Mr. McCULLOCH. I would like next to offer for insertion in the record a statement which supplements the statement I originally presented to you, Mr. Chairman, and to this committee. It was a statement presented to the House Government Operations Committee of four or five pages giving a few more statistics that were not presented to this committee. The CHAIRMAN. Very well. You just want that inserted in the record. You do not desire to read it? Mr. McCULLOCH. No, Mr. Chairman. I will not take the time to read it. The CHAIRMAN. The statement will be placed in the record at this point. (The document referred to follows:) STATEMENT OF FRANK W. McCULLOCH, CHAIRMAN, NATIONAL LABOR RELATIONS BOARD, IN SUPPORT OF REORGANIZATION PLAN No. 5 Certain considerations with respect to Reorganization Plan No. 5 involving the National Labor Relations Board that were not mentioned or emphasized in the attached "Statement of National Labor Relations Board in Support of Reorganization Plan No. 5," dated June 5, 1961, we deem appropriate to add here. First, we want to mention that plan No. 5, unlike some of the plans beforeCongress, does not provide for increasing the power of the Chairman. Our plan is limited to the delegation of decisional authority, and as a practical matter primarily will be used to delegate more authority to trial examiners in unfair labor practice cases. The Board may also delegate more authority to hearing officers or other qualified personnel with respect to work assignments or jurisdictional disputes arising under section 10(k) of the statute. Secondly, the Board does not intend to delegate its rulemaking powers under section 4 of the Administrative Procedure Act for the simple reason that the Board itself has never employed this technique in its adjudicatory or regulatory functions. Since the passage of the act on July 5, 1935, the Board has consistently set forth its policies and practices in its published case decisions or opinions. It has been the considered view of the Board that the use of rulemaking to govern substantive law and policy is too inflexible a technique for the diversity of factual situations arising under this dynamic act. The establishment of precedents identified with the facts of the case lends itself better to decision rather than rulemaking. What are the existing rights parties now have under present procedures that will be limited or removed by delegation under plan 5? Present procedures required by the act result, when exceptions are filed, in an automatic, exhaustive de novo review of the findings of fact, conclusions of law, and recommendations of every trial examiner's intermediate report. important to note that exceptions are filed in approximately 75 percent of the cases. It is Under the plan the Board would be permitted to convert review from automatic to limited grounds-to grant review only where a party established the merit of such review on grounds formulated by the Board or where in their discretion any two members of this five-man Board decide to grant review. The safeguards to assure justice under the plan, if approved, are many: 1. The Board's authority to delegate will not be employed until it affords an opportunity to representatives of labor, management, the American Bar Association, and the public to advise the Board at an open hearing or in writing as to the most feasible and just manner to implement any delegation, including advice on the grounds or standards for review as well as the procedures governing the review of trial examiner decisions. 2. Following the receipt of advice referred to above, the Board will decide upon, adopt, and publish grounds and procedures for review. 3. In addition to the grounds for review, in conformity with the plan, a majority of the five-man Board less one or any two members of the Boardshall suffice to cause the Board to grant review; and internal practices will be devised and followed to conform to the letter and spirit of this requirement of the plan. 4. All unfair labor practice proceedings are adjudicatory cases under section 5 of the Administrative Procedure Act, and as such they must be tried before a hearing examiner (traditionally called a trial examiner at this Board) appointed pursuant to section 11 of such act and the hearing must be conducted under the provisions of section 7 of such act; this is not only a current requirement but is expressly retained by the reference in plan 5 to section 7 (a) of the Administrative Procedure Act. 5. There will be afforded review of the decisions of trial examiners and the Board, by the circuit courts of appeals, which is a matter of right under our act, and review by the Supreme Court of the United States on grant of a writ of certiorari. It is further to be noted that the Board is unanimous in support of plan 5. We are also attaching for your information the statistical data requested by Chairman Dawson in his letter of June 7, 1961. 1 Compliance with intermediate report or order adopting as no exceptions filed. The CHAIRMAN. Tell us just briefly what it does. Mr. McCULLOCH. It takes two of the points of objection which were raised following our first hearing and answers those. It outlines the safeguard to all parties that they will secure justice and lose no rights. under the plan. It gives further figures with reference to the caseload coming in, the production of cases by the Board, and a fuller analysis of the Board's action on trial examiners' reports. The CHAIRMAN. Very well. Mr. McCULLOCH. The next item, Mr. Chairman, which I would like to have inserted in the record is a letter of June 29, 1961, which I do with the permission of this Board member, addressed to the Honorable Roman Pucinski, chairman of the Special House Committee on the NLRB, from Board Member Philip Ray Rodgers of the National Labor Relations Board. I merely recall to the committee that Member Rodgers was the chief clerk of the Senate Labor Committee in the years 1947 and 1948, the period during which the Taft-Hartley law was enacted, and in 1953 he was appointed by President Eisenhower to the National Labor Relations Board and has served there continuously since. (The letter referred to follows:) Hon. ROMAN C. PUCINSKI, Chairman, Subcommittee on NLRB, NATIONAL LABOR RELATIONS BOARD, House of Representatives, Washington, D.C. DEAR CONGRESSMAN PUCINSKI: I have been requested by your counsel, Mr. Harkless, to comment specifically on the President's Reorganization Plan No. 5, which is now pending before the Congress. At the outset, permit me to say that if this plan is permitted to become effective, it will go far toward permitting the National Labor Relations Board to attain a reasonably current status in its decisional operations and to control its burgeoning backlog. This plan has been assailed in some quarters as being both unwarranted and unworkable. While a number of the critics of this plan are sincere and well intentioned in their resistance, it should not go unnoticed that not a few of those most active against plan No. 5 have been in the vanguard of those who have most strongly criticized the Board for its backlog, timelag, and delay. The administrative facts of life are such that these critics simply can't have it both ways. As to the merits of the plan, there is much to commend it and little to condemn it. While it is true that the plan itself may have been more tightly or artfully drawn, the fact remains that it is basically a device to afford greater finality to a trial examiner's intermediate report in those cases which in fact and in law do not warrant an exhaustive de novo review by the Board. In this arrangement there is no apparent or real denial of due process to anyone. Nor is there any curtailment of any legitimate procedural or substantive right. There is nothing in plan No. 5 which makes the Chairman a "czar"; nothing which permits the delegation of power to rank and file employees; and nothing which permits the evasion or overturning of the 1959 amendments to the act, even if such disposition existed among the Board members, which it does not. The argument is advanced in some quarters that while the changes encompassed in plan No. 5 are both meritorious and desirable, they should be effected through normal legislative procedures, and not through the use of a reorganization plan. This argument, of course, has much appeal. But the fact remains that Congress has repeatedly passed upon and granted the power to submit such reorganization plans to the President. Thus this plan is not a device to thwart the will of Congress; it is rather a device designed to implement the will of Congress. Moreover, while legislative action in certain fields may be relatively easy to obtain, anyone who has observed the history of our labor laws over the years knows it is a virtual impossibility to open them up to amendment on any limited basis. Inevitably, demands are made to change various other sections of the statute. Hearings become long and involved. Agreement on language becomes difficult to obtain. And the original objective becomes lost in long and ofttimes fruitless deliberation. If Reorganization Plan No. 5 is not permitted to become operative, I am fearful that years may elapse before these vital and necessary improvements can be achieved through normal legislative procedures. If Reorganization Plan No. 5 is permitted to become operative, I believe that most of the problems now plaguing this Agency can be rapidly overcome, with substantial injury to no one, and with substantial benefit to labor, to management, and to the country as a whole. The Board's constantly mounting backlog and ever-lengthening timelag permit of no other conclusion. Sincerely yours, PHILIP RAY RODGERS, Board Member. Mr. McCULLOCH. The final item is an editorial from the Washington Post of July the 3d, which is headed, "Rescue Operation." The CHAIRMAN. I want to examine that editorial first. Mr. McCULLOCH. It is a thoughtful analysis. The CHAIRMAN. Anything that you want to put in of your own goes in, but I want to look at this first. Go right ahead. Mr. McCULLOCH. Now, Mr. Chairman, the Board is grateful to you and to the other members of the committee for the time that you have given to these hearings and for the very evident study and thoughtful consideration that you have given to plan 5, and we appreciate now the opportunity to appear and to reply to some of the main arguments that have been urged against the plan. The Board has taken some panning here. We previously had it before the House committee, mostly from union spokesmen. I do not say there is any conscious effort to get at the umpire, either the Board or the trial examiners, in the hope that perhaps the umpire may lean over a little more to the critic's side in order to disprove the criticisms. But I only remind the committee that we get crabbed by both sides, this is part of the game, and, no doubt, like other umpires, we may deserve it—or at least, a little of it. The CHAIRMAN. If you want to place the Washington Post editorial in the record as a part of your presentation, and say you subscribe to its contents, I will let it be admitted. Mr. McCULLOCH. I do with the exception, perhaps, of the last sentence where the intimation is that legislative action may be a possibility. I think it is only a remote possibility, and I shall later have a comment on that. The CHAIRMAN. The editorial will be placed in the record at this point. (The editorial referred to follows:) [From the Washington Post, July 3, 1961] RESCUE OPERATION The fight that is underway against the President's plan for reorganization of the National Labor Relations Board resembles the successful revolts against reorganization of the FCC and the SEC in some particulars. Yet there are substantial differences. Congress would make a serious error, in our opinion, if it should sweep away the NLRB plan on the general reasoning that it is just like the others. There are substantial differences between the plans submitted for these various agencies and between the agencies themselves and their work. The major |