and 3 otherwise, whereas 107 cases were closed after court decrees. In fiscal 1960, 275 cases were closed after Board decision and before court decree; 185 cases were closed by compliance, 86 by dismissal, and 4 otherwise. (See attached schedule.) Thus, it is clear that Board review has served to dispose of a great many cases on compliances and by dismissals that otherwise would have been potential court cases. The value of and the necessity for such review is clear. The message transmitting the plan says that "in order to maintain the fundamental bipartisan concept explicit in the statute creating the Board" provision is made in the plan for "mandatory review *** upon the vote of a majority of the Board less one member." This has been cited as a "safeguard” in connection with the Board's exercise of its discretionary review powers under the plan. The short and conclusive answer to this is that the National Labor Relations Act contains no such bipartisan concept explicitly or otherwise. Undoubtedly, this error stemmed from attempting to group plan 5 with reorganization plans for other agencies operating under different statutes. In any event, the granting or withholding of Board review in a case involving alleged unlawful discharges, for example, on political party lines or union or employer lines or on any other "lines," would be utterly and completely wrong, and would afford no proper “safeguard” for the rights of the parties. III The message transmitting the plan indicates that its purpose is to provide for the delegation of matters of an “adjudicatory and regulatory" nature, “depending upon their importance and their complexity" so as to relieve Board members of many matters of "lesser importance," thus, conserving their time for consideration of "major matters of policy and planning.” Statements such as these were also made in the messages transmitting reorganization plans 1 to 4 and undoubtedly were at least relevant to the functions and operations of the agencies to which they related. This does not appear to be true in respect to the National Labor Relations Board which has no regulatory function in any sense comparable to the SEC, FCC, or CAB. Moreover, under the National Labor Relations Act, as amended, the General Counsel has final authority in respect to the investigation and prosecution of alleged unfair labor practices completely independent of the Board. In de termining in advance of hearing whether or not to delegate to the examiner the power to decide the case, subject only to limited and discretionary review, as would be authorized under the plan, the Board would have no way of knowing whether the case was important or complex. It appears clear from the record thus far that the present Board intends to delegate the decision of all cases so as to constitute itself as an appellate body granting review only when it chooses to do so. Practically all unfair labor practice cases are important and most of them are complex. All of them have to be decided on their own particular facts. Questions of motivation and of preponderance and substantiality of evidence have to be decided in almost all of them. Simply stated, the decisions in unfair labor practice cases at the administrative level are too difficult and the impact of them is too great and far reaching to entrust to any one person without the right to review by the administrative Board itself. It seems incongruous that the administrative Board should be permitted to refuse to review questions that the parties are entitled to have reviewed by a court of appeals composed of three Federal judges. Statistics have been submitted to this committee in an effort to show that examiner's reports have proved acceptable to the affeced parties who have not contested them and acceptable to the Board which has adopted or affirmed them "in full." The Board's records do not bear that out. Indeed, they show the contrary. The annual report of the Board for the fiscal year 1960 points out that in the fiscal year 1959 examiner's reports were not contested in 10 percent of the cases in which reports were issued and that in fiscal 1960 the figure was 19 percent (p. 15). Or, to express it another way, the fiscal 1959 examiner's reports were contested in 90 percent of the cases and in the fiscal year 1960 they were contested in 81 percent of the cases. This certainly does not demonstrate widespread acceptance of examiner's reports by the parties. The Board's annual report for 1960 shows that 117 cases were closed in which the Board adopted noncontested examiner's reports, 77 of which were dismissals. This accounts at once for the absence of exceptions, and the absence of exceptions for the automatic adoption of the report under the terms of the statute. An analysis, a copy of which is submitted herewith, made of Board decisions issued in unfair labor practice cases in the fiscal year 1959 and reported in volumes 121, 122, and 123 of the official reports of the Board's Decisions and Orders shows that of the 280 decisions in proceedings in which examiner's reports had been filed there were at most only 75 decisions in which the Board adopted the report without change. In 70 decisions the report was adopted with additions and/or reservations. In 135 decisions the examiner's report was modified or reversed. Thus, in 205 of the 280 decisions the Board did not adopt the report of the examiner "in full." This certainly does not show that Board review was needless or futile. Nor does it show that the time has come to turn decisionmaking over to the examiners or to do away with the present statutory right to review by the Board. It is shocking to think what the result would have been had plan 5 been in effect in the fiscal year 1959. Even in those cases in which the Board affirmed the examiner's report after review, the time thus spent was not wasted. Thereby the parties are freed from one-man rule, and the resulting decision in truth and in fact becomes that of the agency that is responsible for the administration of the act. With the field preempted as a result of the enactment by Congress of the National Labor Relations Act, as amended, it certainly should not be abandoned to an individual without the right to review by the Board for which he purports to act. Other matters that require consideration and that support the conclusion that the plan should be rejected are: (1) The impropriety of shifting the initial review of examiner's reports from the Board to the courts as long as the administrative decisional process is retained. (2) The retention of present limitations upon court review imposed because of the presumed expertese of the administrative Board without the actual exercise by the Board of that expertese. (3) The impropriety and questionable legality of attempting to substitute the 60-day crash program of the plan for the normal legislative processes of the Congress. JULY 12, 1961. |