Senator MUSKIE. Might I ask, Mr. Swigert, Is it your suggestion referring to 10 cases recently reversed that they show bias in favor of the union in the ratio of 8 to 2?

Mr. SWIGERT. Well, I don't say they all show bias, Senator. I do not mean to give that impression. I say that when that sort of thing averages month in and month out, and year after year you begin to wonder why, and the only explanation I can make is that it reflects a certian built-in bias in the trial examiner group.

Senator MUSKIE. So the only way for an agency of this kind to establish a reputation for objectivity and fairness is to produce an exact mathematical division, 5 to 5, on the average, is that your implication?

Mr. SWIGERT. No; but I think it ought to be fairly close to 50 per

cent.

Senator MUSKIE. Now, you have put your emphasis upon the cases that are reversed. I would like to have your comment upon this. In unfair labor practice cases, in fiscal year 1960, according to the statistics I have seen with reference to intermediate reports filed by trial examiners, there were a total of 407 decisions. No review was sought at all; that is, no exceptions were filed in 113; 255 were affirmed in full; 63 were affirmed in part; and only 26 were reversed.

Now you would suggest here, on the basis of what you said in your testimony up to his point, that the 26 reversals reflected bias.

What do you say about the 113 cases in which no exceptions were filed; no review sought? What do you say about the 255 cases which were affirmed in full, and the 63 cases that were affirmed in part? It seems to me that somewhere those cases have a bearing upon the question of bias of the trial examiner.

Mr. SWIGERT. Senator, not at all. Labor Board cases are close. They are like trials before courts. I suppose a substantial percentage of the cases, the record is so clear by the end of the hearing that the element of philosophy does not enter into the decision at all. I don't say that these men are dishonest. I certainly don't want to leave that impression. They are honest, sincere men.

They only get into the place where the philosophy of the examiner begins to reflect itself, in my opinion, in these close cases.

Senator MUSKIE. May I interrupt? I am just suggesting that the cases that are reversed are close cases. Are you saying that none of the cases that were affirmed are close cases?

Mr. SWIGERT. Some are, many are not. I suppose the great majority of the cases that are affirmed are cases where you have had two tribunals take a look at them and found the decision should go one way and they probably are not very close cases. You get into the area of closeness in the reversal where you have a disagreement between the trial examiner and the Board. That is where you see you have a close case and then you begin to look and see what happens to that case when you have a whole Board review as against one man.

Senator MUSKIE. You are characterizing the trial examiner's record on the point of bias on the basis of 26 cases that were reversed. Mr. SWIGERT. No; but on 25 years of experience before the Board, Senator.

Senator MUSKIE. All right, but you are presenting testimony to us. We have to judge the record on what you present to us and not what you feel internally.

The testimony you are presenting to us is this, and you have used these 10 cases because you say they are representative of 25 years of experience.

Mr. SWIGERT. Yes.

Senator MUSKIE. So I have to use these 10 cases and these are reversals.

Mr. SWIGERT. That is correct.

all

Senator MUSKIE. And you say that, because these 10 reversals are 8 to 2 in favor of the unions, this characterizes the record of the trial examiners to the point of bias.

It seems to me that if you want to establish the case for the purpose of this hearing in this committee, you must do so not on the basis of the 26 reversals but the 113 cases in which there was no review sought, the 255 cases which were affirmed in full, and the 63 cases that were affirmed in part.

I just don't think you can take the record of reversals alone and characterize the examiners objectively as a matter of record upon which this committee can pass judgment.

Mr. SWIGERT. Well, let me move on a little bit, if I may. I will try to answer that more fully as I go along in my statement, and if not, I will be happy to pick it up later.

I feel confident that this is representative of the general experi ence of the Board with trial examiners. Obviously, if routine review of the findings of these trial examiners is to be abolished, as proposed by this plan, unions will automatically win more cases and employers will automatically lose more cases before this Board.

The reason for this is that most trial examiners tend to be prounion. Of course, there a number of very capable and unbiased trial examiners, and I suppose an isolated few even lean toward the employer. I think it is fair to say, though, that at least three-fourths of the examiners are philosophically oriented against the employer and in favor of the employee and the union.

Some trial examiners are brazenly biased. Those of us who represent employers know them and dread to see them assigned to our cases. These men have been repeatedly reversed by the Board, but these reversals seem to have had no effect on their point of view.

And, Senator, I wish you would take a look at these cases.

For illustration, I refer you to Board decisions reported in 120 NLRB 684, at page 687; 122 NLRB No. 133; 125 NLRB No. 5; 88 NLRB 986; 113 NLRB 938.

It is interesting to note that the trial examiner who was reversed by the Board in the first two cases was also reversed by the Board twice in the last 4 weeks. In every instance, the findings which had to be reversed was a finding in favor of the union.

Of course, these trial examiners are not appointed by the President and confirmed by the Senate, but are employees of the Board enjoy ing civil-service status. This means that, as a practical matter, there is almost no way to get rid of them if their work product is unsatis factory. Some of you will recall that in 1948, the Civil Service Commission appointed a distinguished outside board of examiners, consisting of a college professor, two justices of State supreme courts, and two past presidents of the American Bar Association. They formulated a series of tests and made a conscientious review, including personal interview, of all NLRB trial examiners.

In their report issued March 9, 1949, they disqualified or downgraded 27 of the 41 NLRB trial examiners who were then serving. A political hullabaloo followed this revelation. The Civil Service Commission eventually reinstated practically all of the trial examiners who were found by the special board to have been incompetent.

Many of these men are still serving. Perhaps errors were made in the proceedings, but certainly there must have been some fire to generate so much smoke.

Under existing law, the Board reviews the findings of the trial examiner as in a trial de novo. The Board has the power to reverse or modify his credibility findings, which, of course, are of key importance. The Board is not limited by the substantial-evidence rule. As a result, the facts have been thoroughly screened before the case ever reaches the U.S. Court of Appeals.

This screening is of vital importance because the review power of the court of appeals is limited by law. Section 10 of the Taft-Hartley law specifies that

The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.

Under the decision of the Supreme Court of the United States in the Universal Camera case (1951) 340 U.S. 474; the court of appeals must affirm the Board if the findings of fact are supported by substantial evidence on the record considered as a whole, even though the court might have reached a different conclusion if permitted to review the record as in a trial de novo.

The practical effect of plan 5 will be that the findings of fact of the trial examiners will became final in a much higher percentage of the cases than at present, and the courts of appeals will be powerless to disturb many erroneous findings.

In order to reduce the caseload under this plan, the Board must narrowly limit the cases to be reviewed. It is significant that no standards have yet been announced by the Board. You are asked to give the Board a blank check on standards.

The Chairman of the Board says he will convene a committee and work out the standards later. I predict that, in practical effect, review will be limited to cases which the Board considers to be important and that fact findings will be reviewed in only the most extreme and obvious cases of prejudice or error.

This means the perpetuation of erroneous findings of fact in a substantial proportion of the run-of-the-mill cases which comprise the major part of the Board's business. It means that business enterprises in your communities are sure to feel the effects of this substitution of speed and efficiency for equal justice under law.

I sincerely hope that this committee will recommend the rejection of this proposal to repeal essential protections of the Taft-Hartley law through hasty executive action. The problem is a serious one, worthy of thorough congressional study, and legislative not executive solution.

One further point I would like to make, relates to testimony of the Chairman of the Board before a House committee-that is his most recent appearance, I believe. In his appearance before the House committee, Chairman McCulloch stressed time and time again that in plan 5 the Board is merely moving into the complaint case field; the

rules already approved by the Senate and House with respect to representation cases.

Now, in the Landrum-Griffin Act, the Congress authorizes the Board to delegate to regional directors the power to make decisions in socalled R cases or representation cases. Now these are the election proceedings of the Board.

That plan has just been put into effect and the Board has established standards of review of the decisions of the regional directors in the so-called R cases.

The chairman of the board reasons that since there are approved standards of review, certification, and delegation in the representation case field, that the same rule should apply with respect to complaint

cases.

I respectfully suggest to you that I see no real comparison between the situation in the representation case and the situation in the complaint case. The representation cases which are authorized to be delegated for decision to regional directors are nonadversary proceedings. Complaint cases are adversary proceedings.

Let me call to your attention the Board statement of proceedings, section 101.21. In the Board statement of procedure they say, with respect to representation cases:

The hearing which is nonadversary in character

that is right in the rule and moreover they say in the rule

in most cases, a substantial number of the relevant facts are undisputed and stipulated.

Now that is true. Representation cases involve very narrow questions and usually, most of the issues are stipulated. To compare representation cases with complaint cases is like comparing a tea party with a prize fight.

Now a complaint case is like a court trial. A representation case is simply administration of setting up an election and largely determining a bargaining unit and setting up of the same. I don't think there is any valid comparison between the delegation of authority to regional directors to make decisions in representation cases and what is now attempted under plan 5-the delegation to employees of the Board the power to make binding, findings of fact and conclusions of law and hotly contested, highly controversial complaint cases involving sometimes hundreds of thousands of dollars, involving the jobs and the job rights of thousands of American workers are two different things, and Congress recognizes it and the Taft-Hartley law in setting up these protections which plan No. 5 proposes to take away. The CHAIRMAN. Have you concluded?

Are there any further questions?

As I understand you emphasized that if plan 5 is adopted there will be less opportunity for getting errors made by the trial examiner corrected.

Mr. SWIGERT. The screening process which now exists is eliminated and the court of appeals cannot do the job.

Now if you are going to move in this direction, and I recognize the Board has a problem, perhaps with the cases, then you had better set up a labor court-persons to try the facts who have the status of Federal judges. Then, if you want to superimpose an appellate

structure over that, there isn't likely to be the damage done by the present staff, employees of the Board making these important findings. There cannot be bargain-basement justice in this field. You cannot turn over the final decision on important facts and conclusions of law in these highly contested complaint cases to a group of Government employees who have not met the standards of Federal judges. If you want to do this, then create groups of labor judges or whatever you want to call them-and have them appointed by the President, with the advice and consent of the Senate. Then, of course, pay them a salary commensurate with that received by Federal judges and perhaps the system would be workable.

But I think this is an improvised attempt to get around the TaftHartley law and the protections of the Taft-Hartley law, and I think it should be disapproved by the Senate.

The CHAIRMAN. Thank you very much.

Our next witness is Mr. Karl H. Mueller of Fort Worth, Tex.
Identify yourself for the record, Mr. Mueller.

STATEMENT OF KARL H. MUELLER, ATTORNEY, OF MUELLER & MUELLER, FORT WORTH, TEX.

Mr. MUELLER. Mr. Chairman, gentlemen, my name is Karl H. Mueller. I am engaged in the private practice of law in Fort Worth, Tex. I have a prepared statement, Senator, and copies have been given to the committee clerk.

The CHAIRMAN. Would you like, Mr. Mueller, to just have your statement printed in the record and highlight it or would you prefer to read it?

Mr. MUELLER. May I follow the statement a bit, Senator McClellan ? The CHAIRMAN. The statement will be printed in the record in full. Anything you may omit reading will be incorporated in the record. You may take your statement and read those parts you wish to emphasize and anything that you omit will be included in the record.

Mr. MUELLER. We have submitted with our statement an appendix that we have denominated a schedule which was prepared from annual reports of the Board and which we hope may be of interest and assistance to the committee and its staff.

The CHAIRMAN. This appendix will be printed, with your statement, at the conclusion of your remarks.2

Mr. MUELLER. Thank you, very much, sir.

The analysis, Mr. Chairman and members of the committee, you may have noticed is simply an analysis that I made of the reported decisions of the Board for fiscal 1959. The appendix is submitted largely, Senator McClellan, as a documentation of some of the conclusions we have expressed in the course of our statement.

By way of identifying ourselves further for the moment, if I may, and in so doing let me say that we in no sense claim to be an expert in the field of labor law, our participation in labor matters began under the Blue Eagle when we were dealing with section 7-A of the National Industrial Recovery Act.

? See appendix to the statement of Karl H. Mueller, p. 38.