field offices and be the chairman of the unfair and representation cases and the Board be responsible for deciding only cases and issuing rules. The Cox committee stated most emphatically that Board members should personally hear oral arguments and prepare decisions and opinions.

The CHAIRMAN. That was the Cox committee?

Mr. KEENEY. That is correct, and this is not the case under the present procedures and this will not happen under plan 5.

Congress, in our view, must consider the overall problem with respect to the National Labor Relations Board. Radical action should be taken, whether it be decentralization of the entire Board, raising the jurisdictional standards so that only cases of national import can be considered, or possibly a most radical change, abolition of the Board and transfer of its functions to the administrative courts.

And now as to the actual legality of the plan, again as I have stated, 10-C is quite clear of the Taft-Hartley Act, that the Board shall issue these orders, and not a trial examiner, not an employee, but the Board.

If this Taft-Hartley Act is to be changed, it should be changed by Congress and not by way of reorganization plan.

Interestingly enough, I would like to refer to the testimony given before the House committee by Mozart Ratner, the former NLRB Assistant General Counsel. He looks at plan 5 and says this goes to the very edge of power to reorganize the Taft-Hartley Act and I agree that plan 5 goes to the very brink of Executive power and it is not for the Executive but for Congress to enact this type of legislation.

Again, we affirm that reform of the NLRB is imperative, but not by plan 5.

I am most interested in Board testimony that has been given and there seems to be contradictions with respect to many of these things and I will dwell on them shortly.

I would like to highlight certain points that have been made with respect to trial examiners. I would like to quote Congressman Pucinski who said if he held as many hearings as the trial examiners did— two or three

The CHAIRMAN. Two or three?

Mr. KEENEY (continuing). Two or four hearings a year, he said the electorate would be up in arms. He said the millions of Americans would work for the trial examiner's salary of $15,000 a year and this is the very group that plan 5 plans to delegate authority by way of decisions.

The CHAIRMAN. Is that all they have, four or five hearings a year? Mr. KEENEY. That is his testimony before the House committee. Another point that I would like to make is that the Board seems to be a prisoner of its own procedures. There are specific requirements that the Board must not consider the whole case but only certain exceptions, by line and page, that are made. This is not done. They only follow their own procedures, and if they would only follow their own procedures we would not have most of this backlog we have today.

On page 8, the point I would like to make most is that we have a sleeper here. This is the sleeper to the effect that there is power in plan 5 to make the NLRB Chairman a czar.

The actual quote given by the General Counsel's board before the House committee was to the effect that the reorganization plan is broad

enough to so authorize the Chairman of the Board to assume all of these powers.

Accordingly, in summary, Mr. Chairman, we feel basically due process will suffer as a result of plan 5. We feel that this is a matter for Congress to concern itself with. It is a matter whereby Congress should examine all the various procedures of the Board and it may very well be that certain alternatives must be considered; namely, complete decentralization of the Board and its activities, the raising of its standards or abolition of the Board with all its responsibilities transferred to administrative courts.

The CHAIRMAN. Thank you, sir.

Senator Muskie?

Senator MUSKIE. I was interested in the press release attached to Mr. Keeney's statement. I don't know why it was attached. I notice this paragraph in it that says:

First, the chamber said that under the administration's reorganization plan, the Chairman of the Labor Board would become a czar with unlimited power. The plan is different from plans 3 and 4. It contains no provision with reference to concentrating additional power in the hands of the Chairman.

I wonder if Mr. Keeney wanted to expand and explain his statement made in the press release?

Mr. KEENEY. I would be glad to, Senator Muskie. I have excellent references that I can make with respect to this.

Senator MUSKIE. In your statement?

Mr. KEENEY. Yes, and it is on page 8. I refer to testimony given by the General Counsel of the Board; he said the reorganization is broad enough to so authorize, and that is our view.

Senator Muskie, it is our view that plan 5 does have the inherent power to make the NLRB Chairman a czar. It is true, and I will agree that this plan does not contain any specific provisions as to the powers of the Chairman but we have the legal opinion of the General Counsel of the Board himself who is of the view that it is broadly written so it can be so construed.

Senator MUSKIE. In the second paragraph in your press release, Mr. Keeney, you said that more than three-quarters of the litigants reject the decisions of trial examiners and appeal to the Board. You say more decisions of the Board are then carried to the Federal courts than the combined total of all other Federal agencies.

You also say this indicated lack of confidence by the public in Board proceedings. Did you mean to say Board proceedings or trial examiner proceedings?

Mr. KEENEY. The correct terminology was Board proceedings, sir. Senator MUSKIE. If you have lack of confidence in the Board perhaps there is some justification in giving finality to the trial`examiners.

Mr. KEENEY. We had likewise the same lack of confidence in the trial examiners.

Senator MUSKIE. You just don't like the entire operation, is that it? Mr. KEENEY. No; we feel that this is a statute and we have to live under it. We do look at the Board at this point of having served its purpose. It can no longer perform its functions. As a matter of fact, it might be characterized as archaic and other solutions must be found with respect to the activities and functions of the National Labor Relations Board, whether they be abolition of the Board or

transferral of its functions to administrative courts or raising its standards. It cannot handle what it has right now.

Senator MUSKIE. Now you also suggested the fact that people appealing suggests a lack of confidence in the persons making decisions that are appealed from.

Would you make this same characterization in our court systems that the fact a party appeals thereby indicates a lack of confidence in the judges who have made the initial decision?

Mr. KEENEY. I think if we look at the statistics supplied by the Board we will find that approximately 76 percent of the cases decided by the trial examiners are appealed to the Board.

Senator MUSKIE. Well, this is a very controversial area as you know. I can remember sitting on legislative committees in my State legislature in the labor-management field. We had a very interesting procedure which I have never seen practiced down here. On any piece of legislation automatically all representatives of labor took one side and automatically all representatives of management took another. Once in a while for a break in the proceeding, we would ask all those opposed to a piece of legislation to stand and inevitably it was all on one side.

Now when you have this kind of situation isn't it inevitable that you are going to have more appeals than you are likely to have in a less controversial situation?

Mr. KEENEY. I cannot deny the labor-management field is replete with controversy.

Senator MUSKIE. But you don't really mean to suggest that the mere fact that someone appeals from a decision indicates a lack of confidence in the level of decision from which the appeal was being made, do you?

Mr. KEENEY. No; we are getting subjective.

Senator MUSKIE. I am asking whether you make that kind of a generalization.

Mr. KEENEY. I feel when a man has enough strength to support litigation and it is most expensive these days, I know how much it costs per page to print a brief

Senator MUSKIE. Neither side in this field is without resources. Mr. KEENEY. I am afraid too many on either side are always having this problem as to whether it is worth the cost of appeal. An appeal is most expensive and you must have the courage of your convictions to pursue that appeal.

Senator MUSKIE. Or the courage of your resources.

I suggest that if anything further occurs to you during the recess, between now and 2:30 that you may resume the stand and make whatever additional comments that you wish.

Mr. KEENEY. Thank you.

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

TESTIMONY OF EUGENE A. KEENEY FOR THE CHAMBER OF COMMERCE OF THE

UNITED STATES

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

The national chamber opposes Reorganization Plan No. 5 of 1961, which was transmitted to the Senate and the House of Representatives on May 24, 1961, pursuant to the procedures of the Reorganization Act of 1949 as amended.

This plan will go into effect on or about July 24, 1961, unless either House disapproves it.

The chamber believes that protection of all persons against arbitrary deprivation of their rights is of paramount consideration in the framing of law delegating authority to administrative agencies. We believe that plan No. 5 will result in arbitrary deprivation of the rights of all persons appearing before the National Labor Relations Board. Congress intended that the National Labor Relations Board be the decisional body in industrial relations disputes, not its Chairman, employees, or trial examiners. Accordingly, the national chamber opposes this plan for the following reasons:

(1) It 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 a complete change of present procedures.

(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.

(3) Plan No. 5 would give vast decisional authority to individuals who are not traditionally appointed by the President with the approval of the Senate. (4) Contrary to testimony by 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."

(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.

(6) Adoption of the plan would give unlimited power to the Chairman of the National Labor Relations Board.

THE PROVISIONS OF PLAN NO. 5

Plan 5 would authorize the Board to delegate any of its functions to a division of the Board, an individual Board member, a hearing examiner, an employee, or an employee board. The delegation is so all inclusive that it would include functions with respect to hearing, determining, ordering, certifying, reporting, or otherwise acting as to any work, business, or matter.

The Board would retain a discretionary right to review any action upon its own initiative, or upon petition of a party to or intervenor in such action, within such time and in such manner as the Board prescribes by rule. The vote of two Board members would be sufficient to bring any such case before the Board for review.

THE BOARD'S FAILURE TO COPE WITH ITS WORKLOAD

Plan No. 5 is an effort to cope with a symptom and not the problem itself. The problems of the Board are myriad. They go beyond the delay by the five-member Board. Reading of the Cox committee report issued on February 2, 1960 (S. Doc. 81, 86th Cong., 2d sess.) is necessary to comprehend the scope of the National Labor Relations Board dilemma.

The Cox Committee made many recommendations. They would abolish the office of NLRB General Counsel and establish an Administrator of the National Labor Relations Act to have full charge of field offices, of presentation of all unfair labor practice and representation cases, and of all litigation. The Board, together with the staff of trial examiners, would be responsible only for deciding cases and issuing rules. A special panel of trial examiners would be established to order elections after a hearing without referring the cases to the Board. The reports of trial examiners would be final unless clearly erroneous and their decisions reviewable only on substantial questions of law. Board members would personally hear oral arguments, and prepare decisions and opinions. Enforcement proceedings would also be expedited to reduce the delay between issuance and enforcement of NLRB orders.

Accordingly, in the view of the Cox Committee, the delay in Board decisions cannot be resolved by delegation of decisional authority to examiners alone. A complete revamping of Board procedures is a prerequisite to efficient handling of cases.

Congress should immediately undertake to study this problem of Board delays. Radical action must be taken, whether it be decentralization of the entire Board, raising of jurisdictional standards so that only cases of national import can be

considered, or abolition of the Board and transferral of its functions to administrative courts.

OBJECTIVES OF PLAN CANNOT LEGALLY BE ACCOMPLISHED BY EXECUTIVE ORDER

The national chamber submits that this delegation of authority to trial examiners is ultra vires and should not be undertaken by Executive order.

The Taft-Hartley Act is most explicit in giving the Board authority as follows: "If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and desist from unfair labor practice, * * *." [Italic added.]

Section 10(c) also is quite clear in providing that any evidence presented before an examiner shall result in an intermediary and not final order. Accordingly, this section, in our view, gives final authority to the Board alone, and no other, to make a final decision in unfair labor practice cases.

Mozart G. Ratner, former NLRB Assistant General Counsel, interestingly enough, testified on June 12 before the House subcommittee investigating the NLRB to the effect that he thought plan 5 is a good idea, although it may go to the "very edge" of power to reorganize a statue. We submit that plan 5 goes to the very "brink" of Executive power and for this reason alone should be voted down in order to maintain the legislative prerogative.

Plan 5 is an Executive order, despite statements of Board members to the contrary. Pursuant to the Reorganization Act of 1949, section 6(a), Public Law 109, all such plans take effect upon the expiration of 60 days following the date of submission by the President to Congress. Only upon affirmative action of a majority of either House could such a plan be disapproved. Thus, plan 5 is not legislation drafted and considered by a congressional committee but is an Executive order drafted by the Executive and lack of action of Congress results in an act of the Executive becoming law.

The national chamber again reaffirms that reform is imperative, but by the Congress and not by Executive order. This is also the view of the Cox Committee. We acknowledge that the Cox Committee was in agreement that delegation to the trial examiners be made. But this was only one of many recommendations as we have listed above. The Cox Committee also detailed certain standards of review. It would be more appropriate if Congress, after careful consideration, specifically spelled out standards of review rather than have them determined by the NLRB, which apparently has no authority to do so because of the express wording of the statute.

DELEGATION OF ADJUDICATORY POWER TO EMPLOYEES CAN BE ACCOMPLISHED UNDER PLAN 5

Testimony by Board officials before this committee on June 5 and recent testimony given before the House Labor Subcommittee on NLRB appear to be at crosspurposes.

Before this committee, the Chairman of the Board testified that under plan 5 the Board "may authorize such a hearing officer or other qualified personnel to make recommendations (with respect to section 10(k) work assignment disputes); or it may go further and delegate decisional powers to such designated personnel, and the Board itself then would only become involved in those cases where a request for review is granted at the discretion of the Board." (See hearings before the Senate Committee on Government Operations, 87th Cong., 1st sess., p. 125.) Yet, the Board testified before the House Subcommittee on NLRB that “* * * insofar as personnel to hear and decide unfair labor practice cases are concerned, * * * the plan only permits such delegation to Board members or trial examiners."

We submit that section 10(k) is explicit when it states:

"*** The Board is empowered and directed to hear and determined the dispute ***"

The statute could not be more clear. It is for the Board, not a hearing officer or "designated personnel," to make this determination. Vast authority would thus be given under this plan to an employee who will be making decisions in jurisdictional disputes.