ahead and proceed with their victory, because it dissipates with people moving away, and the victory becomes a nullity if so much. time passes that it cannot be carried out.

So I make this inquiry as to whether there is some process possible where that victory stands, or that adjudication stands, pending the appeal, unless there is some reason to grant a supersedeas.

Mr. STEPHENS. The problem, of course, Senator, is that even the Board orders are not self-enforcing. Congress has not given us the power to issue self-enforcing orders. We have to go the court of appeals to get an enforcement.

SELF-ENFORCING BOARD ORDERS

Senator SPECTER. Would you like that power?
Mr. STEPHENS. Pardon?

Senator SPECTER. Would you like that power?

Mr. STEPHENS. I think that is a political judgment that the Congress would have to make. I mean, there are obviously argu

ments -

Senator SPECTER. How about a recommendation from the Chairman of the Board?

Mr. STEPHENS. I think I would want to study it more before I would make a recommendation. Let me add that even in the representation area the decisions of the Board cannot be immediately reviewed by the court of appeals Congress ordained that the losing

would have to commit what is called a technical Sa 5), a refusal to bargain, which then the Board proceeds on with a separate prawling, through a complaint, an order.

It then goes to the court of appeals and in the context of an unfair lader practice the representation issue, which might have den the subher of the objections as then reviewed. That is the system that we deal with

Senator Shearer Chairman Stephens your response provides a Seutul area of dusun which could take us the rest of the day. The ar may der matters to be inquired into before your

So Two daveway if you would submit in writing an opin* KEY IP a ↑ Ne y act to bare eircement * * At gang to the court of appeals Take whatever time RETRY IN MANN

GAO STUDY

Senator HARKIN. I wanted to pick up a little bit on Senator Specter's question, talking about the backlog, and your response basically was you talked about the Board turnovers and the vacancies and things. You are familiar with the GAO study?

Mr. STEPHENS. Intimately.

Senator HARKIN. They said there were three reasons: (1) Lack of standards and procedures to prevent excessive delays; (2) lack of timely decisions on major issue cases that delayed related cases; and (3) Board member turnover and vacancies.

Mr. STEPHENS. Right. I think, though, that the Board turnover and vacancies was the root cause of the problem, which in turn was related, then, to the time for processing of lead case issues. Unlike today's situation, if you go back about 8 years, to 1984-and in 1984, we had a major turnover of membership at the Board-the Board at that point, as constituted then, began a major or a comprehensive review of a lot of the Board decisions.

The Board then decided to overturn and modify a lot of Board decisions, and of course to do that required three members joining in a majority position. The Board at that time found it difficult to do that with great speed.

Senator HARKIN. Why? You had three members.

Mr. STEPHENS. But you have to have three members agreeing to a result and a rationale. You cannot have three members just agree to the result. There has to be a majority position that represents the position of the Board. Otherwise it just does not pass review in the court of appeals.

Senator Harkin. You mean two out of three.

Mr. STEPHENS. Well in some instances you need-you have to have a full Board disposition to overturn a previous rule.

OVERTURNING A BOARD RULE

Senator HARKIN. Well, it says here most cases are decided at the Board by three-member panels rather than the full five-member Board.

Mr. STEPHENS. That is right, but a three-member panel that votes 2 to 1 on a position cannot overrule a previous Board rule. You need to have three Board members to overrule a Board rule. Senator HARKIN. There is something I am not understanding. Maybe I just do not understand the functions of the Board that well. It almost seems like you are saying to me that the Board made a decision. A new Board came in, decided to reopen it again. Mr. STEPHENS. It did not reopen the case. They decided to reexamine a rule, a decision of the Board.

Senator HARKIN. Why?

Mr. STEPHENS. Well, because the new Board decided that the rule did not represent the best policy interpretation of the act. Senator HARKIN. This thing can go on forever.

Mr. STEPHENS. Well, as a practical matter they do not.

Senator HARKIN. Just a second. How many of these happen, where the Board would decide something, then a new Board came in and decided they did not like that position?

Mr. STEPHENS. I think it is rare. I mean, I think that the early 1980's were an aberration.

Senator HARKIN. If it is so rare, then, how did that contribute to the backlog?

Mr. STEPHENS. Because back then you had-the way the Board was constituted, you did not have three solid votes, three Board members all thinking in the same wavelength, all agreeing to the same rule or rule change. They were not in a position to go in and reexamine 30 or 40 different policy issues, change the rule, issue the decision, and then apply it to pending cases.

And that was back then. Today we do not revisit, we are not engaged in the wholesale revisiting of many policy issues before the Board. And the reference in the GAO report to most of the decisions being decided in three-member panels, that is true, because a vast majority of our work deals with the routine application of an established rule to the facts of a particular case.

And in those cases there, even when it is 2 to 1, we can still get the case out without any problem. The problem comes up when you are encountering a case where Board members decide they want to change the rule. And to change the rule you need three votes to do that. If you are a Board that is so philosophically split, and the Board members are independently minded, and you cannot get the three votes, then you cannot change the rule.

I think that what happened back in the early and mid-1980's is that when you could not get a majority position to change the rule, rather than just let the case go out and be decided under the old rule, the case just got held up waiting for more turnover at the Board, on the chance that a new Board member would agree to change.

Senator HARKIN. This sounds like the system was built for backlogs.

Mr. STEPHENS. My experience has been that when you have a fully constituted and confirmed Board, and each of the Board members are committed to the process, they are committed to the collegial decisional process and are working toward getting the cases out in a timely manner, the system is going to work.

But I think the fact is that there is enough discretion and play built into the system and, given the problems that come up when you have vacancies, where appointments are not made and confirmed in a timely manner, it is just like throwing sand in a Swiss watch. It just begins to break down.

It has been a long, hard row to hoe, but I think that we have climbed out of that. I think our statistics bear that out. The one thing that I think you have to realize about the General Accounting Office report is that it was reporting on a period from the early 1980's through the late 1980's. By the time the report issued, I think it had more of an historical interest than a comment on a current situation at the Board.

I mean, our statistics now are the best they have been in 10 years.

GAO REPORT RECOMMENDATIONS

Senator HARKIN. The recommendations made by GAO for establishing standards for the total length of time a case should be at the Board, and a time for each decision stage that (1) exceeded requires corrective action and (2) specify the corrective actions that Board members and staff should take when those targets are exceeded. Those were two recommendations by the GAO.

Mr. STEPHENS. And we adopted those, and as a matter of fact we did send the subcommittee, to you, Senator, a copy of our letter-it was dated March 6—which is our response to the GAO report. That was sent just a couple of weeks ago, to report on the fact that we have agreed with the recommendation and we have implemented it.

Senator HARKIN. We have been very busy, but my staff has not seen it yet. We will certainly take and make sure we find that up there.

ADMINISTRATIVE LAW JUDGES

Let me just ask you about the administrative law judge. In past years we have discussed NLRB's overstaffing of administrative law judges, and the decline in the number of administrative law judges loaned out to other agencies as needed.

This year I received a letter from you stating that the increase provided in 1991 was inadequate to cover the Board's mandated pay increases. By my calculations your agency is spending about 91 percent of its current budget on fixed costs such as personnel and rent. This leaves very little discretionary money available for ongoing needs. How many administrative law judges are currently employed by the Board?

Mr. STEPHENS. We have 81 judges now.

Senator HARKIN. How many were loaned out on a reimbursable basis during fiscal year 1990?

Mr. STEPHENS. I think we loaned out about nine judges.

Senator HARKIN. What do you believe is the appropriate number of administrative law judges required to handle the current caseload?

Mr. STEPHENS. I think that if our caseload stays at the level last year, we could foresee loaning out probably somewhere around that number again. But if our caseload does go up, we would expect not to be able to loan out that many judges. I think it is going to be a fairly fluid situation.

Senator HARKIN. I guess what I am getting at, and I think you have probably surmised what I am getting at, is that there is a feeling that the overstaffing of administrative law judges and the dollar amount associated with the Office of Administrative Law Judges is really contributing to the inability of the Board to address field problem-clerical staff in the field, getting people out there on those cases-and that you just got a whole bunch of administrative law judges that have been around a long time.

EARLY RETIREMENT PROGRAM

That is where the money is going, and we need to free up some of those. Now, do I understand that OPM has allowed early outs for some of them?

Mr. STEPHENS. Yes; they have given us authority for early out, and we have sent the notice out to the entire agency, including the judges. They have until next month to let us know whether or not they want to take advantage of the early-out program.

I think that one thing that has to be kept in mind is that, if we were to determine, for example, given our caseload level, we could get by with 10 or 15 fewer judges, then I think we really do not have much discretion in the way in which we could reduce that number. If we wanted to have a reduction in force, the cost associated with a reduction in force would be much more than what we would save in the way of reduced salary expenses. It is just not cost efficient to just at this point cut out a number of judges.

The other thing that we would have to take into account is that, through, say, a reduction in force, is that our youngest judges or those with the least seniority would be the ones to go first, and yet we are now faced with a situation, looking ahead several years, where most of our judges are reaching eligible retirement age. We do not foresee, with the pay increase that has now been enacted by Congress, really see much attrition over the next 3 years.

We expect the judges to stay on to maximize their retirement benefits, and that once we get to the third year, and they have maximized their benefit formula, we are going to see a mass exodus of judges at the Board. We think it is absolutely essential that we keep intact as much of the judges as we can. Otherwise, we will face a situation in several years, where our oldest, most senior judges will be gone. If in the meantime we have RIF'd a number of the younger judges, we are going to be left, I think, really without the kind of experienced corps of judges that we need.

So I think that we felt that the loan program was the most efficient way to deal with the theoretical overstaffing levels, by lending them out to other agencies, being reimbursed, and helping ease the budget problem.

ADMINISTRATIVE LAW JUDGE LOAN PROGRAM

Senator HARKIN. What is in the 1992 budget for reimbursement for loaning out?

Mr. STEPHENS. We did not put any money in, because again, I think we view the situation is somewhat fluid, and we do not know at this point, based on our caseload, what we are going to be able to afford to loan out.

Just as we are sensitive to the case processing time at the Board level, we also want to be sensitive to case processing time at the administrative law judge stage of the process. If we would feel that there is too much time elapsing at that stage, we would want to be able to devote more judicial resources to deciding the cases.