APPENDIX

The record of the acceptability of trial examiners' work speaks for itself. Disposition of trial examiners' intermediate reports in unfair labor practice cases

It is evident from the above study covering 3 representative fiscal years that approximately 76 percent of the findings of fact, conclusions of law, and recommendations of trial examiners are either accepted without review being sought by the parties or upon review are affirmed by the Board in full.

Approximately another 14 percent are affirmed in part. This amounts to approximately 90 percent being accepted or affirmed, in whole or in part.

The remaining 10 percent constitute reversals in about 7 percent and remands in 3 percent of the cases.

The CHAIRMAN. I may say to my colleague that I have sent word to the representatives of the Board that they can come back in the morning to be heard. I have a conference in about 15 or 20 minutes, and I will have to go to it.

Miss Humphrey, will you come forward?

Will you please identify yourself for the record, and then you may proceed.

Do you have a prepared statement?

STATEMENT OF HELEN F. HUMPHREY, ATTORNEY AT LAW, WASHINGTON, D.C.

Miss HUMPHREY. I do not have a prepared statement. And I shall be very brief.

The CHAIRMAN. I want everybody to say whatever they want to as long as it is pertinent. But we are all crowded for time. Sometimes, you know, we even have to agree to a unanimous-consent agreement not to talk over on the floor of the Senate.

Will you identify yourself for the record and proceed?

Miss HUMPHREY. My name is Helen F. Humphrey, and I am an attorney in private practice in Washington. I represent employers exclusively, because the employers are the clients who come to me, not from any particular choice on my part.

I am representing myself here today, and I am not appearing on behalf of any client. And my comments are those of myself based upon my own experience.

Briefly, by way of background, since my admission to the bar at the end of 1938 I have been exclusively engaged in the practice of law before the National Labor Relations Board and before the courts involving National Labor Relations Board matters. About half of that time has been spent as an attorney for the Board, where I was chief law officer in St. Louis, Philadelphia, and New York City, both under the Wagner Act and under the Taft-Hartley Act. And half the time has been spent in the private practice of law, during part of which I was associated with the late Robert Denham in private practice, who was at one time General Counsel for the National Labor Relations Board.

As I say, I am testifying as an individual. My primary concern is with your acceleration of Board decisions. In the interest of good labor relations, and to prevent the delays which exist in the process of the Board cases and which result in disturbed labor relations and unrest in the industrial facilities which my clients operate, I feel that such delays are impediments to full production with good employeremployee relationships, which is the primary objective of private industry.

The fundamental reason I differ from my colleagues representing management before the Board results, I believe, from this situation. I am primarily what one might call a plaintiff's attorney. Before the National Labor Relations Board attorneys perform two functions for inanagement, either they appear on behalf of their clients defending unfair labor practice charges filed against them by unions in which the Board may issue complaints and the trial examiners may issue recommended intermediate reports with their recommendations, and the Board decisions, or employers' attorneys may represent the charging parties in cases filed against labor organizations to attempt to remedy the abuses which the Taft-Hartley Act and the LandrumGriffin amendments have attempted to remedy by the provisions of the

statutes.

Now, in addition to representing general employee complaints, I represent two associations which include both organized and unorganized employers. So that a good deal of my work is involved in my protecting them against the actual or expected abuses of the labor organizations.

To be sure, I defend them when cases are filed against them. And under those circumstances I litigate extensively before the National Labor Relations Board as a respondent attorney as well. But my concern in having cases accelerated before the Board is as a representative primarily of employers who are charging parties who have invoked the processes of the Board against abuses of unions which have been set down by Congress and labeled unfair labor practices since 1947 in the so-called Taft-Hartley Act and its amendments.

Practically throughout the years where clients are charged with unfair labor practices, employer clients, those of us who have been engaged in this practice extensively attempt to settle the ordinary easy case so that it does not get litigated and is not made the subject of a decision by the Board or recommendation by the trial examiner. Addressing myself first to that type of case, I am nonetheless of the opinion, albeit we all know that the defendant's attorney is interested in delay as the plaintiff's attorney is interested in speed, addressing myself to that type of case, I should say that this plan no more thar

embodies what as a practical matter has become the practice of the Board, except that under this law the Board is obliged to make a de novo review of the decision. The results, I suggest, would not be substantially different. The time consumed would be substantially different.

Congress laid down the standards on the basis of which the courts review Board decisions, and I am engaged in fairly extensive practice before the courts of appeal in Board cases on both sides of the fence, where my clients have been found guilty of unfair labor practices, and where we are prosecuting cases along with the Government against unions, and where in the district courts, in the secondary boycott cases, we are parties as a matter of right under section 10(1) of the statute in these injunction cases.

Now, insofar as the weight accorded by the Board to trial examiners' credibility findings is concerned, the Supreme Court has long ago set forth in the Universal Camera and the Pittsburgh Steamship cases the quantum to be accorded the determinations of trial examiners insofar as the credibility is concerned. So that from a practical point of view, if the Board is faced with a question which is a pure credibility question, albeit it must review from the trial examiner'sthe record supporting the trial examiner's recommendations—nonetheless from the practical point of view most of us advise our clients that if the trial examiner finds against us on credibility grounds, we might as well forget about the likelihood of prevailing before the Board and surely before courts of appeal.

So that insofar as that area of cases is concerned, the time that is consumed is the time that is necessary under the statute to review every word of sometimes a thousand page or more transcript to decide whether or not the trial examiner is right, whereas under the standards established by those cases, the Board 9 times out of 10 will affirm credibility findings on the part of the trial examiner.

As I say, I'm concerned more with the other type of case, where my clients have filed charges alleging that the union has violated the act. Now, it is true, as Mr. Harris suggested this morning, that in some of those cases there is an immediate relief to the charging party because the general counsel is obliged to go in and procure a temporary restraining order until final action by the Board. The practice is not as wide as Mr. Harris indicated, because in jurisdictional disputes, which are very widespread, it is up to the discretion of the general counsel, with certain qualification, as to whether he will seek a temporary relief in a district court to maintain the status quo until the Board acts. However, even in secondary boycott cases, where there is initial relief supported by the General Counsel getting an injunction under section 10 (1) of the act in the district court, it is of the utmost importance to my client that there be a prompt Board determination in these situations.

In many cases, cases involving refusal to bargain in good faith on the part of the union, cases involving union pressures to discharge an employee illegally, pressures upon employees of a coercive nature which are interfering with the general labor relations picture, there is no temporary relief available to employers, and it is necessary to go through these long-drawn-out Board processes to determine what the rights of the parties are, and to have the practices cease.

Now, it is in those cases I feel that it would be of great importance to management to be able to have prompt relief.

I point out to you that in the case of an association which I represent, where extensive negotiations are going on with unions, there is a repeated pattern of the refusal to work overtime, or a strike on the part of one union to compel the employer to enter into clauses which are illegal clauses, not necessarily hot cargo clauses, where there is available the kind of immediate relief that Congress has now set up under Landrum-Griffin so that we can go in and get a temporary restraining order to stop that, but clauses which are illegal because they compel the employer to give preference to the negotiating union and to discriminate against its employees who are not members of that union, or to grant recognition to that union for employees whom it does not have and who may be in the jurisdiction of another union— all such clauses are made the subject of negotiations and the subject of strikes.

Now, again and again I say to my clients that in that area it is useless to go in and file charges, although the strikers in an unfair labor practice strike under the Board precedents, because in those situations the long delays involved mean from a practical point of view that the relief is a useless relief.

I haven't attempted to document extensively this widespread experience. But I can call the committee's attention to a case involving the International Woodworkers of America which was reported in 116 NLRB at 507. The intermediate report came down on February 16, and it wasn't until August, which is a relatively short time for Board decisions, before the Board decision came down on the basis of which the Board could go into the circuit court and get injunctive relief agaist widespread violence on the part of this union throughout several locations in Alabama.

I call the committee's attention also to a case involving the Amalgamated Lithographers Association, Local 2, where the intermediate report came down on April 23, 1959, and again there was a 4-month delay before the court decision came down on a stipulated record, mind you, and it was possible at that point to have the Board go in and ask for permanent relief of an injunctive nature.

As a matter of fact, there is a case where I argued before the Board on January 23, 1959, a jurisdictional dispute case, and the Board has as yet issued no decision in the case. There is some justification there, because 2 months ago the Supreme Court came down with a decision which possibly will result in the remand of that case. What I suggest in these situations where there is no mandatory, temporary relief under the existing statute employers don't utilize the Board's process because it is useless to do so, because the situation has become moot by the time the Board has handed down a decision.

Now, if the intermediate report in these cases I have cited to you where there are no substantial issues, if on the basis of standards we of management and we of labor would have an opportunity to be heard before the Board, if there were in those cases weight accorded to the trial examiner's report, that is substantially the weight accorded to the Board decision now with only this discretionary review available, I feel that there would be much more justice on the part of the law, and that the intent of Congress under these cases, under these laws

which have been executed to ameliorate that sort of thing, would be given full effect.

It is the staff and not the Board that reviews these cases, as the testimony here has indicated. And I personally would far rather have the tentatively ultimate decision made by an experienced trial examiner who has seen the people and has had experience with the realities of the world than some often young and inexperienced Board member's legal assistant who is the one who makes these determinations on appeal. And some of my best friends are Board members' legal assistants.

I see nothing in the proposed reorganization plan which would in any way affect the protection of section 5 of the Administrative Procedures Act, nor of section 11, which has to do with hearing examiners, nor of section 12 of that act. To answer the question which has been placed to a number of other witnesses as to whether the plan is a statute within the meaning of the Administrative Procedures Act, section 7(a), I think that is a matter of semantics, and isn't necessarily depositive of the question which is really asked, which is, whether this would permit a delegation of the hearing examiners' activities to some GS-9 staff person. In my opinion it could or would not. And I direct the committee's attention to the statement of the Attorney General on the administrative procedures-in his manual on the Administrative Procedures Act, where he points to just this kind of a statute, and says that it does not negate section 7(a) of the proviso. I have had personal experience under the Defense Production Act where I served as Chairman of the National Enforcement Committee of the Economic Stabilization Agency. There the Defense Production Act had an express exclusion of the employees serving as commissioners under that act in enforcing wage and salary regulation violations from the Government of the Administrative Procedures Act. In my opinion that and only that is what the proviso to section 7(a) contemplates.

Now, Senator McClellan has gone, but he has asked the question as to whether a larger Board would solve this question. My feeling is no, because the review is not by the Board, it is not by the limited capacities of the Board, but by the Board members. And the staffs would be obliged to review cases even if there were a larger Board, and of course questions of importance should and would be decided by the Board as a whole. So I am not of the opinion that a larger number of Board members would solve this problem in any way.

I am very reluctant to engage in ad hominem argument, but this has been raised here today and yesterday, and because it has been raised I feel obliged on the basis of 22 years of practice before the Board to make some comment in regard to the attacks upon the capacity of the hearing examiners which have been put in issue here. I should say that with at least 85 percent of these men I have either tried cases before them, either as a Government attorney or as an employer's attorney, or had people who were working under my immediate direction trying cases before them, or have been otherwise closely associated with them professionally throughout the length of their service with the Board. This excepts perhaps the last six or eight appointees.

On the basis of that, and on the basis of extensive experience in these proceedings before Federal district judges, I feel that they