taneously upon duties previously performed at different time intervals, time will be saved. By taking full advantage of the experience of the Review Division, the Trial Examiner will be able to hasten the date when the Board can with confidence either adopt his Intermediate Report as its own decision with slight modification or revision or use it to much greater extent than heretofore. 4. Criticisms of Proposal.

(a) Effect on Review Attorney

Under the recommended proposal the Review Attorney who has worked with the Trial Examiner will report the case to the Board in the same manner as heretofore. It is claimed that the Review Attorney, because of his collaboration with the Trial Examiner, may lose his objectivity in the presentation of his facts to the Board. We do not believe the Review Attorney would be any less objective under the proposed system than he is at the present time. He would not be the author of the Trial Examiner's report; his interest in the report would be limited principally to an accurate check of the report against the record; his function as the Board's assistant in reporting the facts would continue as in the past, with close supervision.

(b) Effect on Trial Examiner

The criticism has been made that the Trial Examiner, aware of the fact that the Review Attorney will have a further chance to discuss the case with the Board, might be persuaded to agree with the proposals of the Review Attorney when there is any question in dispute and thus lose his objectivity. Again this objection fails to take into consideration that the Review Attorney merely advises the Trial Examiner of the facts which he has found in the record; any errors of the Trial Examiner which are obvious on the face of the report; any factual information which the Review Attorney deems important and which the Trial Examiner may have omitted from the report. The Review Attorney will not be in the position of urging his conclusions upon the Trial Examiner. This criticism further fails to recognize that one of the Trial Examiner's principal functions is to resolve questions of credibility of witnesses. Obviously the Review Attorney should not pass on this question. We believe that the caliber of the Trial Examiner is and should be such that he would not be influenced in giving his best judgment by any fear of reversal.

(c) The Proposed System Will Not Save Time

It is claimed that there will be no real saving of time under the proposed system because the Review Attorney must wait after the reading of the record and the issuance of the Trial Examiner's report for the exceptions and briefs to be filed before he orally reports to the Board. During the period from issuance of the Intermediate Report to oral argument, it is asserted there is sufficient time in which to read the record so that there is no saving in time in reading the record at the close of the hearing. Further, this delay would necessitate the Review Attorney spending additional time in refreshing his recollection of the case before he orally reports to the Board.

The Committee feels that there is no substantial merit to these criticisms. Under the present system there are many delays which necessitate the Review Attorney's discontinuance of work on the record. There is no reason why the Review Attorney should not be working on another case while he is waiting to report to the Board. The necessity for refreshing his recollection will be slight since he will have the benefit of briefs, oral arguments before the Board, and his own notes and memoranda which he has used in connection with his report to the Trial Examiner. Moreover, the maximum time from the issuance of the Intermediate Report to the date of oral argument should not be over 25 days, thus resulting in a net reduction from the time required in the decision process. This will be discussed later.

5. Exhibits.

The criticism is made that as there is only one set of exhibits and the Review Attorney and Trial Examiner would be reading the record at the same time, some delay and inconvenience would result. We believe this is a valid criticism and that the inconvenience would necessarily cause a slight delay. This delay, however, can be minimized by intelligent cooperation between Review Attorney and Trial Examiner.

6. Public Relations.

It is claimed that a closer working relationship between the Trial Examiner's Division and the Review Division will lend substance to the present attack on the Board on the ground that the Review Division is given a great degree of control over the decision process.

This criticism continues to be as captious as before, since the Board will in fact perform the same functions as it does under the present system. The Board makes its decision as a result of the presentation of the facts in the record by the Review Attorney. There can be no claim that the Board would be any less objective under the proposed system, which merely raises the stand ard of the Intermediate Reports and saves time. Furthermore, it is submitted that the proposed system provides for a more careful and thoroughgoing review of the record than the present system to the end that the Board will be better equipped to make a correct and just decision.

D. SUGGESTED IMPROVEMENTS IN THE REVIEW DIVISION

1. Setting of time for Oral Argument.

At the present time the date for oral argument is not set until after the receipt of exceptions to the Intermediate Report. Normally the Review Attorney at this point confers with his supervisor and indicates the approximate time in which he will have completed his reading of the record and will be ready to report the case to the Board. In the average case oral argument is set approximately 30 days after the receipt of exceptions.

The Committee recommends that in the future the Intermediate Report itself carry a notification clause advising the parties that oral argument will be heard, if requested, within 5 days from the date exceptions are due. The institution of such a practice would not find the Review Attorney unprepared to report on the case because his reading of the record would have begun with the conclusion of the hearing. Moreover, this practice would considerably shorten the time from issuance of the Intermediate Report to oral argument. It should also be observed that the maintenance of an efficient time schedule at this stage depends greatly upon a strict administrative policy of refusing to extend the time to file exceptions to Intermediate Reports except in extraor dinary circumstances.

The present practice for filing the briefs is to permit their filing any time prior to oral argument. We believe that this practice should be continued. 2. Permitting Board Trial Attorneys to File Erceptions.

In the past Board attorneys have not been permitted to file exceptions to Intermediate Reports. We recommend in the future Trial Attorneys be permitted to file exceptions when this procedure seems to be desirable. In making this recommendation we believe that Regional Attorneys should exercise a high degree of caution to guard against the filing of any exceptions other than those which seem essential to a correct result. Pointed exceptions by Trial Attorneys should be of assistance to the Review Division and to the Board in narrowing the issues.

3. Oral Argument.

At the present time the Board receives from the Review Division prior to oral argument a brief memorandum informing it of the issues in the case We recommend that in addition to a consideration of this memorandum, the Board should hereafter also consider prior to oral argument the Intermediate Report, exceptions, and briefs of the parties. As the quality of the Intermediate Report improves we believe that ultimately the Board may dispense entirely with the Review Division memorandum.

4. Report of Case to the Board by Review Attorney.

The present system of having a case reported orally to the Board by the Review Attorney and his supervisor immediately after oral argument should be retained.

We believe that it is important for the full Board to reach its decision at the same time so that the drafting of the decision may proceed in the Review Division without the presence of doubt as to the ultimate decision of any particular Board member.

5. Drafting of Decision.

As pointed out above, in the past approximately 80 days have elapsed between the Board's oral expression of opinion and the actual issuance of its decision. The Review Division now predicts that 60 days at the outside will elapse in the normal case. It is predicted that this will eventually be cut to 40 or 50 days. The major portion of this time is spent in drafting the decision. Less time could be spent without sacrificing the necessary quality of Board decisions. As the standard of the Intermediate Report improves, the Board can either affirm the Intermediate Report in toto, affirm with modification, reverse, or prepare decisions as heretofore, depending entirely upon the circumstances of the particular case. We recognize that the practice of using the Intermediate Report in all cases as the basis of decision cannot be adopted, but the percentage of "run of the mill cases" is constantly increasing and the percentage of new, novel, and precedent-making cases is decreasing. Therefore, in the near future, it should be possible for the Board to place greater reliance on Intermediate Reports. This will involve no change in the function of the Review Attorney in his relation to the Board, but will relieve him of the burden of writing elaborate opinions. He will continue to act as assistant to the Board, apprising. it of his analysis of the record and the facts. The Board will continue to consider each case as heretofore but Intermediate Reports capable of adoption or adoption with slight modification will greatly accelerate the decision process.

CONCLUSION

The Committee, after surveying the work of the legal division and particularly the review staff, was impressed with the zealousness of the individual employees in their work and recognizes this fact as one which has enabled the Board to complete an unusual amount of work of high quality. In making its recommendations, the Committee has borne in mind the enviable reputation the Board has maintained in the courts for care and workmanship in its decisions which are unparalleled by the work of any other administrative agency. The Board had the responsibility of interpreting a new and controversial statute to the courts, which in the beginning justified the amount of care and time devoted to the decision process. After 4 years of operation, however, it is this Committee's feeling that the Board has now familiarized the courts with its funcion, and has gone far toward convincing a majority of the courts of its careful and impartial judgment. The standard set by the Board resulted in many delays from the time of hearing until the time of decision. Labor orgalizations and the public in the past were patient and sympathetic with the difficulties of the Board in this respect. The Committee, however, recommends that the Board has now reached the point where it should readjust its emphasis without sacrifice of any safeguards in an attempt to insure a speedier handling of cases, to the end that the purposes of the Act will be better effectuated.

The Committee has not assumed that its suggestions will provide a cure-all for the complex problems presented; however, it does urge the adoption of its recommendations as the best possible immediate remedy. We believe that, given a fair trial. the results desired by all on the Board will either be accomplished, or the ultimate solution to the present problems will be more clearly indicated, Respectfully submitted.

/s/ DAVID A. MORSE (Chairman),

/s/ THURLOW SMOOT,

/s/ WARREN WOODS,

/s/ EDWARD SCHNEIDER,
/s/ LESTER M. LEVIN.

DISSENT FROM RECOMMENDATION THAT REVIEW ATTORNEYS CHECK INTERMEDIATE REPORTS

I. INTRODUCTION

I dissent from the recommendation of the majority that there be adopted a system of having review attorneys act as advisers to the Trial Examiners and

The Committee has found that it takes the stenographic pool at the present rate of rerion 1 week to type a 25-page Board decision. This is a serious delay in view of The fact that there is a minimum of four complete drafts of decisions. However, this fine can be cut down to 2 or 2 days by the addition of 10 stenographers. The comBite recommends the addition of 10 stenographers.

In complex cases involving economic questions, time may be saved by making greater of the Economics Division.

check Intermediate Reports prior to their issuance. It should be noted that none of the other recommendations or proposed changes are dependent upon the adoption of this system and therefore I am in accord with other portions of this report. The proposal that a review attorney read the record prior to issuance of the Intermediate Report can be adopted without the necessity of his conferring with the Trial Examiner and checking the Intermediate Report provided time may be saved by an early reading of the record.

II. THE PROPOSED SYSTEM

The majority recommendation proposes that a review attorney be assigned to a case immediately after the close of hearing and that the review attorney read the record at the same time that the Trial Examiner is reading the record. The majority recommendation then contemplates that the Trial Examiner will submit a draft copy of the Intermediate Report to the review attorney who. after consulting with his supervisor, will confer with the Trial Examiner. This conference, to be useful to the Trial Examiner, involves not only a discussion of inaccuracies in the draft Intermediate Report but a discussion and analysis of the evidence and conclusions reached by the Examiner. Such is the present practice in the Trial Examiner's Division, where the Reviewing Trial Examiner submits a critical analysis covering wrong rulings, prejudicial errors, off-the-record discussion and conduct at the hearing, in addition to indicating his own reactions to the evidence and a general opinion on whether the findings and recommendations are supported by substantial evidence. This function under the proposed system will be performed by the review attorney, although as under the present system, it will be clearly indicated to the Trial Examiner that the ultimate findings and conclusions in the Intermediate Report are to be his own. If the function of the Review Attorney is more limited than that of the Reviewing Trial Examiner and consists only of a check for inaccuracies in the report, then, it is submitted, little will be accomplished in improving the quality of Intermediate Reports in reasoning, analysis, and style.

III. CRITICISM OF THE PROPOSAL

A. LOSS OF INDEPENDENCE OF TRIAL EXAMINER

Although the Trial Examiner will be given to understand that the Intermediate Report is to be his own, nevertheless the pressures and influences to be resisted under the proposed system create an unwholesome atmosphere in which to adjudicate the rights of the parties. The proposal places the Trial Examiner in an unfortunate position. The review attorney has the last opportunity to report to the Board. Through his contact with the Board members he is more familiar with Board thinking and reasoning, and ultimately when the decision is written it is the review attorney who speaks for the Board members. Furthermore, since one of the objectives of improving the quality of Intermediate Reports is to enable the Board to adopt the report as the basis of its decision, the function of the review attorney becomes increasingly one of advising the Board on the correctness and incorrectness of the Intermediate Report. The psychology of the situation, therefore is for the Trial Examiner to yield to the conclusions of the review attorney and to resolve any differences in favor of the review attorney. This influence becomes greater if the Board has reversed the Trial Examiner in previous cases or modified his Intermediate Reports. In the next conference, the Trial Examiner who has been reversed will be more inclined to yield to the conclusions of the review attorney. I am confident that the Trial Examiners on the Board staff will resist any temptation to yield to such influence, but the unfortunate position in which the Trial Examiner finds himself is unfair to everyone, including the Trial Examiner and the parties. It may result in the Trial Examiner leaning over backwards in his effort to be independent.

B. LOSS OF OBJECTIVITY BY REVIEW ATTORNEY

Another factor to be considered, is the possible loss of objectivity on the part of the review attorney. The Trial Examiner, fresh from the hearing, with his knowledge of the color and background of the hearing, may persuade the review attorney to resolve any differences in favor of the views of the Trial Examiner. Furthermore, to the extent that the Intermediate Report represents the joint product of the review attorney and Trial Examiner, the review attorney will

be influenced to defend the Intermediate Report in his capacity as legal assistant to the Board. Although the report of the review attorney to the Board is principally a detailing of evidence rather than an expression of his own views, nevertheless any such report must involve a marshalling of facts in accordance with the review attorney's views of the important and significant parts of the evidence.

C. CONFIDENCE IN BOARD'S METHODS

The methods of the Board must be such as to inspire confidence in the minds of the public, the parties, and the courts. The importance of confidence in administrative agencies has led many serious students of administrative law to conclude that the potential danger of pressure and partiality should be eliminated by loosening the ties between the Trial Examiner and the administrative agency to which he is attached.

"More important, the loosening of the ties between the Examiner and the particular agency which employs him would breed a greater spirit of impartiality and take some of the sting out of the complaint that administrative agencies confuse the function of judge and prosecutor." A. H. Feller. Prospectus for the Further Study of Federal Administrative Law, 47 Yale Law Journal, 647, 674. See also Redmond, the Securities Exchange Act, 47 Yale Law Journal, 622, 642.

The Board in the past has always been able to reply to such suggestions by pointing to the actual division of function within its organization and to the insulation of the Trial Examiner's division from the Board and Review Section.

"In deciding a particular case, there is no consultation between the Board or its assistants on the one hand, and the attorney who tried the case or the Trial Examiner who heard it, on the other." Third Annual Report, p. 5.

The same thought is implicit in the Board's report to the Senate Committee on Education and Labor, Part III, Section XII, where the Board points out that the Trial Examiner's Division is distinct both from the administrative staff of the secretary and from the Legal Division.

It is no answer to say that if this criticism has weight the conclusion should be the creation of an independent panel of Trial Examiners separate and apart from any particular agency. The theory of administrative law is that the performance of all functions by a single agency will result in consistent and unified policy, but that impartiality and independence can be maintained by an actual division of function within the agency.

The Review Section is at present the subject of investigation and examination by critics of the Board. The present time is certainly not propitious for spreading the influence of the Review Section and linking the judicial functions of the Trial Examiner, review attorney, and Board members closer together.

D. THE SAVING OF TIME

Under any system approximately 25 to 30 days must elapse after the issuance of the Intermediate Report for the filing of exceptions and briefs and the holding of oral argument. Under the majority recommendation the review attorney would lay aside the case during this period and work on other cases until just prior to oral argument. At present the review attorney utilizes the period after the issuance of the Intermediate Report for the reading of the record. Since at least 60 days must elapse from the time of the close of the hearing until oral argument, under any system, it is submitted that as far as any real saving of time is concerned it does not matter whether the review attorney reads the record in the first or second 30 days.

The establishment of the practice of having a check by a Reviewing Trial Examiner caused considerable delay at first, but it is now safely estimated that the additional review requires only between 1 and 2 weeks in the average case. The importance of this lies in the fact that the average maximum difference in time between the majority proposal and the present system is this 1 or 2-week period used at present for checking the record. However, this difference is reduced by the following factors.

First, the issuance of the Intermediate Report will be delayed under the proposed system by the length of time it takes the review attorney to check