I think it was far more important that proper care from the administrative procedure standpoint be given to the Labor Relations Board cases than was in the stabilization cases.

I point this out to illustrate that I, as an insider in that picture, was distressed with the way in which we had to do some of that work, even though I recognized the necessity of clearing these cases on a current basis.

The CHAIRMAN. Very well. Anything more?

Mr. LANDON. I merely want to ask that the committee be as fearful as I am of this method of passing a regulation, whether it be a statute or whether it has the effect of being a statute. I am not so much concerned with that but as I understand it, in 12 days this is it, unless action to the contrary is taken.

The CHAIRMAN. Unless one House or the other disapproves it. Mr. LANDON. That is the matter of very deep concern to our members, sir.

The CHAIRMAN. If not, this becomes law.

Mr. LANDON. I am sure that is so.

Let me say that I am shivering and I hope that either House will vote against this plan and design one of its own because I think it would be done in a much more able manner.

The CHAIRMAN. This is something I have been thinking about and it is in the rough at the moment. But let us assume and I am not predicting or even prophesying that the plan would be rejected by one House or the other-but there is a situation that needs legislative attention in order to relieve a condition that has developed.

I am thinking out loud at the moment, but would it be well to increase the size of this Board? Would increasing the size of this Board, numerically, enable the Board to expedite its work?

Mr. LANDON. Well, I appreciate your line of thought there. The CHAIRMAN. I am thinking of it because if there is a condition here that needs correcting and if it is finally determined that the plan ought to be rejected-and it is-you still have the condition that needs remedying. I am just asking whether, in your opinion, we should consider increasing the number of Board members and authorizing the cases to be delegated to members as such, and the examiners, but still have the Board retain the right of review.

I wonder if that would help relieve the condition?

Mr. LANDON. I would like to speak to that point.

The CHAIRMAN. Well, I don't know that I have the answer but it is something for you to think about.

Mr. LANDON. We all know when the law was first passed we did not anticipate the volume of business the Board has to handle. I think this is a manifestation that we have to face.

I also think, as you suggest, additional members of the Board could handle additional volume of business. But the important thing is, I think, that Congress should tackle the problem and not consider merely a hasty pudding solution. I think Congress can do better if Congress takes the problem and not act on just a single prescription. The CHAIRMAN. Ordinarily that would be true but the purpose of the reorganization plan was also to help expedite the work of the Congress so it could function a little more expeditiously than it does. That was one of the purposes of the reorganization plan, and I don't contemplate that for that cause legislation gets bogged down.

There are a lot of Congressmen and Senators to deal with when you get into these things. One little objection here and there can delay legislation very often and frequently does.

I just ask that question because if the plan should be rejected, without committing myself at the moment either way, if either House rejects it, the condition and the proglem are still there.

I am wondering whether additional members on the Board would tend to solve the problem or not.

Mr. LANDON. I think you are right, sir. There are better solutions than the one before us.

The CHAIRMAN. I didn't say that there was a better solution. I haven't said that yet. I am saying for the sake of this discussion, assuming that one House or the other found that the plan was defective to the extent that they would want to, and did, reject it, the problem would still be there. I ask you, would increasing the membership of the Board help to solve the problem?

Mr. LANDON. I couldn't answer that as an expert, sir.

The CHAIRMAN. We will ask the Chairman of the Board when we get him up here.

Senator MUSKIE. Of course, the ordinary congressional procedure sounds perfect by comparison with the descriptions we have had of this reorganization plan in the past 2 days. Certainly, as one who has sat on committees conducting hearings on pieces of legislation, there is as much disagreement on the merits of legislative proposals as there is with reference to this plan. I have yet to find a piece of legislation, however, which has met with unanimous approval of witnesses and members who appear before committees.

Mr. LANDON. In all candor, sir, we have disagreement in our own membership.

The CHAIRMAN. They all have a different opinion and they have an opportunity to do something about this in legislation.

Very well, proceed with your statement, please.

Mr. LANDON. I think, sir, that that is the sense of what I wanted to say in supplement to my prepared statement unless there are some other questions.

I appreciate the opportunity of appearing before
The CHAIRMAN. Very well, thank you very much.

you.

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

STATEMENT OF ROBERT C. LANDON, IN BEHALF OF MEMBER STATE CHAMBERS OF COMMERCE IN THE COUNCIL OF STATE CHAMBERS OF COMMERCE

My name is Robert C. Landon. I am manager of industrial relations for Rohm & Haas, 1700 Walnut Street, Philadelphia 3, Pa., and I am appearing before you today in behalf of 19 State chamber of commerce organizations in the Council of State Chambers of Commerce. In addition, I am representing the Salt Lake City Chamber. The organizations for which I am speaking are listed on the last page of my prepared statement. I am chairman of the council's labor relations committee, a business advisory group representing the member State chambers.

Let me say at the outset that we are grateful to this committe for reopening the hearings on Reorganization Plan No. 5. We appreciate this opportunity to apprise you of the concern that our business members have about this proposal which is so important to the proper administration of the Federal labor law. In our opinion the provisions of plan No. 5 constitute a step backward from the progress which has been achieved in the area of fair administrative prac

tices through the Administrative Procedure Act and through the amendments made in 1947 to the Labor Relations Act.

The 1947 amendments to the Labor Relations Act, the committee will recall, made some progress in establishing a separate Office of General Counsel and made other changes which Congress at that time viewed as essential to improve the fairness of the procedures of the National Labor Relations Board. The changes made in setting up an Office of the General Counsel were felt necessary in order to get a demarcation between the so-called prosecuting function of the National Labor Relations Board and its judicial function. It should be noted that in this respect the 1947 amendments to the National Labor Relaions Act were bound by requirements of the Administrative Procedure Act. We make reference to what is now perhaps an historical background in order to remind the committee that the present standards governing fair administrative procedure were won only after long and ardous struggles in Congress. We feel that the provisions of the President's plan presently before the committee for consideration may, in effect, serve to erode the important gains which have been painstakingly won.

As we stated in our letter of June 20, the plan raises fundamental and important issues as to fair administrative procedures. For it would authorize the National Labor Relations Board to delegate any of its functions not only to a division of the Board, an individual Board member or a hearing examiner, but also to an employee or employee board. This authorization is indeed a departure from traditional, sound, and accepted patterns of administrative authority. The departure, we believe, is a dangerous one and will give rise to more problems than those which prompted the formulation of the plan of reorganization.

Members of the Board and hearing examiners presumably are selected because of their special competence in performing quasi-judicial functions in the field of labor relations. The proper performance of these functions is carefully safeguarded by statutory provision, and by the Board's rules and regulations. To permit the Board to delegate the functions of deciding cases to employees not limited in their duties or required by statute to be picked for their capacity to decide cases would, in our opinion, be destructive of the judicial functions of the Board and undermine public confidence in the fairness of the Board's operations. This would be particularly true with regard to the Board's intention to delegate decisional authority as prescribed in unfair labor practice cases. The delegation authority contemplated by the plan is no more suitable to the National Labor Relations Board than would a similar authority be to the Federal district courts, permitting them, because of the backlog of cases, to delegate their duties to nonjudicial persons.

If the volume of cases coming before the Board is so great that the Board is unable to handle them properly, the appropriate procedure for obtaining relief is to submit to the Congress for consideration a detailed plan for revising the structure of the Board. To permit the Board to formulate such a plan on its own without congressional approval, and to put it into effect, is a dangerous solution to the problem facing that agency, assuming that it be legal.

The evils inherent in the scope of the power of delegation contemplated by the plan are aggravated by the provisions of paragraph (b). This paragraph denies to private parties the right of appeal to the Board and offers them the opportunity to seek such appeal merely at the discretion of the Board. This is a far-reaching denial of a basic right and a violation of fair procedure. It vests in subordinate officials the power of final decision without redress as a matter of right by appeal. The vice of this type of delegation of power is apparent.

Figures cited by the Chairman for the year 1960 indicate that 21.7 percent of all cases were either affirmed only in part, reversed, or remanded. This indicates that there is considerable need for access to the Board on appeal rather than relying on the claim that a "substantial majority of decisions of trail examiners do merit respect and have proven acceptable." As a matter of fact, it is an American tradition that the needs of the minority be given full protection, and that this should be preserved even though we were concerned with a very small number of cases claiming review on their merits.

What we have thus far said points up the fundamental issues raised by the plan of reorganization and emphasizes the fact that careful consideration is essential. We earnestly recommend to the committee that the plan be rejected. We repeat that, if a reorganization of the National Labor Relations Board is

felt necessary, a complete detailed plan of reorganization should be formulated and submitted to the Congress for consideration.

The organizations endorsing this statement are:
Alabama State Chamber of Commerce.
Arkansas State Chamber of Commerce.
Colorado State Chamber of Commerce.
Georgia State Chamber of Commerce.
Indiana State Chamber of Commerce.
Kansas State Chamber of Commerce.
Kentucky Chamber of Commerce.
Missouri State Chamber of Commerce.

Montana Chamber of Commerce.

New Jersey State Chamber of Commerce.

Empire State Chamber of Commerce (New York).
Ohio Chamber of Commerce.

State of Oklahoma Chamber of Commerce.
Pennsylvania State Chamber of Commerce.
South Carolina State Chamber of Commerce.

Greater South Dakota Association.

Lower Rio Grande Valley Chamber of Commerce (Texas).
West Virginia Chamber of Commerce.

Wisconsin State Chamber of Commerce.

The Salt Lake City, Utah Chamber of Commerce also endorsed this statement. The CHAIRMAN. We are within the hour of recess, but we can call the next witness and let him begin.

Mr. Keeney, come forward, please, and identify yourself for the record.

STATEMENT OF EUGENE A. KEENEY, ATTORNEY, LABOR RELATIONS AND LEGAL DEPARTMENT, CHAMBER OF COMMERCE OF THE UNITED STATES, WASHINGTON, D.C.

Mr. KEENEY. I am Eugene A. Keeney, attorney in the labor relations and legal department of the Chamber of Commerce of the United States.

The CHAIRMAN. Do you have a prepared statement?

Mr. KEENEY. Yes, I do, sir.

As a résumé of my background, I have been with the Chamber of Commerce for several years and prior to that time I was formerly trial attorney with the National Labor Relations Board in the Office of the General Counsel.

With the permission of the chairman I would like to submit my statement for the record and highlight the various points that I intend to make.

The CHAIRMAN. Very well, you may proceed to highlight it. Your prepared statement will be placed in the record at the conclusion of

your remarks.

Mr. KEENEY. Mr. Chairman, the main nub of the chamber's opposition to plan 5 is basically that the protection of all persons against arbitrary deprivation of their rights is of paramount importance in the framing of laws, delegating authority to administrative agencies.

We believe that due process will suffer as a result of this arbitrary deprivation of the rights of all persons appearing before the National Labor Relations Board.

As a summary of our reasons for opposition to plan 5, I would like to make these points. One, plan 5 is a hasty, stopgap measure indicating that the work of the NLRB is so disorganized that it can no longer cope with the responsibilities placed upon it by Congress. Action is

imperative, not by Executive order, but by Congress after full and complete congressional hearings which would result in the complete change of present procedures.

No. 2, the delegation of authority contemplated by plan No. 5 to trial examiners as well as individual Board employees is ultra vires. The authority to make this delegation rests solely with the Congress. The question of the legality of the delegation is a most serious question because, basically, our premise is that plan 5 amends the TaftHartley Act in substance and not in procedure.

The CHAIRMAN. Explain what you mean by that. Just give me a very pointed illustration of what you mean.

Mr. KEENEY. Mr. Chairman, the purpose of the reorganization plan, as you stated, was to try to help Congress and speed up the work of many of the administrative agencies and not concern Congress with legislation that might be protracted.

The purpose of plan 5 as I have stated, is to substantively amend the Taft-Hartley Act.

On page 3 of my testimony I quote a section of the Taft-Hartley Act which is most explicit that the Board shall issue an order with respect to unfair labor practice cases. This is more than procedure. This is substance.

The intent of the draftsmen and of the Congress when the TaftHartley Act was passed in 1947 was to the effect that the Board would issue these orders and no other persons. So this is substance rather than procedure.

The CHAIRMAN. This plan would permit somebody else to issue the orders.

Mr. KEENEY. That is correct.

The CHAIRMAN. Very well.

Mr. KEENEY. Our third point is that plan No. 5 would give vast decisional authority to individuals who are not traditionally appointed by the President with the approval of the Senate.

No. 4, contrary to testimony of Board officials before the House and Senate Government Operations Committees, adoption of the plan, rather than decrease the backlog of cases, would result in more institutionalization.

No. 5, through adoption of plan No. 5, the Landrum-Griffin Labor Reform Act of 1959 would be amended by Presidential order rather than by an act of Congress.

No. 6, adoption of the plan would give unlimited power to the Chairman of the National Labor Relations Board.

We have discussed in detail what the plan provides and so I will not reiterate that further.

Now with respect to the Board's failure to cope with its backlog that I discuss on page 2 of my testimony, the Board certainly has failed in its responsibilities because of this backlog that has piled up. The Cox committee which was established by the then Senator Kennedy reported many recommendations. This was only one of many recommendations. They recognized that there were problems way beyond the delegation of authority with respect to unfair labor practices that had to be remedied before the Board can cope with its backlog. They proposed that the Office of the General Counsel be abolished and an administrator of the NLRB be in charge of the full