Hon. JOHN L. MCCLELLAN, THE KANSAS CONTRACTORS ASSOCIATION, INC., U.S. Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: I was a trial attorney with the National Labor Relations Board from 1957 to 1960 and have represented members of the Kansas Contractors Association before the National Labor Relations Board since early 1960. It is my opinion that the adoption of the Reorganization Plan No. 5, which will delegate more authority to trial examiners and make it difficult to obtain review of trial examiner's decisions before the Board, would prove a highly unsatisfactory method of relieving the Board's burden and alleviating the existing backlog of undecided cases. The reorganization plan would eliminate the possibility of obtaining reviews of trial examiners' decisions unless they were clearly inconsistent with previous decisions. Today it is difficult to determine what is or is not a violation of the Labor Management Relations Act. This exists because of the Board's tendency to switch ground rather than follow precedent. If the 60-odd trial examiners, some of whom have no legal training, are given authority to make final decisions this would most certainly tend to create more confusion than already exists. Today many of the charges filed with the NLRB offices that have merit are settled without the issuance of a complaint. Also, many trial examiners' intermediate reports are accepted by the parties involved without the filing of exceptions with the Board. A great percentage of the exceptions that are filed are filed by the General Counsel because of disagreement with the trial examiners' findings and conclusions. During the last few years, the Board has reversed a higher percentage of trial examiners' findings and conclusions because of the General Counsel's filing of the exceptions. To limit the cases reviewed by the Board and the opportunity of the General Counsel and the parties involved, to file exceptions to a trial examiner's findings, would be just another rung in the ladder toward eliminating due process in administrative law. It is respectfully urged that Reorganization Plan No. 5 be vigorously opposed by you so that the problem of the Board's increasing backlog be appraised objectively and eliminated in a more satisfactory manner. Yours very truly, WILLIAM G. HAYNES, Attorney. OMAHA, NEBR., June 20, 1961. Hon. JOHN L. MCCLELLAN, Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: It is all too infrequent that most of us take the time to express our beliefs on matters of national importance which are presented to the Congress. However, I feel it is my duty to take a few minutes from a busy day to express my views on the President's Reorganization Plan No. 5 which makes it possible for NLRB trial examiners to render final decisions without Board review. This is certainly in contrast to my idea of justice and I hope that you and your associates in the Congress will take affirmative action to defeat this plan. During the past year the company of which I am an employee was involved in an alleged unfair practice charge. It was my privilege to be present during the hearing conducted by the trial examiner representing the National Labor Relations Board. The decision of the trial examiner which was submitted to the respondents following the trial or hearing leads me to believe that one man should not be given the responsibility to decide an issue of such importance as this. The specific trial of which I have referred exposed actions of the National Labor Relations Board and its representatives in initiating action which I be lieve is against the regulations established for the NLRB. As I understand Mr. Kennedy's plan, the General Counsel, who represen National Labor Relations Board and the trial examiner, who is employee, would become the final judge of issues which an employer. Upon receipt of an unfavorable decisi not be permitted to appeal his case to higher court I urge your serious consideration of the No. 5 and request your action to defeat this Yours very truly, SAN FRANCISCO, CALIF., Hon. JOHN L. MCCLELLAN, Senate Office Building, Washington, D.C.: July 11, 1961. I I understand that your Committee on Government Operations is holding a hearing on the proposed reorganization of the National Labor Relations Board pursuant to which the chief responsibility for decisionmaking would be in the trial examiners with the Board acting only in an appellate capacity. suggest that this proposed change has great merit. The present outstanding defect in Board procedure is delay. It appears that only by some reorganization such as this can such delay be cured. As an attorney primarily representing employers I cannot understand why some elements of organized industry oppose the plan. I have read the text of the statement before your committee by Chairman McCulloch on June 6 and I consider this a very sagacious analysis of the Board's present problem of delay and the advantages of the proposed change. ROBERT LITTLER. Senator JOHN L. MCCLELLAN, THOMPSON RAMO WOOLDRIDGE, INC., Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: You probably want to know the sentiment of your constituents relative to the President's Reorganization Plan No. 5 which proposes to give National Labor Relations Board trial examiners even more authority. We are against this plan, and urge that it be defeated. We have good and practical reasons from our own experience for being of this opinion. In addition, we have asked our attorneys, Stanley, Smoyer & Schwartz, to prepare the attached memorandum which outlines technical and legal reasons why the plan should be rejected. Sincerely, R. S. LIVINGSTONE, Vice President. MEMORANDUM We respectfully submit this letter as our comment on the President's Reorganization Plan No. 5, now pending before the Congress. We believe the legality of this plan is highly questionable. Of utmost importance, it would seem to strike at the heart of congressional intent, and at due process and the Anglo-Saxon fundamentals of justice. Furthermore, we are convinced the President's plan will not accomplish the purposes for which it is designed. Quite the contrary, it appears the plan will cause tremendous confusion in the courts rather than the expedited process which we would all welcome. Consequently, the course of wisdom dictates that we oppose the plan and urge its rejection by the Congress. Of grave import are these four considerations: 1. The plan is beyond the authority of the President Section 3(a) of the act creates the National Labor Relations Board as an agency of the United States, with its members "appointed by the President by and with the advice and consent of the Senate." Section 3(b) authorizes the Board (of five members) "to delegate to any group of three or more members any or all of the powers which it itself may exercise." By the 1959 amendments, the Board is then specifically authorized to delegate to its regional directors its powers under section 9 (in representation cases). No other delegation of authority is contained in the act. Section 10 (a) empowers the Board to prevent the commission of unfair labor practices, in the manner specified in section 10. Section 10 (c) provides that after the taking of testimony and the usual subsequent proceedings, "If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board 72420-61-16 shall state its findings and shall issue and cause to be served on such person an order ***" Section 10 (d) provides 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." A reading of the statute reveals that Congress has spoken clearly, requiring that consideration, findings, and order be made by the Board. We submit that the President lacks authority to amend the act by his proposed reorganization plan, which would constitute legislative-not executive-action. We further submit that the highly questionable legality of the plan will cause tremendous confusion in the courts until the issue has been finally determined by the U.S. Supreme Court. We are convinced our conclusion will be upheld by that Court, a circumstance which will set back the work of the Board by at least 1 year and probably more because of the necessity of remanding all cases decided under the provisions of the plan to the Board for decision. 2. Litigants before the Board have the right to a decision by appointees of the President We have previously referred to section 3 (a) of the act, under which Board members are appointed by the President, with the advice and consent of the Senate. Because that appointment procedure was adopted, we have the right to assume that Congress intended that the appointment of Board members be carefully made and that full consideration of their qualifications and expert knowledge be considered by the Senate before consent is granted. With due respect to the qualifications of any individual trial examiner, we submit that appointment and retention in office under the rules of the Civil Service Commission cannot be equated with the formal procedure accorded by Presidential appointment and Senate approval. The importance of any case involving any litigant, be he small or large, before the Board entitles him to the statutory procedures solemnly established by Congress. 3. Experience shows the importance of action by Board members In 48 Labor Relations Reporter 199 (issue of June 12, 1961), we find General Counsel Rothman quoted in testimony before your committee as follows: "In more than a majority of the cases the Board's scrutiny results in nothing more than an affirmance in whole or in substantial part of the trial examiner. In such cases it is no exaggeration to say that review by the Board is really a waste of time ***" In 48 Labor Relations Reporter 201, we find figures submitted by the Board to the effect that in 24.5 percent of the cases, review of the trial examiner's intermediate report was not sought, whereupon the intermediate report was adopted in full by the Board. But in 18.9 percent of the remaining cases (14.3 percent of the total) the trial examiner was reversed in part. And in 10 percent of the remaning cases (7.5 percent of the total), the trial examiner was reversed in toto. Thus, under the President's plan, in almost 30 percent of the cases, which experience shows had merit, litigants would be at the mercy of the Board as to whether discretionary review would be granted. Such a situation shocks the conscience of fair-minded people. It contravenes our concept of due process and of the Anglo-Saxon system of justice. To test our comments, we have analyzed the first 10 decided C-cases in the latest bound volume of NLRB (vol. 126). Our summary is attached as appendix A. To show the fallacy of the NLRB figures supplied to you previously (and reported at 48 Labor Relations Reporter 201), several of the trial examiner's intermediate reports included in appendix A, which were affirmed by the Board. would have been listed by the Board as "affirmed in full," but the records show that the Board disagreed with many of the trial examiner's evidentiary findings or legal conclusions. In the event of court review of the the Board's order, these are the findings and conclusions which must support the order. Therefore, for the Board to tell this committee that "affirmance" of the trial examiner's intermediate report indicates the degree of correctness of the intermediate report is misleading. 4. The plan would not necessarily accomplish the expedited process claimed for it Unless litigants are to be denied their constitutional right of due process, it is evident that the Board-promised "certiorari" process can well take just as long as the present procedure. Only by an analysis of the claims of the litigants, of the record, and of the intermediate report, can the Board staff in Washington determine whether the case has or lacks merit under its proposed "certiorari" process. That same time and effort could well be devoted to having the Board decide the case, as prescribed by Congress. CONCLUSION The President's plan is not only contrary to the act (as pointed out earlier), but will not accomplish that for which it is intended. Giving trial examiners more final authority will not necessarily increase their competency; it may well cause them (freed of their present statutory review by the Board) to become autocratic. The "certiorari" process can well be expected to give to the 123 attorneys on the Washington staff of the NLRB a life-and-death authority over the rights of litigants. The desire for expeditious handling is one in which all litigants join. But we submit that in attempting to bring about such a result, Congress should not substitute a timeclock for the even scales of justice. The time spent in giving a litigant's case the consideration which due process of law requires is not a "waste of time," as suggested by General Counsel Rothman. In recent years, we have seen the U.S. Supreme Court extending in criminal cases a degree of due process which has caused public authorities to complain that the Court is oversolicitous of the rights of defendants in these cases, to the detriment of the citizenry and of the authorities. Yet we now find the President's plan proposing a procedure under which litigants before the Board would be denied the basic elements of a hearing before a properly constituted tribunal. APPENDIX A (1) 126 NLRB 1-Local 294, IBT et al. (Jan. 5, 1960; Trial Examiner Charles W. Schneider). The Trial Examiner found that the Respondents had not violated the Act, and he recommended dismissal of the Complaint. The Board disagreed with the Trial Examiner both as to fact and law and issued an Order against the Respondents. (2) 126 NLRB 13-Eveready Garage (Jan. 5, 1960; Trial Examiner Howard Myers). The Trial Examiner found that the Employer had not discriminated against certain employees. The Board affirmed, BUT disagreed with many of his subsidiary findings (footnote 1 at page 14, and discussion at pages 14-15). (3) 126 NLRB 22-Local 20, Bakery & Confectionary Workers (Jan. 8, 1960; Trial Examiner John H. Eadie). The Trial Examiner found that the Respondent Union had not caused the discharge of an employee. The Board reversed and issued an Order requiring, inter alia, withdrawal of Union objections to the employee's hiring and payment of back pay. (4) 126 NLRB 30-Rudy Barber et al. (Jan. 8, 1960; Trial Examiner Louis Plost). The Trial Examiner's Intermediate Report was affirmed, BUT the Board disagreed with some of his basic findings. (See pages 31-32.) (5) 126 NLRB 63-Detroit Window Cleaners Union (Jan. 12, 1960; Trial Examiner Eugene Frey). The Board affirmed the Trial Examiner's findings and recommendations, but disagreed with some of his legal conclusions. (See footnote 2 at page 65.) (6) 126 NLRB 74-Vapor Blast Mfg Co. (Jan. 12, 1960; Trial Examiner C. W. Whittemore). The Board affirmed the Intermediate Report, but considered it necessary to write a 4-page opinion which supported its affirmance. (7) 126 NLRB 90-Economy Furniture (Jan. 12, 1960; Trial Examiner Vincent M. Rotolo). The Board affirmed the Trial Examiner's Intermediate Report without comment. (8) 126 NLRB 104-A & M Karagheusian (Jan. 13, 1960; Trial Examiner Arnold Ortman). The Board affirmed the Trial Examiner's Intermediate Report without comment. (9) 126 NLRB 115-Jackson Maintenance Corp. (Jan. 13, 1960; Trial Examiner W. Gerard Ryan). The Trial Examiner found that an employee had not been discharged in violation of the Act and recommended dismissal of the Complaint. The Board reversed and issued an Order requiring reinstatement and back pay. (10) 126 NLRB 123-Local 761, IUE-AFL-CIO (Jan. 13, 1960; Trial Examiner Thomas A. Ricci). The Trial Examiner recommended an order against the respondent. The Board affirmed BUT specifically added three additional activities to support the Order. Re the President's Reorganization Plan No. 5. Hon. JOHN L. MCCLELLAN, BRIDGEPORT BRASS CO., Bridgeport, Conn., June 27, 1961. Chairman, Senate Committee on Government Operations, Washington, D.C. DEAR SENATOR MCCLELLAN: Please permit us to join with many other American citizens and business enterprises in opposing Reorganization Plan No. 5. We believe sincerely that the plan raises fundamental and important issues as to fair administrative procedures. It would authorize the National Labor Relations Board to delegate any of its functions not only to a division of the Board, an individual Board members, or a hearing examiner, but also to an employee or employee board. This authorization is a significant departure from traditionally sound patterns of administrative authority. This is a dangerous departure which will give rise to more problems than those which prompted the formulation of the plan of reorganization. We assume that members of the Board and hearing examiners are selected because of their special competence in performing quasi-judicial functions in this field of labor relations. There is no such presumption concerning other employees. Figures cited by the Chairman for the year 1960 indicate that 21.7 percent of all cases were either affirmed only in part, reversed, or remanded. This indicates that there is genuine need for access to the Board on appeal rather than relying on the claim that a "substantial majority of decisons of trial examiners do merit respect and have proven acceptable." It is an American tradition that the needs of the minority be given full protection: this should be preserved even though we were concerned with a very small number of cases claiming review on their merits. The proper performance of these functions is carefully safeguarded by statutory provisions and by the Board's rules and regulations. To permit the Board to delegate the functions of deciding cases to employees not limited in their duties or required by statute to be picked for their capacity to decide cases would, in our opinion, be destructive of the judicial functions of the Board and undermine public confidence in the fairness of the Board's operations. This would be particularly true with regard to the Board's intention to delegate decisional authority as prescribed in unfair labor practice cases. The delegation authority contemplated by the plan is no more suitable to the National Labor Relations Board than would a similar authority be to the Federal district courts, permitting them, because of the backlog of cases, to delegate their duties to nonjudicial persons. |