dealing with the Board's adjudicatory procedure is quoted as an appendix to this memorandum.

Notwithstanding the Board's frankness and notwithstanding the fact that the processes of decision of no other governmental agency have been attacked in the courts as often or with as much ingenuity on the part of counsel as those of the Board have been, no court has ever held that the Board's processes failed to conform with the requirements of the Act or the Constitution.

On the contrary, in cases all of which have been decided subsequent to the decisions of the Supreme Court in the Morgan cases (298 U. S. 468, 304 U. S. 1, the Circuit Courts of Appeals for the Seventh, Eighth, and Ninth Circuits have. in substance, upheld the Board's reliance upon attorneys in the Review Section to read, analyze, and report the evidence to the members of the Board, and thereafter to embody the Board's findings and order in a written decision; which, with or without changes, is finally approved by the members of the Board before issuance. Inland Steel Co. v. National Labor Relations Board (105 F. 2d 246 (C. C. A. 7); Cupples Company Manufacturers v. National Labor Relations Board (103 F. 2d 953 (C. C. A. 8)), rehearing denied June 12, 1939: National Labor Relations Board v. Biles-Coleman Lumber Co. (98 F. 2d 16 (C. C. A. 9)). In addition, the Circuit Courts of Appeals for the Third, Fifth, and Sixth Circuits have sustained the Board's objections to interrogatories which employers propounded to the Board in attempts to unearth something to support their unwarranted allegations that the members of the Board insufficiently considered the evidence and merely signed their names to decisions made by subordinates in the Review Section. National Labor Relations Board v. Botany Worsted Mills, Inc. (106 F. 2d 263 (C. C. A. 3)); National Labor Relations Board v. Lane Cotton Mills (decided January 5, 1940 (C. C. A. 5)); Ford Motor Co. v. National Labor Relations Board (99 F. 2d 1003 (C. C. A. 6)) '; National Labor Relations Board v. Louisville Refining Co. (102 F. 2d 678 (C. C. A. 6), certiorari denied 60 S. Ct. 81).

In each of the cases cited in the foregoing paragraph, including the Louisville Refining case in which the Supreme Court declined to review the decision upholding the Board's position, the employer alleged, in substance, upon information and belief, that it had not been accorded the full and fair hearing required by the Act and the Constitution in that no member of the Board had heard the witnesses or read or considered their testimony, and in that, instead. the Board had consulted with subordinates in the Review Section ex parte, and had relied upon them to read the evidence and draft the decisions. Upon the basis of these allegations, efforts were made in each case, commencing in the Ford case, to secure a court order to compel the members of the Board to answer written interrogatories and/or to submit to oral questioning before a notary public as to the extent of their participation in the decision and reliance upon the Review Section.

The Board opposed these efforts on the grounds, among others, that the allegations of fact, even if true, were immaterial to the issue of the validity of the hearing, and that the allegation that the Board members failed to consider the evidence, while material, was a conclusion of law relating to mental processes. In other words, the Board took the position that its procedure and reliance upon the Review Section were wholly proper and were supported by the statements of the Supreme Court in the Morgan case (298 U. S. at 481) that a full and fair hearing and the rule that "the one who decides must hear""does not preclude practicable administrative procedure in obtaining the aid of assistants in the department. may be taken by an examiner. by competent subordinates. ments are not technical."

Assistants may prosecute inquiries. Evidence Evidence thus taken may be sifted and analyzed Argument may be oral or written. The require

Pertinent portions of the opinions of the circuit courts of appeals sustaining these contentions of the Board are quoted in the following paragraphs.

In the Inland Steel case the Circuit Court of Appeals for the Seventh Circuit, after adverting to the fact that the Board had served the parties with proposed findings, conclusions, and order, and had heard oral argument and received briefs, said (105 F. 2d at 251-252):

"Certainly, it is not essential that the Board or any member thereof be personally present and hear the testimony of the witness. The Act expressly makes

1 At the present time a motion by Ford Motor Company to compel the Board to reply to allegations similar to those made in the case cited is pending decision before the Circuit Court of Appeals for the Sixth Circuit.

provision for the taking of testimony otherwise. Neither do we think it can be said as a matter of law that it is incumbent upon the Board or any member thereof to read the testimony or exhibits received in evidence. The requirements in this respect must depend upon the circumstances of each case. Here, the Board heard oral argument by opposing forces and received briefs in support of their respective positions. We think it may be concluded that the Board thus acquired a knowledge of the facts relevant to the issues in dispute which might well have dispensed with the necessity for a reading of the testimony. Especially is this conclusion tenable in connection with the presumption of regularity which must be accorded the acts of the Board, as well as all Government officials: United States v. Chemical Foundation, Inc. (272 U. S. 1, 14, 15, 47 S. Ct. 1, 71 L. Ed. 131); Stearns Co. v. United States (291 U. S. 54, 63, 54 S. Ct. 325, 78 L. Ed. 647); Klamath and Moadoc Tribes of Indians v. United States (296 U. S. 244, 253, 56 S. Ct. 212, 80 L. Ed. 202); and in addition, allegations (c) and (d) to the effect that neither the Board nor any member judicially weighed or appraised the evidence nor read any fair, impartial, and complete condensation or analysis of the same, are not allegations of fact but mere conclusions."

In the Biles-Coleman Lumber case the Circuit Court of Appeals for the Ninth Circuit said (98 F. 2d at 17):

"The allegation that no member of the Board 'read a sufficient portion of the testimony and exhibits to be competent to judicially appraise and weigh the evidence or to form a basis for the findings of fact, conclusions of law, and Order,' is an allegation of a conclusion of law. There is no allegation of fact as to the amount of testimony which was read to constitute a legal insufficiency for a judicial appraisal as to the weight of the evidence or to form a basis for the findings of fact, conclusions of law, and order.

"This leaves the bare allegation that the Board had not read all of the testimony in the case, or read or examined all of the exhibits filed.' This is not an allegation of denial of due process. The Supreme Court has held that the 'evidence thus taken may be sifted and analyzed by competent subordinates. * * * The requirements are not technical.' Morgan v. U. S. (298 U. S. 468, 481, 56 S. Ct. 906, 912, 80 L. Ed. 1288).

"Furthermore, so far as concerns reading 'all' the testimony and examining all of the exhibits, it may well be that the brief admitted to have been filed by the Lumber Company may have made admissions making it unnecessary to read 'all' of the thousands of pages of evidence offered. The Company well may have made unnecessary, as it properly should, the reading of repetitious evidence and evidence upon facts uncontrovertibly proved. There is hence no cause stated warranting relief on the ground of denial of due process with reference to reading the evidence or examining the exhibits.

"What we have said also disposes of the allegations concerning the preparation of the findings of fact, conclusions of law, and order by employees or subordinates of the Board. It is obvious that such an administrative body, with scores of cases for its decision, many involving complicated questions of fact and often intricate questions of law, properly will rely upon its employees for assistance in their preparation. The administrative duties imposed on the Board by the Congress could not proceed otherwise." (Italics supplied.)

In the Cupples Company case the Circuit Court of Appeals for the Eighth Circuit said (103 F. 2d at 957-958):

"The allegations of the petition here do not go beyond showing a proper reliance by the members of the Board on administrative assistance. *

"As has been observed, it is charged on information and belief that the members of the Board did not personally consider the evidence, but relied upon the summary, suggestions, and recommendations of Miss Farmer and others. In the first Morgan case (298 U. S. 468, 56 Ct. 906, 80 L. Ed. 1288), it was alleged that the Secretary of Agriculture made a rate order without having heard or read any of the evidence, and without having heard the oral arguments, or having read or considered the briefs submitted. The court held that such allegations were sufficient basis for an inquiry into the Secretary's action. The court, however, did not hold that the officer making the decision must necessarily read all the evidence. It conceded that the officer could rely upon analysis and summary of the evidence by competent subordinates. He must consider and appraise the evidence, but such consideration and appraisal may be based on the work of the subordinates. Here, there is no allegation that there was no study and consideration of the record. On the contrary, it affirmatively

218054-40-vol. 6-10

appears that the subordinates did what the first Morgan case said they might do. Every presumption of regularity attends the action of the Board. United States v. Chemical Foundation (272 U. S. 1, 47 S. Ct. 1, 71 L. Ed. 131); Klamath and Moadoc Tribes of Indians v. United States (296 U. S. 244, 56 S. Ct. 212, 80 L. Ed. 202.) In the second Morgan case, the court held that it was not necessary to discuss the extent to which the Secretary examined the evidence, and it was not the function of the court to probe the mental processes of the Secretary in reaching his conclusion, if he gave the hearing which the law required. The order was reversed in that case because there was no reasonable opportunity afforded to know the claims of the Government. Presuming, as we must, that petitioner's brief was considered, and since the Board has the right to rely upon information of its subordinates as to the evidence submitted, the allegation that the members of the Board did not consider the evidence in arriving at the decision, is, we think, insufficient to justify the court in granting the relief asked. N. L. R. B. v. Biles-Coleman Lumber Co., supra." In the Botany Worsted case the Circuit Court of Appeals for the Third Circuit said (103 F. 2d at 266):

"Because, however, a particular writer with or without acknowledgment adopts the exact or substantial phraseology of others, it does not follow that he has abdicated in favor of mental processes extrinsic to his own. The frequent affirmation by an appellate court on the opinion of the court below is an instance. That practice, though of possible annoyance to industrious counsel, Bruce, The American Judge, p. 76, has never, to our knowledge, been challenged on constitutional grounds. A writer in the Columbia Law Review suggests another analogy in the adoption by a judge of material prepared by his law clerk, 38 Columbia Law Review 1279, 1282 (note), above cited; cf. United States v. Standard Oil Co. of California, D. C., 20 F. Supp. 427, 450. A less pleasant illustration might be found in a comparison of the opinions of some courts with the briefs of counsel."

and (at 267):

"When one comes to consider the record itself and the conclusions which the Labor Board deduces therefrom, one wonders at the insistent desire of counsel to inquire into the methods whereby those conclusions were reached. In view of what appears to be their conception of the judicial practice, we are somewhat nervous about stating that we have read the record. That does happen to be the fact and we may say that our reading gives us an impression of the faithful performance of duty by the members of the Labor Board.”

The only case in which the Board's objections to interrogatories as to its procedure were overruled is National Labor Relations Board v. Cherry Cotton Mills, 98 F. 2d 444 (C. C. A. 5). However, that case was among the early cases which were decided in the absence of an intermediate report by the Trial Examiner or of proposed findings issued by the Board, as permitted under the Board's then existing Rules and Regulations, and, although overruling the Board's objections, the court did not hold that the Board had not accorded the parties a full and fair hearing. Indeed, subsequently the court granted the Board's motion to dismiss the case without prejudice to further proceedings before the Board such as the Board took in the Inland Steel, Ford, and Republic Steel cases following the decision of the Supreme Court in the second Morgan case (304 U. S. 1). And in the Lane Cotton Mills case, where the Board had taken similar proceedings, the same court recently distinguished its prior decision in the Cherry Cotton Mills case, sustained the Board's contentions, and said (January 5, 1940):

"In the present case, it is clear that the proposed findings, conclusions, decision, and order came either from the reviewing section or from the Board itself. In either case, respondent was afforded an opportunity to appear before the Board and present oral arguments, as well as to file briefs. The final order was that of the Board itself. Under our former decision, we may inquire as to the source of an order that purports to come from the Board, where the record discloses no evidence that it did, and the circumstances indicate that it did not; but where, as here, there have been oral arguments and briefs before the Board, and it appears that the case was withdrawn from this court in order that the Board might act, there is no circumstance which would warrant our going behind the recitation of the order that it is made upon a consideration of the entire record in the proceeding."

In conclusion, it seems fitting to note that the opinion of the Fifth Circuit in the case last cited, as well as the opinions of the Seventh and Eighth Circuits in the Inland Steel and Cupples Company cases, respectively, which also distinguish the Cherry Cotton case, fully support the wisdom and fairness of the Board's present practice of affording the parties opportunity to file exceptions and to argue objections to an intermediate report by the Trial Examiner or to proposed findings issued by the Board, even though in the Mackay Radio and Consolidated Edison cases the Supreme Court held that such procedure, while desirable, was not necessary. Persons who have criticized the Board for following a too meticulous and time-consuming procedure since the second Morgan decision might do well to read the opinions in the cases cited in this memorandum. They might profit also from the Supreme Court's opinion written by Chief Justice Hughes in the Ford case (305 U. S. 364) stating, inter alia, that the Board's application to remand the case for further proceedings including the issuance of proposed findings.

was not on frivolous grounds or for any purpose that might be considered dilatory or vexatious. Petitioner had raised a serious question as to the validity of the findings and order. The Board properly recognized the gravity of the contention and sought to meet it by voluntarily doing what the court could have compelled. That was in the interest of a prompt disposition, and whatever delay has resulted is due to petitioner's resistance to that course."

THE NATIONAL LABOR RELATIONS ACT AND ITS PROCEDURE

(Address of J. Warren Madden, Chairman of the National Labor Relations Board Before the Legal Institute of the American Bar Association, on Practice and Procedure Before Administrative Tribunals, Monday, November 13, 1939)

BOARD ADJUDICATION

Despite the relatively small number of cases which go to hearing, the absolute number which come before the Board for decision is large. During the past 3 years, the Board has issued several thousand decisions. At the present time there are several hundred cases pending before it for decision. The average length of the transcript in each case is well over a thousand pages. It can readily be seen from these figures that the Board members themselves cannot expect to read all the records or themselves draft all the necessary findings of fact and orders. In making its decision the Board must perforce avail itself of assistance.

These assistants, known as review attorneys, are under the direction of an Associate General Counsel and a group of supervisors. The Review Section, as it is called, is independent of the Litigation Section, the Trial Examiners' Division, and of all other sections within the Board. In fact the review attorney is under instructions not to confer with the trial attorney in any case he is reviewing so as to eliminate any possibility of bias in his work on the case with the Board.

When a case is ready for decision by the Board, it is assigned to a review attorney. This review attorney acts as a confidential judicial secretary to the Board. Under the guidance of a supervisor, he reads the entire record; studies and analyzes all the evidence, the Trial Examiner's findings, the exceptions, and the briefs; and then makes a report to the Board. In this report he gives the Board a statement of the issues, a résumé of the testimony on each issue, and a summary of the argument of the parties. By this method the review attorney, in a matter of hours, gives the Board the gist of a record which may have been the product of a hearing lasting days, weeks, or even months. The Board members question the attorney, often at great length, and discuss the issues among themselves. Sometimes the attorney is instructed to analyze the record further and report again later. Sometimes the members of the Board wish to read parts of the record themselves or to inspect certain exhibits. Occasionally members of the Board will read an entire record. Sometimes discussion is exhausted for the day without a satisfactory solution, and that case is left without decision to be thought over and brought up again.

At the conclusion of the Board's deliberation it tentatively decides the issues and instructs the review attorney to prepare a draft decision. A tentative draft is then drawn up and is checked and revised by the supervisor. There

after, a copy is submitted to each Board member. This tentative draft serves a twofold purpose. It is written in such detail as to amount to a written report upon the case, and forms a ready basis for conversion into a final decision. The Board members make such changes and revisions as they deem appropriate. A further report upon particular aspects of the case may be required from the review attorney. An additional conference, or series of conferences, may be necessary to iron out the differences between Board members. When, finally, the decision is approved by each Board member, it is typed in final form and issued as the decision of the Board.

If oral argument is requested by any party, it is invariably granted. At the present time oral argument is held in the great majority of the Board's cases. In most of its cases, likewise, the Board receives and considers briefs.

Where no Intermediate Report is issued in an unfair-labor-practice case, the process described above is pursued through the point of drafting the tentative decision made by the Board. That decision is placed in the form of proposed findings of fact, proposed conclusions of law, and proposed order, and is served upon the parties, who may thereafter file exceptions and be heard in oral argument or on briefs in the same manner as if an Intermediate Report had been issued.

The Board's decision is thus the product of a detailed mastery of the record and a genuine deliberation by the Board members. Yet, as I have said, the Board's order is binding upon no one. It cannot be enforced except after review in the Circuit Court of Appeals, and, at times, in the Supreme Court. To a consideration of this review-the last step in an unfair-labor-practice case— I now turn.

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD

In the matter of Lady Ester Lingerie Corporation and International Ladies Garment Workers Union-Affiliate with the Committee for Industrial Org. Case No. C-333

Mr. Samuel G. Zach, for the Board.

Mr. Nathan Dinkes and Mr. Alfred S. Asciutto, of New York City, and Mr. R. O. Brockway, of Berwick, Pa., for the respondent.

DECISION AND ORDER

STATEMENT OF THE CASE

Upon charges and amended charges duly filed by International Ladies Garment Workers' Union, herein called the International, the National Labor Relations Board, herein called the Board, by Bennet F. Schauffler, Acting Regional Director for the Fourth Region (Philadelphia, Pennsylvania), issued its complaint, dated October 1, 1938, against Lady Ester Lingerie Corporation, Berwick, Pennsylvania, herein called the respondent. The complaint and notice of hearing thereon were duly served upon the respondent and the International and upon "Berwick Loyal