And, Mr. Chairman, responding only to the degree that we can to your question of this morning, because searching the files would require a number of days, and I know you have to close your record tonight, as to how long these 443 cases have been before the BoardThe CHAIRMAN. 443?

Mr. McCULLOCH. Unfair labor practice cases. These are the ones about which you asked.

The CHAIRMAN. I thought it was 403 this morning.

Mr. FIELDS. That was 403 days.

The CHAIRMAN. 403 days.

Mr. McCULLOCH. The median average days from filing of charge to issuance of Board decision.

The CHAIRMAN. You are correct.

Mr. McCULLOCH. Of the 443 unfair labor practice proceedings pending before the Board July 1, the intermediate reports that were issued by the trial examiner a year ago or longer are 48 or 10 percent of them.

If the procedure prior to that amounted to, say, 150 days, then, you can see, 10 percent are already with the Board for 1 year plus about 150 days, and we have before us the possibilities of a further period before Board decision.

The CHAIRMAN. Suppose you had this plan in effect, what do you think the difference would be?

Mr. McCULLOCH. The estimate this morning was that we could cut 140 days off. This is our best guess. Our objective would be to cut a great deal more off.

With your permission, let me finish the estimate you requested. It is estimated that in at least one-third of the above 443 proceedings, the unfair labor practice charges were filed a year ago or more. And all of those are awaiting this lengthy Board disposition.

So the conclusion I make is that the Board is in need, and as the Board sees its unfair labor practice load growing, and as it hears the witnesses before it saying they do not even seek Board relief because they know they aren't going to get it, the only reasonable answer to give is that we are in need now.

To get rid of this backlog, and to handle the load that is coming on us is going to take a herculean effort. And the Board is already giving that.

Board member Jenkins was asked how long a time does a Board member have to give to the disposition of the work that he has? And he responded to the Congressman who asked him this question: "We could spend every waking hour and still be behind."

My wife will testify to the fact that it almost looks at times, and I am sure the wives of other Board members will so testify, that we do the same. We may have dinner at 8 o'clock and still have another 2 or 3 hours of work to do at home.

The CHAIRMAN. I can't quite envision this affording as much as relief as you are estimating that it will.

Mr. McCULLOCH. I don't want to say that it is going to solve the problem. We have other internal things that we must do, Mr. Chairman. And you are quite right. I should not try to oversell it. But sitting in this room for 2 or 3 days listening to persons making argu

ments which I thought were without validity against any need for the plan causes me perhaps to go beyond the point I should.

The CHAIRMAN. I didn't mean that critically at all. It appears to me that you may be a little too optimistic about it. I would not want to see the plan put into effect if there might be, too frequently, a failure to give attention to the litigation before you. I don't know what I am going to do yet, but I would much prefer to support a revision--an amendment to existing law-to authorize the appointment of two more Board members with authority for the Board to sit en banc and try to dispose of more business that way.

I believe thatis the soundest and best procedure.

And then the litigants would be better satisfied that they did get a hearing, a review by the Board.

I doubt that they are going to feel that way about this if a review is denied. If you deny someone a hearing the fellow says, "They wouldn't even hear me."

But as it is now, the Board acts on the petition to review as far as all official pronouncement is concerned.

Mr. McCULLOCH. Senator, the Board is going to act on petitions for review.

The CHAIRMAN. I understand. I was just thinking of what the result might be.

The litigant is going to say, "Well, the Board denied me a review," if you don't actually grant a review.

Mr. McCULLOCH. But if the litigant has filed exceptions

The CHAIRMAN. But he filed a petition. That is the procedure which you anticipate you will follow. He filed a petition just as he does now, but he sets forth the exceptions, and in due time, the Board simply announces that the review is denied. He feels as though he has been denied a hearing.

But if the Board reviews this and then makes a decision affirming or reversing, as the case may be, the finding of the hearing examiner, he is not in a position to say, "Well, I didn't even get a hearing before the Board."

Mr. McCULLOCH. We believe that when the parties recognize that the Board does accept for review the meritorious cases, they won't have the kind of beefs that you are suggesting. The Board has to accept the responsibility for the trial examiner's decisions if it does not grant full review. And maybe at the outset some parties will feel "I didn't get it" as they see us

The CHAIRMAN. I think, Mr. Chairman, in the beginning that will be true. And, of course, to what extent they would come there would depend upon the actual practice and procedures you follow. I would hope that they would soon be able to arrest them, but I can see that in the beginning it will likely be a problem, and it will be the attitude many folks take.

Mr. McCULLOCH. Of course, this is your basic problem, whether you feel that the dangers of the meritorious cases slipping through and not getting caught by our screening process-which we have tried to outline as well as we could-that those dangers are so great, and in the second place, whether the court review that backstops it with the possibility of court reversal on the basis that I have tried to outline this afternoon very fully is so inadequate that the dangers of loss of

rights are so great that they counterbalance the other danger of loss of rights by people who never get to us, because the doorway is jammed, because there is a logjam in the way. And employer groups have told us they don't file cases because it would take too long.

Employers have said, "We need the protection that the act gives us." You have had such cases before you in your committee. Senator Curtis referred to one of the worst of them, a person driven out of business because of this very element of delay.

I suggest to you that there are other rights also that may be delayed.

The Chairman. Do you think, actually, if we could have it as a choice to increase the membership of the Board, do you think that would be a better procedure than what your reorganization plan will provide for?

Mr. McCULLOCH. I don't find myself in agreement with you there, Senator.

The CHAIRAN. I am simply raising the question.
Mr. McCULLOCH. I understand.

This involves two dangers that I see. If we operate with a larger number of three-member panels-and we will have more three-member panels with seven members on the Board-then there are other dangers of diffusion, contradiction in the decisions that go out.

And while this is a little easier to adjust to and correct in terms of the courts of appeals of the different circuits, we think it would be unwise to have a situation in which agencies and various branches of the agencies are coming out with decisions which contradict each other.

Secondly, if

The CHAIRMAN. I would assume that they wouldn't come out with conflicting opinions.

Mr. McCULLOCH. If, then, to avoid that you must screen them all with seven members, it is likely to increase the delay rather than to shorten it.

The CHAIRMAN. Then I have just about reached the conclusion that there is no way to do justice.

Mr. McCULLOCH. I don't want you to give up.

This is a thoughtful suggestion, Mr. Chairman, and I don't mean to throw it off lightly. It has been considered by some of those who have gone into this. And they have said that they believed we ought to try this other procedure first to see if it would not give relief.

The CHAIRMAN. You are talking about the reorganization plan? Mr. MCCULLOCH. That is right. And the thoughtful members of the Board who have filed their statements and who have supported the statements that I have made here, all agree that they do not think this will bring relief, increasing the membership of the Board, and they do believe that substantial relief, not a solution, would be given by the plan.

BOARD MEMBERS' WORKLOADS AND RESPONSIBILITIES

I want to say a word about the other Board members. Some remarks were made that if they would only stay on hand and do business, the Board could take care of its work.

The CHAIRMAN. I don't believe any member of the committee said that.

Mr. McCULLOCH. I am glad to say that no member of the committee did.

The CHAIRMAN. Some witness may have expressed that sentiment. Mr. McCULLOCH. I merely want to testify that in my brief experience with the Board, no such characterization of their work is justified.

The statement was made, well, you should stop running around the country making speeches. We made computations in answer to your request for information about this, and my recollection is that it showed that Board members in the aggregate were away from Washington 9 days in the first 6 months of 1961, making speeches, and about 46 days in 1960.

The CHAIRMAN. At this time we will place in the record a letter that I wrote to Chairman McCulloch on July 10, together with his reply thereto of July 15, the letter I wrote to the gentleman, by request, I may say, because we wanted this information. And it will be printed in the record at this point so that those who read the record may have a reference to it.

Mr. McCULLOCH. Thank you very much, Mr. Chairman.

(The letters referred to follow :)

Hon. FRANK W. MCCULLOCH,

Chairman, National Labor Relations Board,
Washington, D.C.

JULY 10, 1961.

DEAR MR. CHAIRMAN: In connection with this committee's study of Reorganization Plan 5, it would be most helpful if you could furnish, by July 13 or 14, information on the following points:

(1) How many unfair labor practice case decisions did each Board member issue during calendar year 1960? How many during the first 6 months of calendar 1961?

The committee is not seeking information on cases in which a member joined in an opinion written by another member; instead, we want only the figures on those cases in which each member, with his staff, prepared either the decision or a dissenting opinion. I should emphasize also that we are not asking data on representation cases. This inquiry relates only to unfair labor practice cases coming before the full Board.

(2) How many times during the calendar 1960 was an agenda meeting of the five-man Board deferred because of the absence of a quorum? How many times during the first 6 months of calendar 1961?

(3) For calendar 1960, and also for the first 6 months of calendar 1961, how many times have agendas of the Board's three-man panels been deferred because of the absence of a quorum?

(4) For how many days during calendar 1960 were Board members absent from Washington in connection with speaking engagements? How many days during the first 6 months of calendar 1961?

On this point, the committee is not seeking information on an individual member basis; cumulative figures for the whole Board will suffice.

It is important that we have this information by July 13 or 14 at the latest. Your cooperation will be earnestly appreciated.

Sincerely yours,

JOHN L. MCCLELLAN.

Hon. JOHN L. MCCLELLAN,
U.S. Senate, Washington, D.C.

NATIONAL LABOR RELATIONS BOARD,
Washington, D.C., July 13, 1961.

DEAR SIR: In reply to your letter of July 10, the following information is submitted which, it is hoped, will be helpful in the committee's study of Reorganization Plan 5:

(1) Unfair labor practice decisions issued (by Board member assigned case— other members, of course, participated in decisions).

1 Member Bean's term expired Aug. 26, 1960. Staff supervised by member Leedom until interim appointment of member Kimball on Sept. 16, 1960. Member Kimball's interim appointment terminated Mar. 6, 1960.

2 Resigned as Board member Mar. 28, 1961.

3 Appointed Mar. 7, 1961.

4 Appointed Apr. 14, 1961.

(2) At no time during calendars 1960 or 1961 has it been necessary to defer an agenda meeting of the five-man Board because of the absence of a quorum. It should be noted, however, as shown by the previous footnotes that there were periods when the Board necessarily functioned with only four members.

(3) At no time during calendars 1960 or 1961 was it necessary to defer a panel agenda of a three-member panel because of the absence of a quorum. (4) During calendar 1960, the six who served as Board members were absent from Washington in connection with speaking engagements for a cumulative total of 471⁄2 days, only 272 days being applicable to present Board members. For the first 6 months of calendar 1961, the cumulative total is 9 days. In this connection, it should be noted that Board members on speaking engagements away from Washington spent some of the time on visits to regional offices of the Board in the areas where the speaking engagements took place.

I trust that the above information will be helpful to you in your deliberation of the merits of Reorganization Plan 5. If you require anything further, please call upon me. Sincerely,

FRANK W. MCCULLOCH, Chairman.

Mr. McCULLOCH. On this point, I may add, I have turned down every speaking engagement, and I haven't had many by senatorial standards, but I have had a number. But my first job was to get my share of the business of the Board rolling, and my first job was to appear before you and the other Members of the Congress to explain as well as I could what the Board could hope to accomplish if, in your discretion, you see fit to approve the plan.

But speeches have some value. And we have some obligation to the public, to the members of the bar, and various groups that have asked us to come out and try to interpret what the Board is doing.