tered nurses; and (2) a unit of all service maintenance and technical employees. On may 23, 1975, the Acting Regional Director, agreeing with the Employer's unit contentions, directed elections in three units of the Employer's employees: (A) a unit of registered nurses, (B) a unit of all other professional employees, (C) a unit of service and maintenance employees. The Acting Regional Director dismissed the Employer's petition on the basis that the unit for which recognition was demanded by the Operating Engineers was inappropriate.

On June 19, 1975, the Board granted a Request for Review filed by the Operat ing Engineers in case 20-RM-1820. At the same time, the Board stayed the election in unit C inasmuch as this unit involved the maintenance employees. The elections ordered in units A and B were conducted as scheduled. The Eskaton case, like the Sutter Hospital case, will be acted upon promptly after dis position of the oral argument cases which raise the issue of the appropriateness of a separate maintenance unit.

As I said at the start, the Board is concerned about undue delay. even in a few cases, and is making every effort to streamline its processes and reduce delay wherever possible. Nevertheless, it must be borne in mind that while regrettable, the cases which have been called to the Subcommittee's attention are, in fact, few in number, when considered in the context of the Agency's everincreasing caseload, and from the perspective of the overall efficiency and ef fectiveness which marks the NLRB's operations. While I do not wish to be repetitive, I think it bears repeating that less than 4% of the Agency's caseload actually comes before the five-Member Board for resolution. Moreover, even of that relatively small number of cases, those few which have been called to the Subcommittee's attention are, themselves, atypical. Thus, during fiscal 75 the median time for processing unfair labor practice cases from decision by the ALJ to Board decision was 134 days. In the representation case area, the median time from a hearing in the Regional Office to decision by the Board is 137 days I do not mean to suggest that the current processing times are laudable of cannot be improved upon. To the contrary, I reiterate my adherence to one of the goals that I announced at the start of my tenure as Chairman of the NLRB, i.e., to cut 30 days from the median time required to process an unfair labor practice case from filing of charge to Board decision. I am hopeful that the Task Force will help me reach this goal by recommending ways to reduce the time required to process unfair labor practice and representation case deci sions. There always have been and probably always will be, however, some cases, which, either by virtue of the length of the record, the complexity of the issues, or both, will necessarily take more time to process. The longer time required to process this relatively small number of cases should not be allowed to obscure this Agency's overall success in administration of the Act in a timely fashion. STATEMENT OF THE NLRB GENERAL COUNSEL REGARDING OVERSIGHT HEARINGS ON THE NLRB-THE SAN FRANCISCO AND LOS ANGELES OFFICES

PART ONE GENERAL STATEMENT

(John S. Irving, General Counsel, National Labor Relations Board,
Washington, D.C.)

On November 21 and 22, 1975, the United States House of Representatives Committee on Education and Labor, Subcommittee on Labor-Management Rela tions, held hearings at San Francisco, California, as part of the Subcommittee's Oversight Hearings on the National Labor Relations Board. At the hearings, certain labor union representatives contended that undue delay, antiunion bias, or other improper conduct existed in case-handling by the San Francisco and Los Angeles regional offices of the NLRB, as well as by the General Counsel and the Board. The following is my statement, as General Counsel, in response to these allegations. Attached hereto, and included as part of my statement, is a detailed discussion of the specific cases involoved in the various contentions made by the witnesses.

As you know, Mr. Chairman, the NLRB is like two agencies in one, with the General Counsel having supervisory responsibility for NLRB field offices. In light of this, I shall comment only upon those areas falling within my responsi bility as General Counsel, and Chairman Murphy will comment separately upon areas of Board responsibility.

First let me say that from the attached material one can see that my response is voluminous and obviously involved many hours of work. It is unfortunate,

but a fact of life, that general accusations of a few words often take many hours to investigate and many thousands of words to explain. There is a singular disadvantage to a lengthy and detailed response because it probably means that few persons will take the time to wade through the detail.

It is essential, however, that the time be taken to consider this response. Let me give just one example of why it is imperative to consider the detailed discussion of specific cases in order to fully and accurately understand what really transpired. At the hearings, a representative of Local 870, Retail Clerks International Association, testified that in the case of Skaggs Pay Less Drug Stores (Case No. 20-RC-10453), the San Francisco Regional Office “astoundingly found that the only appropriate unit consisted of all of the employer stores in California and apparently in Hawaii" (Tr. 5). A review of the facts of the case readily demonstrates the inaccuracy of this statement. The Local Union had filed a petition seeking to represent all licensed pharmacists at the Employer's six stores in Alameda County, California, or, alternatively, pharmacists at each of the six Alameda County stores as single appropriate units. The Regional Director found, however, that an Alameda County unit was not compatible with any geographical or administrative division of the Employer, and also that the requested single store units were not appropriate because of the high degree of centralization of functions at the Employer's Oakland home office. In short, the Regional Director concluded only that the Alameda County unit or single store units were inappropriate. The Regional Director did not specify what unit or units would be appropriate, much less that the only appropriate unit included all of California and Hawaii.

It is therefore highly important to review the entire story. I, for one, have waded through the material, have reviewed the entire story, and I wish to make my own conclusion clear. From the whole record it is apparent to me that the accusations of bias and inordinate delay in our offices in San Francisco (Region 20) and Los Angeles (Regions 21 and 31) are unfortunate and unwarranted. The San Francisco and Los Angeles regional offices perform their responsibilities to the public, to labor, and to management equally and in accord with the law and the highest traditions of public service. Let the record be crystal clear in this regard the staffs of our California regional offices are a group of competent, dedicated and hard-working people, and I am proud to be associated with them. The attached materials show that the claims of bias are baseless. While I can understand the disappointments of unsuccessful litigants, no useful purpose is served by unwarranted, broad brush accusations concerning the lack of objectivity of honest and dedicated public servants. To paraphrase the United States Court of Appeals for the Third Circuit, we suggest that these charges rest on "nothing more" than "the feeling *** not uncommon for one against whom decision has gone," that the decision maker, "be he baseball umpire, trial judge or hearing officer, is biased." N.L.R.B. v. Lewisburg Chair & Furniture Co., 230 F. 2d 155, 156 (3rd Cir. 1956). That is not to say that we are perfect or that we never make mistakes. Certainly we can and will improve our performance. A valuable thing which comes out of proceedings like this is that they provide us with an additional opportunity to reexamine our performance. That we take self examination seriously is evidenced by the appointment of the Chairman's Task Force on NLRB Procedures which, hopefully, will provide us with additional suggestions for improvement.

Let me comment for a moment on a few of the general allegations made at the hearings. Witnesses contended that Region 20 refused to issue complaints in "close" cases, and that such refusals showed a general bias against unions (Tr. 18, 28, 50, 53). Contrary to this contention, the percentage of unfair labor practice charges found to have merit (merit factor) by Region 20 compares quite favorably with the overall Agency's merit factor of 30.2 percent in fiscal year 1975. (See NLRB Fortieth Annual Report, p. 11). In Fiscal 1975, Region 20's merit factor was 34.6 percent. The Region's merit factor in fiscal 1975 for charges against unions was 27.8 percent, while the Agency's merit factor was 26.4 percent.

An examination of the litigation results of Region 20 further rebuts any claim that the Region is reluctant to proceed on the close cases against employers. While I will deal here primarily with charges against employers (CA cases), because such was the focus of the complaints at the hearing, I suspect that employer testimony would have made the same complaints concerning charges against unions (CB, CC, CD, CG, CP cases)).

In 1975, the Region prevailed in whole or in part in 84 percent of the cases which it tried before Administrative Law Judges and the Board (Appendix D).

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In 25 cases involving Section 8(a)(3) and (5) charges against employers, t Administrative Law Judge ruled adversely to the Region (Appendix E). In 1 cases in 1975, in 16 of which employers were respondents, the Region prevaile! before the Board in reversing decisions of Administrative Law Judges which had dismissed a complaint in its entirety, or had otherwise resulted in advere findings, in Section 8(a) (3) and (5) cases. The foregoing statistics clears demonstrate the Region's willingness to pursue cases against employers.

Further, in the last 34 decisions of the Board in cases arising from Region 3 the Region prevailed in 32; the Region prevailed in 27 out of the 28 cases which included employers as respondents. This is hardly the record of a Region dis interested in enforcing the rights of employees. (There is also a direct cor relation between the Region's successful litigation rate and the Region's ability to obtain settlements. In 1975, Region 20 settled 85 percent of its meritorious cases (Appendix C)).

At the hearings, the contention was made that Region 20 issues a disproportionate number of complaints against unions, and that some of these complaints are frivolous. The facts disprove the contention. In 1975, 1,119 unfair labor practice charges were filed with Region 20 against employers and 630 charges were filed against unions. Also in 1975, the Region issued 148 complaints against employers, while only 56 complaints were issued against unions. (The 56 conpalints against unions included priority cases (e.g. Section 8(b) (4)) and sir CA-CB companion cases). Thus, while the percentage of charges were less than two to one, the Region issued virtually three times more complaints against employers than unions.

Region 20 has the highest percentage in the agency of priority charges f against unions. In Fiscal 1975, 29.6 percent of the charges filed nationwide against unions involved Section 8(b) (4) and 8(b) (7) allegations. In contrast. in Region 20 for the same period, 41.7 percent of the charges filed against unions involved Section 8(b) (4) and 8(b) (7) allegations. Charges such as these involving picketing, have a rather higher merit factor so that when you have a high influx of such cases, as does Region 20, you will ordinarily have a higher number of merit cases. During 1975, Region 20 filed with federal district courts nineteen Section 10(1) injunction petitions which went to trial. In eighteen of these the courts issued a preliminary injunction and an Administrative Law Judge subsequetly found a violation in the one case where the court had denied an injunction. This is clearly not the record of a Region inclined toward issuing frivolous complaints against unions.

In some cases a Region is compelled to issue a complaint because of the union's lack of cooperation during the investigative stages of a case. For example some attorneys in Region 20 counsel their union clients against granting inter views to Board agents where the union is the charged party. In such cases, the Region is often confronted with the charging party's version and with no explanation by the union for its challenged conduct. Under the Board's decision in Teamsters, Local 315 (Rhodes and Jamieson, Ltd.), 217 NLRB No. 95, a violation may be established in some cases where a union fails to provide a legitimate basis for seemingly arbitrary conduct. In Rhodes & Jamieson, the Board stated: ". . . if a union's duty to avoid arbitrary conduct, as part of an affirmative fiduciary responsibility means anything, it must mean at least that there be a reason for the action taken. Sometimes the reason will be apparent, sometimes not. When it is not, the circumstances may be such that we will have no choice but to deem the conduct arbitrary if the union does not tell us what it is." [Emphasis added]). Full development of the facts at the investigative stage through the union's cooperation could preclude the necessity for issuance of a complaint against the union in certain cases.

On witness charged that the Regional Office investigators take affidavits in Section 8(a) (3) cases "from the standpoint of defeating the charge rather than supporting the charge" (Tr. 67). (Another witness made the same criticism against the Los Angeles regional offices (Regions 21 and 31) (Tr. 194)). No specifics were given to support the charge. Suffice to say that witnesses are instructed to give a full and truthful statement of the events, and to read and correct, if necessary, the affidavit before signing. In addition, witnesses are given their own statements upon request, and they, their counsel, their union, etc. carefully review that statement if the witness elects to give it to them.

One witness complained that the Region 20 does not allow union business agents to be present when rank and file employees are interviewed. Another witness made the same criticism against the Los Angeles regional offices (Regions

21 and 31) (Tr. 195). Actually, union officials or representatives are advised that it is preferable to interview the employee witnesses privately because of the employee's possible reluctance to be candid in the presence of others. Similarly, however, representatives of charging party employers are generally not permitted to be present during interviews of rank and file employees.

Another contention made at the hearing was that Region 20 makes credibility resolutions against a charging party, rather than permit an Administrative Law Judge to make such resolutions (Tr. 68). On the contrary, the Region follows the General Counsel's policy of issuing a complaint where the ultimate decision on the merits of the case depends primarily on a credibility conflict. Section 10060 of the NLRB's Unfair Labor Practice Casehandling Manual provides in part:

"On the basis of its investigation, the Regional Office is expected to resolve factual conflicts *** In the infrequent case in which (1) applying all relevant principles, the Region is unable to resolve credibility, and (2) the resolution of the conflict means the difference between dismissal and issuance of complaint, a complaint should be issued. This is not to be construed, however, as permitting the avoidance of the making of difficult decisions." [Emphasis in original].

If the circumstances of a particular case show that the version of a charging party or its supporting witness is inherently implausible, the Region is of course required to resolve the issue against the charging party. Nevertheless, in many cases a formal hearing is held to resolve a direct credibility dispute.

One person testified that witnesses are required to travel long distances to San Francisco for interview with Board agents. Travel records of Region 20 disclose that Regional agents have a travel rate comparable to most other Regional offices (Appendix H). The Board's policy, adhered to strictly by the Region, is that Board agents will visit the residences of charging party witnesses, regardless of location, if the witnesses have possibly relevant information. It is true that during the past few years, as the result of a cutback in funds, the Agency was forced to restrict travel. While this may have resulted in occasions when witnesses were asked to come to the Regional Offices, such measures were only temporary and were designed only to expedite the processing of cases during periods in which we simply did not have the funds to do anything else.

One witness suggested that antiunion bias might be inferred from the fact that many Bay Area attorneys were former Board employees. The suggestion is specious. Board alumni represent management, labor, and the public. Hopefully their Board training strengthened the commitment that these people already had to the due process of the law. They know, better than any, that their former Board associations entitle them to no special favoritism or privileges in casehandling. Indeed, because of their Board experience, we probably expect more, not less of them.

Concerning alleged inordinate delays and casehandling errors, it is similarly my conclusion that the accusations made are generally unfounded. Several witnesses complained that there was undue delay in the certification of representatives, and in the enforcement of bargaining orders. Concern over delay is not, however, the sole province of these witnesses. I yield to none in my concern over this problem, and in my long-standing and continuing efforts to improve wherever possible upon case-handling procedures. We make great efforts to accelerate to the greatest possible extent, and consistent with the right of due process and the need for quality work, the speed in which employee's Section 7 rights are enforced and protected.

I need not point out to the members of this Subcommittee that many of the delays are inherent in the structure of the Act and the enforcement and review proceedings of the federal appellate courts. As the Supreme Court stated in N.L.R.B. v. Katz, 369 U.S. 736, 748, n. 16 (1962). "Inordinate delay in any case is regrettable, but Congress has introduced no time limitation into the Act except that in § 10(b)" There are also additional, unfortunate but essentially unavoidable delays in proceedings before the Board caused by the ever-increasing, tremendously heavy, influx of cases. It is both unfair and inaccurate to blame any particular office for such delays, many of which are basically beyond their control.

We are quite aware, however, that Region 20 has faced some problems because of the considerable increase in its case intake. In 1975, the volume of cases increased by more than 15 percent from 1974. For this very reason, in 1976, the Board will open a new Regional Office in the East Bay area. This second office should alleviate many of the problems which have faced Region 20. In addi

tion, problems were caused in 1975, by the illness of certain key personnel, and by the departure of other key personnel. Complaint was made at the hear that the Regional Office permits employers to engage in dilatory tactics. Sou employers do indeed engage in dilatory tactics, but they do so not because the Regional Office permits it, but rather because sometimes the scheme of the Act permits it, and because sometimes parties are willing to flaunt the law Such tactics are unfortunately not unique to employers, but are sometimes als engaged in by unions. For example, some union representatives in the area wil not settle a complaint until the moment of trial. Others will not settle priority injunction cases until after the Region has prepared the injunction case for hearing. While this is of course their right, they must understand that the time spent by our personnel in preparing these cases for litigation, in tine that could be spent investigating other cases, perhaps even cases that they ther selves have filed. To the extent it has any control over the situations, our Regional Office does not tolerate dilatory tactics by any party.

At the hearing, it was further suggested that the Regions and the Agen could avoid delays through the greater use of Section 10(j) injunctions. Most of the cases which were cited as suitable for 10(j) relief were refusal to bargain cases, in which the employer desired to test the Board's underlying certification Several years ago, the Board changed its procedure to enable the General Counsel to file a motion for summary judgment directly with the Board rather than with the Administrative Law Judges Division. In cases where this expedited procedure is available, such as cases involving tests of certifications, our experience is that the courts are reluctant to grant 10(j) injunctive relief. Further, many courts view 10(j) relief as applicable only in situations seeking restoration of the status quo ante. Many of the cases raised at the hearing, where the union has not previously been recognized or certified, would raise the question of whether a bargaining order would be a restoration of the status quo ante.

Boire v. Pilot Freight Carriers, Inc., 515 F. 2d 1185 (5th Cir., 1975), Board petition for certiorari filed January 14, 1976, No. 75-1000, involves the question of whether a district court has authority under Section 10(j) to issue an interim bargaining order in the absence of a pre-existing bargaining relationship between the parties. We alleged to the Court that there was reasonable cause to believe that the employer had committed a number of serious unfair labor practices tending to destroy the union's majority status and to preclude the holding of a fair election. The Fifth Circuit held that the district court had no such authority.

Contrary to the suggestion that Region 20 ignores union requests for injunetive relief, the Regional Attorney for Region 20 stressed in a 1975 speech to members of the San Francisco Labor Bar that the General Counsel was quite receptive to greater use of 10(j) procedures, and he urged those present to request such relief when the situation warranted

In closing, it is essential that the delays parties experience in NLRB proceedings be kept in perspective. Over 90% of the 30,000 plus unfair labor practice cases filed with the Agency are finally resolved in our Regional Offices in less than 50 days. Of the approximately 30% of the unfair labor practice cases which are found to have merit, over 80% are settled without the necessity of formal litigation. So too, 80% of the 14,000 plus representation petitions filed are resolved at the regional office level, and the majority of these in less than 50 days.

Similarly, most of the delay experienced in case processing is due to the opportunities for delay which are inherent in the statutory scheme rather than because of administrative inefficiency. It is no secret that by exercising the pro cedures guaranteed by the NLRB, it is possible to prolong and delay unfair labor practice and representation case proceedings. Care must be taken however not to transfer the frustration caused when parties avail themselves of these procedures to the public servants who process the cases. There is little to be gained by punishing the bearer of bad news.

In addition to the delays inherent in the statutory scheme, the Agency has had to contend with an ever increasing caseload; more than 50% since 1970. During the same period the Agency's staff has increased only 25%. We have had new responsibilities to deal with during this period such as the acquisition of jurisdiction over the postal service and over the non-profit health care industry. So too, within the past two years alone we have been required to devote three quar ters of a million dollars to comply with the Freedom of Information Act, with a good portion of this money being spent recently just to keep our proceedings from being enjoined.