(a) The trial examiners are independent, conscientious, and well trained men with firsthand observation of the witnesses.

Parties will not suffer by giving more finality to the findings of hearing examiners. These hearing examiners (or trial examiners as they are known at the Labor Board) are not faceless bureaucrats. These trial examiners are appointed from an approved roster established by the Civil Service Commission and removable only by the Civil Service Commission (after a due process hearing and only for cause). They are not answerable in any way to the Labor Board for their opinions, except to the extent a Federal district judge is answerable to a Federal court of appeals. I think I know most of the trial examiners and I have seen them function judicially, and although not all are of equal ability I feel they are a fine group of men who are conscientious, independent, judicial, and understand the act quite well. Moreover, I feel that these trial examiners who hear the evidence and observe the witnesses are in a better position to make a decision in the factual-dispute cases than are the Board members in Washington who review the cold (and stale) pages of the record. (b) Labor Board review remains available upon vote of two of the five Board members.

The finality accorded the trial examiner by plan No. 5 is partial, not complete. The plan provides that the Board shall retain a discretionary right to review the action of any trial examiner and that

the vote of a majority of the Board less one member thereof shall be sufficient to bring any action before the Board for review.

This provision giving a minority of two the right to bring any case to the attention of the full Board insures that meritorious cases and issues will not pass unnoticed. There is no reason to think that the Board members will abdicate their responsibilities or fail to scrutinize each case with care to see if Board review is called for.

(c) Judicial review remains available as before.

Reorganization Plan No. 5 does not in any way deprive the litigants of their existing judicial review. If the Labor Board refuses to review a trial examiner opinion which a party litigant believes erroneous, the litigant can immediately appeal to the circuit court of appeals for the purpose of securing a court review.

No attorney can, as a matter of principle, defend unnecessary delays in administrative proceedings. The representatives of labor, management, and the public on the Cox Panel concluded that the best opportunity for reducing delay before the Labor Board

lies in curtailing the de novo review of trial examiners' reports. Many unfair labor practice cases turn upon questions of fact. * * * Most of these cases present no issue of law or policy which warrants Board deliberation. *** Trial examiners are carefully selected. Most of them have had long experience. There is no reason to suppose that the findings of fact of an experienced trial examiner who actually hears the evidence are less likely to be correct than the findings of a legal assistant working upon a cold transcript of the testimony.

For these reasons I support Reorganization Plan No. 5.

The CHAIRMAN. We will go over this again in the morning. The committee will now stand in recess until 10 o'clock tomorrow morning. Tomorrow we hope to do our best to conclude this hearing.

(Whereupon, at 12 o'clock noon, the committee recessed, to reconvene at 10 a.m., on Thursday, July 13, 1961.)

REORGANIZATION PLAN NO. 5 OF 1961: NATIONAL

LABOR RELATIONS BOARD

THURSDAY, JULY 13, 1961

U.S. SENATE,

COMMITTEE ON GOVERNMENT OPERATIONS,

Washington, D.C.

The committee met, pursuant to notice, at 10 a.m., in room 3302, New Senate Office Building, Senator John L. McClellan (chairman) presiding.

Present: Senators McClellan, Ervin, Muskie, Jackson, and Mundt. Also present: Walter L. Reynolds, chief clerk and staff director; Ann M. Grickis, assistant chief clerk, and Eli E. Nobleman, professional staff member.

The CHAIRMAN. The committee will come to order.

Our next witness is Mr. Robert D. Douglas.

Mr. Douglas, will you come around please and have a seat?

Senator ERVIN. Mr. Chairman, if I may make a statement at this point, I would like to say that Mr. Douglas is one of the most distinguished members of the North Carolina bar.

His father, who died recently, was also one of our finest lawyers and served for a time as attorney general of North Carolina.

His paternal grandfather was a very distinguished member of our State supreme court, and his maternal grandfather was also a distinguished judge and lawyer.

Incidentally, he is a direct descendant of Stephen A. Douglas, whose election to the Presidency in 1860 might have averted the great tragedy of the American Civil War.

The CHAIRMAN. We are very happy to welcome you, Mr. Douglas. I believe you are appearing in opposition to Reorganization Plan No. 5.

STATEMENT OF ROBERT D. DOUGLAS, JR., ATTORNEY AT LAW, GREENSBORO, N.C.

Mr. DOUGLAS. That is correct, Mr. Chairman, I do oppose the plan. My name is Robert D. Douglas, Jr., of the law firm of Douglas, Ravenel, Jose, and Hardy of Greensboro, N.C. I have been active in the practice of law, in the field of labor relations law for about 14 years.

I am attorney for Piedmont Associated Industries, an industrial association of approximately 106 industrial firms in central North Carolina.

I generally represent management, although on several occasions I have represented members of the Teamsters Union to attempt to get a little justice from their own union.

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I have a brief statement, Mr. Chairman, which I would like to read, and immediately thereafter I would like to discuss briefly one or two of the questions that came up in this hearing yesterday.

This will have to do with the extent or delegation under plan No. 5 with particular reference to whether or not section 7(a) of the Administrative Procedure Act offers a protection against what some of us are worrying about.

The CHAIRMAN. Very well; you may proceed with your statement and at the conclusion you may revert to some issues that have been raised by previous testimony.

Mr. DOUGLAS. I have been asked to express the opposition of Piedmont Associated Industries to Reorganization Plan No. 5. I am further appearing on my own behalf as a practicing attorney.

Anyone who has any practice before the National Labor Relations Board must admit that the Board has accumulated a tremendous backlog of work. It appears that something should be done to reduce the time spent by the Board in de novo review of cases in their entirety, which present no new legal problems nor changes in administrative policy. The question is: Is the procedure contemplated by plan 5 the proper way to meet the problems, or will the consequences of plan 5 produce a result worse than the present backlog and slow time schedules?

In the first place, the recent delegation of authority in representation cases should greatly reduce the work of the Board. I think this delegation is a realistic one, and I am of the opinion that except in matters which present new legal problems to regional directors, and these will be referred to the Board anyway, there is no need for the Board to pass on commerce data, unit determination and eligibility, and other routine matters.

Cases involving unfair labor practices, however, constitute an entirely different problem. The Board should realize that problems involving new law or policy are not the only ones of interest to millions of Americans. To an employer, the adverse decision of a trial examiner requiring backpay of several thousand dollars to a group of discharged persons is a case of extreme importance, even if the law involved has been long established. A discharged employee is just as concerned over having the protection of the act invoked in his favor. Few of either group will feel satisfied with a final order issued by a trial examiner where the affected party has no true right of appeal and I say right of appeal rather than possibility of appeal. I am of the opinion that there will be numerous adverse effects which will result if plan 5 is put into operation.

(1) Lawyers and laymen will lose at least some confidence in the judicial processes of the Board.

(2) I believe there will be a strong feeling that cases in which the Board declines review should be reviewed by the court.

(3) There will be a general feeling that the Board is not delegating but is abdicating its powers; that the Board is not simply allotting its functions to be handled by agents under its supervision, but rather is shrugging off its judicial function to administer justice to employees and employers, for the sake of "making policy" and "developing new law"; that the Board will, in effect, be considered to have said, "We have declared what the law is in these matters; do not trouble us with this thing again."

The proponents of plan 5 say that most of the decisions by trial examiners in unfair labor practices are "routine." But, according to NLRB statistics furnished to this committee by the Chairman of the Board on June 6, 1961, 24 percent of the trial examiners' reports are accepted by the parties involved; 54.3 percent are affirmed by the Board on review; and 21.7 percent are changed by the Board in whole or in part. To me this means that almost one-third of all the trial examiners' reports reviewed by the Board are found unsatisfactory in some manner. Under the proposed system of restricted review in plan 5, I doubt if the Board would review as many as one-third of the total cases on which review is requested.

The CHAIRMAN. Do you think the reviews will be reviews on material matters? If it is an established fact by experience that a third of the cases heretofore reviewed have been found unsatisfactory in some degree, that more cases are going to get by where unsatisfactory conclusions are reached by the examiner?

Mr. DOUGLAS. I do indeed, Mr. Chairman. I feel certain that the whole purpose of this is to reduce the number of cases reviewed and I feel sure that the number reviewed will drop very materially because the Board will not grant review in a great many cases.

The CHAIRMAN. In other words, past experience would indicate that one-third of the cases dropped from review are those in which possibly some corrective action would have been taken had there been review.

Mr. DOUGLAS. That is right.

The CHAIRMAN. That is what your statistics here indicate.

Mr. DOUGLAS. That is correct. I was just reading labor relations reports recently on a brand new case from the fourth circuit. That is NLRB v. Washington Aluminum Co. That case, sir, was rather simple from one standpoint. A group of employees walked out of a plant one cold day after stating it was too cold to work. They were replaced and then came back to apply for their jobs before replacement and they were denied their jobs.

The trial examiner said it was an economic strike; they walked out in protest of working conditions and therefore, they were entitled to reinstatement, to be put back before they were replaced.

Now in my opinion, under plan 5, if the trial examiner said it was a cut-and-dried matter, it is an economic strike and everybody knows that economic strikers are entitled to reinstatement before replacement. But the circuit court, reviewing this on the order of the Board said that there was no demand made; that these workers who had walked out of the plant had not made demands about better heating and protested it as an economic strike. They had simply walked out without presenting a proper demand, so the Circuit Court of Appeals of the Fourth Circuit threw the case out and said they were economic strikers.

Now that is the kind of thing that looks, superficially, as if it was a cut-and-dried matter and I am satisfied on certiorari the Board would have declined to review that. They would have said the trial examiner finds it is an economic strike. Everybody knows the law on economic strikes and they say "don't trouble us on this case." Just what the circuit court would have had to go on I am uncertain. The CHAIRMAN. If this reorganization plan goes through, will the