Should the National Labor Relations Board conclude that the volume of cases coming before the Board is so great that the Board is unable to handle them properly, the appropriate procedure for obtaining relief is to submit to the Congress for consideration a detailed plan for revising the structure of the Board. The previous of paragraph (b) are entitled to special attention and serious consideration. This paragraph denies to private parties the right of appeal to the Board and offers them the opportunity to seek such appeal merely at the discretion of the Board. This is a far-reaching denial of a basic right and a violation of fair procedure. It vests in subordinate officials the power of final decision without redress as a matter of right by appeal. We earnestly recommend to the committee that plan No. 5 be rejected. JOSEPH P. MCNAMARA, Vice President. HICKORY, N.C., June 14, 1961. Hon. JOHN L. MCCLELLAN, U.S. Senate, Washington, D.C. MY DEAR SENATOR MCCLELLAN: Enclosed is a clipping from the AFL-CIO News of May 27, 1961, revealing that a union sponsored scheme for a change in the legal procedures of the National Labor Relations Board has been sent to Congress by the President as a reorganization plan. Unless affirmatively disapproved by at least one House of Congress it becomes effective 60 days after its submission. It was submitted on May 24. In substance the plan provides that after its effective date the Board's trial examiners and regional offices will have authority to make final decision in unfair labor practice cases with only a restricted and limited right to appeal to the Board. You are aware, I am sure, that authority has already been delegated to the regional offices to dispose of employee representation cases. The proposed plan is not only unwise and inequitable but in my view and that of many others there is serious doubt as to the validity of the program as a reorganization plan. Even Prof. Archibald Cox recommended that it be effected as an amendment to the Taft-Hartley Act. Under the act the Board was given authority to decide unfair labor practice cases. This was consistent with the general modern tendency to take litigation away from the courts where it rightfully belongs and delegate it to administrative bodys. You know, of course, that these decisions sometimes involve hundreds of thousands of dollars of an employer's money and property. As the law now stands there is no way that the employer can get a jury to pass on the controverted and conflicting facts involved in these cases. And the law is well established that on appeals from or enforcement proceedings by the Board to the circuit courts of appeals the courts will not disturb the factfindings of the administrative agency unless there is a complete lack of any substantial evidence to support them. The proposed reorganization plan goes one step further and turns this litigation over to the trial examiners, employees, and clerks of the Board, many of whom are not lawyers and who have no legal experience. It certainly seems that this is going entirely too far in the direction of confiscation of private property without due legal process. Amazingly enough even many of the trial examiners, the judges if you please, are not lawyers and some have come directly from union offices. Here in Hickory we had one case 10 years ago from a small, struggling furniture upholstering plant in which the amount involved was, according to the regional Board's investigative agents, in excess of $80,000. After 5 years of tedious legal process it was established that the proper amount was actually $20,500 and the employer then promptly paid the affected employees this amount. If these field offices had had the authority then that the proposed reorganization plan will now give them, the amount would have stood in excess of $80,000 and the employer would have been bankrupt and 84 employees would have been out of jobs. Further, the trial examiner, who had had no legal training, had held that the union represented a majority of the employees and had to be recognized. The Board (the Truman Board) reversed this holding as not supported by the evidence. Thousands of such examples throughout the country are available for consideration. The proposed plan and the efforts of the unions in their testimony before the current Powell committee investigation and the apparent trend of the present administration's labor policies seem to be carefully designed and coordinated to remove every obstacle from a union organizer's path on the assumption that a business cannot operate properly and should not be allowed to operate at all unless the employees are represented by a labor union. There still remain as citizens of this country a few of us who do not accept this as a sound assumption. Unless someone voices effective protest and unless Congress acts alertly, this policy and theory will become the law of the land by administrative manipulation and pressure. It is as consistent to prohibit the operation of a business that does not pay tribute to the chamber of commerce and to deny a citizen the right to vote if he does not contribute financially to a political party as it is to deny an employee the right to work if he does not divided his paycheck with a labor organization. Parties to unfair labor practice cases are at least entitled to a judgment by someone appointed by the President and confirmed by Congress. Please challenge the proposed reorganization plan and protect the true constitutional meaning of "due process of law" as precribed by the fifth amendment. Respectfully submitted. YOUNG M. SMITH. [From the AFL-CIO News, May 27, 1961] KENNEDY SENDS NLRB REVISION TO CONGRESS The National Labor Relations Board will get authority to delegate to trial examiners the power of decision in unfair labor practice cases, subject to review by the five-member board, under a proposed reorganization plan sent to Congress by President Kennedy. The Board also would get authority to delegate to member panels or to panels of staff attorneys decisions in cases of jurisdictional disputes involving two or more unions. These decisions also would be subject to appeal. The effect of the reorganization, if it goes through Congress, would be to speed up NLRB processes, reduce the time that elapses between the filing of a completed and a final decision, and enable the Board to reduce its backlog. The reorganization will go into effect 60 days after its submission to Congress unless one of the Houses of Congress affirmatively disapproves it. The jurisdiction disputes authority was proposed to enable the Board to carry out, through panels, a decision in a Columbia Broadcasting Co. case in which the Supreme Court said the Board has a duty to decide which of two disputing unions is entitled to do work that both claim and "then specifically to award such tasks" to one or the other union. The Labor Board would be established, under the reorganization order, as an appellate body, with authority to delegate "any of its [statutory] functions" to Board panels, employee panels, or trial examiners. The proposal would require review of any decision by the full Board if a majority, less one, of the full membership votes in favor of it. The President's reorganization plan did not include an increase in the Chairman's administrative authority, as was previously asked by Kennedy in proposed reorganizations of several other agencies. MORGAN, LEWIS & BOCKIUS, In re Pennsylvania State Chamber of Commerce. Senator JOHN L. MCCLELLAN, Chairman, Senate Committee on Government Operations, DEAR SIR: This letter is written on behalf of the Pennsylvania State Chamber of Commerce. My purpose in writing is to state the opposition of the chamber to reorganization plan No. 5 of 1961, as submitted by President Kennedy to the Senate and the House of Representatives on May 24, 1961. We respectfully urge your committee to recommend to the Senate that this plan be disapproved. We are sympathetic to the proposition that proper means should be found to reduce the caseload of the National Labor Relations Board and to solve the problem of delay. We are convinced, however, that Reorganization Plan No. 5 is not a proper solution to these problems. We believe that this plan is submerged in the objective of quantity and loses sight of the vastly more important objective of quality. We believe that this plan is not in keeping with our traditions of jurisprudence because under it the determination would not be reviewable, as a matter of right in the litigant (whether employee, employer, or labor organization) by a Board comprised of members duly appointed by the President and duly confirmed by the Senate. Members of our firm have been active in the field of labor management relations, covering the complete spectrum, since 1933. One of our partners, Robert H. Kleeb, Esq., was formerly a regional attorney with the National Labor Relations Board, with which he served in various capacities from 1935 until 1943. As management counsel, we have had extensive experience in representations before the Board. While the language of plan No. 5 is patently very broad, the Chairman of the National Labor Relations Board, and others, have stated that the primary objective of the plan is to permit the Board to delegate to trial examiners authority to make initial decisions in unfair labor practice cases, subject to review only at the discretion of the Board. Disregarding, for the moment, the question of the legal propriety of the broad delegation proposed in the plan, we feel that it would be a grave error to delegate such authority even though limited to unfair labor practice cases. There is great variation in the political and philosophical approaches of trial examiners to labor-management problems. Some of them not only lack judicial temperament but have had no legal training. At page 4 of the June 5, 1961, statement presented by the National Labor Relations Board to the House Committee, in support of Reorganization Plan No. 5, it is indicated that, in fiscal 1960, review was sought by one or more of the parties in 76 percent of the "total dispositions." In the 357 cases so reviewed, the Board affirmed in part only, or reversed, or remanded, in 102 cases. This is not to mention the situations in which the Board, although affirming trial examiners, clarified and interpreted their decisions. We cannot understand, much less agree with, the Board's expressed feeling that such a record stands for the proposition that trial examiners' decisions should be binding upon the parties without any right to appeal to the Board. On the contrary, these facts completely support exactly the opposite contention because they indicate clearly that in a great many cases the Board found that the trial examiners had erred. In two situations involving unfair labor practice charges against Teamster Local No. 107 in Philadelphia, the Board reversed trial examiners twice within a period of 3 months, and issued cease and desist orders against the local. Many more similar examples could be cited. Of course plan No. 5 could not and would not deprive litigants of the right to have their cases reviewed by the U.S. courts of appeal. However, it would seem clear that the adoption of plan No. 5 would merely serve to shift the caseload to these courts. This could only result in even greater delays than are now experienced, not to mention the substantial additional costs that would be involved. The Board has just recently delegated to its 28 regional directors broad decisionmaking powers in processing representation cases. This delegation was made possible by the 1959 amendments to the Labor-Management Relations Act, and undoubtedly will result in a substantial lessening of the Board's caseload in this area, leaving it more time to devote to cases involving unfair labor practices. We believe it would be a mistake to rush into further delegations of powers at this time. In our judgment, the better course would be to observe the results of the delegation of powers in representation cases and use the experience thus gained in considering the wisdom or lack of wisdom of further delegation. We submit that the adoption of plan No. 5 would, in ultimate effect, make a bad situation worse and would tend to destroy public confidence in the processes of the National Labor Relations Board at a time when every effort should be made to build up that confidence. Respectfully submitted. KENNETH SOUSER. MIDWEST EMPLOYERS COUNCIL, INC., Subject: President's Reorganization Plan No. 5 regarding additional final power of decision to NLRB trial examiners. Senator JOHN F. MCCLELLAN, Senate Office Building, Washington, D.C. DEAR SENATOR MCCLELLAN: This Employers Council has tried to compact its reason for opposition to Reorganization Plan No. 5 into as few words as possible in the belief that you will still consider the logic of our position. As you probably know, this Reorganization Plan No. 5 will: 1. Allow trial examiners of the NLRB (National Labor Relations Board) to have ultimate and final authority on such matters before them as multimillion dollar pay awards, etc. (many are nonlawyers), unless NLRB Board Members utilize their discretion to hear an appeal (which is unlikely since this is the very thing this plan is seeking to eliminate-appeals). Circuit courts will not disturb the fact findings of the administrative agency unless there is a complete lack of any substantial evidence to support themeven if the circuit court would itself have decided differently. 2. Further broaden the departure of governmental responsibility to the electorate. This Reorganization Plan 5 would direct more judicial determination to administrative bodies, moving again close to one judge, juror, and prosecutor. 3. Allow circumvention of the Landrum-Griffin Act by allowing the President to effectively amend the law by Executive order. Congress refused to add it as an amendment to the Taft-Hartley Act. 4. Actually would permit confiscation of private property without the true constitutional protection of "due process of law" as prescribed by the fifth amendment. The above are just some of the more obvious things Reorganization Plan No. 5 will do. Our own experience in dealing with the NLRB Board and regional offices has led to these further conclusions: 1. Many of the NLRB personnel are selected directly from the field of labor and thereby find it difficult to be entirely impartial, even now with appeal available. Further, appeal is not regularly resorted to by the employer now because usually the union has the NLRB acting as their advisors and/or attorney, while the employer employs his oun counsel. 2. Even with appeal available in every case many apparent sincere NLRB representatives have seemingly approached employer-employee union matters to prove the employer wrong rather than establish the facts. Justice requires appeal on the facts. 3. In numerous instances, unions who have been unsuccessful in organizing a plant or winning at the bagraining table have gone to the Board with charges entirely processed by NLRB personnel for the union's cause. If the union has been wrong, it has cost the union nothing. Many times employers have made settlement agreements with the NLRB representing the union because the employer could ill afford the high cost even of winning, i.e. last week, it was cheaper for a small marginal employer to "settle" for $800 a charge than process it through the Board at a cost of about $3,000 even though we were both sure he was right. Our recommendation is that the historic judicial function of our courts be maintained, expended if necessary, but continue the constitutional safeguards symbolic of our democratic nation-thus 1. Have NLRB handle such administrative matters as: (A) Conducting employee representation elections, (B) Prosecution of unfair labor practice cases before the district courts of the United States. 2. Treat labor, employee, employer relationships in the same judicial manner as insurance, torts, trusts, etc., and allow appeal through our established courts of law. Isn't it as logical to argue that we do not need a Supreme Court because only a few of the original causes of action reach the Supreme Court as it is to argue that we do not need right of appeal from NLRB trial examiners because few cases are appealed? Isn't-shouldn't such right of appeal be a fundamental right of all American citizens. Sincerely, JOHN E. TATE, Executive Vice President. July 12, 1961. CONFERENCE OF STATE MANUFACTURERS ASSOCIATIONS, Hon. JOHN L. MCCLELLAN, Chairman, Committee on Government Operations, DEAR SENATOR MCCLELLAN: The enclosed statement by the Conference of State Manufacturers' Associations is respectfully submitted for inclusion in the hearings of the Senate Committee on Government Operations on Reorganization Plan No. 5, concerning the National Labor Relations Board. Sincerely, C. WEBER TULEY, STATEMENT SUBMITTED TO THE SENATE GOVERNMENT OPERATIONS COMMITTEE ON BEHALF OF THE CONFERENCE OF STATE MANUFACTURERS ASSOCIATIONS IN OPPOSITION TO THE PRESIDENT'S REORGANIZATION PLAN No. 5 OF 1961 This statement is submitted by and on behalf of the Conference of State Manufacturers Associations and in particular on behalf of the member State employer groups and manufacturers associations listed below: Associated Industries of Alabama. Associated Industries of Arkansas, Inc. Manufacturers Association of Connecticut, Inc. Associated Industries of Massachusetts. Minnesota Employers Association. Mississippi Manufacturers Association. Associated Industries of Missouri. Associated Industries of Nebraska. New Hampshire Manufacturers Association. New Jersey Manufacturers Association. New Mexico Business & Manufacturers Association. Ohio Manufacturers Association. Associated Industries of Oklahoma. Associated Oregon Industries, Inc. Associated Industries of Rhode Island. Tennessee Manufacturers Association. Texas Manufacturers Association. Utah Manufacturers Association. Associated Industries of Vermont. Virginia Manufacturers Association. West Virginia Manufacturers Association. Wisconsin Manufacturers Association. While many of the individual firms and companies belonging to our respective associations are engaged in intrastate commerce, the greater majority are without doubt engaged in interstate commerce, and therefore are subject to the Labor Management Relations Act, as amended, and to the jurisdiction, rules, and procedures of the National Labor Relations Board. We oppose Reorganization Plan No. 5 of 1961 relating to the National Labor Relations Board for the following reasons: |