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omitted, apparently in the premise for the conclusion of Dean Landis' statement, then the committee should not read the last part of Dean Landis' letter and then say you cannot delegate beyond examiners because his letter says so. His own letter leaves out a pertinent part that might allow it. Why didn't he comment on that?

Senator MUSKIE. Let me ask this. I don't know why he didn't comment on it. Dean Landis is saying to the chairman of this committee, and the chairman is in a position of having to recommend action or inaction to the full Senate, that this plan does not permit delegation to other than hearing examiners in hearing cases. This is what he is saying in this letter, isn't it?

Mr. DOUGLAS. Yes.

Senator MUSKIE. He is the author of the plan.

Mr. DOUGLAS. That is correct.

Senator MUSKIE. Now, let me ask you one other question. With reference to the last clause of section 7(a), the one that we have been discussing, is there any statute other than the plan which would permit or which would come within the proviso of section 7(a)?

Mr. DOUGLAS. I don't know of any at the present time. My understanding is that the Taft-Hartley law says specifically that the Board shall handle these matters and representation cases. That the Congress said in the Landum-Griffin act let's turn over representation cases. But, under present law, complaint cases should still be reviewed by the Board as a matter of right. I do not know, sir, in answer to your specific question of any other statute or quasi-statute which would allow the proviso of 7(a) to apply. But I would be interested in knowing, sir, whether Dean Landis or members of the Board consider that plan 5 is not a statute.

Now let me make this statement. The question was there has been an implication that I considered that Dean Landis and the chairman guilty of chicanery in covering up something in an official answer to this Board.

Senator MUSKIE. No; I asked you that as a question so you could disclaim it.

Mr. DOUGLAS. I do disclaim it and I would say this: That Dean Landis is absolutely of the opinion that 7(a) does prohibit such delegation, then he certainly is justified in drawing this conclusion. But I say that in fairness to this committee's analytical approach to this thing that he should have said you can't do it under group 1, group 2, and group 3. But there is a proviso that you've all got to watch out for and in my opinion it is not covered by that.

But the Dean ignores that and draws his conclusions from a, b, and c, and anyone on this committee who might not have read the proviso 7(a) could very easily take Dean Landis' letter, not knowing what had been omitted thereby and reach exactly the same conclusion that he reached.

Senator MUSKIE. If we were to ask him to say the same thing or if he would say the same thing about the proviso. Would you have any doubt what his answer will be?

Mr. DOUGLAS. I hope his answer will satisfy me by saying that this plan 5 is not a statute. No matter what his answer will be, I for one will not be satisfied that the delegation beyond the examiners is precluded unless it can be shown to me that plan 5 is not a statute because

the proviso says that functions under 4 and 5 of the Administrative Procedure Act, and that includes this adjudicatory functions.

Senator MUSKIE. Now, would you agree with me, coming back to the question I asked you earlier, that if the plan has the effect you say it does with reference to the proviso in section 7(a) that the reference to section 7(a) in the plan has no meaning?

Mr. DOUGLAS. I would say the reference to section 7(a) has no practical meaning by the same approach that I would say that, if my position is correct, then the reference to the word "employee" in the President's message and in plan 5, and I repeat, sir, to the point of ad nauseum, why did they put "employee" or "employee board" in there?" Why did the President use it? Why did plan 5 use it there, if, in their opinion, that was absolutely beyond the pale by virtue of 7(a)?

Senator MUSKIE. Well, the Chairman of the Board is taking note of this, and I hope he will be prepared to answer this question when he appears again. Just let me ask you one other question.

If this plan is adopted and if the Board at some point should undertake to delegate the hearing functions to employees other than hearing examiners, and if at some future time you should appear before such an employee with a client, would you not then argue that under the provisions of section 7(a) of the Administrative Procedure Act that delegation was illegal?

Mr. DOUGLAS. I would argue it. I found that some of my arguments before the Board are not particularly effective. I am always treated with courtesy and respect, but I find that they disagree very emphatically with me on many occasions.

Let's put it this way. Before I get a current case, a case referred to someone as a trial examiner's functionary, who is not an examiner, I am going to be heard from by somebody before my case reaches such a hearing.

I don't know who I shall yell to or not, but I do feel that the Board has no intention currently of delegating anything beyond the trial examiner.

Senator MUSKIE. They have gone beyond that and said that the plan would not allow them. It is a question of intention. They have gone beyond that and said the plan does not allow them to do it

Mr. DOUGLAS. But the final point, sir, is they say it does not allow them. I think it does.

Now, my test is based on this plan 5, a statute which refers to a particular group of people. I would like very much to be present. I cannot be present, but I would like to read what the Chairman or Dean Landis says when confronted, and I would love to have you ask them that specific point: number one, if plan 5 is a statute and plan 5 uses the word "employee" then does that come within the proviso of 7(a)?

I would be interested in their saying if it were a statute, there might be some worry, but it isn't a statute. But if they say it is a statute, then I would be interested in getting their approach to saying that "employee" in the President's message and plan 5 is a statute, but we are going to shut our eyes to section 7(a).

Senator MUSKIE. Well, Mr. Douglas, let me say in closing that I think you and I understand each other and I understand your argument. I think it is an ingenious one-maybe more than that—and

that I, at least, will undertake to ask the questions which your argument suggests.

Mr. DOUGLAS. I hope, Senator Muskie, you will consider my argument interesting. The word "ingenious" means it is sort of interesting to listen to but has no merit.

Senator MUSKIE. As a lawyer, the word "ingenious" has more merit to me than it might to a layman.

Mr. DOUGLAS. Thank you, sir.

Thank you, Mr. Chairman.

The CHAIRMAN. Very well. It seems to me the real point here is in trying to understand whether this reorganization plan is a statute and I think it is a statute-and whether it would refer to future statutes or to existing statutes. If it is a statute—and my opinion is that it is-it is intended to embrace all future statutes and would have the effect, insofar as section 7(a) goes, of repealing or suspending as it is applicable to this new statute.

Mr. DOUGLAS. Senator, if I may point out this one last point.
The CHAIRMAN. I think you have made your position clear.

Mr. DOUGLAS. In answer to that last one I am reading the last three words of the pertinent sentence in section 7(a), "or designated pursuant to statute." It does not say the statute.

The CHAIRMAN. I understand.

Mr. DOUGLAS. I understand the "designated pursuant to statute" means all future statutes.

The CHAIRMAN. I understand. From my standpoint it is worthy of some thought and I am going to give it some.

The Chair will make this announcement. I was hoping we could conclude these hearings today, particularly with respect to witnesses who are scheduled to testify. Fortunately for the committee, the Senate will not be in session this afternoon; we can continue the hearing. But, even if we do that, if each witness takes 1 hour's time, we are not going to be able to get through. So I say to the witnesses who appear now to present your position briefly and succinctly. There are only four or five real issues here. Please present them to us in concise language and we will try to refrain from asking any more questions than we have to, to keep the record clear. I am trying, in your interest and ours, to expedite the hearings today so that we may hear all of those who are scheduled to testify.

All right; our next witness is Mr. Thomas E. Harris. Mr. Harris, identify yourself for the record and proceed.

STATEMENT OF THOMAS E. HARRIS, ASSOCIATE GENERAL

COUNSEL, AFL-CIO

Mr. HARRIS. My name is Thomas E. Harris. I am associate general counsel of the AFL-CIO, and appear here on its behalf. We appreciate this opportunity to express to the committee our views on Reorganization Plan No. 5 of 1961.

The CHAIRMAN. Do you have a prepared statement, Mr. Harris? Mr. HARRIS. I do have a prepared statement. With the consent of the committee I would like to submit that statement for the record and paraphrase or summarize it orally.

The CHAIRMAN. You may proceed, Mr. Harris. Your prepared statement will appear in the record at the conclusion of your remarks.

Mr. HARRIS. The problem of delays within the National Labor Relations Board has been a matter of concern to the Congress and to the parties to Board proceedings.

As far as unfair labor practices are concerned, it is a truism that justice delayed is often justice denied. The charging party in most unfair labor practice cases thus suffers from Board delay.

Now the charging party may be a union. It may be an individual employee or it may be an employer. Since the passage of the TaftHartley Act in 1947, and even more so since the enactment of the Landrum-Griffin Act, the National Labor Relations Act seeks to prevent unfair labor practices not only by employers but also by unions. Indeed, the portions of the act aimed at unfair labor practices by unions are far lengthier and more complex than those aimed at employers. Nevertheless, the delays weigh differently upon the different categories of litigants before the Board. They weigh less heavily upon employers who are charging parties. They may advantage an employer who is a respondent. They may weigh more heavily upon unions and they weigh probably most heavily upon individual employees. The reason for that is rather simple.

I would point out that the act provides for mandatory injunctions against unions in various types of cases where, in the judgment of Congress, irreparable injury is likely to result to the employer. There are four types of those cases-secondary boycotts, hot cargo, and organizational and recognition picketing-and I should also mention jurisdictional disputes. In all these types of cases employers are protected by mandatory injunctions against the consequences of Labor Board delays.

In contrast, unions never enjoy that protection. There is no protection by way of mandatory injunctions against employers no matter how heinous their conduct, no matter how striking the injury which may immediately accrue to the union or to the individual employees. There is likewise no provision for protection of employees by mandatory injunction, either against the unfair labor practices of employers or against the unfair labor practices of unions.

Since the individual employee will usually be the least able of the three categories to bear the consequences of delay, I would say that they are the most disadvantaged by it, though unions are certainly substantially more disadvantaged than employers.

I think that candor compels me to admit that that is one reason why we are concerned with doing something about these Labor Board delays.

If they were to our disadvantage I hope that we would still be in favor of delay because, as I stated, we would still be in favor of cutting down on these delays. In my prepared statement I say I do not see how, as a matter of principle, any attorney can defend unnecessary delays in administrative proceedings.

Of course, I made that statement before these hearings started. I note, however, that Mr. Guy Farmer, a former Chairman of the Board and a lawyer now representing employers in Board proceedings makes the same statement and for the same reason supports the reorganization plan as we do.

We support the plan for the very simple reason that we think that it will be some help in cutting down Board delays in unfair labor practice cases.

Now as far back as 1952, the Senate Labor Committee made a study of Board delays in unfair labor practice and representation cases. The figures shown by that study are set out on page 2 of my statement. A comparison of those figures with the most recently available figures shows that in 9 years the Board has gotten a little slowerperhaps I shouldn't say the Board has gotten slower but the caseload has increased-the handling of the cases has gotten slower so that the situation the Senate committee was concerned about in 1952 has grown worse in the time since then.

The Congress, in the Landrum-Griffin Act, did authorize the Board to delegate to its regional directors power to decide representation proceedings, subject to discretionary review by the Board.

After considerable delay, of which we are as critical as some of the employer witnesses here have been, the Board did finally move this last May to implement that delegation.

We think that when the regional officers have become accustomed to handling these matters and when the practice of the Board as to what types of these cases it will review has been worked out over a period of time, this procedure should afford some relief in representation cases and also should give the Board somewhat more time for the handling of unfair labor practice cases.

However, the situation is so bad that it is clear that something more is needed.

Now, what is contemplated, I take it, under this reorganization plan is to give finality to the decisions of trial examiners in unfair labor practice cases, subject to a permissive review by the Board; that is, the Board can decide whether or not it will review these intermediate reports of trial examiners.

The plan itself, however, spells out that the Board must grant review if as many as two members of the Board are in favor of it.

Now what the Board has put into effect in the representation proceeding field and what is evidently contemplated here is something like the practice followed by the Supreme Court in granting review by writ of certiorari. That practice was instituted about 1928, I believe, because the Supreme Court was no longer able to hear in full all of the cases that litigants wanted it to hear.

Since that time it has, by rule, pursuant to the Judiciary Act of 1928, established this system of permissive review.

Now, under that system it grants review if one less than a majority of the court wants it. That is its practice. I don't believe that that principle is set out in the rules, let alone the statute, but in practice, it has always granted review if the nine justices want it.

This reorganization plan is evidently taken from that. The Supreme Court sets out in its rules the grounds on which it will grant certiorari. In the same way, the Board sets out in its regulations, which are quoted on page 4 of my statement, the grounds on which it will review decisions of a regional director in a representation case. Evidently, something of the same sort is contemplated here. Mr. Swigert, as I recall, said that he felt under these standards the Board could not review a case falling outside of it. I think there are two answers to that. In the first place, it just obviously is not so.

Under the Supreme Court's practice, it grants review whenever four members of the Board vote to grant it regardless of whether or not

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