upon the granting of special leave of the Board. Upon assignment by the executive secretary, approximately 80 percent of the cases are decided by three-member panels and 20 percent are decided by the full Board. All panel decisions, however, are cleared by the two nonpanel members, thus according an opportunity for any member, whether a panel or clearing member, to bring the case to the full Board for discussion and consideration.

In all cases, there is an exhaustive de novo review of the findings of fact, conclusions of law, and recommendations. This entails detailed reading and analysis of the hearing record, the intermediate report, exceptions thereto, briefs, and statements in support of the intermediate report or reply briefs, if

any.

If plan No. 5 becomes effective, the contemplated procedures are as follows: Where no exceptions to the intermediate report are filed, the Board will adopt the findings of fact, conclusions of law, and recommendations of the trial examiner, without review. Where exceptions are filed, review will be granted on limited grounds and will be discretionary with the Board, unless two members decide to grant it.

The Board contemplates limited grounds for review along the following lines: (1) That a substantial question of law or policy is raised because of (a) absence of, or (b) a departure from, officially reported Board precedent, or other controlling authorty, or (c) that the conclusions or order are not warranted by the findings of fact. (2) That the trial examiner's decision on a material factual issue is clearly erroneous. (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. The request for review and supporting exceptions and brief must be self-contained, and shall specify the grounds with sufficient detail to enable the Board to pass on the request without the necessity of recourse to the record. With respect to the ground that the trial examiner's decision on a material factual issue is clearly erroneous, and other grounds where appropriate, such request must contain a full recital of the evidence or rulings bearing on the issues, together with page citations from the transcript and a full statement of the reasons calling for reversal of the trial examiner's decision in respect thereto.

Any party may, within a prescribed period, file with the Board an opposition thereto, or counterrequest for review.

Requests for review, supporting exceptions and briefs, opposition, if any, and the trial examiner's decision will be assigned by the executive secretary to a three-member panel with copies of such documents also being distributed to nonpanel members. The two nonpanel members also will be advised of the proposed ruling of the panel. The nonpanel members will thus be given an opportunity to bring the case to the full Board for consideration. Thus, any single panel or nonpanel member may bring the case to the full Board for discussion. However, it will require the vote of two members to grant review.

The request for review and supporting exceptions and briefs, opposition thereto, the trial examiner's decision and cited pages of the transcript will be analyzed in relationship to the grounds for review relied upon.

Where review is granted, there will be exhaustive de novo review of those matters as to which review has been granted, including full examination and consideration of relevant findings of fact, conclusions of law, and recommendations. In relation thereto, there will be an analysis of the hearing record, initial decision, request for and opposition to review, pertinent exceptions, and supporting and opposing briefs.

SUMMARY OF PRINCIPAL ARGUMENTS IN SUPPORT OF AND IN OPPOSITION TO PLAN NO. 5

The following arguments in support of and in opposition to plan No. 5 have been submitted by the National Labor Relations Board for the information of the committee:

Objections to plan 5

Answered

(a) Permits delegation of broad (a) Not correct. Reference to Adpower to subordinate employee-GS-9. ministrative Procedure Act requires delegation of decisional power either to Board member or to officer selected under that act and acting under its procedures. At NLRB, this is trial examiner only.

(b) Permits delegation of rulemaking to subordinates.

(c) Deprives litigants of review rights.

(d) Gives Chairman undue powers.

(e) Allows Board to undo Congress' delegation authorization to Board in 1959 in representation cases.

(f) Congress should set grounds for review, not leave these to Board to set up, as plan does.

(b) NLRB has never acted by rulemaking, as some other agencies do. This is too inflexible for complex and diverse situations in industrial relations. NLRB acts on a case-by-case basis. Rulemaking is not one of its functions.

(c) No substantial right is lost under plan. It adopts review procedure like that authorized by Congress in 1959 for representation cases. It limits full, de novo review to meritorious cases, or ones where two Board members so vote. But every petition for review of trial examiner's decision will be reviewed in first instance by Board to see if it has merit. Screening out unreasonable demands for review will allow Board to give fuller attention to meritorious

cases.

Court review not affected. All final orders, including those where full review is not allowed, are subject to court review.

(d) Not correct. Plan does not increase Board Chairman's powers. It does not include section 2 which was included in other plans for that purpose.

(e) Against background of 1959 law and Board's action under it, this plan allows similar delegation, but to trial examiners, in unfair labor practice cases. It cannot properly be construed to override or disturb the explicit congressional action of 1959, or to allow the Board to do so. An interpretation giving full effect to both actions is the only reasonable interpretation.

(f) But Congress in 1959 left to the Board the setting of grounds for review in R cases. The Board did this only after consultation with persons from management, labor, and public interests. It plans a similar procedure on unfair labor practice cases. This approach, which is more flexible, has been widely accepted. To insist on doing it by amendments to the TaftHartley law or Administrative Procedure Act is likely to open up many other issues and lead to lengthy debate.

Objections to plan 5-Continued

(g) The trial examiners are not Presidential appointees and their decisions should not be given any finality.

(h) Plan is vague and too broad.

Answered Continued

(g) Board's trial examiners are selected under Administrative Procedure Act from special register and ratings prepared by Civil Service Commission. Twenty-four percent of their decisions are now accepted by parties and become final orders of Board automatically. Fifty-two percent more are fully affirmed by Board. By test of experience, their work is entitled to same confidence Congress evidenced in 1959 by allowing Board to delegate R case decisionmaking to regional directors, also not Presidentially appointed. Decisions under both delegations, of course, are subject to Board review.

(h) As applied to basic functions of NLRB this does not hold true. Plan is clear and delegation under it is more restricted than under Congress action of 1959 in two respects; (1) the specific reference to the Administrative Procedure Act; and (2) the provision allowing only two Board members to compel full, de novo review of trial examiners' decisions.

STATUS

Preliminary hearings on plan No. 5 were held on June 6, 1961, at which time testimony in support of the plan was received from the Chairman and the General Counsel of the National Labor Relations Board. The Chairman stated that all members of the Board support the plan. Additional hearings have been scheduled for July 12 at 10 a.m. in room 3302 New Senate Office Building, in order to accommodate additional witnesses who desire to be heard. At that time, a large amount of correspondence expressing opposition to the plan will either be inserted in the record or incorporated by reference.

ELI E. NOBLEMAN, Professional Staff Member.

Approved:

WALTER L. REYNOLDS,

Chief Clerk and Staff Director.

The CHAIRMAN, The Chair will state further that the committee has received a lot of correspondence expressing opposition to this plan. This correspondence will be screened and those communications which appear pertinent and of consequence will be incorporated as an appendix to this record.

I understand that Senator Dirksen had desired to be present but is unable to be here.

Senator Dirksen is the author of Senate Resolution 158, disapproving the plan. Since he cannot be here he has sent a representative... Identify yourself, please, sir.

CORNELIUS KENNEDY, MINORITY COUNSEL, SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE

Mr. KENNEDY. Mr. Chairman, I am with the Senate Subcommittee on Administrative Practice and Procedure, as minority counsel.

The CHAIRMAN. But you are appearing here as Senator Dirksen's representative?

Mr. KENNEDY. That is correct, Mr. Chairman. He had prepared some remarks. I can either read them or they could be incorporated in the record.

The CHAIRMAN. Since he cannot be here in person, I see no reason why they cannot be incorporated in the record at this point and you may advise the Senator that his statement was received.

Mr. KENNEDY. Thank you, Mr. Chairman.

STATEMENT OF HON. EVERETT MCKINLEY DIRKSEN, U.S. SENATOR FROM THE STATE OF ILLINOIS

Senator DIRKSEN. Mr. Chairman, I should like to make this statement in support of Senate Resolution 158 which I introduced on June 13, 1961. This resolution expresses disapproval of Reorganization Plan No. 5 pertaining to the NLRB.

I remember well the many legislative battles which have been fought over the National Labor Relations Act of 1935 and over its amendment in 1947 and then again in 1959. These battles were hard-fought on each side and the result was legislation which has been hammered out in committee, on the floor of the Congress, and in conference. Reorganization Plan No. 5, under the guise of "providing for greater efficiency in the dispatch of the business of the National Labor Relations Board," makes some basic changes in that legislation which has received such careful consideration by the Congress.

Let us turn first to paragraph (a) of plan 5. It provides:

In addition to its existing authority, the National Labor Relations Board, hereinafter referred to as the "Board," shall have the authority to delegate, *** any of its functions to a division of the Board, an individual Board member, a hearing examiner, or an employee or employee board.

By this language the plan would permit what Congress did not permit when it carefully dealt with the question of delegation of functions by the Board. Congress very expressly provided for only three types of delegation: First, in section 3 (b) it stated:

The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.

Second, by amendment, it added that in representation cases:

The Board is also authorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining *** and direct an election

and third, in section 3(d) it provides that the General Counsel "shall have such other duties as the Board may prescribe." The Congress also said that certain things should not be delegated. In section 4 it provided:

The Board may not employ any attorneys for the purpose of reviewing transcripts of hearings or preparing drafts of opinions except *** legal assistants to Board members.

It provided that no trial examiners' report shall be reviewedby any person other than a member of the Board or his legal assistant.

These are not careless words which the Congress used. They are careful and specific. They are part of the statute. Yet, they are all wiped away by paragraph (a) of Reorganization Plan No. 5 which permits the Board to delegate, not only the functions which the Congress has said it may delegate, but any other function as well.

Reorganization Plan No. 5 makes another change in the basic statute which is of the greatest importance to every working man and every employer in this country. It eliminates the right of a party who is not satisfied with a decision of the hearing examiner in an unfair labor practice case to have that decision reviewed by the Board.

Now, how important is this right to have the intermediate report, as the decision of the hearing examiner is called, reviewed by the Board? How often does the Board change a decision of a hearing examiner when review is sought? According to the data presented by the Chairman of the NLRB during earlier hearings on Reorganization Plan No. 5 conducted by this committee, in fiscal 1960, in over 25 percent of the cases in which review was sought, 28.6 percent to be exact, the decisions were either reversed, remanded, or modified in part. I believe that we in the Congress should be concerned about that one case in four which the Board decides that the hearing examiner has made the wrong decision. I certainly do not believe that we should remove the safeguard of Board review when every fourth case is reversed, remanded, or modified by the Board on review.

Now what are the justifications given by the Board for this Reorganization Plan No. 5? In his statement, the Chairman of the NLRB gives three reasons: (1) the general acceptability of the trial examiner's decision; (2) that eliminating the right of review will speed decisionmaking; and (3) that this delegation is necessary to relieve the Board of "its crushing workload." I cannot agree with the Chairman of the NLRB that there is a "general acceptability" of hearing examiner decisions when the Board itself has decided that one decision out of every four must be modified, reversed, or remanded.

Nor can I agree that eliminating the right of Board review is a worthwhile price to pay for speedy decisions. On this point I am particularly impressed with the description of Board review given by the Chairman of the NLRB. He said that, first of all, a legal assistant to a Board member working under a supervisory legal assistant of the same member makes a full and detailed reading and analysis of the hearing record, the intermediate report, the exceptions, and the briefs; that all of this material is then read by the chief counsel to the Board member and by the Board member himself; and that these four men then confer on the case. According to the Chairman of the NLRB the case is then discussed with the two other chief counsels and the two other Board members who make up a three-man panel. This makes so far a total of eight men considering each review. Here I quote:

Thereafter, four more are added to this group when the panel's draft of the decision is referred for clearance to the two members not on the panel and their respective chief counsels, which entails their study of the report, exceptions, and briefs.

This adds up to at least 1 legal assistant, 1 supervisor, 5 chief counsels, and 5 Board members, or a minimum of 12 involved in each case.

Further, under the Board's rules, this review procedure is provided in every case in which exceptions are filed to trial examiner's reports.

With this procedure for review, it is easy to understand why it takes so long for the Board to review a case. I believe that the answer to the delay in Board review is to have the Board revise its own system of review rather than to eliminate the right of review.

Turning next to the third reason which the Board has given to justify this reorganization plan, let us take a careful look at the work