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 for many years. As respects unfair labor practice cases, it is a truism that justice delayed is often justice denied. As far as representation proceedings are concerned, delays in the scheduling of elections put the participants to added expense and strain, and often affect the results of the elections. The committee members will, I am sure, have no difficulty in appreciating that it is not easy to conduct an election campaign when you don't know whether the election will be held in 60 days or in a year.

Board delays usually work against the union or individual employee, and in favor of the employer. The National Labor Relations Act, it is true, provides for remedies against unfair labor practices by unions as well as by employers. However, the act also provides for mandatory injunctions against unions in the types of cases where, so Congress evidently thought, irreparable injury to the employer is likely, i.e., in what may loosely be called secondary boycott, hot cargo, and organizational and recognition picketing situations. In all cases of these types employers are, therefore, protected against the consequences of Board delay.

In contrast the act does not provide for mandatory injunctions against any sort of employer unfair labor practice, no matter what irreparable injury may ensue to unions or employees. I need hardly add that I, along with all union attorneys and even some employer attorneys regard this discriminatory treatment as highly unfair.

In representation proceedings, too, Board delays usually work against the union. The union petitions for an election when it thinks that a majority of the employees are ready to vote for it, and the longer the election is delayed the more opportunity the employer has to dissipate any union majority.

There are, of course, some situations in which delay within the Board may work to the advantage of a union if it is the respondent in an unfair labor practice proceeding. Also, in a representation proceeding involving competing unions one union may consider that delay will work in its favor. I must confess that in these situations union lawyers are as much given to stalling tactics as their employer counterparts. However, no attorney can, as a matter of principle, defend unnecessary delays in administrative proceedings, and I am pleased to note that in the hearings before Representative Pucinski's subcommittee, at least two prominent attorneys representing employers have urged measures for speeding up Board processes.

The Congress has been concerned with this problem of Board delays for many years. A staff study made in 1952 under the direction of the Senate Committee on Labor and Public Welfare showed that during the first half of 1951 the average time for processing an unfair labor practice case from the filing of the charge to Board decision was 399.6 days, while during the last 6 months of 1951 the average time was 406.1 days. In recent years the picture has grown worse rather than better. The average number of days from charge to Board decision in fiscal 1958 was 467; in fiscal 1959, 463; in fiscal 1960, 426; and for the month of February 1961, 438.

As respects representation proceedings, the Senate committee staff study showed that the average time from the filing of an election petition to Board decision was 89.6 days during the first half of 1951, and 97.7 days during the last half of that year. For fiscal 1960 the figure was 63 days. This looks like an improvement, but, as I understand it, the 1960 computation excludes representation cases which were held up pending the disposition of an unfair labor practice case. Thus the two sets of figures are not comparable.

In any event steps have recently been taken by the Board to speed up the handling of representation proceedings. Reflecting congressional concern over Board delays, the Landrum-Griffin Act authorized the Board to delegate decisions in representation proceedings to its regional directors, subject to discretionary review by the Board. Initially the Board responded to this congressional invitation with a great show of zeal. On September 15, 1959, the day after the Landrum-Griffin Act became law, the Board invited interested parties to submit comments and proposals to how it should go about effectuating a delegation of authority to its regional directors in representation cases. Then for a year and a half nothing happened. Finally, after a new chairman and a new Board member had taken office, the Board issued regulations instituting the delegation effective as of May 15, 1961.

In testimony before Representative Pucinski's subcommittee a spokesman for the Board endeavored to explain this long delay on the ground that it took the

Board a year and a half to work out the regulations. I find this explanation curious, particularly in the light of the fact that it took the Board only until November 4, 1959, to issue regulations delegating to its regional directors authority to conduct quick elections in situations involving organizational and recognition picketing.

In any event there is every reason to believe that this delegation of authority to the regional directors in representation proceedings will materially speed up their final disposition, as soon as the regional directors have acquired proficiency at their new duties.

Diminution of the load on the Board in representation proceedings should also ultimately enable the Board to handle more rapidly its own processing of unfair labor practice cases. However, much more needs to be done to accelerate the disposition of unfair labor practices cases, and for that reason we welcome the issuance of Reorganization Plan No. 5, and urge that the Congress not disapprove it.

The order evidently contemplates a delegation of authority to trial examiners in unfair labor practice cases comparable to that which the Board has made pursuant to the Landrum-Griffin Act to regional directors in representation proceedings. The Board's regulations embodying that delegation provide that any party to a representation proceeding may request the Board to review the decision of the regional director, but that review will be granted only upon one or more of the following grounds:

(1) That a substantial question of law or policy is raised because of (a) the absence of, or (b) a departure from, officially reported Board precedent.

(2) That the regional director's decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.

(3) That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.

(4) That there are compelling reasons for reconsideration of an important Board rule or policy.

This regulation is to a considerable degree patterned after the practice of the Supreme Court in exercising its certiorari jurisdiction, and no doubt any delegation made under Reorganization Plan No. 5 will follow substantially the same pattern.

The plan specifies that the Board shall retain a discretionary right of review, and "that the vote of a majority of the Board less one member thereof shall be sufficient to bring any such action before the Board for review." This last provision, too, is patterned after the Supreme Court practice on certiorari; a vote of four of the nine Justices suffices to grant review.

It is clear both that there is need to speed the final disposition of unfair labor practice cases, and that elimination, as to a substantial number of cases, of Board duplication of the function the trial examiner has already performed would materially aid this result. The two periods where delays in the handling of unfair labor practice cases particularly occur are, first, the time taken by trial examiners to prepare reports and, secondly, the time taken by the Board to review those reports and prepare its own decision going over exactly the same grounds.

As stated, during fiscal year 1959 the average time from the filing of a charge to Board decision was 463 days. This total elapsed time was made up as follows: from the filing of a charge to the issuance of complaint, 104 days; from the issuance of complaint to the close of the hearing before the trial examiner, 59 days; from the close of the hearing to the issuance of the trial examiner's report, 74 days; and from the issuance of the report to the decision of the Board itself, 176 days. Thus a considerable portion of the total average elapsed time of 463 days was required for the last two steps, that is, the writing of the trial examiner's report and then of the Board's decision reviewing that report, with the latter step taking more than twice as much time as the former. If this duplication of function could be eliminated in a substantial number of cases, that would both speed the final disposition of those cases and enable the Board to handle more promptly the cases where review of the trial examiner's report is deemed appropriate.

In many cases there is no need for the full-scale review of trial examiners' reports and the determination of the facts de novo in which the Board now engages. Nearly all cases involve factual issues turning on the veracity of conflicting testimony, and some cases involve only that. The determination of the trial examiner, who bears the witnesses, should be more trustworthy than 72420 -61-6

that of the Board members, or their legal assistants, who do not. We suggest that if a preliminary scrutiny of the record discloses that the trial examiner's findings are supported by substantial evidence on the record considered as a whole, the Board should refuse to review them.

It should be borne in mind that the Board's decisions are not self-enforcing. They are not effective until a court of appeals, after reviewing the record, decrees enforcement. The act provides (section 10(e)) that on review "the find. ings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive." This same standard of review will apply to a trial examiner's report, if the Board refuses to review it, so that it becomes the decision of the Board. Surely court review under this standard of the findings of the trial examiner will be a sufficient safeguard.

No one who has not had actual experience can conceive of the amount of time now taken by the trial examiners and the amount of paper expended in discussing minute factual issues, and when the trial examiner finishes the Board does it all over again. Then the court.

Let me give a single example. In 1954 a number of maritime unions conducted an organizing drive among the employees of towboats and barges on the Mississippi-Ohio Rivers. The tugboat captains, who often own the vessels themselves, are rugged types as are their crews, and maybe the organizers were, too. In November 1954 a fight took place aboard a tugboat docked in Cairo, Ill., between the owner and captain, Captain Banta, and a union organizer. It culminated in the captain's shooting the organizer in the arm with a shotgun. Each side filed charges against the other with the Labor Board and also complained to the local police and prosecuting attorney. Needless to say, the stories of the witnesses were in conflict as to who started it, who said what to whom, etc. The Board's General Counsel, after a “preliminary” investigation of the facts, which lasted 6 months, accepted the employer's version and issued a complaint against the employer. The complaint was issued in July 1955.

The district attorney in Cairo, on the other hand, believed the unions' version, and a grand jury there indicted Captain Banta. However, the captain with his tugboat and barges had gone back down the river to his home base in Louisiana, and the U.S. Commissioner there refused to execute a Federal fugitive-fromjustice warrant.

A hearing before a trial examiner, consuming 7 days, was held in October and November 1955. The trial examiner issued his report on June 9, 1956. His report is lengthy and detailed, and is largely concerned with resolving conflicts in the testimony. It takes up 18 pages in the Board's official reports even though it is in very small print. 116 N.L.R.B. 1816-1834. The trial examiner concluded, in effect, that the union men were more sinned against than sinning, and that the complaint should have been issued against the employer rather than against the unions. The examiner, therefore, recommended that the complaint against the unions be dismissed. No complaint had been issued against the employer, and the trial examiner could not do anything about that.

The General Counsel and the employer appealed to the Board. It handed down its decision in December 1956, slightly more than 2 years after the incident occurred and almost exactly 2 years after the charge was filed. The Board reweighed the testimony at length. The opinion of the Board majority, in larger print than the trial examiner's, takes up 10 pages, 116 N.L.R.B. 1787-1797. The Board majority disagreed with the trial examiner's findings, held that the unions were at fault, and ordered that they cease and desist. Member Murdock, dissenting, reviewed the evidence for 16 pages and agreed with the trial examiner. In due course the Board petitioned the Court of Appeals for the Seventh Circuit for the enforcement of its order. The court once more reviewed the evidence. It agreed with the trial examiner. It declared that "the trial examiner properly found that the employer instigated the violence which occurred on November 6." N.L.R.B. v. Masters, Mates, and Pilots ( J. W. Banta Towing Co.), 253 F. 2d 66, 41 LRRM 2610-14. The court of appeals handed down its decision on March 4, 1958, 2 years and 4 months after it all started. The Board's review of the trial examiner's factual findings serves little purpose in cases like this. The trial examiner is in a better position to review the veracity of the witnesses than persons reviewing the printed record, and in any event the case is ultimately subject to judicial review before any order issued is enforceable.

We think the reorganization plan is a step in the right direction.

Before concluding let me express one reservation. The reorganization plan is merely a grant of authority to delegate. It has to be implemented by specific regulations. Obviously we may not agree with particular regulations issued to effectuate the reorganization plan. With what we understand to be the plan's general purpose we are in accord.

The CHAIRMAN. Our next witness is Mr. Landon.

Do you have a prepared statement, Mr. Landon?

Mr. LANDON. I have a very brief prepared statement, Mr. Chairman, and with your permission I will turn it over to the reporter and speak informally. I am accompanied by Thomas W. Miles, secretary of the Labor Relations Committee of the Council of Hotel Chambers of Commerce.

The CHAIRMAN. It will be printed in the record in full at the conclusion of your remarks.

STATEMENT OF ROBERT C. LANDON, CHAIRMAN, LABOR RELATIONS COMMITTEE, COUNCIL OF STATE CHAMBERS OF COMMERCE, WASHINGTON, D.C.

Mr. LANDON. I would like to say at the outset that I have been a very attentive listener to the members of the legal profession. I am not a lawyer. I am one of the people who try to operate under the various laws regulating labor relations and our State chamber membership has been very often concerned over the provisions of plan No. 5 because it seems to depart from proper administrative procedures. That has been debated in this hearing very ably and I call attention to the 1949 amendments of the act which, I think, were very carefully drawn by comparison with these.

At that time, as a matter of history, the Office of the General Counsel was separately established in order to provide a clear demarkation between the prosecuting and the judicial functions of the Board. There were other procedures very carefully reached such as the handling of the reports of hearing examiners and in plan No. 5 I think that there is more of the element that the Senator yesterday referred to as the pig in the poke. It takes a lot of argument and regulation and interpretation to make clear just what this plan does.

I would like to comment on the various plans and bills prepared by the Members of the Senate in comparison. These have been prepared with far more care. They have been more easily understood, less debated and I don't think that a law or a legal proposal is a good one unless it can be clearly understood by all those who have to operate under it.

The CHAIRMAN. Your argument at this point is that this plan is not clear; that it is confusing?

Mr. LANDON. There are too many issues that have to be debated before you understand the provisions of it.

The CHAIRMAN. Name some of them and let's see what we are talking about.

Mr. LANDON. The question of whether the functions of the Board can be delegated has been subjected to very heated debate. Just which functions Senator Muskie has referred to in this hearing. Well, certainly, there are decisional functions, there are prosecuting functions and many others. All of these provide questions of import. The CHAIRMAN. The plan says "any of the functions." Mr. LANDON. That is correct, sir.

The CHAIRMAN. Isn't that clear?

Mr. LANDON. It is clear. That is my understanding, sir, and yet there is debate that that is not intended. Certainly it is there in black and white.

The CHAIRMAN. Who contends that is not intended?

Mr. LANDON. I have read previous testimony before the committee which seemed to infer that there was limitation on what was intended as to all functions in that we should expect to have discretion exercised.

The CHAIRMAN. I think there has been some testimony that maybe they don't intend to delegate certain functions but has anyone contended that they cannot delegate any functions they have under this plan?

Mr. LANDON. No; I think that the words say that they can delegate any functions. They are the words in the proposal.

The CHAIRMAN. Except what may be subject to section 7(a) of the Administrative Procedure Act. There is that exception.

Mr. LANDON. That also has to be clarified as to whether that says what it means or not.

The CHAIRMAN. It says any function except those that are reserved or excluded from it by reason of section 7(a) of the Administrative Procedure Act.

Mr. LANDON. Yes.

Senator MUSKIE. You are not suggesting, are you, that a law is good only when lawyers cannot disagree as to its meaning?

Mr. LANDON. I am hopeful the laymen can understand it.

The CHAIRMAN. The preceding witness said something about neutral lawyers. They are pretty neutral until after they are employed.

Mr. LANDON. It is a question of who they are neutral in favor of. Now the members of the Board have been very, very carefully chosen for their background, their ability, their knowledge of the field and I would say that the hearing officers are also very carefully chosen.

When you get to the point of delegating functions of the Board to employees and employee boards, I suggest that you have lost some quality of performance. At least you have put it in question and I speak from personal experience which I would like to mention, with your permission.

During the wage stabilization program I served as an industry member of the Wage Stabilization Board on review on appeals and we took a terrific backlog of cases that had to be handled.

Like the National Labor Relations Board, we had categories for the types of cases. When they issued these craft severances, we had all sorts of labels, intermittent intraplant inequities, interplant inequities, tandem and all that sort of parallels for the type of work the Board is doing and the work piled up on us.

To solve our problem of eliminating this backlog of cases we and the employees of the Stabilization Board conducted blitz sessions. I am sure you must have heard of them, sir, and in these sessions we collected all the cases that had a common complexion or common feature and treated them pretty much on a mass basis.

Now this might have been all right in a period of stabilization such as that in which we were operating. Nevertheless, I am sure there were some cases there in which an individual concern was lost sight of.