Mr. McCULLOCH. That is about the average. The CHAIRMAN. Has that average recently increased or has it diminished, or has that been the general average for a number of years? Mr. McCULLOCH. That average has been going up over the course of the years, and if the Chairman would like a statistical summary of this, covering, I think 10 years, we have prepared it and will be glad to submit it for the record.

The CHAIRMAN. That will be accepted for the record. I do not know just how important it is, but since we are in this I thought it would be well for the record to show it. I have a feeling, and I could be wrong, this has not firmed up to the point of making it an issue, that possibly there was need for an increased number of hearing examiners.

When I heard that there are only four, five, or six cases a year handled by a hearing examiner, I thought there was something lacking on their part. It seems to me they could handle more cases.

Mr. McCULLOCH. The chairman is quite right to be concerned at the apparent inference from that witness' testimony.

I think in fairness to the witness I should say that in his prepared testimony he had a following paragraph which adverted to the fact that the average was higher, and he mentioned the figure of 11 per per year, per examiner, but he left the impression, unfortunately, with the committee that the average was much lower.

I do not believe he intended to do that.

The CHAIRMAN. Is that where the witness read a part of his statement-did not read all of it-and the rest was insterted in the record? Mr. McCULLOCH. Exactly.

The CHAIRMAN. That is why I had the wrong impression, and maybe he did not intend to leave an erroneous impression.

Mr. McCULLOCH. I do not believe that he did.

The CHAIRMAN. Very well, we have it established now at 11.

Mr. McCULLOCH. Mr. Chairman, if the chairman is interested further in having at least available to the committee a more extended analysis of what the trial examiner's work consists of, we will furnish such an analysis. The production figures given here do not begin to describe what the trial examiners have to do; there are many cases that wash out by settlement, by withdrawal, after the hearing has been held.

I will cite only one example. That example relates to a hearing in which, as I recall, the trial examiner had some 18,000 pages of record. You can imgine the weeks that were taken with hearing that evidence, and the weeks of work which followed in analyzing the record and preparing his intermediate report. Before he issued that report, however, the case washed out because the parties adjusted the dispute or reached a settlement.

The CHAIRMAN. I do not know that it is going to be an all-important issue, but I think a brief statement for the record at this point regarding the caseload and workload of your trial examiners would be most helpful, because, frankly, even 11 a year, without explanationand unless one fully understands what they do would leave the impression that they are not overworked, to say the least.

Mr. McCULLOCH. This is the reason why, it seems to me, such an explanation is not only appropriate but necessary.

72420-61--10

The CHAIRMAN. You may prepare, if you like, a brief explanation setting out what they do and it will be inserted in the record at this point.

Mr. McCULLOCH. We shall deliver it to the committee before I leave this morning. It is in the form of a letter from the Executive Secretary. It runs to about a page and a half of the committee record. It is followed by a tabular summary that gives the names of all the trial examiners and their production over the years, sir.

The CHAIRMAN. Very well.

(The documents referred to follow :)

NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., June 16, 1961.

WILLIAM L. DAWSON,
Chairman, Executive and Legislative Reorganizational Subcommittee of the Com-
mittee on Government Operations, House of Representatives, Washington,
D.C.

DEAR MR. DAWSON: Attached please find the statistics giving the number of intermediate reports issued by our trial examiners since 1948, which have been requested by the subcommittee with respect to Reorganization Plan No. 5 involving the National Labor Relations Board.

In submitting this information I believe it appropriate to convey to the subcommittee something of the nature of the functions of trial examiners so that the statistics may be seen in the context of their work. I also want to express my sincere opinion concerning their importance in the administration of the act and the general quality of their performance.

The corps of trial examiners serving the National Labor Relations Board are, with few exceptions, highly competent civil servants operating in a field of legal complexity intensified by difficult factual problems and the frequent antagonism of the parties in the proceedings before them. Despite their inherently difficult tasks, the quality of the work of these trial examiners has earned the respect and confidence of the management and labor practitioners who appear before them, and the courts which review their decisions.

The general productivity of the corps, as reflected in the enclosed statistical report, shows a steady increase of average output per examiner in the past 5 years from 6.7 intermediate reports in 1957 to an all time high of 11.3 in 1961. Such increase has been accomplished with no sacrifice in the high quality of their work.

To appreciate the magnitude of the job of the Board's trial examiners, one must distinguish their handling of cases from the manner in which cases are traditionally heard and decided in the courts. Unlike the trial judge in a Federal or State court who presides over a trial where a jury also hears the evidence and concludes the case with its verdict, the Board's trial examiner must, without a jury's assistance, preside at a tension-packed hearing which frequently runs for several days or even weeks and then, after the conclusion of the hearing, must decide the case in a written report in which, as required by the Federal Administrative Procedure Act, he meticulously relates the relevant evidence, resolving the frequently numerous conflicts of testimony, and sets forth the basis for each of his findings of fact and conclusions of law. He must also recommend remedial action of a kind which will effectuate the purposes of the act in those cases where he has concluded that the act was violated. All this he does without the technical assistance of experts who frequently testify in the hearings conducted by other Federal administrative agencies which consider such questions as rate schedules. Here the crucial questions, as contrasted with those in other administrative hearings, turn frequently upon the determination of disputed facts which call for the application of close study and care by the examiner.

The burdens of the Board's trial examiners with these problems are recognized by the courts, as evidenced by the acknowledgment of the U.S. Court of Appeals for the 10th Circuit which said in its opinion in Colorado Interstate Gas Co. v. Federal Power Commission (209 F. 2d 717, 723): "It is obvious that the issues arising in a Labor Board case, charging unfair labor practices, differ materially from those arising in a rate hearing case before the Federal Power Commission, such as we have here. In a Labor Board case, the facts are always in sharp conflict and the credibility of witnesses many times involved."

The difficult fact problems in a Labor Board case are matched by the complicated legal questions which the examiner must decide often without benefit of any legal precedent. Twice within 12 years Congress amended and added lengthy provisions to the basic statute which had to be construed and applied for the first time in a legal proceeding under the act by a trial examiner. These problems often compel extensive study and research.

The job of the Board's examiners does not begin or end with his hearings and reports. Before and after he passes on a variety of motions.

To keep abreast of the specialized law governing his work he must constantly read and digest the tremendous volume of decisions in this field emanating daily from the Board and courts. Substantial time is consumed in preparation for the hearing of cases which are settled at the last minute, sometimes as the trial examiner is about to depart for his hearing.

Often the trial examiner travels to his hearing in a city which can be reached after 1 or 2 days by air, train, or bus where he may start the hearing, or even conclude it, and then receive a settlement agreement from the parties which obviates a written report. Sometimes the parties agree to settle after the examiner has, after weeks of research and writing, completed his report. The report in this circumstance also does not issue. Trial examiners are frequently called upon to serve as hearing officers in complex representation cases or to preside at hearings on objections to elections or on challenged ballots which are determinative. They are also called upon to serve as hearing officers in jurisdictional dispute cases under section 10(k) of the act. Time spent at these activities is not reflected in statistical tables concerned only with numbers of cases heard by trial examiners resulting in issuance of reports.

The Board's trial examiners have distinguished themselves sufficiently throughout the Federal Government so that their services are in demand by other administrative agencies who, from time to time, require the assistance of skilled examiners. The Board, cognizant of the needs of the whole Federal Government, has, upon request, frequently loaned its examiners to seven other administrative Agencies. Thus the Board does not stand alone among the Federal administrative agencies in recognition of the higher caliber of its examiners.

At the Board, confidence in the ability of its examiners creditably to perform their work in a fair, even-handed manner stems from the impressive statistical record which shows that over the years their reports have been substantially vindicated after intensive review of the Board and the courts. For the 5-year period from 1956 to 1960, 20 percent of their intermediate reports were accepted by the parties without filing exceptions. This figure is running to 26 percent for the first 10 months of fiscal 1961. With regard to contested decisions, the Board's review of its examiners' reports in 1,187 cases resulted in affirmance in full of the examiners' reports in 839 cases, or 70,6 percent; affirmance in part in 209 cases, or 17.6 percent; reversal in full in 101 cases, or 8.5 percent; and remands in 38 cases, or 0.3 percent.

Thus in the past 5 years the Board has affirmed the trial examiner's intermediate reports in whole or part in 91 percent of the cases, a record which clearly shows the high degree of quality and acceptability of their work. This record of affirmance is not the result of cursory review by the Board. To the contrary, for at least 1 legal assistant, 1 supervisor, 5 chief counsels, and 5 Board members, or a minimum of 12, are involved in the extensive review of each case.

The courts have also had a long experience with the review of cases which were initiated by the issuance of a report by a Board examiner. In the past 25 years approximately 2,087 such cases were contested in the U.S. Courts of Appeals ant 131 cases in the U.S. Supreme Court. It is interesting to note that this tremendous number of cases in the Federal courts exceeds, by a substantial margin, the total for all other Federal administrative agencies combined. These Federal courts have many times expressed commendation of the Board's examiners. The summation of their frequent approbation of the Board's examiners is best expressed in these words of the Supreme Court in the landmark Universal Camera Corp. case, 340 U.S. 474 "High standards of public administration counsel that we attribute to the labor board's examiners both due regard for the responsibility which Congress imposes on them and the competence to discharge it." In my opinion and that of the Board, their record fully supports this view.

Sincerely yours,

OGDEN W. FIELDS, Executive Secretary.