compare favorably in their capacities with Federal district judges. And I would like to speak as an attorney who has practiced extensively before them, and who has literally tried hundreds and hundreds of cases before them, as one who believes that they are competent, able men. And I have no reluctance to have my client's rights in the ordinary routine case determined in the first instance with only this limited right of review by the incumbents of the hearing examiners' jobs.

I thank in substance that covers the points that I wish to make before the committee here today.

Senator MUSKIE. Miss Humphrey, may I ask you for one comment. With respect to the grounds for review which are now in effect with respect to representation, do you think the same grounds would be reasonable in unfair labor practices, or would you suggest changes? Miss HUMPHREY. I am not prepared to suggest specific changes. I think in general they are sound standards. I believe in some of our bar association activities other standards have been suggested. I can't recall just now whether it is in the American Bar Association committee reports in the past, I believe not; I think that is still under consideration under the labor laws section of the American Bar Association. But embodied in the so-called Jenkins report and in the Cox report, I think, are the elements of perhaps other standards that might be included. However, I understand that the Board plans to do, if this plan is adopted, what it did in regard to representation cases, and permit all of us on both sides to have an opportunity to be heard as to the standards that it adopts.

Furthermore, I think there is little ground to the theory that those standards will be inadequate, because we have the Administrative Procedure Act, we have the Taft-Hartley Act, and we have the Constitution to see that the Board properly executes its discretion in adopting such standards.

Senator MUSKIE. With respect to such standards as they are adopted, in the event any two members of the Board wish to review cases that do not fall within those two members, do you think those two members are operating?

Miss HUMPHREY. My opinion is-and it has been formed since I heard that question directed to other people, and purely on the basis of my own interpretation of the proviso, I believe, because it is in the nature of a proviso, attached to the discretionary right of the Board to allow review-that it would be limited to the discretionary right of review. Nor am I concerned with lobbying Board members down the hall on this kind of thing, because, just as I have presently in representation cases filed with the Board a motion to review a determination by a regional director, and I feel certain that it will be acted upon by the Board in good faith, whichever way they decide it, so I feel that the two members will on the agenda in the ordinary fashion raise the issue, but my off-the-cuff opinion would be that because of this proviso to the discretionary right of the Board, that it would perhaps I misspoke myself a minute ago it would enlarge that, because it is a proviso attached thereto.

Senator MUSKIE. Have you given any consideration at all to the question raised by the preceding witness, Mr. Crow, as to whether or not the Reorganization Act authorizes a reorganization plan affecting decisions?

Miss HUMPHREY. I have given no study to it, but in hearing the testimony and the case on which you relied, and the legislative history on which you relied, I do not believe that the statement that the Board is not an executive agency in that sense means that it is not an executive agency within the meaning of the Reorganization Act. I believe the Humphrey case specifically, which I have not heard referred to since I left law school, refers to the fact that the Executive may not dominate and interfere with the exercise of discretion delegated by Congress to an administrative agency, and has no connotation beyond that.

Senator JACKSON (presiding). I thought the Humphrey case merely held that the President had no authority to remove the Board member, and in that case there was a former Congressman from the State of Washington, I think, that served on the Federal Trade Commission. Miss HUMPHREY. My recollection was that it was a Post Office case. Senator JACKSON. I think that is what the Board held, actually. Miss HUMPHREY. That was the holding. But I do not believe that it went beyond

Senator JACKSON. It didn't go beyond that, it merely held that it was for a term, and that the President cannot remove Mr. Humphrey for Mr. Humphrey's purposes, it was moot, I think he got compensation for the period in which he had been removed, but he was actually removed, I believe.

Miss HUMPHREY. That was the holding in that case. And actually my comment was directed toward the other quotation, which was the Wagner legislative history referring to the-and the other agency was referred to in there.

Senator JACKSON. I want to commend the witness for the testimony. I take it that your point here is that the crucial thing in connection with the procedures under the NLRB is that, for the most part at least, the hearings before the trial examiner, except on a clear-cut question of law or clear erroneous finding on the part of the examiner, that the examiner is a pretty important factor in the whole business. Miss HUMPHREY. From the practical point of view, that is my opinion, and that is the way I advise my clients.

Senator JACKSON. And when he makes his findings on a question of fact, the credibility of a witness and so forth, the opportunity for a reversal later on is pretty nil. The only thing that happens is that the Board gets stuck with a lot of cases that are delayed or held up. Is that a fair summary?

Miss HUMPHREY. In substance that is true, and, of course, the situation in which he determines a case on the basis of law on theI am thinking, for example

Senator JACKSON. I understand that. On questions of law, of course, the Board has a chance to review it, and can reverse them, and the Board has to follow, or does follow its own precedents-it may not, it may change its precedents, but it has, in any event, to follow the decisions of the court. But on questions of fact, whether the witness was right or wrong as opposed to another witness-this becomes in many cases the crucial question.

Miss HUMPHREY. In conclusion, a good example, the Board has in certain cases involving the interpretation of section 8(e) of the socalled Landrum-Griffith Act held that certain language such as "hot

cargo" within the meaning of that act is illegal. Charges are pending involving that identical language in many, many cases.

That is the sort of situation where a trial examiner on the basis of established precedent can make a determination. Any delay, if the case should go under those circumstances to the trial examiner, why the Board would have to read the entire report in the case and start all over again, would seem absolutely unnecessary.

Senator JACKSON. Thank you very much.

Senator MUSKIE. Thank you.

Senator JACKSON. The committee will stand in recess until 10 o'clock tomorrow morning, and at that time it is anticipated the hearing will conclude.

(Thereupon, at 4:50 p.m., the committee adjourned, to reconvene at 10 a.m., Friday, July 14, 1961.)

REORGANIZATION PLAN NO. 5 OF 1961: NATIONAL

LABOR RELATIONS BOARD

FRIDAY, JULY 14, 1961

U.S. SENATE,

COMMITTEE ON GOVERNMENT OPERATIONS,

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

Present: Senators McClellan, Jackson, Muskie, Mundt, Curtis, and Javits.

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.

We will resume where we concluded yesterday. Who is the next witness, Mr. Counsel?

Mr. NOBLEMAN. Mr. McCulloch, Chairman of the NLRB.

The CHAIRMAN. Mr. McCulloch, come around, please.

If you have members of your staff, will you identify them for the record, please, sir.

STATEMENT OF FRANK W. McCULLOCH, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, ACCOMPANIED BY ARNOLD ORDMAN, CHIEF COUNSEL TO CHAIRMAN; OGDEN FIELDS, EXECUTIVE SECRETARY; AND WILLIAM FELDESMAN, SOLICITOR

Mr. McCULLOCH. I will be glad to, Mr. Chairman.

I am Frank McCulloch, Chairman of the National Labor Relations Board, and I am accompanied this morning by the Executive Secretary of the Board, Mr. Ogden Fields, who is on my right; Mr. Arnold Ordman, who is my chief legal counsel; and Mr. William Feldesman, who is the solicitor of the Board.

The CHAIRMAN. Very well.

Do you have a prepared statement?

Mr. MCCULLOCH. Mr. Chairman, in an effort to prepare for and to meet the various charges and arguments that have been presented to this committee in the last 2 days, it has been a little difficult overnight to present to the committee a prepared statement. I apologize for not being able to do that.

I spent a considerable number of hours in developing informational material, however, which I would like to present.

And I do have a number of documents which were prepared prior to these last few days of hearing which, with the chairman's indul