July 20, 1961

PAGE 13024

REORGANIZATION PLAN NO. 5

The Senate resumed the consideration of the resolution (S. Res. 158) that the Senate does not favor the Reorganization Plan No. 5 of 1961 transmitted to Congress by the President on May 24, 1961.

Mr. MUSKIE. Mr. President, I wish to make a statement in support of Reorganization Plan No. 5.

The National Labor Relations Board is in crisis. It is smothered by a workload that prevents expeditious handling of routine cases and thoughtful consideration of policy. Employers tell us that they win their cases before the Labor Board, but victory comes too late -- after they have been forced out of business by an illegal boycott or other unfair labor practice. Unions complain that their Labor Board triumphs are pyrrhic; they win the litigation but lose the battle. Employees beset by unions or their company merely shrug it off and walk away; a favorable decision a year and a half away makes no difference.

All -- the AFL-CIO, the NAM, the Chamber of Commerce -- are agreed that some remedial action is necessary. The statistics bear this out. In fiscal 1960, the Board members issued decisions in 4,122 cases of all types. This averages to over 11 decisions a day throughout the entire year. Should we permit the Board members a 2-week vacation plus Saturday afternoon and Sundays, the per day decision load is 15. Moreover, the problem grows daily more acute.

In unfair practice cases alone, the "intake" of appeals at the Board level continues to mount. In fiscal 1959, the Board received 380 appeals in this type of case; in 1960, the figure was 612; and in 1961, it rose to 740, almost double the figure just 2 years earlier, almost 3 unfair labor practices cases per working day. The Board's backlog has more than doubled and is at the highest level in its history. No Board member, whatever his intelligence, his physical stamina, his ingenuity, can keep abreast. Something must be done about the situation.

Plan No. 5 permits the Board to delegate greater authority to the independent trial examiners who now initially decide the unfair labor practice cases, screening all cases wherein review is sought, giving full deliberation to those cases which more than one member believes wrongly decided or otherwise important.

The chaff now buries the wheat in the grist of the NLRB unfair labor practice mill. Expert testimony confirms that many frivolous appeals are taken for selfish time-delaying reasons.

Most of the cases which get to the Board are not difficult or policymaking. Nine out of ten call for no more than the resolution of factual issues; the Board acts with unanimity in about 80 percent of the unfair labor practice situations.

Thirteen percent of the cases are reversed by the Board in part, 6 percent are reversed in full, and 3 percent are remanded for further proceedings. These are frequently the tough cases, the policymaking cases, the cases that deserve full Board attention if error is to be undone. But now the median time for decision -- from filing of complaint to Board decision-is 404 days; plan No. 5 would enable the Board to grant limited review to all cases but would permit longer review of the important cases and would cut the time consumed in the decision process by 4 to 5 months.

The principle of plan No. 5 -- that the resolution of disputed facts in administrative cases by trial examiners should have greater finality -- is nothing new.

Every public and independent study group over the past 20 years which has studied the problem of administrative operation, both generally and at the Labor Board, has found that delay is a major problem and that a key to solving this problem is the solution provided by plan No. 5.

The choice is between plan No. 5 and a more efficient Labor Board or rejection of plan No. 5 and a Labor Board which is way behind in its caseload -- and this in an area where justice delayed is indeed justice denied. The only ones who can possibly oppose plan No. 5 are those who thrive on delay and confusion. Those who favor an efficient, up-to-date administrative agency giving practical enforcement to the laws we have drawn, must support the President's plan No. 5.

I would like to note that plan No. 5 has received bipartisan and unanimous support from all the members of the Labor Board. Boyd Leedom, Chairman of the Labor Board during much of the Eisenhower administration, testified as follows:

I cannot see any valid objection that has been raised to the plan, and I think that enactment is an important thing to the Board in trying to keep up with the Board's terrific caseload. And I sincerely hope that the Republican members -- and I say that because I am a Republican -- will see fit to support this plan. I can't see that it is a partisan issue at all. I can't see that it is an issue between labor and management. I say it is simply streamlining, expediting things that should be enacted.