Evening star., 1940-03-15

Charles G. Ross. order to get at
the defects which have been uncov-
cred in its administration. The
effort Of the Smith investigating
committee-or, rather. three of its
five members-to perform a major
operation on the act Is calculated to
do more harm than good to the
cause OF proper amendments, and so
also to the cause of better capital.
labor relations.
1t is the purpose here to discuss
only one Of the proposed change
that which would create a separate
administrator to initiate and con-
DUCT cases before the board, which
would then sit only as a court.
Now this division of functions
wears the deceptive aspect of fair
ness and Of entire conformity ": h
the democratic process. The tco
facile criticism runs that the Ma
tlonal Labor Relations Board acts
as policeman. prosecutor, Judge and
jury and ought therefore to be DIS
membered. Often the implication
is given that the board is unique in
this respect among the agencies Of
the Government.
Real Problem Created.
The fact is that the machinery
used by the National Labor Rclo-
tions Board is the same as that
generally employed, under author
lzation by Congress. by the admin
lstratlve agencies which the grow
ing complexities of Government
have called into being. The pro-
cedures under the Labor Relations
Act are essentially the same as those
under the Securities and Exchange
Act, the Interstate Commerce Act,
the Federal Trade Commission Act.
Like it or not, we have these and
similar administrative agencies. and
with them large and increasing
body of administrative law. That
this condition creates real problem
nobody denies. The problem con-
stantly engages the attention Of the
Supreme Court and it is now being
studied by Committee on Admin
lstrative Law set up by the Attorney
General and consisting of dis
tinguished judges, teachers of the
law and practicing attorneys.
1t is, however equally undeniab'e
that if we are to have efficient ad-
ministration in many fields now
covered by the law, we have got to
have the administrative agency
with quasi-judicial functions. AS
pointed out by Justice Frankfurther
in a recent case. the supervision
which Congress has decreed should
be exercised over economic enter.
prise can be exercised in a multi
tude OF instances, neither directly
through self-executing legislation
nor by the judicial process" Hence
the modern administrative tribunal
like the National Labor Relations
Board, the Interstate Commerce
Commission, and so on. Hence a
development which Elihu Root IS
years ago foresaw as ''ne etural ard
inevitable" creation Of hr~v
Of administrative law quite diFcre1
in its machinery from the processes
Of the courts.
The problem, of course. is to keep
this administrative law from getting
out Of hand. 1t is up to Congress.
in its vigilance, to do this. But
this Is not to say that Congress.
because of the mistakes which the
N. l.. R. B. has made, should now
strike from the board the powers
which, experience has shown, are
essential to the efficient working Of
q regulatory agency of this charac-
ter. The Smith amendments are a
blow at the foundation of the ad-
mlnlstratlve process. If Congress
wants radically to change that
process, 1t should do so only in
pursuance of general, considered
policy-not hastily and in reference
only to the National Labor ReIa-
tlons Board. AS Senator Wagner
suggests. the Smith committee would
have done well to await the report
OF the Attorney Generals commit
tee before proposing its sweeniry
procedural changes in the Wagner
Act
Confusion Certain to Arise.
What would be the practical effect
OF setting up separate prosecute
Ing administrator under this act?
Senator Wagner analyzes the diff
cultleS and the confusion which
would certainly arise For example,
there would be nothing to prevent
the administrator from adjusting
cases IN a manner out of line with
the boards decisions; nothing to
keep him from arbitrary refusal to
issue complaint clearly within the
boards province. Senator Wagner
points out that under its present
procedure, the board has adjusted
SO per cent of its cases in con-
formity with the Labor Relations
Act without any formal complaints
or hearings. He suggests that this
procedure has obvious advantages
to the employe, the employer and
the public. and he doubts whether
any administrator could achieve so
high a percentage Of satisfactory
results.
Senator Wagner says that the
proposed separation Of powers would
subject both workers and employers
| w WIG dCioyo dAlQ IL Ootk dIlOIlS VI u
confusing. ineficient and obstruc-
tive administrative arrangement"
that it would impede our progress
toward industrial peace.
Senator Wagner's points In favor
OF giving the act chance are REIN
forced by the showing the N. L.
r. B. has made before the Supreme
Court stated in q recent ortiele
that the board had been upheld
completely in Is Of the 10 Of its cases
reviewed by the court. This was
true, but only up to the beginning
Of the present court term. It should
have been added that during this
term, the board has won six cases
and lost none, SO that the record to
date Is 81 cases won by the board.
two cases lost and two cases In
| -,f~S -