which in a great many cases are adopted by the Board when the Board reviews the case, must stand the test of judicial scrutiny.

If a court gets the right answer, the appellate court will affirm the lower court whether or not the lower court's rationale is sound. In the administrative setup, the administrative agency must not only be right, but be right for the right reason.

TECHNIQUES FOR MOVING CASELOAD RAPIDLY

Mr. McCULLOCH. May I supplement that answer?

The trial examiners themselves, and the head of the Trial Examiner Division, as well as the Board members, are conscious of the problems there, as well as the problems we have in turning over our caseload ourselves. We make a regular review of trial examiner performance with the head of the Trial Examiner Division. We do that at least twice a year, and we also have monthly reports on the operation of the Division.

Mr. FLOOD. You are not choking these people to death with paper Mr. McCULLOCH. I do not think so. We try to reduce that where we can, too.

Second, I have, I think, on three occasions since I have come to the Board talked with the trial examiner corps themselves, sharing with them the problems the agency and the people appearing before the agency have, because these are not just our problems, they are the problems of the people whose rights we seek to protect as well as those of the respondents who have rights too.

Mr. FLOOD. You are not "sending the devil to investigate hell"? You get opinions from the petitioners on both sides, counsel and so on? Mr. McCULLOCH. The trial examiners frequently get briefs from both sides.

Mr. FLOOD. If anything can be done about this, should something be done? Do they have any suggestions?

Mr. McCULLOCH. We do get improvement in their performance from their own added efforts, as the 15 percent trial examiner productivity increase from 1963 to 1965 makes clear. However, the requirements of our statute and the Administrative Procedure Act are such that the trial examiner's decision has to comprise a review of the evidence and findings of fact and conclusions of law as well as recommendations with respect to the order.

Mr. FLOOD. Do you have anything that approximates the case stated?

Mr. ORDMAN. We do. Whenever we can, we seek to get a stipulated record, which is your case stated, where the parties stipulate the fact, and we bypass the trial examiner in those cases and go directly to the Board.

Mr. FLOOD. Can you do much of that?

Mr. ORDMAN. We try to do it. I must say in all candor it does not always work too well. Sometimes it causes more delay because it is remanded to adduce certain other matters the Board finds to be relevant and then we might have to hold an additional hearing.

One thing we are all struggling for in this labor relations effort is to avoid any unnecessary delay.

SETTLEMENT OF CASES

Mr. McCULLOCH. We have done another thing and that is to arrange that trial examiners afford greater opportunity at all appropriate times during the hearing to the parties who may be seeking to secure settlement of cases.

Mr. FLOOD. Settlement?

Mr. McCULLOCH. Settlement.

Mr. FLOOD. What do you mean, "settlement"?

Mr. ORDMAN. Perhaps I can spell this out.

We make every effort to settle cases. We in the Office of the General Counsel are proud of the fact we settle three out of four cases we think are ready to go to trial.

Mr. FLOOD. At what level is this done?

Mr. ORDMAN. Prior to issuance of complaint, after issuance of complaint, at every stage.

When a case goes to hearing, the procedure is that the trial examiner, even before he starts a hearing, provides an opportunity just before the hearing starts for the parties to negotiate a settlement if possible. He announces at the opening of the hearing, that he will provide an opportunity at the close of General Counsel's case, and at the conclusion of all the evidence, for the parties to attempt a settlement of the case.

Mr. FLOOD. Does this pay off?

Mr. ORDMAN. This has paid off.

Mr. FLOOD. Thank you, gentlemen.

JUSTIFICATION MATERIAL

NARRATIVE JUSTIFICATION OF APPROPRIATION ESTIMATES, FISCAL YEAR 1967 Salaries and Expenses, National Labor Relations Board

APPROPRIATIONS REQUEST FOR 1967

An appropriation of $30,442,000 is requested for fiscal year 1967.

A comparison of fiscal year 1966 actual appropriation and estimated additional requirements, and the fiscal year 1967 appropriation request is as follows:

The net increase of $1,406,700 excluding pay act requirements is divided into (a) $464,900 for further mandatory administrative costs and (b) $941,800 for program items resulting from increased workload. The $464,900 includes such costs as within-grade and grade promotions offset by a decrease in the cost of office space rentals that amounts to $49,900. The $941,800 for program costs includes $90,000 for major equipment costs of automating the printing and publishing of Board decisions.

The request for additional funds and employment is based on a 6.1 percent increase in work out of intake (6.6 percent unfair labor practice situations and 3.4 percent in representation cases) plus increased work out of backlog valued at almost 2 percent additional work. The increase of almost 8 percent in total work will require an increase of approximately 3 percent in funds, or $851,800, and a related increase of 4.5 to 4.7 percent increase in employment, or 107 additional positions and average employment.

The appropriation, “Salaries and expenses, National Labor Relations Board." provides funds for the agency to fulfill its responsibilities under the National Labor Relations Act, as amended. It covers all operating costs of the agency, including all field and departmental activities of the office of the General Counsel and all functions of the Board members' offices and activities thereunder.

FORMULATION OF THE AGENCY WORKLOAD BUDGET

The agency's request for funds and positions is based upon its estimate of filing of unfair labor practice situations (a "situation" represents one or more charges handled as a single work unit and, therefore, counted as one work situation) and representation petitions or cases. Since filings are not controlable by the agency, estimates are based upon various factors which experience demonstrates will affect filings. Major factors include industrial growth, increases in the work force, labor union organizing activity, stubborn resistance to self-organization and collective bargaining, automation, plant closings and relocations, and changes in level of employment.

Our estimates make provision for the cost of processing cases from initial filing of a charge or petition by a party to the final disposition of the matter by the agency. Costs vary greatly according to the type of disposition required; cases requiring a formal hearing, Board decision, and court litigation are the most costly. In addition to its substantive values, therefore, economy is a major consideration behind the agency's emphasis on encouragement of voluntary settlements or adjustments of cases as early as possible and at least prior to formal trial examiner or Board decision.

The charts on pages 5 and 6 describe the proportions and major methods of disposition of unfair labor practice cases and of representation cases processed during fiscal 1965 compared with 1964 experience. The cost factor in the agency's budget estimates are based upon a projection of this experience.

The estimates also provide for elimiation or prevention of backlog and time delay at any stage whenever such a problem has developed or appears likely to develop. Beginning with fiscal year 1958 the agency inaugurated a comprehensive program for eliminating backlog and assuring disposition of cases as expeditiously as possible Time standards were established as a measure for judging expeditious handling. Where average time for case disposition at any stage exceeds the standard, the agency considers this to be a warning signal and reexamines its case-handling procedures and initiates corrective measures as necessary.

Our estimates point up significant areas where this problem exists and requires special attention through increased manpower and funds. In this presentation, for example, we are emphasizing the serious buildup in the unfair labor practice trial calendar and in cases awaiting trial examiner decision, and the need for overcoming this problem during fiscal years 1966 and 1967.

All of the factors listed thus far are program items on which costs are established by means of basic case processing performance rates. Each year our performance rates are adjusted to reflect our most recent experience, internal management improvements, and higher productivity requirements, thus reflecting in its estimates the agency's continuing efforts to reduce all cost factors.

Experience

INTAKE

For the past several years the agency has experienced a continuing rise in the filing by the public of unfair labor practice situations and representation cases. During the period from 1958-65, unfair labor practice situations increased a total of 88 percent, or an annual average of 12.6 percent; representation cases increased a total of approximately 62 percent, or an 8.9 percent annual average.

DISPOSITION PATTERN FOR REPRESENTATION CASES

(Based on Cases Closed) Fiscal Year 1965 Compared with Fiscal Year 1964

8.4% (F.Y. '64)

1.4% (F.Y.'64)

(F.Y.'64)

80. DEC. ON

REVIEW .4%

(F.Y.'64)

17.7%
(F.Y.'64)

Axperte

Table A on the next page shows yearly intake experience beginning with fiscal year 1958. The table also shows the effectiveness of attempts to estimate the amount of work that the public will file with the agency beginning with the 1961 appropriations estimate. In each year 1961-65, our unfair labor practice intake has been within 3 percent of the latest estimate. Similarly, with the exception of fiscal 1963, actual representation intake has been within 3 percent of our final estimate. The conservative character of our estimating procedures is demonstrated further by the fact that our original estimate was below actual intake in 3 out of 5 years for unfair labor practice situations and in 2 out of the 5 years for representation cases.

Current estimates

Fiscal year 1966: It is estimated that unfair labor practice situations will rise from 14,423 in 1965 to 15,590 in 1966. (Our estimate last year for 1966 was 16,150. The present estimate predicts a rise of 8.1 percent compared with the 7-year average of 12.6 percent. Representation cases (including union deauthorization cases) are estimated to rise from 12,095 in 1965 to 13,100 in 1966, a rise of 8.3 percent compared to the 7-year average of 8.9 percent.

Fiscal year 1967: A comprehensive analysis of key work-indicators points to fiscal year 1967 as another period of further case intake increase, thus repeating the rising pattern of previous years. Our 1967 request is predicated on an estimated rise of 1,025 unfair labor practice situations over 1966, an increase of 6.6 percent, and for representation cases an estimated rise of 450 over 1966, an increase of 3.4 percent.