Board's order. The case then proceeds to litigation and may, of course, reach the Supreme Court of the United States. The case in these stages is handled by the litigation section of the Legal Division which prepares the printed record upon which the Board has made its decision, files its petition for enforcement or answer, briefs the case, and orally argues it before the courts. It should be noted here that while in accordance with section 10 (e) the court considers the complete record which has been before the Board, in its consideration of the Board's orders which have been reviewed by them the Supreme Court upheld these orders completely in the five cases decided by it April 12, both with respect to the findings of fact and in the application of the law to the facts; and in only 1 case of 12 additional decisions of the circuit courts has any finding of fact of the Board been modified, this one modification relating to a portion of a decision of the Board which was in the main upheld. The jurisdiction assumed by the Board has been sustained in all decisions of the courts thus far rendered. Decisions in representation cases.-If the Board finds that a dispute over representation which affects commerce exists, it (1) may certify the representative shown by the record to represent a majority of the employees, or if the record is not conclusive as to such a majority, it (2) directs that an election be conducted by one of its agents immediately by means of a secret ballot to determine such representative. When the election has been held, the agent conducting it certifies the results of the ballot to the parties, and they are, under the rules and regulations, given 5 days within which to file protests as to the conduct of the election if they desire to do so. If such protests are filed, they are considered by the Board in determining its further disposition of the case. Such a situation rarely occurs, because every safeguard is used to guarantee the fairness and impartiality of the poll and the freedom of the workers to make a free choice of representatives. If a protest is made, the Board usually orders a further hearing, and determines on the basis of the record whether the protest is well taken. If it is, another election may be ordered. In cases where no such complication occurs, the Board proceeds to issue its certification of representatives and the case is thereby closed. If the employer subsequently is charged by the employees with a refusal to bargain collectively, a new case is instituted under section 8 (5) of the act, and the matter is handled as described in the above paragraphs on complaint cases. III. GROWTH OF BOARD'S WORK A. The regional offices.-The great increase in the number of cases with the Board and its regional agencies has been described at length in the justifications submitted in June with the supplemental estimate for the current fiscal year. To recapitulate briefly, the following table may serve: ! Period broken as of Apr. 1, 1937, because our case statistics are kept on monthly basis. This means closed by the regional offices; 471 were transferred to the Board for decision according to the procedure described in sec. II above; 1,663 were closed by dismissal or withdrawal of charges and petitions prior to the institution of formal proceedings for lack of merit or jurisdiction or for other reasons. The balance of cases closed were 2,664 on agreement of the parties, and 50 by transfer to other agencies, dismissa! by trial examiner, etc. The above table demonstrates the following: (1) That approximately 30 percent of all cases were filed prior to April 1, 1937, in the first 19 months of the Board's administration. (2) That approximately 70 percent of all cases were filed since April 1, 1937. The great bulk of these were received in the 51⁄2 months since the Supreme Court declared the act constitutional and of wide application. (3) That 81 percent of all cases received by the regional agencies prior to April 1, 1937, were closed, leaving approximately 19 percent pending on that date. (4) That cases closed by the regional agencies between April 1 and August 30, 1937, equaled 56 percent of new cases received during that period. (5) That the regional offices are settling approximately the same percentage of all cases received by them since April 1 as in the period before that date. (6) That the decrease in percentage of cases closed is indicative of the difficulty experienced in keeping up with the current volume of work, although this is partly attributable to the Board's inability to handle the enormous increase experienced before it received its supplemental appropriation providing for additional staff. That the problem is not a diminishing one, however, is evidenced by the fact that of the 3,510 new and pending cases handled by the regional offices in August, 774, or 22 percent, were closed, leaving 2,736, or 78 percent, pending on September 1. B. The Board. It is apparent from the procedures outlined in section II above that usually when a case goes to hearing, it means that efforts at obtaining compliance by settlement have failed, and the respondent has determined to contest the case on the ground that the Board has no jurisdiction, or that the complaint or the petition for certification has no merit. The following statistics are helpful to an understanding of what happens to these cases. This table shows Board action on cases heard in the fiscal years 1936, 1937, and for the first 3 months of 1938. The figures relate to administrative hearings and their disposition by the Board; they do not include any record of enforcement or defense litigation before the circuit courts of appeals. (All references are to fiscal years.) Record of disposition of cases involving formal Board action as of Sept. 30, 1937 1 Of these, 29 applied to cases heard in fiscal year 1936, and 129 to cases heard in 1937. Of these, 7 applied to cases heard in 1936, 32 to cases heard in 1937, and the 113 to cases heard in 1938. Of these, 16 were heard in fiscal year 1936; 210, in fiscal year 1937; 168, in fiscal year 1938. For an understanding of the type of cases involved, the following break-down of cases heard in each fiscal year is offered. (Reference is to fiscal years.) Of the complaint cases heard during 1937 and 3 months of 1938, 38 have been decided by the Board and 52 settled by agreement after being heard, a total of 90 cases, leaving 218 cases to be administratively disposed of. Of the representation cases heard during the same period, 236 have been decided and 51 settled; a total of 287, leaving 161 to be administratively disposed of. These figures demonstrate that a larger number of representation cases have been heard and disposed of than of complaint cases. This is so for several reasons. First, the dispute involving representation is usually acute and the remedy must be quickly offered to prevent strikes and consequent interruptions of commerce. Second, the hearings are usually shorter than are hearings on complaints, although it is true that frequently difficult questions of the proper unit of representation are involved, thereby lengthening the record and calling for decisions which go to the fundamental problems of craft and vertical unionism. The Board frequently issues its direction of election providing for an immediate secret ballot to save time, and issues its opinion after the election with the certification. The work of the Review Division.-Our experience has demonstrated that the average representation case takes 1 week of the time of one attorney, for analysis of the record, report to the Board, drafting the findings and the order of election, and for the final certification. The complicated representation cases which involve difficult issues of the appropriate bargaining unit or other problems take a great deal more time, usually averaging 10 to 15 days. Thus if all the representation cases heard so far in this fiscal year (190) were to be disposed of within the 3 months, and if all involved the simplest issues, they would entirely consume the time of 16 attorneys. Unfortunately, many of these cases are complicated by the current dispute between the American Federation of Labor and the Committee for Industrial Organization and involve questions of appropriate unit inherent in the craft versus vertical forms of organization. Therefore these cases alone will require the services of considerably more than 16 attorneys. Complaint cases are normally longer and involve much more difficult issues than the representation cases. The uncomplicated complaint case requires the time of a review attorney for from 10 to 15 days. Two to 10 weeks of the time of a review attorney to review the record, report to the Board and draft decision, etc., in the complicated complaint cases are required, depending on the length of the record. If, then, all the complaint cases heard in this fiscal year were of the briefest and simplest nature, it would require the services of 32 attorneys to dispose of them within 3 months. Within these 3 months, however, hearings are progressing in the following cases with records estimated as follows: Calco Chemical Co., Inc. Bethlehem Steel Corporation. Inland Steel Co.. Pages 6,000 18, 000 13, 500 18,000 The longest record reviewed to date by any attorney for the Board was in the Douglas Aircraft Co. case, where the record ran to 6,481 pages. These facts exemplify the fundamental change in the nature of the Board's hearings which was discussed in justifications for the 1938 supplemental appropriation. It will be remembered that there the point was made that while prior to the Supreme Court decisions on the validity of the act respondents had in most instances not contested cases on the merits but had contented themselves with motions to dismiss for lack of jurisdiction or on the ground of unconstitutionality of the act, since the Supreme Court decisions, respondents are moving to contest the cases on the merits. This means that they bring numerous witnesses to the stand and cross-examine the Board's witnesses thoroughly. All this is conducive to lengthy records. In the Inland Steel Co. case, for instance, the respondent has asked the Board for 1,000 subpenas to bring in witnesses for the respondent on one contested point. This change in the nature of the formal complaint case affects the work of the Board throughout: (a) In the work of the Regional Office where two, three, and even four or five attorneys must be assigned from the departmental and regional staffs to prepare and conduct such lengthy hearings on complaints. 33819-37-47 (b) The trial examiner is kept on one detail for weeks, and in the case of the Inland Steel Co., even for an estimated period of 6 months. (c) The record becomes so large that it takes much more of the time of the trial examiner to develop findings of fact for an intermediate report, than if the record were short. (d) After the intermediate report is issued the entire record goes to the Review Section where it must be analyzed with scrupulous care for preparation of the Board's findings of fact. The Remington Rand record of 5,215 pages took 10 weeks of one attorney's time for analysis. It will probably be necessary to assign more than one attorney to the hearings in the cases tabulated above for the purpose of getting out a decision in a reasonable length of time. (e) There is every likelihood that these cases will go to the United States Circuit and Supreme Courts on application for review or on petition for enforcement by the Board. If the Board petitions to enforce, it must print the entire record, which will be a very costly job, and in any event the merits of the case as developed in the record will form an important basis for such argument. The work of the Litigation Division. -The following is a tabulation of circuit court cases actual and estimated during each fiscal year, filed under section 10 (e) and (f) of the National Labor Relations Act, that is, those cases which have been brought to Circuit Courts of Appeals on the petition of the Board for enforcement or on petitions to review by an aggrieved party. The anticipated volume of work, together with cases already filed and those to come during this fiscal year, is sufficient to engage the services of the litigation staff which is provided for in the supplemental appropriation for 1938 and which has been amplified by the addition of only a few attorneys for 1939. It is perhaps unnecessary to state that cases brought before the United States Circuit Court of Appeals on petition for enforcement or review entail a great amount of serious litigation work. The preparation of records, petitions, answers, motions, briefs, etc., on such a volume of work is a heavy burden on any division, and especially upon one which consists of only 51 attorneys, who must, except for the occasional help they will receive from qualified men in the field, cover these cases in all 10 circuits and the United States Supreme Court. IV. INCREASES IN THE 1939 APPROPRIATION The following statement of increases in numbers of personnel in various classifications and other obligations are divided in the following for purposes of discussion into three headings: "Field Personnel," "Departmental Personnel," and "Other Obligations." Each increase will be justified in relation to the foregoing discussion of our present experience as to increased volume of work as the result of the Supreme Court decisions recognizing the validity and the wide application of the National Labor Relations Act. A. Field personnel.—(1) Administrative personnel: Regional directors, field examiners, and clerical: No increases have been estimated for in these categories. The Board hopes to be able to handle the increased volume of work on the budget approved for 1938. An (2) Professional: Seventy-nine attorneys were provided in the 1938 budget. addition of 31 in the various grades is being estimated for herewith, disposed as follows among the various grades: The addition of three attorneys in grade P-6, bring the total number of attorneys in the field in this grade to five. In view of the fact that many of the cases coming to the Board at the present time will require men of excellent qualification in litigation work, this is a minimum. These men may also be required in some instances to handle arguments before circuit courts of appeals, and will head the legal staffs in the more important regional offices. An increase of five in grade P-5 has been estimated. These men will be qualified to cooperate with the attorneys in grade P-6 in the work described in the paragraph above. They will head the legal staffs in the regional offices of the next grade. Eight additional attorneys in P-4 have been provided for, making a total of 25 in this category. They will prepare and present cases for the Board and assist in supervising attorneys of lesser grades in preparation of cases. An addition of five attorneys in grade P-3 is estimated for, bringing the total number in this category to 35. No addition is being estimated for in grade P-2, of which 20 were provided in the 1938 Budget. Ten positions have been provided for in grade P-1 for the purpose of assisting in making investigations, drafting complaints, and gathering evidence. It has not been possible to estimate for purposes of this Budget the number of cases which will go to hearing in 1938. Section III of these justifications describes the increase in the volume of cases and indicates that the ratio of cases settled to cases received remains the same now as it did in 1936. The number of cases therefore which will have to be disposed of by hearing and formal procedures will be much larger than heretofore. The average of three attorneys to each regional office provided in the 1938 Budget will not be adequate to carry this case load. The present estimate is for 110 attorneys in the field, an average of slightly more than 4 to each regional office. It is necessary to realize in considering these positions that the preparation of a case for an administrative hearing requires the same care and as exhaustive preparation as does any case going before a court. Temporary employees: We have estimated $50,000, a decrease of $25,000 in the amount appropriated in 1938. The services of election clerks are indispensable in carrying out the investigations provided for in section 9 (c) of the act. Six hundred and three elections were conducted by the regional directors in 140 days, and tellers and clerks were required in many of these elections at salary rates of $5 to $8.88 per day. In instances of major industrial elections, where the total number of eligible voters exceeds 10,000, the number of tellers and clerks required exceeds 50 and in such cases the cost for services of temporary employees runs between $500 and $1,000. There is no doubt that the present rate of 134 elections per month will materially increase as the effectiveness of this method of peaceful settlement becomes better recognized. An additional item to be considered in the allotment for temporary employees is the cost of stenographic assistance required by attorneys and examiners in the field. When these agents of the Board are away from their official headquarters, they are frequently required to engage the services of stenographers to prepare statements of witnesses, affidavits, trial briefs, and legal documents in connection with the trial of cases. It is estimated that this particular service will cost at least $5,000 during the year. Witness fees: It is necessary that we allow $10,000 for witness fees as compared to $5,000 in 1938. The 1939 estimate will permit 555 "witness days" per month at $1.50 per day. On the present experience of 346 hearing days per month, it is hoped that this estimate will be adequate. The 1938 allotment will probably be insufficient. As has been said before, the character of hearings before the Board and the trial examiners is changing rapidly. It is necessary to subpena many more witnesses than heretofore. The detailed evidence now sought by the Board's attorneys requires the presence of witnesses for longer periods of time than has been the case in past experience. B. DEPARTMENTAL PERSONNEL (1) Administrative. Few estimates for additional positions are carried herein with reference to the administrative staff. They are described below. It will be noted that estimates for four guards have been dropped, since we are borrowing such service from the Veterans' Bureau in our present quarters. Several items that appear to be increases of personnel in this Budget estimate are in fact due to reclassification by the Civil Service Commission of positions occupied by section heads in the administrative division. These reclassifications are resultant upon the enlargement of staff and of volume of work. A new position of Assistant Director of Publications, grade CAF-10, has been allocated by the Civil Service Commission and an appointment made. The volume of publications and of press inquiries, etc. has become so great that one individual can no longer handle it. |