wever, tion of major matters of policy and planning. There is, reserved to the Board as a whole the right to review any such decision, report or certification either upon its own initiative or upon the petition of a party or intervenor demonstrating to the satisfaction of the Board the desirability of having the matter reviewed at the top level. Provision is also made, in order to maintain the fundamental bipartisan concept explicit in the basic statute creating the Board, for mandatory review of any such decision, report, or certification upon the vote of a majority of the Board less one member. By providing sound organizational arrangements, the taking effect of the reorganizations included in the accompanying reorganization plan will make possible more economical and expeditious administration of the affected functions. It is, however, impracticable to itemize at this time the reductions of expenditures which it is probable will be brought about by such taking effect. After investigation, I have found and hereby declare that each reorganization included in the reorganization plan transmitted herewith is necessary to accomplish one or more of the purposes set forth in section 2(a) of the Reorganization Act of 1949, as amended. I recommend that the Congress allow the reorganization plan to become effective. THE WHITE HOUSE, May 24, 1961. JOHN F. Kennedy. REORGANIZATION PLAN NO. 5 OF 1961 Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, May 24, 1961, pursuant to the provisions of the Reorganization Act of 1949, 63 Stat. 203, as amended NATIONAL LABOR RELATIONS BOARD Authority to delegate (a) In addition to its existing authority, the National Labor Relations Board, hereinafter referred to as the "Board", shall have the authority to delegate, by published order or rule, any of its functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board, including functions with respect to hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business, or matter: Provided, however, That nothing herein contained shall be deemed to supersede the provisions of section 7(a) of the Administrative Procedure Act (60 Stat. 241), as amended. (b) With respect to the delegation of any of its functions, as provided in subsection (a) of this section, the Board shall retain a discretionary right to review the action of any 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: Provided, however, That the vote of a majority of the Board less one member thereof shall be sufficient to bring any such action before the Board for review. REORGANIZATION PLAN NO. 5 OF 1961, PREPARED IN ACCORDANCE WITH THE REORGANIZATION ACT OF 1949, AS AMENDED, AND PROVIDING FOR REORGANIZATION IN THE NATIONAL LABOR RELATIONS BOARD MAY 24, 1961.-Referred to the Committee on Government Operations and ordered to be printed To the Congress of the United States: I transmit herewith Reorganization Plan No. 5 of 1961, prepared in accordance with the Reorganization Act of 1949, as amended, and providing for reorganization in the National Labor Relations Board. This Keorganization Plan No. 5 of 1961 follows upon my message of April 13, 1961, to the Congress of the United States. It is believed that the taking effect of the reorganizations included in this plan will provide for greater efficiency in the dispatch of the business of the National Labor Relations Board. The plan provides for greater flexibility in the handling of the business before the Board, permitting its disposition at different levels so as better to promote its efficient dispatch. Thus matters both of an adjudicatory and regulatory nature may, depending upon their importance and their complexity, be finally consummated by divisions of the Board, individual Board members, hearing examiners, and, subject to the provisions of section 7(a) of the Administrative Procedure Act (60 Stat. 241), by other employees. This will relieve the Board members from the necessity of dealing with many matters of lesser importance and thus conserve their time for the considera tion of major matters of policy and planning. There is, however, reserved to the Board as a whole the right to review any such decision, report or certification either upon its own initiative or upon the petition of a party or intervenor demonstrating to the satisfaction of the Board the desirability of having the matter reviewed at the top level. Provision is also made, in order to maintain the fundamental bipartisan concept explicit in the basic statute creating the Board, for mandatory review of any such decision, report, or certification upon the vote of a majority of the Board less one member. By providing sound organizational arrangements, the taking effect of the reorganizations included in the accompanying reorganization plan will make possible more economical and expeditious administration of the affected functions. It is, however, impracticable to itemize at this time the reductions of expenditures which it is probable will be brought about by such taking effect. After investigation, I have found and hereby declare that each reorganization included in the reorganization plan transmitted herewith is necessary to accomplish one or more of the purposes set forth in section 2(a) of the Reorganization Act of 1949, as amended. I recommend that the Congress allow the reorganization plan to become effective. THE WHITE HOUSE, May 24, 1961. JOHN F. Kennedy. REORGANIZATION PLAN NO. 5 OF 1961 Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, May 24, 1961, pursuant to the provisions of the Reorganization Act of 1949, 63 Stat. 203, as amended NATIONAL LABOR RELATIONS BOARD Authority to delegate (a) In addition to its existing authority, the National Labor Relations Board, hereinafter referred to as the "Board", shall have the authority to delegate, by published order or rule, any of its functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board, including functions with respect to hearing, determining, ordering, certifying, reporting or otherwise acting as to any work, business, or matter: Provided, however, That nothing herein contained shall be deemed to supersede the provisions of section 7(a) of the Administrative Procedure Act (60 Stat. 241), as amended. (b) With respect to the delegation of any of its functions, as provided in subsection (a) of this section, the Board shall retain a discretionary right to review the action of any 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: Provided, however, That the vote of a majority of the Board less one member thereof shall be sufficient to bring any such action before the Board for review. (c) Should the right to exercise such discretionary review be declined, or should no such review be sought within the time stated in the rules promulgated by the Board, then the action of any such division of the Board, individual Board member, hearing examiner, employee or employee board, shall, for all purposes, including appeal or review thereof, be deemed to be the action of the Board. [S. Res. 158, 87th Cong., 1st sess.] RESOLUTION Resolved, That the Senate does not favor the Reorganization Plan Numbered 5 of 1961 transmitted to Congress by the President on May 24, 1961. SENATE COMMITTEE ON GOVERNMENT OPERATIONS Staff Memorandum No. 87-1-45 Reorganization Plan No. 5 was submitted by the President to the Congress on May 24, 1961. Unless disapproved by a majority vote of either House of Congress, it will become effective on July 23, 1961. Senate Resolution 158, expressing disapproval of Reorganization Plan No. 5, was introduced by Senator Dirksen on June 13, 1961, and is pending before the committee. Purpose of the plan According to the President's message transmitting the plan, the principal objective of Plan No. 5 is to relieve the members of the National Labor Relations Board from the necessity of dealing with numerous matters of lesser importance, thus conserving their time for the consideration of major matters of policy and planning. Under existing law, they are required to devote the great bulk of their time to hearings, determinations and review of both regulatory and adjudicatory matters. In testifying before the committee, the Chairman of the Board stated: "The primary objecive of plan 5 is to permit the Board to delegate to trial examiners the authority to make initial decisions in unfair labor practice cases, subject to discretionary review by the Board on the certiorari basis." Provisions of the plan Plan No. 5 would permit the National Labor Relations Board, by published order or rule, to delegate any of its functions to subordinate divisions, individual Board Members, hearing examiners, employees, or employee boards. This authority to delegate would be subject to the provisions of section 7(a) of the Administrative Procedure Act of 1946, as amended, which provides, in effect, that, where the organic statute of an agency requires that regulatory or adjudicatory matters may be decided only upon a written record, after a public hearing, these functions must be performed by the full agency, one or more members thereof, or a qualified hearing examiner appointed in accordance with that act. The functions which may be delegated include hearings, determinations, orders, certifications, reports, and all other work or business of the agency. As in the other Reorganization Plans Nos. 1-4 of 1961, the National Labor Relations Board would retain the right to review the decision, report or certification of any subordinate to whom authority has been delegated, either upon its own initiative or upon the petition of a party or intervenor demonstrating to the satisfaction of the Board the desirability of having the matter reviewed at the top level. However, this right of review is made discretionary with the Board, and unless the Board desires to review on its own motion, no review may be had, except by a vote of a majority of the Board, less one member. Since the Board is composed of five members, the votes of two members would be required for review. In the event that the Board declines to exercise discretionary review, or if no review is sought within the time required by the Board's rules, then the action of any of the subordinates to whom the Board has delegated its functions is final and shall, for all purposes, including appeal or review, be deemed the action of the agency. EFFECT OF PLAN NO. 5 ON OPERATIONS OF THE NATIONAL LABOR RELATIONS BOARD Delegation of authority Under existing law, the Board may now delegate any of its powers to any group of three or more members. In representation cases, the Board may delegate its powers to regional directors who designate hearing officers from among their regional employees. These hearing officers take testimony and summarize, but are not permitted to make any recommendations. Since section 5 of the Administrative Procedure Act of 1946, as amended, specifically exempts representation cases, the hearing officers in these cases need not be hearing examiners or trial examiners. In unfair labor practice cases, the Administrative Procedure Act applies, and the taking of testimony in adjudication cases may be delegated only to one or more members of the Board or to a qualified hearing examiner appointed under the provisions of section 7 (a) of that act. Since the Board's rulemaking power is exercised only with respect to housekeeping and procedural matters, the delegation of its rulemaking power does not appear to be pertinent. It should be noted that during the hearings, the Chairman of the Board stated that "*** we do not have any intention of delegating certain powers which the Board has not exercised itself, the powers of rulemaking. *** The Board has never believed or found that the best way of handling disputes which are submitted to its care under the Labor-Management Relations Act, is to do it by general rulemaking as practiced in the case of some other agencies. On the contrary, the Board has acted on a case-by-case basis, and the courts have uniformly approved this procedure of the National Labor Relations Board." If plan No. 5 of 1961 becomes effective, the Board would be able to delegate any function to a division of the Board, an individual Board member, a hearing examiner, or other employee of the Board. However, since section 7(a) of the Administrative Procedure Act would continue to be applicable, in adjudications involving unfair labor practices, the Board could only delegate the taking of testimony to a member of the Board or a qualified hearing examiner appointed in accordance with that act. In this connection, the Chairman stated, during the hearings, that "* * * the major difference that this plan would make would be in permitting the Board to delegate its decisionmaking powers in unfair labor practice cases to the Board's trial examiners and this will result in converting the full de novo review of trial examiners' reports-in which the Board now engages on an automatic basis wherever exceptions are filed-to a Board review of the trial examiners' decisions on a discretionary basis." Board review Under existing law, in representation cases, Board review of a decision of a regional director is discretionary with the Board, and a vote of a majority of the Board is necessary to compel review. If plan No. 5 becomes effective, it appears that where a representation case is delegated to a regional director, a review of his decision would be mandatory on the vote of only two Board members, rather than on the vote of a majority, Under existing law, in unfair labor practice cases, full-scale Board review is automatic and is granted in all cases in which a party has filed exceptions in the time required by the Board's rules of practice. If plan No. 5 becomes effective, review by the Board would be discretionary as to all actions under delegation, and a vote of two members of the Board would be necessary to compel review. According to information furnished to the committee by the Chairman of the National Labor Relations Board, details on present and contemplated review procedures are as follows:1 At present, where no exceptions are filed to an intermediate report (report of the trial examiner), the Board adopts the findings of fact, conclusions of law, and recommendations without review. Where exceptions are filed, review by the Board of the trial examiner's decision is automatic and is granted in all cases. Exceptions to the trial examiner's findings are permitted to be filed in the form of general denials or by referring in broad and conclusionary language to the matter being relied upon to indicate a contrary result. Statements in support of the intermediate report or a reply to exceptions are permitted only 1 This material is set forth in the hearings, June 6 and 7, 1961, pp. 139–141. |