thought, well, that takes care of it. And it wasn't until the last couple of days that I got the idea of inquiring, what did Congress mean to do when they set up this particular body. And that is the only reason that I happen to have this little bit of legislative history on the conference report. And all I can say is that on the basis of that conference report, and eliminating the phrasing in the Senate bill which did create an independent agency in the executive branch

of the Government, eliminating that, and in the light of what the conferees said, I can't conceive of their being any question as of now, at least as to what Congress intended. Now, whether or not my interpretation is correct and will be finally upheld at the moment to me is immaterial. I am suggesting that this will probably be one of the very first issues raised in the first case in which someone is dissatisfied with the Labor Board or any other agency with this curtailed review.

The CHAIRMAN. In other words, the first case where a review is denied?

Mr. CROW. Yes, sir.

The CHAIRMAN. Why, that could become a test case on the basis that this Reorganization Act is valid.

Mr. CROW. If it were my client, Senator, I would feel duty bound to raise the question.

The CHAIRMAN. Any lawyer conscientiously representing his client who wanted to test it would be duty bound to do so.

Mr. CROW. I think so, sir.

Senator MUSKIE. It is a lawyer's job to raise questions, as you have. The CHAIRMAN. That is right. He was neutral until he was employed.

Now, can you conclude your statement by inserting the rest of it in the record?

Mr. CROW. I just have a little more here, I am not going to read it. The CHAIRMAN. I did want to hear another witness. I am going to have to leave pretty soon, and it looks like we are going to have to finish in the morning. But I have done as much as anybody else to delay it, I have asked a lot of questions. I will take the blame. You get into this thing and you get interested.

Mr. CROW. We are all interested in this, Senator.

I will skip to page 8 of the prepared statement.

The CHAIRMAN. All right.

Mr. CROW. A second reason given by the Board to justify Reorganization Plan No. 5 is that

An immediate, important, and practical benefit of making trial examiner decisions subject to review on limited grounds would be the substantial saving of time in decision making.

In this regard, the Board points out that under present procedures, as well as under the proposed "discretionary review" procedures, the time from filing complaint to issuance of the trial examiner's decision would be the same, 190 days.

The Board also says that with the—

reduction in backlog in the trial examiners' division, it is estimated that the average time from close of hearing to issuance of the trial examiner's decision will be cut from the present 100 days to 60 days, or a reduction from filing of charge to the trial examiner's decision of 150 days.

No explanation is given as to why a reduction in the backlog in the trial examiners' division may reasonably be anticipated. In fact, it is impossible for us to comprehend how the trial examiners' backlog of cases can be reduced under the proposed delegation when the Board itself predicts a growing of cases to be filed with it. In this regard, the Board stated:

For the first 10 years of the Taft-Hartley Act, 1948 to 1957, the number of petitions and charges filed each year averaged 13,800. Then in 1958 the cases

filed jumped to over 16,000, soared to 21,000 in 1959 and 1960, are expected to exceed over 22,000 in 1961, and in fiscal 1962 are expected to exceed 23,000.

We suggest that the committee might inquire of the Labor Board how it can so confidently forecast a reduction in the trial examiners' backlog when, as it states, the

annual case intake rocketed from 13,000 to 23,000, or a jump of 10,000 cases in 5 years.

It may be conceded that the proposed delegation of final decision to trial examiners could save some time on the part of the Board members. At the same time, it seems likely that any lessening of the Board's burden in reviewing trial examiners' decision will only add to the burdens of the courts of appeals where review can be had by any party as a matter of right. That this suspicion is not unwarranted is, in our judgment, shown by the Board's statistics to the effect that 76 percent of examiner decisions are appealed to the Board and that Board decisions reviewed by Federal courts exceeds the total for all other administrative agencies combined.

Now, in this connection, if I might digress from my statement, allegations have been made more, particularly as I recall it before the House Committee on Government Operations than here, that the culprit, the villian who is seeking delay in taking pro forma review from the trial examiner's decision, is the employer.

Now, one of my associates sought from the Labor Board statistics, if they had them, to show who it was that was appealing to the Board in this 76 percent of the cases which were appealed, whether it was employers in predominance, unions, employees, or what. And we didn't expect that they would have them, and it wasn't intended to be an unfair request, if they had them we sincerely wanted to have them in order to have an authoritative statement of the situation. Since they did not have statistics, one of my associates took the latest bound volume of the Labor Board reports, which is volume 127. That covers the decisions of the last quarter of fiscal 1960. In that volume there were 105 unfair labor practice cases in which exceptions were taken to the trial examiner's report.

Now, the breakdown of those cases in which review was sought showed the following. The total cases were 105; the total exceptions filed were 158. That means, of course, that more than one party took exception to a particular report.

Now, of that number, 158, the exceptions filed by the General Counsel of the Labor Board were 50, in 50 of those cases; by unions, in 34 cases; by employers, in 71 cases; by employees, in 3 cases.

Now, in percentages, the General Counsel of the Board excepted from trial examiners' decisions in 50 percent of the cases. Unions took exceptions in 21.5 percent of the cases; employers, 44.9 percent of the cases; employees, in 1.9 percent of those cases.

So that I bring these figures in, gentlemen of the committee, to indicate only that while employers certainly take their share of the exceptions, it is neither fair nor accurate to state as almost a fact that it is the deliberate purpose of employers to file exceptions for the purpose of delay when, as a matter of fact, exceptions are taken by employers in 44.9 percent of the cases dealt with in this volume, which leaves, of course, 55.1 percent of the exceptions which were filed by others than employers.