force of an order, only when the Board goes to court and asks the court to enforce the Board's order.

So, in that sense, the order is not effective. But, as Mr. Fields has very properly indicated, if the parties are persuaded by the fact that the Board has affirmed the trial examiner or has issued an order and the party or parties decide to comply with it, in that other sense the order may be effective.

Senator JACKSON. In most cases the court order is merely a pro forma matter.

Mr. McCULLOCH. Let me say a word and then Mr. Fields may supplement it.

These cases that reach the Board are usually the more bitterly contested. Out of, say, a thousand cases that may be filed in our regional offices, we get only the very toughest and the most vigorously contested. I suspect that there are not more than 50 to 60 of them that may issue in Board orders.

But if the many other cases have been withdrawn, if they have been settled, if they have been disposed of otherwise at the local level, at the hearing, or when they got to the Board, it means that we have got the tough nuts left.

I do not mean by "nuts" people, but "tough nuts" in terms of the cases and the problems that they present.

And a large percentage of these do therefore go to the courts. In other words, they will resist the Board's order. They will not comply.

A recent compilation I have seen indicated that perhaps 40 percent in some years, in some years as high as 60 percent, of the Board's orders go to the courts because of this very bitter contest. If you will look at our legal docket-I do not want to encumber your record by filing it-there are more than 300 entries in our litigation docket in the courts below the Supreme Court, and I have forgotten what the latest figure was on the number of items in our litigation docket before the Supreme Court. It frequently runs to several score. This is a major part of the Board's work

INTERLOCUTORY APPEALS

The CHAIRMAN. Senator Javits?

Senator JAVITS. Mr. McCulloch, I have a number of questions I would like to ask you which go to the legal establishment.

The main one is this:

What is your situation on interlocutory review?

I have read what you propose to do according to the pages of the record at 140 and 142, and I see that you contemplate taking cases under review, when the case has been completed and an intermediate report has been prepared.

But I think the thing that lends itself to the most vicious bureaucratic abuse is keeping things suspended in midair by an examiner or by another official.

Your Board under this plan does have an advantage over other plans in that you do not give yourself the right to delegate the rulemaking power, which I think is very good, nor do you give the Chairman this complete autocratic authority, which I think is good, too.

Mr. McCULLOCH. That is correct,

Senator JAVITS. But I am very concerned about this interlocutory question. I would like to ask you this precise question so that we understand each other.

Turning to the plan itself under the head of "Authority delegated", (b), where the plan says:

With respect to the delegation of any of its functions

and so on

the Board shall retain a discretionary right to review the action of such division of the Board, individual Board member, hearing examiner, employee or employee board, upon its own initiative or upon petition of a party to or an intervenor in such action, within such time and in such manner as the Board shall by rule prescribe.

Is it your intention in presenting this plan that this shall apply to interlocutory as well as final proceedings, whether you call them intermediate reports or not?

Mr. McCULLOCH. In the discussions that the Board has thus far had, we have not discussed any change from the present procedure with reference to interlocutory appeals.

If parties, if Members of Congress, distinguished members of this committee, including yourself, feel that the Board should give that very careful consideration, I can only say that the Board will.

But up to this date, it has not been the plan to make any change in that consideration of interlocutory appeals by the Board itself. Senator JAVITS. Now, going to page 140 of the record and the specifications which you have given us as to what you propose to do in laying ground rules for review, I call your attention to the item which is on page 140 in the right-hand column under the No. 3:

That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error—

and ask you what you think about having that read as follows:

That the conduct of the hearing or any ruling made in connection with the proceeding has resulted or may result in prejudicial action?

What do you think about that in terms of ground rules for review? Mr. McCULLOCH. This would obviously bring in the possibility, as I say, of interlocutory appeal. By saying "may result," it would be future and anticipatory in its implication and obviously would be anticipatory in respect to the trial examiner only if he had not completed his work.

Senator JAVITS. Let me give you a practical example. A trial examiner is faced with evidence, shall he allow its introduction or not. It could be a survey, a study, some expert's testimony, and the question of due process is involved.

The trial examiner's ruling may be very prejudicial in the first instance, even to have the thing go in, in his own mind or on the conduct of the case generally.

My own feeling is this, and I think this is a very important question for you gentlemen to decide as to whether you are going to get this plan approved or not. If you are going to deprive yourself of the authority to review every case unless two members ask for it and give it the right to discuss it, to go through it with less than a complete review and evaluation of the evidence, that is practically what you

have said, then I think you have got to have the power, without any question, to reach down into any part of the agency at any time in any stage of the proceedings that there is an injustice and pick that case out and say:

"No, we will not stand for it; we will take it now."

In other words, you cannot let the bureauracy run you to the disadvantage of the litigant, and so if you want to give yourself a review only if two members agree, then you, in turn, have to be in a position to take any case at any stage of the proceeding to avoid injustice. The CHAIRMAN. May I ask:

How would they determine, how would it be brought to their attention that they ought to take action?

Senator JAVITS. By petition of the litigants.

The CHAIRMAN. Of one of the litigants?

Senator JAVITS. Certainly.

Mr. MCCULLOCH. I would like my chief legal counsel to comment on that, but only after I have on the basis of my brief experience made a comment of

my own.

The Chairman of the Board has already had experience on interlocutory appeals relating to the introduction of evidence, so that I know in this brief 3 months' tour that this right is now available to the parties during the proceeding before the trial examiner to come to the Board and to object to a ruling on his part.

And the plan would not have to make further provision for that, Senator, because that right is already present.

Now I think that Mr. Ordman, who has been in many phases of the Board's work, might well comment upon it a little more at length. Senator JAVITS. But before you do that, may I point out:

Sure, the plan would not have to provide that, because it is being done now.

But the plan does make very considerable changes in what is being done now, and one of the changes is your proposal that you will establish ground rules for review, which you have not done before. Review is now required where the petition is filed.

Now, if you are going to establish ground rules for review, I want to be very sure that those ground rules will not exclude interlocutory appeals and I have just read you a ground rule which I believe would exclude it.

Mr. McCULLOCH. If there is any question, we shall make our rules crystal clear. But let me ask Mr. Ordman to make a further comment.

Mr. ORDMAN. I would like to suggest, Senator Javits and members of the committee, that this interlocutory procedure and interlocutory appeal from what appears to be an adverse ruling or what may actually be an adverse ruling during the course of a hearing by a trial examiner is a procedure this Board has followed since its inception. The Board has always considered interlocutory appeals, and I may say has given them in the nature of things expedited consideration because generally the continuance of the hearing awaits the Board's ruling. The Board has on occasion, on a number of occasions, granted an interlocutory appeal and reversed the trial examiner's ruling, as the case may be.

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As the Senators are aware from trial practice, this does not obtain every time an interlocutory appeal is filed, sometimes quite clearly dilatory, and the standard or the criterion for review has always been:

Is this the kind of thing that is so prejudicial to the conduct of a hearing that we should take action on it now, or is it, rather, the kind of thing which can probably better be passed on upon the whole record?

That has been the standard. That has been the Board's consistent practice, and there has been no suggestion in any of the discussions at the Board level of revising that practice. It is a necessary and good thing, and it will continue.

Mr. McCULLOCH. If there is a doubt on anybody's construction of the plan, we shall remove that doubt in our proposed rules.

Senator JAVITS. Now, one other thing.

Would an interlocutory appeal of the kind which we are discussing also be in contemplation where the litigant claimed dilatoriness on the part of the staff?

You see, one of the things that the lawyers often find is that a case can get frozen, and justice which is delayed, in that way, is often just as lethal to one of the parties as justice which is denied or an adverse ruling.

Now, interlocutory appeals, therefore, would lie and not be thrown out as a matter of practice for anything which the litigant considered an injustice in the proceeding.

You might reject the appeal, you do not have to take it, but at least there would be nothing in the ground rules which the Board would set up which is contemplated by these ground rules which you have suggested to us which would cut off that opportunity which the litigant now had.

Mr. McCULLOCH. It is certainly not contemplated to cut off a single right to interlocutory appeal, including this one that you have just mentioned. I notice counsel moving up with a further comment at this point?

Mr. ORDMAN. No.

Mr. McCULLOCH. But this would be our plan, our assurance to you and to the members of this committee.

REVIEW PROCEDURES UNDER REPRESENTATION CASE DELEGATION

Senator JAVITS. Just one other question and I am through.

As recently as May 15, 1961, you gave the regional directors the delegated authority in representation cases. Now, what is the Board's practice as to reviewing a decision by a regional director in one of such cases?

How do you actually go about reviewing?

Mr. McCULLOCH. This is quite new, and I think I would like the executive secretary, who had more to do with it than anyone else, with writing the detailed rules which the Board then finally adopted for this review of the regional director's decision, to indicate what those steps are.

Mr. FIELDS. Our rules provide 10 days after the decision plus 3, or a total of 13, the request for review must be filed in Washington.

Then there is an additional 7 days for the party to file opposition thereto or, in essence, a statement in support of the regional director's decision, and there are specified grounds for such review.

And I might say that the Board has had 12 so far, and has acted upon, I believe 5, and the procedures are to circulate the petition for review with copy of the decision to each of the 5 Board members.

The Board member to whom the case is assigned reviews it in full and communicates with his colleagues and circulates, if it is proposed to deny it, will circulate the order denying with the approval of his colleagues, or will place on the most immediate agenda for oral discussion.

Those are the procedures we follow.

Senator JAVITS. What number of Commissioners does it take to grant or deny review in such a case?

Mr. FIELDS. Three.

Senator JAVITS. It takes a majority!

Mr. FIELDS. Right.

Senator JAVITS. Thank you, Mr. Chairman.

Senator MUNDT. When you say you have acted on five, what do you interpret the word "act" to mean?

Mr. FIELDS. Ruled.

Senator MUNDT. That you have decided to review or not review? Mr. FIELDS. We have acted on five, and, as I recall, we have granted one review, and stayed the election that the regional director had set up, and the other four we have denied because they did not meet the standards.

The majority of the Board voted to deny. In fact, to date they have all been unanimous. We have seven and they have just come in and the time for filing opposition has not expired.

Senator MUNDT. Thank you.

Mr. McCULLOCH. If I may respond to one other point that was made by Senator Curtis, I would like to, Mr. Chairman. I grant the point that there is a difference between presidentially appointed and senatorially confirmed Board members and trial examiners.

COMPETENCE OF TRIAL EXAMINERS

But a good many harsh things have been said here about our trial examiners, and I think it behooves the Chairman of the Board to make at least a brief comment upon it.

Congress itself in the Administrative Procedure Act and also in the Taft-Hartley Act-adopted the principle of delegation. The Administrative Procedure Act provided a method by which these men should be selected, selected from Civil Service Commission registers, and that is where our trial examiners come from. They are then presently operating, they are serving as the initial triers of the fact.

They are already performing in major part the functions that will be assigned, I should say continue to be assigned, to them under the plan.

Some statements have been made that these are "those awful Wagner Act people." I point out to you the fact that 45 percent of them have been selected since 1952; that 65 percent of our trial examiners have been selected since 1947, when the Taft-Hartley law was enacted.