TWO BOARD MEMBERS MAY ASSURE FULL REVIEW

Mr. McCULLOCH. We think that the most reasonable interpretation of that language is that in the exercise of the Board's discretion upon the petition for review, which is expressly mentioned in the planand which we say, in all deference to your difference of opinion about it, automatically gives every party the right to come to the Board with their petition-this section provides that even the minority of the Board in dealing with that petition and exercising that discretion, both of which are mentioned in the plan, that a minority of the Board may bring the matter to a full Board review. If you read the whole section, this seems to us

Senator CURTIS. May bring such action before the Board for review?

Mr. McCULLOCH. The review is used here in terms of the full de novo review which the Board gives, and it is quite right that the effect of the plan would be to give four members of the Board, absent the agreement of two, the right to limit review.

This is the way that it was expressed, for instance, by the former Chairman of the Board, Mr. Guy Farmer, in his testimony, "to limitnot to deprive, but to limit-the extent of review."

So that on this first petition, the decision is made and two members. in making that decision can compel it to come to the Board even if a majority of the Board thinks the thing is so routine and so clearly correct that it should not come.

We think that is a great safeguard—that it is a safeguard which is not even present in the review standards set up for the representation cases. So that plan 5 goes further in restricting the Board's shutting off of full review than the Congress did in 1959 when it left the matter wholly within the discretion of the Board.

Senator CURTIS. Whenever the Congress or State legislature vests in the court or quasi-judicial body discretionary power and uses the word "discretionary," then it takes a very unusual showing to show that that discretion has been misused, does it not?

Mr. McCULLOCH. Yes.

But the question, if the question goes on to the court, will be precisely as it is now. As you recall, under section (c) of the plan, upon denial of full review, the trial examiner's initial decision becomes the decision and order of the Board. The question before the court, then, will be the validity of the Board's final decision and order in the case. It will not be the question of the Board's preliminary decision on whether to grant full review.

I want to come to that a little later, if I may, because you indicated

Senator CURTIS. Well, we are a government of law. In our ordinary court matters, if a litigant has a right, and that is denied, he goes to the appellate court, he makes his showing; that is all he needs to do.

But if the statute upon which he is operating has used the term that the lower court in its discretion will do thus and so, then he has to prove an arbitrary abuse of that discretion to a greater extent.

The only way your plan can work to cut down your caseload, is to deny people their day before the Board.

Mr. McCULLOCH. Most respectfully, Senator, may I disagree with that?

I believe that the plan can operate if the parties have their initial day to prove whether or not they have a meritorious case. Then if we can screen out those cases that lack merit-and the Board and its examiners have come, they more than I, a new Chairman, to recognize a case where the tough questions are posed, where the close questions are present year after year-this 22, this 25, this 30 percent of the cases gradually emerge as the ones where you have to have full Board action.

In most of the cases that come before the Board, a panel of three Board members, under the present system, disposes of them in semiroutine fashion, but subject to a reading of the whole record.

Counsel have testified to you that much of this work has to be handled by legal assistants to the Board, but is screened by the Board members before they subscribe to the work that is done. The action becomes theirs when they review the cases, but the routine ones tend to receive routine treatment and the Board tries, within the limitation of its staggering caseload, to spend more of its time on the tough ones. Now these tough cases are ones that will get the full Board review and the saving will come because the screening will take out the routine ones.

Senator CURTIS. I think in all fairness we would have to agree that there is nothing in the plan that guarantees to a litigant the right to come before the Board for a preliminary showing. It is something you have got to read in there.

Mr. McCULLOCH. If the words "discretionary right to review on its own motion or upon petition of the party to or to intervene," if those words have any meaning, in the Board's judgment, you cannot write out the legal right of a party to file such a petition.

I think the Board would be wholly vulnerable to the charge that it violated the precise and explicit terms of the plan if it refused to consider such a petition. I know the Board would not consider doing it, and I believe it would be supported in its interpretation.

Senator CURTIS. How many of these appeals from a trial examiner, where they file exceptions and under existing law they automatically are entitled to a hearing, how many of those are frivolous and dilatory in character?

Mr. McCULLOCH. As one in a quasi-judicial capacity, I do not want to characterize counsel's exceptions by harsh adjectives. But in twothirds of the cases the Board affirms the trial examiner in full. In about three-fourths of the cases, the matters are handled by a panel of the Board, only three members.

Senator CURTIS. But they are members of the Board?
Mr. McCULLOCH. That is true.

Senator CURTIS. And they are confirmed by the Senate?
Mr. McCULLOCH. That is true.

Senator CURTIS. And they act in the capacity as members of the National Labor Relations Board?

Mr. McCULLOCH. And these are the same presidentially appointed persons confirmed by the Senate who would have to act upon the petition for review and they will be acting as members of the Board, as well.

Senator, may I make one other point

Senator CURTIS. Yes.

Mr. McCULLOCH. Before you carry this question a little further.

PRINCIPLE OF DELEGATION 18 FUNDAMENTAL DEVELOPMENT IN ADMINISTRATIVE LAW TO HANDLE INCREASING WORKLOAD

You have talked about the judicial system, the plan of these pieces of legislation setting up quasi-judicial, quasi-legislative arms of the Government, arms of Congress, in large part.

But ever since the Administrative Procedure Act in 1946, ever since the Taft-Hartley Act of 1947, the plan has been to take hold of this great load of work thrust upon these Commissioners, these arms of Congress, to do the work Congress has given them by a greater and greater degree of delegation.

Congress did that in the Taft-Hartley law, when it permitted the National Labor Relations Board to delegate to any groups of three of its members, not all five, the right to make decisions, and we act in panels of three on many cases, and this has been a help.

But this has been a help for 14 years, and it still has not enabled us to get under the increasing load and lift it as we must.

The Administrative Procedure Act anticipated this with its explicit provisions having to do with hearing officers, and its very rigorous restrictions upon those officers as to how they should frame their reports, what they, as triers of the facts, should do, how they should be selected, how their compensation should be fixed, and other provisions to assure their fairness, competence, and independence.

This is a pattern developed at the time, as you know, of the Administrative Procedure Act, with eminent Members of the Congress, Senator McCarran, Congressman Walter, and others espousing this approach to solving the tough problem of the backlog of work and the rising workload.

Now the Congress carried it one step further in 1959, when it proposed in our representation cases that the Labor Board would have the authority to delegate to nonpresidentially appointed regional directors the initial decision subject to Board review, and we have set up the standards after consultation.

Then in 1960, the advisory committee to the Senate Labor Committee composed of public-minded men-Professor Cox was its chairman, but there were three management counsel, there were three labor counsel, and a number of leading persons in the field of industrial relations-unanimously agreed that this same approach of greater delegation to trial examiners should be made in the field of unfair labor practices, which we are discussing primarily this morning.

They said that this delegation of a greater degree of finality to the trial examiners' decisions was one of the best ways of helping the Board to get under this terrible workload. And I want to say another word about the workload.

BOARD'S WORKLOAD AND BACKLOG HAS RISEN GREATLY SINCE 1959

This basic problem was questioned by one of the sincere witnesses who appeared here the day before yesterday, and with whom I had a brief chance to chat this morning, Mr. Mueller. His figures, based

on the figures available to him, end with the year 1959, as the chairman of this committee appropriately brought out.

But since 1959, see what has happened at the Board level to the intake, to the disposition, and to the backlog of these unfair labor practice cases.

In the fiscal year 1959, the year to which the witness referred, the intake of the Board in these unfair labor practice cases was 380; the production of the Board, 286; the backlog, 196.

Now see what has happened in the 2 years since. From 380, the intake in 1960 had jumped to 612. In the fiscal year 1961, for which we have just been able to complete the figure, the intake jumped to 740, nearly double the figure for the fiscal year 1959.

The orders issued from the 1959 figure of 286 jumped to 383 in 1960, and jumped to 415 in 1961. This is a jump of nearly 50 percent in the Board's production.

And the backlog, because the intake is so constantly mounting, jumped from the 1959 figure of 196 to 312 in 1960, and to 443 contested unfair labor practice cases at the Board on July 1, 1961. This is over a year's production of Board decisions in complaint cases. Some of the cases received at the Board were fortunately disposed of otherwise than by Board decisions, or the backlog would be even higher.

DELAY DENIES RIGHTS

Now I do not mention this as something that is burdensome or vexatious to the Board. My principal concern is that there are here, much more importantly, problems that deprive the parties of their rights as a result of delay, and it is because the cases we take, in our judgment, can be disposed of more expeditiously without a deprivation of the automatic right of anybody to come to the Board on a preliminary review that we urge reconsideration on your part, Senator Curtis, of what may be your decision that the plan is not wise, and help us to do the job that Congress has given us to do. We want to do it.

The CHAIRMAN. Will you yield to me at that point, because I did not quite understand.

What is your backlog of cases at present? I would like to know the cases that are now pending before the Board.

Mr. McCULLOCH. The total backlog of cases, unfair labor practice cases, pending at the Board is 443.

The CHAIRMAN. There are 443 total now pending before the Board undecided?

Mr. McCULLOCH. That is correct.

The CHAIRMAN. Or awaiting decision?

Mr. McCULLOCH. That is right.

The CHAIRMAN. How many of those now have been pending for more than a year?

Mr. McCULLOCH. I do not believe we have a breakdown of that. I will ask the executive secretary to supply that information later today. Senator CURTIS. Give me a very brief thumbnail sketch of the procedural steps under your present operation, beginning at the point that exceptions are filed to the finding of the trial examiner.

In the first place, how long a time after the trial examiner makes his decision must exceptions be filed?

Mr. FIELDS. Twenty-three days.

Mr. MCCULLOCH. This includes time for mailing.

The rules say 20 days, but we allow an extra 3 days for the vicissitudes of the U.S. Post Office.

Senator CURTIS. What is the next thing that has to happen?

Mr. McCULLOCH. If I may ask the secretary to describe the precise procedure

Senator CURTIS. That is all right.

Mr. McCULLOCH. I think it would be helpful.

BOARD'S PRESENT REVIEW PROCEDURES

Mr. FIELDS. First, very frequently there is a request for an extension of time in which to file exceptions and briefs.

But our practice has been to allow an extension of approximately 2 weeks, so we have been getting exceptions and briefs in normal circumstances in 35 days.

Senator CURTIS. The persons that decide to file exceptions file their first brief?

Mr. FIELDS. Yes.

Senator CURTIS. And then the other side files the answer?

Mr. FIELDS. To file an answer to a brief requires special leave of the Board.

Senator CURTIS. But you give them about 2 weeks to file a brief? Mr. FIELDS. That is right.

We give them 2 weeks after the normal 20 days, when the Board is caught up with its work.

Now, when the Board may be 60 or 90 days behind in its work because of the large backlog before a case is assigned, it is unfair to the parties to have the case sitting in my office awaiting the availability of legal assistants to whom to assign the case. Accordingly, in respect to extensions of time for filing exceptions and briefs, we are generous to the parties.

In many instances, we give a 30-day extension of time in which to file exceptions or briefs, and when we are caught up, we are very stingy with the granting of extensions. But for the past 2 years almost any party can get a 30-day extension of time except in certain priority cases.

Senator CURTIS. Then when they get before the Board under their absolute right, what happens?

Mr. FIELDS. The case is before the Board on exceptions and briefs and then, when a legal assistant is available to review the record, it is assigned to a legal assistant to a Board member, basically in rotation. Then the case-first, the record is read in its entirety and the briefs and exceptions and intermediate report analyzed. It then is brought to a panel for discussion, and the panel then decides how to treat the

case.

There may be a determination to have a memorandum, a full memorandum to the full Board and the case is placed on the full Board agenda, or it may be decided then to draft the Board's decision either to affirm, reverse, or affirm in part, or modify in part, the intermediate report, and occasionally-to flag the problems in an attached memorandum.