This

So construing Section 2 of the bill, there remains another preliminary question of construction, i, e., whether Section 2 covers rules of practice, as well as rules embodying substantive regulations having the force and effect of law. matter is important to the Board since, as pointed out above, the Board's existing rules, and those heretofore issued but now superceded, have dealt exclusively with the details of practice in proceedings before it, with one possible exception. I think Section 2 has the broader scope. Rules of procedure certainly “implement" and "fill in the details" of the statute administered, in a procedural sense. And it is in this sense that the Senate Report speaks, in referring variously to the need to provide “uniform procedure" for hearings and "uniform rules of practice and procedure" for administrative agencies.

Accordingly, the principal effect of Section 2 upon the Board is that it would be required to hold public hearings, upon notice, before making any amendments to its practice rules and prior to issuance of any rules embodying substantive regulations authorized by Sections 6(a) and 8(2) of our Act.

This requirement seems to me to have no justifying grounds of substance. It would seem plain that no need existed to subject practice rules to prior notice and public hearing. No such course was pursued in the tremendous task of formulating the new Rules of Federal Procedure, under the auspices of the United States Supreme Court. If notice and public hearing added essential safeguards to the formulation of practice rules, it would be likely that the courts would have adopted that process at some earlier point in the history of judicial administration.

My view is the same concerning the formulation of rules embodying substantive regulations. While I think we have never issued a rule clearly of this character, I should deal with the bill from this viewpoint as well.

The notion that the addition of a mandatory public hearing represents an improvement in the rule-making process seems to me unsound. Any regulatory agency measuring up to its responsibilities would naturally seek information, opinion and guidance from all possible informed quarters, including those regulated, in formulating regulations destined to have the effect of law if sustained by the courts. The addition of a public hearing would add little assistance to that otherwise available. And if the administrative agency were to depend upon the public hearing to inform it, it is doubtful that it could thus be rendered capable of formulating an appropriate regulation.

This brings me to Section 3, authorizing judicial review and nullification of all xisting or future rules. This novel provision is, in my opinion, meritless. It is charged with two principal evils so far as the Board is concerned. First, the Act authorizes complete judicial review of all action of the Board at the instance of any person aggrieved whenever a final order is issued (Section 10 (f)): interlocutory reviews are unnecessary and fraught with delays. Second, in calling for abstract decisions upon complex matters, the provision demands the impossible of the Court of Appeals for the District of Columbia.

The Supreme Court has made it expressly and abundantly clear that the Scope of judicial review afforded by Section 10 (e) and (f) of the National Labor Relations Act encompasses the validity of every action taken by the Board at any stage of a proceeding resulting in a final order of the Board. In the leading constitutional test case decided by that Court, the Jones & Laughlin case, 301 U. S. 1, the Court, responding to the many grounds of attack upon the Act's provisions as to procedure and judicial review, held as follows pp. 46-47):

"The procedural provisions of the Act are assailed. But these provisions, as we construe them, do not offend against the constitutional requirements governing the creation and action of administrative bodies. See Interstate Commerce Commission v. Louisville & Nashville R. Co., 227 U. S. 88, 91. The Act establishes standards to which the Board must conform. There must be complaint, notice and hearing. The Board must receive evidence and make findings. The findings as to the facts are to be conclusive, but only if supported by evidence. The order of the Board is subject to review by the designated court, and only when sustained by the court may the order be enforced. Upon that review all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or statutory authority are open to examination by the court. We construe the procedural provisions as affording adequate opportunity to secure Judicial protection against arbitrary action in accordance with the wellsettled rules applicable to administrative agencies set up by Congress to aid in the enforcement of valid legislation."

The Supreme Court reaffirmed these views in Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41, and in Newport News Shipbuilding etc. Co. v. Schauffler. 303 U. S. 54, decided less than a year after the Jones & Laughlin case, and applied them in Consolidated Edison Co. v. National Labor Relations Board 305 U. S. 197, in setting aside portions of an order of the Board because ** procedure which the Court held was not proper. And the Circuit Courts Appeals have regularly exercised the broad reviewing power thus conferre upon them. Certainly, it cannot be said that the broad scope of review th available, i. e., to consider "all questions of the jurisdiction of the Board and the regularity of its proceedings, all questions of constitutional right or stats tory authority," would not encompass a review of any rule of the Board, pre cedural or substantive, to determine whether it was in "violation of the Coust tution or [in] conflict with a statute or for lack of authority" under the Ac as provided in Section 3 of the bill. Accordingly, Section 3 is totally unneces sary under the National Labor Relations Act.

To the extent, therefore, that it would be resorted to, it would merely provida source of litigation consuming the Board's time, energy, and appropriations to no proper end whatsoever. Orders of the Board carry no compulsion; only when a decree of a reviewing court enforces it does any sanction arise for disobedience, and full review precedes that court decree. The abstract a interlocutory review which Section 3 authorizes is, to be candid, little shor of absurd on the ground of necessity.

I think it is also absurd on the ground of workability. The conception that a busy court can accurately be given and is capable of absorbing the comple experience and study which gave rise to a rule, so as to be qualified to judg its validity in the abstract, is so foreign to all our judicial history and, indeed repulsive to it, that I cannot but question the extent of thought given to the proposal by its sponsors. I should have thought that the refusal of the Suprem Court in Muskrat v. United States to deal with matters not involving an actu controversy, was as much a denial of omniscience as a response to clear consti tutional command. And the Declaratory Judgments Act detracts nothing from the requirement of an actual controversy. Aetna Life Insurance Co. v. Haworth 300 U. S. 227, 239-40. Bearing in mind the greater complexity of matters cov ered by modern special regulatory statutes and their technical character, the bill plainly demands the impossible of the courts.

If the Board were to issue a rule restricting payment of wages during em ployer-employee conferences as authorized in Section 8 (2), it would do its best. based upon experience in and investigation of multitudes of type-cases and situ ations and with the benefit of all expert assistance and opinion it could get, devise a rule, which, generally speaking, would seem best suited to carry ou the Congressional policies for protection of the right of self-organization de clared in the Act. Nevertheless, it would still recognize that the rule issued would not be perfect; that, as experience developed, it would prove its worth as to some situations and require modification as to others. But how could a court live that experience or comprehend its significance, for the purpose of determining whether a declaratory judgment should issue?

In sum, I see no reason why the interests which law and regulation are designed primarily to serve should go unprotected pending a useless legal procedure, which, moreover, could be repeated indefinitely and could have the result of preventing any regulation from ever having any substantial operation. the only method by which its propriety could properly be judged.

I am of a corresponding opinion concerning Sections 4 and 5, providing for intra-agency review of any "decision of any officer or employee" of the Board. and for interlocutory judicial review of the decision of the Board upon such a matter, by any party "aggrieved."

In the first place, for the reasons I have already stated, this procedure is unnecessary. Any action taken by the Board may be questioned and passed upon as part of the review now available under the Act for judicial consideration of any final order of the Board. To the extent, therefore, that the Board's order depended in any way upon the "decision of any officer or employee" in the progress of the case thought to "aggrieve" a party, that decision would be sub ject to judicial scrutiny at the proper time. If the Board's order did not involve an approval of or reliance upon that "decision," it would not be a basis of the Board's final action, would not "aggrieve" anyone, and would be no ground of review.

In these circumstances, the clear and adequate remedy provided in the Act, designed with primary regard for making enforcement prompt and efficient but

carrying every proper safeguard against "arbitrary action" as the Supreme Court pointed out in the Jones & Laughlin case, would be obfuscated. The Board cannot spend its time deciding cases in a piece-meal process, nor can the courts intelligently review them in that fashion. Full review of the Board's final decision, now available, is enough. And any substantial number of proceedings to review each separate interlocutory step in the progress of the case could render prompt and effective enforcement of the Act impossible.

I have little doubt that these provisions of the bill would be seized upon for that very purpose. While the Board has witnessed a reasonable success in the acceptance of the Act's principles, our total of more than 100 injunction cases during the years 1935-1937 bears adequate witness to the strength of the resisting minority. Can it be assumed that the Board would not encounter similar obstructive tactics if the countless forms of interlocutory action and rulings of trial examiners and other agents were subject to judicial review without regard to the Board's final decision?

These proposals might also have the effect of making judicially reviewable any refusal of the Board to institute an unfair labor practice case, since under our procedure a Regional Director is authorized to refuse to issue a complaint, from which refusal an informal appeal lies to the Board. I am of opinion that such court review is not now provided, since the Act merely authorizes, does not command, the Board to institute an unfair labor practice proceeding. (See Section 10 (b) and Federal Trade Commission v. Klesner, 280 U. S. 19). I am sure that general review of such refusals is patently unsound.

The question whether formal proceedings should be instituted under the National Labor Relations Act is one which plainly must be determined by the agency charged with its administration. The courts are not designed nor equipped to pass upon the endless administrative questions which arise; they ack the technical training and experience of the Board, and are in no position to know the facilities of the Board, the relative importance of hundreds of pending and possible proceedings, or to comprehend the host of factors upon which final judgment to proceed depends. Nor can these subjects be made to appear in the record upon which the court would review the Board's exercise of discretion. And again, to permit such court review could, and in my opinion would, subject the Board to a flood of litigation that would consume its time and dissipate its energies and funds.

Finally, the greater scope of review afforded in judicial proceedings under Section 5 of the bill is noteworthy. I have in mind particularly the provision of Section 5 (b) that the decision of the Board shall be set aside if "the findings of fact are clearly erroneous." This provision must mean something different than the established rule that the findings of the Board are conclusive where supported by "substantial evidence," since that principle is likewise stated in Section 5 (b). Under these circumstances, it would seem that to determine whether the Board's findings of fact were "erroneous" (the word "clearly" adds little), the reviewing court would be authorized, if not required, to weigh the evidence.

Such a conception of the function of the reviewing court is at odds with principles basic to the Act and to the entire structure of administrative law: that appraisal of the evidence and determination of the facts shall rest with the agency trained and experienced in the particular field and that its findings shall be final unless substantial supporting evidence is lacking. With reference to this Act, the Supreme Court has repeatedly stated this simple line of demarcation between the functions of the Board and those of the reviewing courts. Eg Consolidated Edison Co. v. National Labor Relations Board, 305 U. S. 197, wherein the Supreme Court considered the matter at length. In so doing, the Court merely added to its long line of decisions holding to the same effect in interpreting the Federal Trade Commission Act, the Interstate Commerce Commission Act, and similar regulatory statutes. It seems folly to confuse, and possibly to upset, principles so developed and now firmly and clearly established for bench and bar, aside from the fact that to do so turns the appellate courts from the consideration of questions of law, their real function, to the determination of facts upon the entire record.

The foregoing constitute the main thoughts which occur to me as to the practical effects of the bill upon the Act and its effective administration and enforcement. I should like to add, as a general comment, that an apparent over-all defect in the bill is its assumption that all agencies of the Federal Government covered by its terms are so similar that the proper performance of their functions can all be made to conform to a single procedure. I doubt that any such result is possible. The various statutes differ widely in the subject-matter

regulated and the methods provided. I think it entirely superficial to assume that the resulting differences in function can or should be carried out in an identical fashion. Hence, the only proper way to approach the subject is to study all the statutes and agencies carefully, determine what weaknesses may exist in the procedure of each, and then decide whether uniform or special changes are desirable. I understand that the Committee recently appointed by the Attorney General is following that course. I believe its method is the only one calculated to obtain satisfactory results. Of course, I believe that uniformity is one end desirable to achieve. But I do not think that uniformity is an end that must be achieved at the cost of effective administration and enforcement of public policies of large import.

Sincerely yours,

CF: LAK: SL: LS

General Counsel,

EXHIBIT NO. 1608-AW

REGIONAL AND FIELD ATTORNEYS WHO HAVE WRITTEN ARTICLES OR WHO HAVE AIDED OR ASSISTED IN THE PREPARATION OF ARTICLES OR FURNISHED MATERIAL FOR ARTICLES PERTAINING TO THE NATIONAL LABOR RELATIONS BOARD, THAT HAVE APPEARED IN ANY LAW REVIEW, LAW JOURNAL, ETC.

REGION I

No articles.

REGION VII

Bott, George J. and Cranefield, Harold A: Jointly wrote article. “Procedure Before the National Labor Relations Board," published in Quarterly Journal of the Detroit Bar Association, about June 1939.

Cranefield, Harold A.: Assisted in preparation of report entitled "Statement of the Detroit Chapter of the National Lawyers Guild on Administration's Labor Bill."

No articles by any other members of the staff of the 7th Region.

Woods, Warren: 1. Wrote article, "The Wagner Act-a Charter of Liberty for Labor," George Washington University Law Review, May 1937.

2. Wrote article, "Procedure in Unfair Labor Practices Cases before the National Labor Relations Board,” D. C. Bar Association Journal, March 1939. No articles by any other members of the staff of the 10th Region.

No articles.

REGION XI

REGION XII

Karro, Jacob I.: 1. Wrote book notes on the following books which appeared in 2 National Lawyers Guide Quarterly No. 1, (April 1939):

(a) International Survey of Legal Decisions on Labour Law 1936, 1937 (International Labour Office).

(b) Labor Courts: An International Survey of Jurisdictional Assistance for Settlement of Disputes (International Labour Office).

(c) Labor Laws in Action, by John B. Andrews,

2. Participated in the following reports of the Committee on International Law of the National Lawyers Guild:

(a) The Legality of Ammunitions Shipment to Germany. 1 XLGQ 304.

(b) The Relations between United States and Spain during the Spanish Civil War, 1 NLGQ 55.

No articles by any other members of the staff of the 12th Region.

No articles.

REGION XIII

Hoskins, Joseph A.: 1. Wrote article, "Unfair Labor Practices under the Naional Labor Relations Board" appearing in The Rescript of Gamma Eta Gamma, May 1939.

2. Worked with Dr. Walter H. E. Jaeger in the preparation of case book, "Cases and Statutes on Labor Law," published about September 15, 1939, by Lawyers' Cooperative Publishing Co.

No articles by any other member of the staff of the 17th Region.

EXHIBIT NO. 1608-AX

REVIEW ATTORNEYS WHO HAVE WRITTEN ARTICLES OR HAVE AIDED AND ASSISTED IN THE PREPARATION OF ARTICLES OR FURNISHED MATERIAL FOR ARTICLES PERTAINING TO THE NATIONAL LABOR RELATIONS BOARD, THAT HAVE APPEARED IN ANY LAW REVIEW, LAW JOURNAL, ETC. (THIS SUPPLEMENTS AN EARLIER REPORT ON THE SUBJECT)

Beckerman, Lawrence: Wrote article "Procedure Before the National Labor Relations Board," George Washington Univ. Student Bar Assn. Publication, 1938-39.

Emerson, Thomas I.: 1. Wrote article on the Jones & Laughlin case for InterLational Juridical Assn. bulletin, about May 1937.

2 Furnished information to Gellhorn & Linfield for article on "N. L. R. B. Procedure", in Col. L. Rev.

Lehmann, Henry W.: Before coming to work for the Board assisted in writing Appendix 1 of “Characteristics of Company Union" (1935), Bulletin No. 634 of the Bureau of Labor Statistics.

EXHIBIT NO. 1608-AY

INTER-OFFICE COMMUNICATION

NATIONAL LABOR RELATIONS BOARD

To: Charles Fahy, General Counsel.

From: Geo. O. Pratt, Chief Trial Examiner.
Subject: Information for the Smith Committee.

Date: November 14, 1939.

I submit the following report in reply to your memorandum of November 8, as to whether or not any trial examiner had written an article, aided or assisted in the preparation of any article or furnished material used in any article that appeared in any law review, law journal, etc.:

William B. Barton: Wrote "Business Law as a Subject in the College and University Curriculum,” which appeared in the May 1939 American Law School Review: "A Study in the Law of Trade Secrets," which is likely to appear in in early issue of the University of Cincinnati Law Review. Contributed no material or aid.

James C. Batten: None.

Berdon Bell: None.

Earl S. Bellman: None.

George Bokat: None.

Mapes Davidson: None.

R. N. Denham: None.

Tilford E. Dudley: Assisted Mr. James Myers of the Federal Council of the Churches of Christ in New York City to prepare a chapter on the work of the National Labor Relations Board, but does not know if it was ever published or if his suggestions were adopted.

Gustaf Erickson: None.
Theo. R. Bland: None.

J. J. Fitzpatrick: None.
J. L. Hektoen: None.