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Improper Influences The Delegation Agreement: The Enough-Rope Approach The NLRB devoted most of July and August 1947 to preparing and carrying out changes in organization and procedure required by Taft-Hartley; developing new rules, forms, and instructions to personnel; and assembling all regional directors and attorneys at a conference to discuss new and anticipated problems. The Board also designed a new staff structure to administer the act.I Although Congress clearly intended to separate the new general counsel's functions of investigation and prosecution from the adjudication function of the five-member Board, it did so in very general and often imprecise statutory language. The major procedural problem confronting the general counsel and the Board, therefore, was to find a practical and efficient way to make this separation of functions work without encroaching on the fundamental statutory authority of either the Board or general counseF The Board, for example, retained full control over all aspects of representation case proceedings and had the authority to appoint all agency personnel, including attorneys. The general counsel, however, was statutorily obliged to "exercise general supervision over all attorneys employed by the Board."3 Because almost all the operations involved in representation matters and in investigating and prosecuting unfair labor practice cases occurred in the field, the regional personnel who performed these functions could end up receiving directives from and being supervised by two bosses. An alternative, the maintenance of two field organizations, one for representation matters and the other for unfair labor practice matters, made no financial or administrative sense.4 Herzog called this portion of the statute an "administrative monstrosity."s Denham, at his confirmation hearing, frankly asserted an expansive view of his power.6 He brought this attitude to his negotiations with the Board over administrative implementation of the separation of functions. Newly appointed executive secretary Frank KIeiler, who participated in these discussions, recalled that the "problems were so impossible" that thought was given to obtain26 Improper Influences 27 ing an opinion from the attorney general to "resolve the questions once and for all.'" Instead, Denham persuaded the Board to solve the problem by preparing a memorandum of understanding detailing the statutory and delegated responsibilities of the general counseP According to Herzog, the Board "simply had to surrender that power" to the general counsel, but "there was a bit of Machiavelli in it [because] people realized that if you gave this fellow enough rope he'd hang himself, which he certainly succeeded in doing."9 The Board agreed to delegate many of its most important functions to the general counsel, including almost complete authority over personne1.10 In addition to the statutory duties of investigation and prosecution of unfair labor practice matters, the general counsel, pursuant to what became known as the Delegation Agreement, assumed responsibility in such cases for obtaining compliance with Board orders or, if necessary, seeking enforcement of those orders. The general counsel was also granted the authority to initiate and prosecute all mandatory (Section 10[1]) and discretionary (Section lOfj]) injunctions . In representation cases, the general counsel was given authority to take over the regional office phases of representation proceedings, including receiving and processing all petitions for certification, decertification, union shop authorization and deauthorization elections; conducting representation elections; determining the validity of challenges and objections to the conduct of these elections; and certifying the results of these elections. The Board retained authority to decide appeals from regional board representation case decisions.11 Although the Delegation Agreement eliminated some of the confusion caused by the separation of functions, serious issues remained unresolved, including the question whether Denham, in the exercise of these functions, would be bound by Board policy and case decisions even if they conflicted with his own views.12 The Noncommunist Affidavit The Delegation Agreement did not repair the fundamental defect in the twoheaded agency approach: the possibility that each head, the general counsel and the Board, would contradict the other. Possibility became reality when, before a representation petition was filed or an unfair labor practice complaint issued under the new law, the Board and the general counsel disagreed publicly over the meaning of Section 9(h). The dispute arose over language in that provision requiring each officer of a petitioning or charging union "and the officers ofany national or international labor organization ofwhich it is an affiliate or constituent unit" to file affidavits with the Board that they were not members of or 28 Chapter 3 affiliated with the Communist Party and that they did...

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