the case falls squarely within its rules as to the type of cases that will be taken.

Here, the reorganization plan plainly requires review if as many as two members want it, regardless of why they want it.

In the third place, the rules set out on page 4, which Mr. Swigert described as a narrow set of standards, are, I would say, very good. They are broad enough it seems to me, that every attorney having the slightest ingenuity will find no difficulty in bringing his case within them. The Board may not agree with him but the rules are certainly broad enough to cover almost any conceivable case.

Senator MUSKIE. Do you like the word "ingenuity"?

Mr. HARRIS. Yes; and I am sure that Mr. Douglas would not have the slightest difficulty in bringing any of his cases within these four standards, to his own satisfaction at least.

Now, we believe that giving finality to the reports of trial examiners in some number of cases would serve to speed up the proceedings in two ways. First, it would speed it up directly by eliminating one step in the proceeding.

Now, one of the reasons that Board cases are so slow is that it is a many-step procedure. First, the charging party files a charge. The General Counsel's Office investigates it. Then the General Counsel's office issues a complaint. Then there is a hearing before a trial examiner. And then the trial examiner writes an intermediate report, and the average time taken for that I think is about 6 months.

Then exceptions are filed, the case goes to the Board, and the Board writes a decision. This takes another 6 months or 1 year. Even when all of that is finished, that is not the end of it because the Board's decisions are not self-enforcing.

Now, the employer witnesses against the plan-with singular unanimity, it seemed to me-tried to give the impression that they were being cut out of an absolute right to review in all cases by the reorganization plan. That is not so. The Board decisions are never self-enforcing. If the Board refuses to review a decision of a trial examiner, when application is made to it for review, the decision of the trial examiner is not then self-enforcing. The respondent in an unfair labor practice case isn't even under any necessity of going into court himself. If the Board wants to enforce a decision against himand this will be true under the reorganization plan even in cases where the trial examiner's report becomes the decision of the Board-the Board has to go into a court of appeals. That will be equally true under the reorganization plan. But, in every case, there is not only review in the court as a right; the order can't be enforced against the respondent except by a court on review.

Now, all that the reorganization plan would do would be to cut out one of the two permissive steps in the review process. At present, there are two steps of which any respondent can avail himself as a matter of right. In every case, no matter how clear cut, one is review by the Board and the second is review by the court of appeals. Together, these two steps take about 2 years.

Now, this plan would simply eliminate one of those steps in cases where the Board thought the matter not warranting review.

When the court of appeals reviews these cases as far as the factual issues are concerned, the statute 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. The language "on the record considered as a whole" was added to the Wagner Act by the Taft-Hartley Act in order to broaden the reviewing function of the appellate courts so that this review function is now, and under the reorganization plan will be, broader than the function the courts have with respect, for example, in civil cases.

A great many unfair labor practice cases-in fact, nearly every unfair labor practice case-present issues of fact. Some of them present only issues of fact. In all of these cases, the trial examiner is the man who sees the witness. He is in a position to evaluate the weight of their testimony upon the basis of their demeanor; that is, whether they seem to him to be telling the truth. He is, in other words, in the position of the trial judge, the Federal district judge.

The Board, on the other hand, has before it only the printed record. It seems to me that the trial examiner is in the better position of the two to evaluate the testimony. I do no see, in cases where there is only an issue of fact, that the review of the fact issue by the Board serves any useful purpose, since the case in any event is going to go to a court of appeals. Even in cases which combine issues of law and issues of fact, I think the Board would be well advised to establish the principle that it does not reevaluate the trial examiner's finding of fact unless there is a showing of arbitrary conduct in his behalf.

As it happens, the latter part of my statement sets forth an example of the sort of factual issue which now is reviewed at great length; first by the trial examiner, then by the Board, and then by the court of appeals.

In this case, the trial examiner found in favor of the union; the Board reversed; the court of appeals, which was the court in Chicago for the seventh circuit, in turn reversed the Board and found and agreed with the trial examiner. I think that that is a fairly typical case in that I think that the court of appeals tends to give weight to the trial examiner's findings as the man who saw the witnesses.

On a factual issue, I, myself, feel it is more advantageous to have findings in my favor by the trial examiner than those of the Board, assuming that the case is going to the court of appeals, as it always does.

Now Mr. Swigert, I believe, undertook to say that he is opposed to this plan because, in his judgment, most of the trial examiners were prejudiced in favor of unions and he thought that employers got a better shake from the Board than from the trial examiners, on the whole.

Now, this surprises me a little bit as, on that same day, the general counsel of our union came to me and said he thought the AFL-CIO was wrong in supporting this reorganization plan because he felt that the unions were being dealt with unfairly by so many of the trial examiners and that they got a better shake before the Board. Senator MUSKIE. Do you think there is any such thing as a neutral man?

Mr. HARRIS. I don't think there is any such thing as a neutral lawyer, anyway. Certainly, he is a very rare bird.

Actually, there are about 60 or 70 of these trial examiners. I question whether either Mr. Swigert or the general counsel of the union to whom I was referring, has any adequate basis for judging the performance of these trial examiners, as a whole. Certainly, no

evaluation of that sort enters into our support of this plan and I would be less than frank if I didn't say that I don't think that it entered into either Mr. Swigert's mind, or my friend, the general counsel. I think Mr. Swigert is opposed to the plan because the employers whom he represents are advantaged by delay.

I think my friend, the general counsel, happens to represent a union which is often a respondent in Board proceedings and seldom a charging party. Delay helps defendants; it helps respondents; and I think that the testimony before this committee, with the exception of one or two high-minded men like Mr. Farmer, reflects simply that fact.

I see that Mr. Farmer has filed a statement supporting the plan, even though this will not work to the advantage of his own clients, and I commend him for doing that.

Now, that will complete my statement unless the committee has some questions.

The CHAIRMAN. Senator Muskie?

Senator MUSKIE. Just two, for the record.

Now, you have heard the argument made by Mr. Douglas this morning with reference to the relationship of plan No. 5 in section 7(a) of the Administrative Procedures Act.

I would like to get your opinion on the record as to whether or not plan No. 5 would permit the delegation of unfair labor practices cases to employees of the Board other than hearing examiners.

Mr. HARRIS. Preliminarily, let me say that we would be no more in favor of such a delegation than Mr. Douglas was. We would be very much opposed to the Board delegating the power of decision to anyone other than trial examiners in unfair labor practice cases.

If we thought that the plan would have that effect we would not support it. We don't think, however, that it does. I don't think that the plan does or can override the provisions of the Administrative Procedure Act. I don't think that it was intended to do so.

Finally, as a practical matter, it seems to me that the Board is wholly committed by hearings here and before the House committee, that the plan will not be used to delegate power other than to trial examiners.

I don't think there is any need for practical concern about the

matter.

Senator MUSKIE. Do you think that the plan is a statute within the meaning of the language of section 7(a) of the Administrative Procedure Act?

Mr. HARRIS. No, it doesn't seem to me it is a statute. There are many things that a reorganization plan cannot do that a statute can do. The reorganization plan is a legal device, the limit of which is reached by the Reorganization Act. It doesn't stand on the same footing as a statute nor in any formal usage.

The CHAIRMAN. I don't see how you can construe it otherwise than as a statute. It becomes the law of the land just as if it were passed actually by both Houses of Congress and signed by the President of the United States. I don't see how anybody can contend it is not a law and becomes the law and it is tantamount to being a statute because the procedures by which it is adopted absolutely makes it effective as if it were a statute.

Mr. HARRIS. Well, the chairman of course, knows the term "law" using the word without a capital "L," includes a great many things. It includes a statute, the common law, a treaty, a valid Executive order, a reorganization plan. I quite agree a reorganization plan can become the law just in the sense that an Executive order does, assuming that the Executive order is valid. But that does not seem to me to make it a statute or a law with a capital “L.”

The CHAIRMAN. Well, it raises an interesting question.
Senator MUSKIE. One other question.

Mr. HARRIS. I cannot conceive in any event in view of the statements that have been made that this would be used to delegate power to other than trial examiners and certainly we would be in here with Mr. Douglas complaining, for once on the same side with him, if it

were.

The CHAIRMAN. I am not arguing his position but by means of a reorganization plan, you can order things done differently than from a statute. Therefore, anything that can change a statute becomes a statute. That is how it seems to me, but I could be wrong.

Mr. HARRIS. As you, of course, know, a treaty can change a statute but it certainly is not a statute and not the same thing as a statute. The CHAIRMAN. It takes the place of a statute for that purpose. I am still not convinced either way on this thing because it does refer to statutes there. You say there may be a distinction between a law and a statute in the sense as you use it and that this would not apply because it is a reorganization plan. But it does raise a very interesting question. It may become very interesting as the operation of the plan goes into effect and as it operates and is administered.

Mr. HARRIS. If the Congress or the committee feels that the issue is still doubtful and important it might consider suggesting that the matter be submitted to the Attorney General for a ruling.

The CHAIRMAN. I am not convinced either way. But I do say that maybe something needs clarification. Maybe we are giving it more imaginative importance than it really deserves. I don't know. In other words, if it would do it you wouldn't support the plan? Mr. HARRIS. No.

The CHAIRMAN. And I don't think any of the others who are supporting it now would support it.

Mr. HARRIS. Well, I would suppose that an opinion of the Attorney General would be binding on the administration in any event if the matter were submitted to him.

The CHAIRMAN. I don't know whteher the Attorney General's opinion is binding on the court or not. I doubt it.

Mr. HARRIS. It would be binding on the Board, though, and would preclude the Board from making delegation to anyone other than the trial examiner.

The CHAIRMAN. Senator Muskie?

Senator MUSKIE. On page 4 of your testimony you have laid down and spelled out the grounds upon which review can be had in representation hearings under the rules of the Board.

Are there any other grounds that occur to you as reasonable grounds that might be included in the standards for review of the Board in unfair practice cases?

Mr. HARRIS. I can't think of any case that couldn't be brought within these grounds.

Senator MUSKIE. You have already suggested an ingenious lawyer could find those.

Mr. HARRIS. I would like to make one additional point to the committee if I may, which is not included in my statement but which is suggested by some of the testimony here.

The witnesses against the plan, it seems to me, have proceeded upon the assumption that the alternatives are between giving finality to the decisions of the trial examiners in some cases and having a full review de novo in every case by all five members of the Labor Board.

Now if that were a real alternative, there would be more to be said against the plan than there is because apart from the delay involved in this duplicative step, I think most attorneys would rather have full consideration by five Board members than by one trial examiner. But this is not a realistic alternative and this is not what is going to happen or is happening at the present time. What is going on at the present time is that the five Board members, or a panel of three of them, themselves consider and work on major, important cases coming before them. The "run of the mine" cases which come be fore them from the trial examiner, involving principally issues of fact, are considered by the Board's staff. It is impossible in the nature of things, in view of the volume of work that the Board does for the Board members themselves to review these records, to weigh the evidence, to consider these "run of the mine" cases.

Mr. Farmer points out that currently the Board is now deciding 12 to 17 cases each and every working day. Well, you know the Board hasn't read those cases, hasn't read the records in those cases. The Board cannot read them itself. I notice that Judge Leedom, a former Board Chairman, stated quite forthrightly that the Board members themselves are able to give individual attention only to major cases involving major questions of law or new questions.

What you are getting now in the routine "run of the mine" case is simply review by an anonymous member of the Board's staff. These are the sort of cases that the Board would not review under the reorganization plan.

Now as you know each Board member has 20 to 25 legal assistants. Obviously, it is those assistants who are reviewing the records and handling these "run of the mine" cases. If they weren't, the Board wouldn't need that many.

In contrast, each of the nine judges who are members of the courts of appeals, of whom there are nine, has one assistant. Each Board member has 20 to 25 assistants turning out more work than the court of appeals. As a practical matter, much of that work has to be done by the assistants, so you are not in reality giving up individual attention in the average "run of the mine" case by five Board members under this plan because you are not getting it now.

The CHAIRMAN. Thank you very much.

(The prepared statement of Mr. Harris previously referred to follows:)

STATEMENT BY THOMAS E. HARRIS, ASSOCIATE GENERAL COUNSEL, AFL-CIO

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