Now we are finding that it does have meaning because the Board can, where a complaint is lodged with it involving a jurisdictional dispute as between two unions, as to which one is properly authorized and entitled, that the Board can name an employee, designate an employee of the Board other than hearings examiners to act for the Board in the settlement of that dispute.

Mr. McCULLOCH. If you use the word "settle" carefully, the answer is "Yes."

The CHAIRMAN. I am using it with all of its import. An employee can go down and do anything the Board can do, exercise any power the Board can if the Board itself undertook to take the action.

Mr. McCULLOCH. The Boards procedure under 10(k), as a result of the Supreme Court's recent decision, is currently under review. We have had, I should say, since I have been at the Board-and there were a number of these conferences even before I came to the Boardfour conferences with members of the contractors, employers, and with the union groups who were concerned about this, to consider what will be the best procedure for the Board to use in making what we call a determination, not a settlement, a determination-the law says "to hear and determine"-under section 10(k). They have not been of one mind in their advice to the Board. They have rather intimated that they hope the Board will delay its decision as to what its procedures will be until they have developed it a little further and possibly came through with their own solution; and if there was any chance that the employers and the unions could agree on a procedure that commended itself to us, that they thought this would be an advantage.

We have told them what kind of persons we might seek to use in this initial determination, which is not, Mr. Chairman, an adversary proceeding, but is more like an investigation or an arbitration. If we are not going to use Board members themselves, we would seek to use only employees, or one we could secure as employees, who are persons with very special expertise.

The CHAIRMAN. I am not asking what you would seek to do, I am trying to get the actual authority here. You can employ somebody, you can employ somebody or take any employee you already have, a clerk, or anyone who is in the employ, and delegate to them all the authority that the Board has, whatever it is, with respect to that issue, is that correct?

Mr. McCULLOCH. We certainly believe that this would permit the Board to do that.

The CHAIRMAN. I am not saying for the moment either way. I was trying to understand why the word "employee" was used and you mentioned the jurisdictional disputes, I think, as an instance.

Mr. McCULLOCH. That is correct.

The CHAIRMAN. I would like to get your version of it. What would be your ruling as to what you could do in a case like that, whether you could use an employee-and there is no question but what you would select somebody you thought capable and available to do itbut you could select somebody and send them down there to take all the action the Board could take, at the time the Board itself desired to act?

Mr. McCULLOCH. We are going to study this-the Board is not committed to this.

The CHAIRMAN. I am not talking about being committed, I am talking about what can be done if the reorganization plan goes into effect. I am sure you would still have discretion, you could turn it over to whoever you wanted to, I am sure you could still turn it over to a hearing examiner, you could send one of the members down, you could do a lot of things.

Mr. McCULLOCH. Exactly.

The CHAIRMAN. But could you do the other at this point?

Mr. McCULLOCH. Yes, we could, Mr. Chairman.

The CHAIRMAN. Off the record a minute, if I may.

(Discussion off the record.)

The CHAIRMAN. But if this plan goes into effect, you could send an employee there and try to do whatever the Board would do or have authority to do with this issue raised?

Mr. McCULLOCH. That is right.

The CHAIRMAN. That is why this was so fresh on my mind.

Mr. McCULLOCH. To answer it more sharply, Mr. Ordman, who has a greater background than I have on the 10(k) disputes, could profitably add a comment.

The CHAIRMAN. Very good.

Mr. ORDMAN. This is a very special type of proceeding, Mr. Chairman, and the Board right now is making great efforts to see if we can't expedite these determinations because of considerations of the type you mentioned at the missile sites in Canaveral. But I think it ought to be clarified, Mr. Chairman, that this is not the typical unfair labor practice proceeding. Congress was concerned about jurisdictional disputes, and set up a special proceeding.

In the first place, it said to the Board "Don't do anything until the charge is filed, which is the rule that governs all our actions. But once the charge is filed give the parties, the competing unions and the employer, a chance to settle it by themselves, which is what Congress wanted."

If they don't do it, then you hold a special kind of hearing which is different from any of our unfair labor practice hearings in which you don't decide who is wrong, who should be censured, or should be enjoined, but just decide who ought to get the work.

The CHAIRMAN. When you have done that, what follows?

Mr. ORDMAN. Then, again, you have to wait, Congress enjoined us again to wait, I think, a ten-day period to see if the parties will willingly comply with the determination the Board has made as to who gets the work. If they don't do it then, then we have the unfair labor practice proceeding which under our rule and under the plan would have to be conducted by a trial examiner.

But maybe the hard part of that case is the first part, to decide who gets the work.

I think the Senators are aware that some of these problems such as, should a carpenter put in this window, or should an ironworker, because it has a metal frame. Some of these that seem maybe simple are complicated by rival claims, by histories of craft unionism, and become very painful problems. And frequently, for the simple objective of deciding who gets the work, the ordinary employee and

maybe the better than ordinary employee of the Board hasn't got the kind of technical background that can make these "arbitration type" determinations.

For that purpose, the Board contemplates that it may, after consultation with experienced people in this field, both unions and employers, decide that for this kind of thing, for this determination, not an unfair labor practice finding but just the preliminary first hearing to decide who ought to have the work, decide that maybe we can get the kind of employee with a rich background in this field who can expedite the hearing which otherwise might go on for weeks. And what we are trying to do is get expedition. If we can get an experienced employee, we can expedite this matter and resolve it quickly because it should be resolved quickly.

The CHAIRMAN. In other words, any time you can get a compromise you can get the thing settled expeditiously.

Mr. McCULLOCH. Yes, sir.

Senator CURTIS. Mr. Chairman, may I ask a question now?
The CHAIRMAN. Very well.

Senator CURTIS. In reference to a jurisdictional dispute, does any union have a right to any particular work?

Mr. ORDMAN. The statute provides that where rival groups are claiming work, that after a period is permitted for them to arrive at a voluntary agreement-and that includes the employer involved-after they get that opportunity, we are directed by the Congress to decide who should be entitled to the work. Where the parties fail to voluntarily agree among themselves, we have no alternative.

Senator CURTIS. Since the entire theory of collective bargaining is a right that belongs to workers, they have the right to organize and bargain collectively, don't they?

Mr. ORDMAN. They certainly do.

Senator CURTIS. It is a workers' right, not an organization right. Now suppose that the employees working in a place, performing their work, have chosen a union, and we will say that it is not a borderline case, it is clearly their choice of a union, is it your contention that because of the nature of the work another union is entitled to have their members perform that work?

Mr. ORDMAN. It is not our contention, Senator. It is the procedure laid down by the Congress in the Taft-Hartley Act that said where there is a conflicting claim of this nature by another union

Senator CURTIS. Not conflicting claim of that, it is a conflicting claim as to who represents the employees.

Mr. ORDMAN. No, the conflicting claim is for the right to do the work.

Mr. McCULLOCH. The assignment of the work.

Mr. ORDMAN. In the case of disputes over the assignment of the work, Congress said, these acts set forth in section 8(b) (4) (D) are unfair labor practices

Senator CURTIS. In some instances the objecting union that pickets and that even carries on a boycott isn't even working there.

Mr. ORDMAN. That is correct.

Senator CURTIS. The employer doesn't have to assign work to somebody who isn't working.

Mr. ORDMAN. That is to some extent a point of view that the Board was acutely aware of in the decisions which predated the recent decision by the Supreme Court. And insofar as the Senator suggests that there is no such right, the Supreme Court interpreted your statute to say that we can't decide cases merely on the fact that one group is at work in the plant and another group which hasn't got that work is claiming it.

They said in those cases that the Board must make a determination as to whether what I may call the in-group or the out-group is entitled to the work.

Senator CURTIS. Now, how many of those cases, 10-K cases, are on the docket?

Mr. McCULLOCH. Could our secretary give us a rough estimate? Mr. FIELDS. I would say approximately eight.

Senator CURTIS. How long is the youngest one?

Mr. FIELDS. Well, in all of these situations the union striking has been enjoined, and I believe in all of the situations the job itself has terminated. And these cases arose just at the time or soon after the Supreme Court decision came down.

Senator CURTIS. One of the historical cases was the Burke Manufacturing Co. of Akron, Ohio, where in repeated elections the employees chose as their bargaining agent the Steelworkers. The Sheetmetal Workers contended that they had a right to organize that plant, and for 10 long years they boycotted the products of Burke Manufacturing Co. in almost every State in the Union. They would go to public bodies, they would go to States, school districts, and other people, and say, if in your public building you install Burke products there will be trouble.

Now do you mean to say that the Supreme Court has said that where the workers by a clear and undisputed choice of their bargaining agent-and they have been working there for years-does the Supreme Court say that if another union says that that category of worker belongs to them, that they have a right to it?

Mr. ORDMAN. The Supreme Court does not say that, Senator. The Supreme Court said

Senator CURTIS. I asked you a minute ago, and I thought that is what you said.

Mr. ORDMAN. I apologize if I conveyed that impression.

The Supreme Court said that if the parties can't agree on that matter, then the Board must hold a hearing. And the Supreme Court said that subject to or in accordance with the statute. Senator CURTIS. Who are the parties to agree?

Mr. ORDMAN. The parties to agree would be the competing unions and the employer involved.

Senator CURTIS. In this case locally, as I understand it, there was no competing union, they just said, this is the type of work that we ought to do. That case wasn't before the NLRB, was it?

Mr. ORDMAN. I am not familiar with the facts, and I couldn't even suggest an answer.

Senator CURTIS. Now as to the delegation of authority, I want to ask you this: Are the orders and decisions of the NLRB selfexecuting?

Mr. McCULLOCH. No, they are not.

Senator CURTIS. What are some of the procedures at their command to carry out an order or decision once you make it?

BOARD'S ORDERS CAN ONLY BE ENFORCED BY COURTS

Mr. McCULLOCH. We have a compliance division which at every stage seeks to get compliance by those who are directed by the order of the Board to do anything, cease and desist, or affirmatively to do something else. And these efforts proceed whenever the decision has been issued by the Board.

But if there is an unwillingness on the part of the parties to abide by the Board's orders, it is frequently necessary for the Board to go into court to seek the enforcement of its orders. And the orders have no real force then until a court has reviewed the Board's decision and order and says, "We approve of this, and we now issue an order in line with this," or "We refuse to issue it, because we think the Board was wrong," or "We issue the court's order in part directing the parties to comply," and then if the parties don't comply at a later time, they could be hauled into court for contempt.

Senator CURTIS. Suppose that plan 5 goes into effect, a hearing examiner decides the case, and the Board does not take jurisdiction of it, who, then, enforces the order of the hearing examiner, the hearing examiner or the Board?

Mr. McCULLOCH. The order, under the terms of the plan, section (c), and under section 10 (c) of the Taft-Hartley law is always the order of the Board. Section 10 (c) says that where no exceptions are filed, the order of the trial examiner becomes the order of the Board. And the plan says that when review is denied, the order becomes the order of the Board. The order of the Board can only be enforced, under those circumstances you have indicated, if the Board itself takes that into court. It will have effect, of course, if the parties determine voluntarily to comply, as we obviously hope that they will. But in many cases, they don't.

Senator CURTIS. But if plan 5 goes through and you give to hearing examiners the right to make a final determination without mandatory appearance before the Board, and you assume that they do notin this hypothetical case they do not get the two votes the Board would still have to enforce the decision?

Mr. McCULLOCH. Exactly right.

This is another one of the safeguards that we think in the eyes of some has not been fully appreciated, and this safeguard again makes it clear that the parties will have due process all along the line.

Senator CURTIS. Now, to what extent are the requirements as to your procedure determined when the parties are entitled automatically to come before the Board after the hearing examiner in reference to whether the time of filing briefs, the time to make oral arguments, or otherwise are those things determined by statute or by your rule? Mr. McCULLOCH. The statute determines the time for the filing of exceptions. And that period is 20 days. The other provisions are determined by rules. And the Board under the new procedure would have to formulate those time periods, as it would plan to do, after consultation with those who practice before it.