"The NLRB does not act like a judicial body because it is not a court. It is a politically appointed, politically oriented agency that is too close to political pressure."**

An NLRB complaint that continues to be made is that the Labor Board is too busy; it has so many charges filed with it that its five-members no longer can cope with the tremendous increase in cases. It is claimed that the trial examiners must be given more authority, authority to make final determinations of charges. These complaints bring little sympathy, because the NLRB has resorted to a dog-chasing-its-tail act. The Board purposely has expanded its ju. risdiction into areas long felt not to be within its province. As it seizes more jurisdictional power, and is then unable to cope with it, the Board asks Congress for more employees, more money, and authority to pass its decision-mak ing requirements along to its hearing officers. The Labor Board in the last decade has extended its controversial decisions into new sectors of the economy-to professional baseball, to non-profit colleges, to nursing homes and private hospitals, to orphanages and homes for unwed mothers. It is now considering extending coverage to employees of law firms.

The National Labor Management Foundation urges this Sub-committee to reject H.R. 7152. No matter how well-intentioned, it would not accomplish its stated purpose of expediting the work of the Labor Board, but would be the fulfillment of the Bureaucrat's fantasy-the shifting of responsibility from one government shoulder to another without the loss of staff or budget.

STATEMENT OF THE SOUTHERN STATES INDUSTRIAL COUNCIL

The need for changes in the National Labor-Management Relations Act of 1947, particularly those portions of the act pertaining to the National Labor Relations Board, has become increasingly obvious. In 1968 and again in 1970 spokesmen for the Southern States Industrial Council urged such changes at hearings concerning the NLRB before the Senate Judiciary Subcommittee on the Separation of Powers.

As employers of approximately 3,000,000 people, the 3000 members of the Council have had a great deal of experience with the act and its administration and enforcement under the NLRB. This experience has shown that the National Labor Relations Board has consistently decided the cases before it in the way more favorable to labor unions, even at the cost of subordinating the rights of individual employees as well as employers. So serious has the problem of bias in favor of unions by the NLRB become that the Southern States Industrial Council has incorporated in its Declaration of Policy the following statement: "The NLRB has completely lost any inclination to act as an impartial judicial body. Instead, it has become a policy making tribunal which is blatantly pro-union, anti-employer and anti-free enterprise."

Would the legislation before the subcommittee, H.R. 7152, help to correct this imbalance? Even a casual inspection shows it would not, and a more thorough analysis reveals that H.R. 7152 would greatly increase the imbalance, placing employers at an even greater disadvantage and further increasing the unions' advantage in cases of alleged unfair labor practices coming before the Board.

The special privileges unions already enjoy under federal law have given them such a stranglehold on the economy as to cause a rising tide of public protest. Any additional enhancement of union influence and power is completely unwarranted.

The proposal in Section 1 of H.R. 7152 that the NLRB "delegate to its trial examiners its powers under section 10 to prevent any person from engag ing in any unfair labor practice. . ." is an example of the confering of power without real responsibility in the federal bureaucracy that is bringing Administrative agencies under increasing fire. One of the criticisms of the NLRB has been that it is not sufficiently responsible to the Congress and to the electorate, but at least the five Board members are indirectly responsible by virtue of their appointment by the President. Decisions made by the Board are at least supposed to represent a balancing of the views of five different people

** Hearings Senate Subcommittee on Separation of Powers, March 26, 1968, page 17.

who owe their positions to popularly elected Chief Executives of the U.S. Delegation of power further down the line in the federal bureaucracy to individuals subject to neither Presidential appointment, Congressional confirmation nor election by the people would compound the inequities which already exist in the administration and enforcement of labor law by the NLRB.

An examination of the rulings of trial examiners in cases of alleged unfair practice cases shows that the examiners have ruled in favor of unions in the great preponderance of cases. Employers, despite their criticism of the Board's decisions, will almost unanimously agree their chances of obtaining equitable decisions are greater from the Board than from the average trial examiner. The pro-union bias of trial examiners is probably not surprising considering that they are former NLRB attorneys or union attorneys whose inclinations and background are union oriented.

While H.R. 7152 would permit an appeal to the Board for a review of the trial examiner's orders, there is of course no assurance that the Board would grant the review. If the Board refused to review the trial examiner's decision, his order would become final, subject only to court review. This is in contrast to the present provision in the Act for automatic right of appeal to the Board, and for the Board's consideration of every case when an appeal is filed.

H.R. 7152 ostensibly is intended to lighten the load of the National Labor Relations Board, but it would do so by curtailing the right of a respondent in an unfair labor practice case. The only way the Board's work load would be reduced under this bill would be in the denial to a respondent of his right to a review by the full Board. The intent of the bill, as well as past experience, points to the fact that the Board would seldom grant a request for a review of an examiner's decision under H.R. 7152.

Section 2 of the bill provides that Board orders (which now become as a practical matter the trial examiner's orders in most instances) will be self-enforcing unless an aggrieved party files a petition for review in a circuit court of appeals. Board orders are not now self-enforcing and the Board is required to file a petition for enforcement in circuit court unless an aggrieved party files a petition for review prior thereto. Thus H.R. 7152 substantially changes existing appeal and enforcement procedures, not only making them less equitable to a respondent but more burdensome for the courts. In this connection, it should be pointed out that in direct appeals to a court from an examiner's findings as permitted under H.R. 7152, the court's role has been generally construed as meaning reviewing possible errors of law-not reviewing the facts in the case. Thus the court review provision in H.R. 7152 is no substitute for Board review, which the bill makes optional with the Board instead of a matter of right for a party charged with an unfair labor practice.

Section 3 of the bill does not relate directly to the provisions regarding NLRB procedures in the other sections of the measure. It sets up a new provision whereby either a union or employer could sue the other for treble damages plus court costs and legal fees for alleged violation of any of several acts forbidden as unfair labor practices under Section 8(a)(3) and 8(b)(2) of the Labor-Management Relations Act of 1947. Theoretically, the new provision would furnish added protection to employers as well as unions, but in practice it would be one more provision of the law heavily weighed in the direction of unions. For example, unions have frequently filed suit against employers charging them with discouraging union membership or discriminating against union members, forbidden practices under Section 8(a)(3). On the other hand few employer suits have been filed against unions under Section 8(b) (3) whose only provision is that unions are forbidden to cause employers to discriminate against employees who are not members of the union. At present the remedy for violation of these sections is to obtain an injunction to stop them and, in the case of an employee discharged for union activity, to permit him to collect back pay, less his interim earnings. The new treble damages provision would, as a practical matter, simply give unions a new weapon to use in harrassment of employers, and would be of almost no value to employers in protecting themselves against harmful union practices and tactics.

Reform of the national labor law is long overdue. H.R. 7152, however, rather than effecting any real reform would make the law even more inequitable for the employer and more biased in favor of unions. One of the most needed reforms is to take unfair labor practice cases out of the NLRB and place them in the district courts.

The Southern States Industrial Council urges the House General Subcommittee on labor to take action on legislation to accomplish this end and to reject H.R. 7152 as a move in the wrong direction.

STATEMENT OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA

We would like to take this opportunity to detail for the hearing record the position of the Associated General Contractors of America on the proposed Expediting Act of 1971 (H.R. 7152).

The AGC is opposed to H.R. 7152 for the following reasons:

1. The grant of section 10 powers equivalent to those of the Board itself to trial examiners is an unreasonable delegation of powers in view of the fact that they are not appointed in any similar manner or with any similar safeguards as are Board members, namely, with the consent of the Senate and for a definite term.

2. The grant of discretionary powers to the Board to deny review of trial examiners' decisions is also unreasonable in that it would sanction avoidance of the Board's policy-making role without all of the members having a right to vote on the case, and because the exercise of the power to deny review is not accompanied by any reasonably ascertainable standards or procedures under which this denial of review must be exercised.

3. The provision for suit for treble damages arising from discrimination because of membership or non-membership in a union is an unreasonable provision in that it undertakes to provide a basis for very large damage suits indeed without any reasonably ascertainable standards upon which damages must be based, and without any workable provisions for separating the responsibilities for the alleged discrimination as between the labor unions and the employers. It fails to reflect the serious problems arising from exclusive hiring halls which are operated in construction unilaterally by the unions, but which the Government invariably holds management responsible. It also fails to reflect the fact that the Taft-Hartley Act, as amended, practically forces management into hiring hall agreements by making them mandatory subjects of bargaining, and then subjects the unwilling employers to treble damages without reasonable protections. To be practical, such an approach to discrimination would have to be accompanied by a provision making hiring hall and referral arrangements permissive subjects of bargaining and requiring strict proof as to which party, as between unions and management, were responsible for the discrimination.

And any such provision for damages because of discrimination, to be complete with respect to the realities in the construction industry, would certainly have to be broadened to include discrmination because of race, color, creed and national origin. Otherwise, the provision would be an exercise in futility, as far as the minorities in the construction industry are concerned.

4. The bill itself would be incomplete if enacted as is in that it purports to expedite processes and strengthen remedies under the Taft-Hartley Act, as amended, but does not touch upon the most serious deficiencies in this law.

For example, the bill undertakes to reorganize the procedures of the Board and the examiners but leaves the most vital functions unrepaired, namely, the functions of the office of the General Counsel.

Without undue elaboration on this point, suffice it to note grave difficulties suffered by the construction industry from jurisdictional disputes and the laxity in the remedies afforded by the General Counsel's Office. Discussions from a Jurisdictional Disputes Conference and correspondence on the point are attached. We believe this information indicates that the bill would leave unresolved one of the most difficult weaknesses of all, as far as the construction industry is concerned, since the bill does not touch upon the General Counsel's functions.

5. The General Counsel is likewise instrumental in providing early relief from violations of the Act for which temporary injunctions are necessary. The present procedures are unduly cumbersome, involving weeks of delay in order to have a field investigation, reports based on the investigation, clearance from the General Counsel's Office to the Regional Office, and finally, the task of getting the court order itself. Since this cumbersome procedure has not improved over the years, it certainly follows that legislation requiring greater expedition in obtaining temporary injunctions is in order, and is overlooked by your bill.

6. The Taft-Hartley Act, as amended, is also deficient in providing for substantive rights for the American public, with corresponding duties on behalf of organized labor, and for that matter on behalf of management. The bill is lacking in making any substantive corrections in these deficiencies.

Without undue elaboration, we note just a few of the glaring deficiencies from which the construction industry, and in fact, the entire country are suffering.

For example, there is the problem of unrestrained rights of construction unions to boycott fabricated construction components on the basis of allegations that such boycotts are necessary to protect the traditional work of the on-site bargaining unit. There is the problem of the rank and file repeatedly rejecting collective bargaining agreements that have been made between their representatives and management. There is the problem of allowing jurisdictional disputes to run for unreasonable periods of time, although acknowledged to be unlawful, until administrative officials of the Board and the General Counsel's Office obtain injunctions, without management having any rights to seek injunctions directly. There is the problem of hiring halls, noted earlier in this statement, for which statutory remedies are long overdue.

We will of course furnish you further information on any of the above noted observations upon request. But unless the most serious deficiencies of the Act are corrected, as we have noted, we would strongly urge that H.R. 7152 be opposed, and that no further action be taken on it.

Hon. JOHN J. CUNEO,

LAW OFFICES OF APRUZZESE & MCDERMOTT,
Springfield, N.J., April 2, 1971.

Regional Director, National Labor Relations Board,
Twenty-Second Region, Newark, N.J.

DEAR JOHN: In answer to your recent inquiry about information upon which I based certain comments in my article dealing with the time periods for obtaining injunctions the N.L.R.B., please find the following enclosed:

1. A transcript of AGC Jurisdictional Disputes Seminar, and

2. A copy of a letter to Arnold Ordman, dated March 25, 1970.

The Jurisdictional Dispute Seminar took place in October, 1969, and was attended by at least four N.L.R.B. personnel, Ogden W. Fields, Secretary of the N.L.R.B.; William Feldesman, Solicitor of the N.L.R.B.; William T. Evans, Special Assistant to the General Counsel of the N.L.R.B.; and James T. Youngblood, Associate Chief of the District Court Branch, Injunction Section of the N.L.R.B.

Your attention is invited to pages 48 through 54 where the specific question of the time delay in obtaining injunctions was discussed with certain questions asked by yours truly. Thereafter, the matter was pursued by me through the National AGC and I am enclosing as well, a letter dated March 25, 1970 which was addressed to Arnold Ordman, General Counsel, by William E. Dunn, Executive Director for the National AGC, dealing with this specific problem. As you will note, questions 1, 2 and 3 of Mr. Dunn's letter are rather specific.

The matter was further pursued according to information supplied me by Dale R. Witcraft, who is Director of the Labor Relations Division for the National AGC, and he indicates there were several phone conversations with N.L.R.B. staff personnel regarding the requested information and that there have been meetings on various items with General Counsel personnel, during which the AGC renewed its request for the information in the letter sent by Mr. Dunn, dated March 25, 1970 to Mr. Ordman. To date, no answer has been received from the N.L.R.B.

As you know, this has been an area of concern I have long talked about because of the frustration that confronts contractors in the construction industry that so vitally need the assistance of he Board in order to protect themselves from illegal stoppages. Obviously, such illegal stoppages injure other Building Trades personnel not involved in the dispute as well as the community at large because of the improper disruption of commerce. It certainly seems to me that the N.L.R.B. should cooperate and furnish these statistics with specific reference to the items raised. Obviously, if more than 50%, or at least 50% of Board injunctive proceedings relate to the construction industry

(which is very much in the forefront these days, particularly with regard to its impact on the economy), this information should be forth-coming.

If through your office the General Counsel can now respond on a factual basis on the questions requested, it would be very much appreciated by the entire industry. Only fortified with the facts as it relates to this extremely crucial function of the Board, can we intelligently discuss whether the procedure needs a change or whether, indeed, the law is performing as many of us in the practice think it should.

Incidentally, so that you may have the benefit of any other remarks made by the undersigned, I call your attention to the printed transcript between pages 69 and 76 in which I made some comment that deals generally with the problem.

If you have any other need for information from the undersigned, or if I can in any way be helpful in this matter, do not hesitate to call upon me. Thank you very kindly for your inquiry. Kindest personal regards.

Sincerely,

VINCENT J. APRUZZESE.

PARTIAL TRANSCRIPT OF AGC JURISDICTIONAL DISPUTES SEMINAR-LEGAL

STEPS FOR HANDLING

Vern: I was interested in your comments about this Wall Street Journal article and what it says about New Jersey lawyers and New York lawyers. When Dale told me that we were going to have the privilege of being on the same panel, I told Vern when I sat down with him at lunch that I actually had a dream about him and he said. "Come on, you're kidding." "No," I said. "that's really true, Vern, I did." And I said, "I dreamed that I died and went to heaven and when I got there I was greeted by St. Peter, and he said, "Would you like to remain here?" I said, "Very much so." He said, "Do you see that stairway?" And the stairway went down as far as the eye could see. He said, "You take this piece of chalk and write down every sin you've ever committed and if you finish before you get down below, come on back here and you can remain in heaven. If not, it's been nice knowing you." So, I took that piece of chalk and I started to mark and mark and mark and as I got a little bit more than half-way down who did I see coming up but Vern, and I said, "Hello, Vern, how are you." He said, "Hello, Vince, fancy meeting you here." I said, "Hold on, I only have two or three more to go and I'll come on up, join you and we'll stay there together." Vern said, "Well, I'm not going up to stay. I'm just going up for another piece of chalk."

Now with regard to the demise of the Joint Board and where that leaves us. I think like the college girl that wrote to her parents, we have to put this in the right perspective. This young lady wrote a letter to her folks and the letter read, "Dear Mom and Dad, I am writing you from the University Hospital. However, there's no need to worry because I'm told by the doctor I should be well relatively soon. I was beset by many problems, didn't know quite what to do so I tried marijuana and LSD, and while "on a trip" jumped out of the dormitory window. Fortunately, my fall was broken, and I only suffered a broken leg, a few cracked ribs, and the doc says I'll be all right. And here in the hospital, thinking about my problems, I finally realized that other girls have been pregnant out of wedlock and knowing full well that you have always been tolerant people I've come to the conclusion that I'm going to marry this man even though he's of another race and religion. I know you will understand." In the next sentence she says, "Not a word of the above is true, I repeat, not one word is true. I'm merely writing to tell you I'm about to get an F in Spanish and a D in English and I want to make sure you put it in the proper perspective." So it is with our jurisdictional dispute problem. We still have to wrestle with the problem of jurisdictional disputes and at first it may present greater difficulties because of the demise of the Joint Board, but hopefully we will view it in proper perspective.

The function that I have been asked to serve here today is to deal with some of the nuts and bolts involved in documenting your case. I am assuming. of course, for the purpose of this discussion, that you are at the point where you have made a judgment that it is necessary to seek NLRB relief. Now, how do we document our case? In many respects, to do it properly, that documentation should already be underway, even if you don't have a case that will go to