Oregon Advisory Opinions November 15, 1961: OAG 61-173 (November 15, 1961)
Collection: Oregon Attorney General Opinions
Docket: OAG 61-173
Date: Nov. 15, 1961
Advisory Opinion Text
OAG 61-173.
State Labor-Management Relations Board
Your letter of October 18, 1961, requests an opinion on the following questions:
"1. In cases arising under Section 5 of the State Labor-Management Elections Act of 1961 (Or. L. 1961, Ch. 690) in which hearings are held before a single member or agent of the Board, as authorized in Section 5(2), is there any legal reason which would prohibit the Board from requesting such a person to prepare proposed findings of fact and conclusions of law or a proposed decision for consideration by the Board, to be distributed to all parties, with an opportunity to object thereto, before further consideration of such cases by the Board?
"2. If not, is there any legal reason which would prohibit the Board from including such a provision in the rules of practice and procedure to be adopted by the Board under Section 19 of the Act?"
Section 5 (2) of the State Labor-Management Relations Act states:
"The Attorney General shall investigate the petition and report his findings to the board. If, upon the basis of his findings, the board has reasonable cause to believe that a question of representation exists, it shall provide for an appropriate hearing before the board itself, a member thereof or its agent appointed for that purpose. Written notice of the hearing shall be mailed by certified mail to the parties named in the petition not less than seven days before the hearing. If the board finds upon the record of the hearing that a question of representation exists, it shall direct the conciliator to conduct an election by secret ballot marked at the place of election, and to certify the results thereof."
The question of whether or not an agent or member of the board can issue proposed findings involves the problem of whether such procedure constitutes a delegation of the power to decide.
It is axiomatic that the very meaning of the word "proposed" conveys something less than finality. The federal courts have often examined the purpose and scope of a hearing officer's decision under the Federal Administrative Procedure Act. It has been held that intermediate reports and proposed findings in National Labor Relations Board proceedings are recommendatory only and therefore are not conclusive upon the board. National Labor Relations Board v. Bell Oil and Gas Co., (C.C.A. 5th, 1937) 91 F. (2d) 509. Furthermore, the courts have held that the National Labor Relations Board may dispense with the hearing officer's findings altogether. National Labor Relations Board v. Stocker Mfg. Co., (C.C.A. 3d, 1950) 185 F. (2d) 451.
In Nankung v. Boyd, (C.C.A. 9th, 1955) 226 F. (2d) 385, 389, an alien claimed it was a violation of due process for a hearing officer to recommend a decision in a deportation case, there being no regulations providing for such recommendation. The court stated:
"We see no merit in this contention. While it may be a temptation for the Commissioner to give undue weight to such a suggestion, we cannot assume that he did so. It is the general practice of hearing officers to summarize the evidence and to suggest a decision, and we discern no lack of due process in this practice from the mere fact that the Attorney General's regulations may be silent on the subject."
In Willapoint Oysters v. Ewing, (1949) 174 F. (2d) 676, 694; cert, den., 338 U.S. 860, reh. den., 339 U.S. 945, the petitioner objected to the prosecution's being allowed to draw up proposed findings for the agency claiming that such procedure violated his constitutional right to a fair hearing. The court replied to this objection by stating:
"In judicial proceedings, the separation of judge and litigant necessary for a minimum of fairness is in that portion of the decisional process involved in actually making the decision. It cannot be contended that mere drawing of the findings is participation in the actual decision ." (Emphasis supplied)
A further illustration can be found in the case of Brennan v. Black, (Del. 1954) 104 A. (2d) 777, 795. In that case the plaintiff objected to the Board of Education's employing appraisers to value and assess land where the statute directed the board only to perform this function. The plaintiff relied upon the general principle that a board of assessment, in valuing and assessing real estate for the purposes of taxation, is performing discretionary or quasi-judicial duties and the performance of such duties as may not be delegated to others. 51 Am. Jur., Taxation, § 664. But the court pointed out that the use of appraisers does not involve the delegation of the assessor's authority so long as the board made the final decision.
It thus seems clear that there is no delegation of the power to decide where an agent merely makes proposed findings, as long as the ultimate decision is made by the board. Section 5 (2) of the
State Labor-Management Relations Act states, in part:
"If the Board finds upon the record of the hearing * * * it shall direct * * *."
It would be absurd to state that such language is a prohibition against recommendations by the agent who presided at the hearing. In addition, from a practical view of the matter, a report by that officer of conclusions of law and findings of fact based upon his presence at the hearing would be invaluable to those who have the responsibility of making the final decision. The board could better familiarize itself with the record. And the parties, by having an opportunity to file their objections to the proposed findings, could thus be assured that the board was fully apprised of the issues.
It is thus my conclusion that your first question must be answered in the negative.
The preparation of proposed findings by an agent has been provided for in ORS 183.460.
Since, by § 19 (2) of the State Labor-Management Relations Act, all hearings are to be conducted in accordance with ORS chapter 183, I can see no legal reason which would prohibit the board from including such a provision in the rules of practice and procedure to be adopted by the board.
Your second question is, therefore, answered in the negative.