the Intermediate Report, consult his supervisor, and confer with the Trial Examiner. This will require at least 3 days. Secondly, there will be a certain loss of time after the Intermediate Report issues, due to the fact that the review attorney will lay aside the case for almost 30 days and then will have to refresh his recollection of the case prior to oral argument and report to the Board. This will require another 1 to 2 days. Another source of delay is the fact that there is only one set of exhibits for the use of Trial Examiner and review attorney. As stated by the majority, this delay can be reduced to a minimum by cooperation between the review attorney and the Trial Examiner. but it seems fair to make an allowance of 1 day's delay from this cause. There also may be a loss of time to the Trial Examiner by virtue of the fact that during the 2 or 3-day period in which the review attorney is checking the Intermediate Report and conferring with the supervisor, the Trial Examiner must wait to confer with the review attorney. In short, the recommendation of the majority involves delays of approximately 7 days. The present system of using a Reviewing Trial Examiner involves a delay of only 1 to 2 weeks. The last four Intermediate Reports issued under the present system required an average of only 46 days from close of hearing. The real saving of time is not by the use of a review attorney to check the report but by the elimination of imperfections in the present system, such as the lapse of time between filing of exceptions and oral argument, as indicated in other portions of the majority report with which I am in accord. E. COMPLIANCE One of the objectives of improving Intermediate Reports is to obtain compliance in more cases with the Intermediate Report. If the Intermediate Report is complied with or the case settled, a substantial part of the approximately 30 days used by the review attorney in reading the record from the time of the close of the hearing is wasted. The loss of time by a Reviewing Trial Examiner as a result of compliance is less than the loss of time by the use of a review attorney. Much of the review attorney's time is spent in the laborious task of taking full and complete notes while reading the record, to be used as a basis for reporting to the Board and writing the decision. Thirty-one Intermediate Reports were served from August 2 to October 25, 1939. Of this number there was compliance in three cases and three cases were settled. In these six cases much time would have been saved by the use of a Reviewing Trial Examiner rather than a review attorney. RECOMMENDATION Improvement of the quality of Intermediate Reports can best be obtained by a method in which the review of the Intermediate Report includes not only a check for accuracy but a discussion of the evidence, findings, and conclusions. The use of a review attorney for this has the disadvantages already indicated. Therefore, I recommend a maintenance of the present system of having the review of the Intermediate Report made in the Trial Examiner's Division by a member of that Division. Ultimately, as the personnel of the Trial Examiners improves and the level of expertness and experience is raised. there should be less need for the kind of review of Intermediate Reports now being made. A system of supervision modeled after that now in use in the Review Section can then be adopted for the purpose of maintaining the quality of reports after the standard has been raised. Careful selection of personnel and the attainment of experience and expertness should ultimately result in less need for supervision and a nearer approach to the ideal system of having the Trial Examiner write accurate, literary, logical, analytical Intermediate Reports without assistance. Meanwhile it should be noted that the rate of productivity of the Trial Examiner's Division is getting out of gear with the other divisions of the Board. There are now 33 Trial Examiners on the staff, of whom 5 or 6 are being used for review work and 10 are being used for the hearing of complaint cases. The others are required for the hearing of representation cases. At the rate of two complaint cases per Trial Examiner per month, which has been the average, the Trial Examiner's Division is now geared to hear 20 complaint cases a month. A 10-month average shows 36 cases per month have been authorized, and recently over 100 requests for authorization were granted. The result has been that the Trial Examiner's Division is canceling hearings after they have been scheduled and is selecting the complaint cases which should go to hearing. A back log of cases in the regions is beginning. A schedule of 30 complaint hearings per month would prevent the accumulation of this back log. The Review Section is geared at present to turning out about 50 cases per month. Therefore, the number of Trial Examiners hearing complaint cases should be increased immediately from 10 to 15, and the monthly average number of hearings of complaint cases increased from 20 to 30. This will require an increase of five in the personnel of the Trial Examiner's Division. This can be accomplished either by transfer of men from the Review Section to the Trial Examiner's Division for the purpose of checking Intermediate Reports, or the employment of five additional Trial Examiners for hearings. The Review Section will have a surplus of personnel within a month. If transfers are made from the Review Section for the purpose of checking Intermediate Reports, men of high caliber should be selected since review for the purpose of improving the quality of Intermediate Reports requires men of ability and high standards. Respectfully submitted. /s/ EDWARD SCHNEIDER. EXHIBIT NO. 1608-AT NATIONAL LABOR RELATIONS BOARD, EDMUND M. TOLAND, Esquire, General Counsel, Special Committee to Investigate the DEAR MR. TOLAND: Under date of May 18 you asked me to furnish you a list of Board employees related to other employees or members of the Board. You have illustrated by stating you would like to be advised as to husbands and wives, sisters and brothers, uncles and nephews, aunts and nieces, etc. Your letter also requested the place of employment of such persons, the nature of their work, and their salaries. In response to this request I am enclosing herewith a list which has been compiled by the Personnel Director, Mr. Shover. He tell me, however, that he has no official records in which the information is contained; but the list contains all the information on the subject of which he is aware from the records we do have and from his personal knowledge. Yours very truly, Smoot. Father, Avery Leiser son. Cousin, Joseph Forer.. Brother, Laurence A. Title, grade, and salary Lit. Atty. P-3, $3700. Docket Clerk CAF-2, Rev. Atty. P-2, $3000. Chief Personnel Clerk Legal Asst. Orders Sec. Cleve., O., Lit. Atty. P-3, $3400. Field Exam. Chicago, Ill. Rev. Atty. P-3, $3500. Jr. Clk-Steno. CAF-2, Asst. Gen. Counsel, Lit. Under M. & F. Clk EXHIBIT NO. 1608-AU EDMUND M. TOLAND, Esquire, NATIONAL LABOR RELATIONS BOARD, General Counsel, Special Committee to Investigate the National Labor Relations Board, 535 Old House Office Building, Washington, D. C. DEAR MR. TOLAND: This will refer to your letter of May 17, in reply to my letter of May 14, sending you a copy of the memorandum of November 20, 1939, from Mr. Nicoson to Mr. Halliday in the Crystal Springs Finishing Company case. The memorandum in question was one from a subordinate in the Trial 'Section to Mr. Halliday, the head of that section. It was prepared as a tentative draft of a memorandum of the Trial Section but was not used. Mr. Halliday rejected it after discussion with Mr. Nicoson. A new memorandum was prepared to set forth Mr. Halliday's views. Many legal questions are submitted to Mr. Halliday for opinion; these questions are sometimes submitted by him to a member of his section, such as Mr. Nicoson, for preliminary analysis and preparation of a tentative draft of memorandum. If the tentative draft, after consideration by Mr. Halliday, is believed accurately to reflect his views, he signs and submits the memorandum to the source from which the question came; but if the tentative draft is not satisfactory it is re-drafted. I am advised by Mr. Halliday that he supposes that the original of the preliminary draft in this particular instance was not preserved simply because it was written for him to use but did not contain his views. A copy of the Nicoson memorandum was preserved, however, and was in the chronological file. The then-existing custom of the Trial Section, referred to in my previous letter, was the custom of a subordiate in that section preparing and signing a preliminary draft memorandum which, if accepted by Mr. Halliday, went direct to the person who sought the opinion with Mr. Halliday's endorsement thereon. This was not good form. It is better for the person who asks the Trial Section for an opinion to have an opinion signed by Mr. Halliday and not simply one prepared by a subordinate, with Mr. Halliday's endorsement. We found that attorneys in the field, for example, expected, when they asked the Trial Section for an opinion, to have one come direct to them from Mr. Halliday himself, the responsible head of the division. The opinions, therefore, are now drafted solely for Mr. Halliday's signature. I can not tell you exactly when this change was made; but I do remember some time ago speaking to Mr. Halliday myself, after I had heard of some complaint, and telling him that I thought the opinions that went out to other attorneys from his Section should bear his own name. He told me at that time that he had come to the same conclusion and had already adopted that method. I trust the above is the information you desire. I am afraid I can not tell you what other customs in the various divisions of the Board have been changed. when they have been changed, how and by whose authority. No doubt there are changes adopted from time to time in the details of handling the work of the Board. The organization is not, as you know, static. Yours very truly, ROBERT MARKS, CHARLES FAHY, General Counsel, EXHIBIT NO. 1608-AV NOVEMBER 10, 1939. Comment Editor, Illinois Law Review, 357 East Chicago Avenue, Chicago, Illinois. MY DEAR MR. MARKS: Thank you for your letter of October 25. I appreciate the opportunity to give you the following comments upon the Logan Bill (S. 915). I will limit my comments to the effects of this bill, as I see them, upon the administration and enforcement of the National Labor Relations Act. My views will be best understood if I give you a preliminary analysis of the Act and of the functions of the Board thereunder. The Act, designed to remove obstructions to interstate and foreign commerce resulting from denial by employers of the rights of employees to freedom in self organization and collective bargaining, and designation of representatives for that purpose (Section 1), endeavors to accomplish this declared objective in two distinct, although related, ways: First, the Act states the general rights of employees to freedom in self-organization which it guarantees (Section 7); it then specifically prohibits five defined "unfair labor practices" contravening those rights (Section 8); and it then establishes administrative and judicial procedure for the prevention by the Board and the courts of those specific unfair labor practices (Section 10). Second, the Act declares that the representative selected by a majority of the employees in an appropriate unit shall be the exclusive bargaining agency for all the employees in that unit, and provides machinery by which the question of the existence of any such majority representative may be investigated and resolved by the Board (Section 9). The foregoing constitutes the essential framework of the Act. As indicated, the two divisions in the framework of the Act are basically different. The first, contemplating what I will refer to as "unfair labor practice" cases, establishes certain standards of employer-employee relations, departures from which by employers are made unlawful. It authorizes decrees of reviewing courts enforcing orders of the Board, which decrees have compulsory effect to prevent and rectify such unlawful conduct. The second division, contemplating what I will refer to as "representation" cases, involves a function not concerned with violations of law, is an investigatory and fact-finding process, and, accordingly, does not result in any order, compulsory or otherwise. The investigation and certification of representatives is provided for in order to implement the rights to self-organization and collective bargaining: to eliminate, where it exists, a question preliminary to the collective bargaining with the majority representative commanded by Section 8 (5). "The functions committed to the Board in respect of these two distinct but complementary procedures will now be briefly stated. As to unfair labor practices, the duties and powers of the Board are of a type and extent familiar in adminisfrative law. The Board is authorized, "whenever it charged that any person has engaged or is engaging in" any unfair labor practice, to issue its complaint in that regard (Section 10(b)). The person complained of is entitled to make answer, interested persons may seek intervention (Section 10(b)), and a hearing is provided for, before the Board or an authorized agent (Section 10 (c)). If upon the testimony, which must be transcribed and filed with the Board, it is of opinion that the respondent has engaged in any unfair labor practice alleged, the Board is directed to state its findings of fact and to issue an order requiring him to cease and desist and to take such affirmative action as will effectuate the policies of the Act (Section 19 (c)). If the Board concludes that there has been no unfair labor practice, it must so find and issue an order dismissing the complaint. Violations of Board orders in unfair practice cases carry no penalty. The appropriate Circuit Courts of Appeals, or, in vacation, the District Courts, are given jurisdiction to enforce, modify and enforce, or set aside the Board's order, either upon petition of the Board for enforcement or upon petition for review by a person aggrieved (Section 10 (e), (f)). Violation of the court's decree is punishable by way of contempt proceedings, and that is the sole sanction available to compel compliance with the Act. In representation cases, the statute authorizes the Board "whenever a question affecting commerce arises concerning the representation of employees," to "inTestigate such controversy and certify the name or names of the representatives that have been designated or selected." An "appropriate hearing" is required, and the Board is authorized to "take a secret ballot or, utilize any other suitable method to ascertain such representatives" (Section 9 (c)). In practice, the Board here follows substantially the same procedure as in unfair labor practice cases. While free under the statute to proceed upon its own motion, persons other than the Board must ask the Board to proceed by a sworn petition. If the Board determines that an investigation is warranted, the petition, Together with notice of hearing, is served upon the employer and all interested abor organizations or other purported representatives of the employees. A hearig is held in the same fashion as in an unfair labor practice case and the record is thereupon transmitted to the Board. The Board then proceeds to a determination of the issue, normally by a certification or a dismissal of the petition, with or withon a secret election as the case warrants. As to judicial review of action of the Board in representation cases, the Act provides for review of "facts certified," i. e., a certification, whenever an order of the Board made in an unfair labor practice case "is based in whole or in part upon facts certified" in a representation proceeding (Section 9 (d)). The typical situation contemplated by this provision is the one in which the Board, in an unfair labor practice case, finds that an employer has refused to bargain in violation of Section 8 (5), relying upon the record and certification previously issued in a representation case as proof of the union's majority, the appropriateness of the unit, or both. Section 9 (d) clearly indicates that there is to be no judicial review of action taken solely in representation cases, and the Committee reports are explicit upon the matter. From the foregoing it is apparent that the functions of the Board in unfair labor practices are mainly those of a court of original jurisdiction over a special class of offenses against federal law, with the addition of administrative and prosecuting functions common in administrative law. As to these cases the functions, powers, and duties of the Board are analogous to those of the Federal Trade Commission in preventing unfair methods of competition; the Act was expressly modelled in these respects after the Federal Trade Commission Act. The fact-finding functions of the Board in representation cases are likewise not without analogy. They are similar to those of the National Mediation Board in investigating and certifying representatives under the Railway Labor Act, and to the various investigatory functions of other agencies, such as investigations and reports of the Interstate Commerce Commission valuating railroads. See United States v. Los Angeles & Salt Lake R. Co., 273 U. S. 299. It is true that the Act also authorizes the exercise by the Board of a third funetion, in vesting in the Board a general power to issue rules and regulations “necessary to carry out the provisions of this Act" (Section 6 (a)), and a specific power so to regulate the matter of conferences between employers and employees on working time (Section 8 (2)). It is very doubtful that any rules and regulations which the Board has issued deal with other than matters of practice. The Act itself has been found adequate in coverage and explicitness to permit of effective enforcement through the methods prescribed by Congress, though it is apparent that these methods are very temperate, are wholly remedial, and are in no sense punitive. With this analysis of the Act's framework and the functions of the Board. I turn to the practical effects which S. 915 would have upon the Act and the Board's work. As you are aware, the main features of the bill are: (1) Its requirements that administrative rules "implementing or filling in the details of any statute" be made the subject of public hearing prior to becoming effective; that, as to statutes hereinafter enacted, such rules be issued within one year from the enactment of the statute; and that any amendments be made in the same manner (Section 2 (a), (b), (c)). (2) Its requirements that, as to any rule now in force, a public hearing be held upon petition of "any person substantially interested in the effects" of the rule, followed by a determination of the agency concerning whether the rule shall continue, or be modified or rescinded (Section 2 (c)). (3) Its provisions authorizing the Court of Appeals for the District of Columbia to determine, by declaratory judgment, whether any such existing or future rule conflicts with the Constitution or a statute, or lacks authority in the particular statute under which it was issued, any such judgment against the rule to deprive it of all force and effect (Section 3). * (4) Its requirements that each agency establish an internal board to hear the complaint of "any person aggrieved by a decision of any officer or employee of the agency (except that an "independent agency" such as the Board may refer the matter to one of its trial examiners), subject to appeal from the decision of the internal board or trial examiner to the agency, and subject further to court review of the agency's decision (Sections 4, 5). I will discuss the various features of the bill in order, in relation to our work. As to the provisions regarding administrative rules, the bill leaves me in doubt on the question whether, as to existing statutes such as the National Labor Relations Act, the issuance of new or revised rules is intended to be mandatory, or whether that is true only of rules under statutes hereafter enacted, Section 2 (a) is ambiguous; read naturally it would seem to mean only that any rules issued under existing laws must be preceded by public hearing before becoming effective, particularly since no time limit is fixed like the one year period specified in Section 2 (b) for rules under statutes hereafter enacted. Yet the report of the Senate Committee, speaking generally of Section 2, refers various times to its "mandatory" intention (pp. 6, 10/12), although the report also suggests that all that is intended as to existing rules is that they may be questioned upon review by any person "materially interested” (p. 10). In these circumstances, I will assume that the bill would not require the Board to issue any new, further, or revised rules. |