394 U.S. 759 (1969), 63, National Labor Relations Board v. Wyman-Gordon Co.

Docket Nº:No. 63
Citation:394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709
Party Name:National Labor Relations Board v. Wyman-Gordon Co.
Case Date:April 23, 1969
Court:United States Supreme Court
 
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Page 759

394 U.S. 759 (1969)

89 S.Ct. 1426, 22 L.Ed.2d 709

National Labor Relations Board

v.

Wyman-Gordon Co.

No. 63

United States Supreme Court

April 23, 1969

Argued March 3, 1969

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Syllabus

The National Labor Relations Board (NLRB) ordered a representation election among respondent's employees, and directed respondent to furnish a list of names and addresses of employees eligible to vote. Respondent refused to furnish the list, the election was held without it, and the unions were defeated. The NLRB ordered a new election and respondent again refused to obey an NLRB order to supply the list. The NLRB issued a subpoena ordering respondent to provide the list or records showing the employees' names and addresses. The NLRB filed an action in the District Court seeking to have its subpoena enforced or to have an injunction issued to compel compliance with its order. The District Court held the NLRB's order valid and directed respondent to comply. The Court of Appeals reversed, holding the order invalid because it was based on a rule laid down in an earlier NLRB decision, Excelsior Underwear Inc., 156 N.L.R.B. 1236, which rule had not been promulgated in accordance with the rulemaking requirements of the Administrative Procedure Act.

Held: The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to reinstate its judgment. Pp. 761-775.

397 F.2d 394, reversed and remanded.

MR. JUSTICE FORTAS, joined by THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE, concluded that:

1. In the Excelsior case the NLRB purported to exercise its quasi-legislative power and make a rule without following the rulemaking requirements of the Administrative Procedure Act. The Excelsior "rule" is therefore invalid. Pp. 763-765.

2. Here respondent was directed in an adjudicatory proceeding to submit a list of employees for use in connection with an election,

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and it was not the Excelsior "rule," but this valid order, that respondent was required to obey. P. 766.

3. The requirement of disclosure of employees' names is substantively valid, as the NLRB has wide discretion to ensure the fair and free choice of bargaining representatives, and such disclosure furthers this objective. P. 767.

4. The list of names comes within the scope of the term "evidence" in § 11 of the National Labor Relations Act, and so may properly be subpoenaed by the NLRB. Pp. 768-769.

MR. JUSTICE BLACK, joined by MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL, concluded that:

1. The requirement that an employer supply a list of employees prior to an election is valid, and can be enforced by subpoena. P. 769.

2. The Excelsior practice was adopted by the NLRB as a legitimate incident to the adjudication of a specific case, and the NLRB properly followed the procedures applicable to "adjudication", rather than "rulemaking." Pp. 770-775.

(a) NLRB's adjudicatory and rulemaking powers are almost inseparably related, and the exercise of one power does not exclude the use of the other. Pp. 770-771.

(b) The choice between proceeding by general rule or by adjudication lies primarily in the informed discretion of the NLRB. Pp. 771-772.

(c) All procedural safeguards required for adjudication were satisfied in the Excelsior case, and that decision did constitute adjudication within the meaning of the Administrative Procedure Act. Pp. 772-773.

(d) Even though the Excelsior list-furnishing requirement was to apply prospectively, the Excelsior order should not be regarded as any less a part of the adjudicatory process merely because the NLRB did not feel that it should upset Excelsior Company's reliance on past refusals to compel disclosure by setting aside that particular election. Pp. 773-774.

(e) It would be impractical to require the NLRB, in effect, to proceed by adjudication only when it could decide, prior to adjudicating a specific case, that any new practice to be adopted would be applied retroactively. Pp. 774-775.

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FORTAS, J., lead opinion

MR. JUSTICE FORTAS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE WHITE Join.

On the petition of the International Brotherhood of Boilermakers and pursuant to its powers under § 9 of the National Labor Relations Act, 49 Stat. 453, 29 U.S.C. § 159, the National Labor Relations Board ordered an election among the production and maintenance employees of the respondent company. At the election, the employees were to select one of two labor unions as their exclusive bargaining representative, or to choose not to be represented by a union at all. In connection with the election, the Board ordered the respondent to furnish a list of the names and addresses of its employees who could vote in the election, so that the unions could use the list for election purposes. The respondent refused to comply with the order, and the election was held without the list. Both unions were defeated in the election.

The Board upheld the unions' objections to the election because the respondent had not furnished the list, and the Board ordered a new election. The respondent again refused to obey a Board order to supply a list of employees, and the Board issued a subpoena ordering the respondent to provide the list or else produce its personnel and payroll records showing the employees' names and addresses. The Board filed an action in the United

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States District Court for the District of Massachusetts seeking to have its subpoena enforced or to have a mandatory injunction issued to compel the respondent to comply with its order.

The District Court held the Board's order valid and directed the respondent to comply. 270 F.Supp. 280 (1967). The United States Court of Appeals for the First Circuit reversed. 397 F.2d 394 (1968). The Court of Appeals thought that the order in this case was invalid because it was based on a rule laid down in an earlier decision by the Board, Excelsior Underwear Inc., 156 N.L.R.B. 1236 (1966), [89 S.Ct. 1428] and the Excelsior rule had not been promulgated in accordance with the requirements that the Administrative Procedure Act prescribes for rulemaking, 5 U.S.C. § 553. * We granted certiorari to resolve a conflict among the circuits concerning the validity and effect of the Excelsior rule. 393 U.S. 932 (1968).1 I

The Excelsior case involved union objections to the certification of the results of elections that the unions

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had lost at two companies. The companies had denied the unions a list of the names and addresses of employees eligible to vote. In the course of the proceedings, the Board "invited certain interested parties" to file briefs and to participate in oral argument of the issue whether the Board should require the employer to furnish lists of employees. 156 N.L.R.B. at 1238. Various employer groups and trade unions did so, as amici curiae. After these proceedings, the Board issued its decision in Excelsior. It purported to establish the general rule that such a list must be provided, but it declined to apply its new rule to the companies involved in the Excelsior case. Instead, it held that the rule would apply "only in those elections that are directed, or consented to, subsequent to 30 days from the date of [the] Decision." Id. at 1240, n. 5.

Specifically, the Board purported to establish

a requirement that will be applied in all election cases. That is, within 7 days after the Regional Director has approved a consent-election agreement entered into by the parties . . . , or after the Regional Director or the Board has directed an election . . . , the employer must file with the Regional Director an election eligibility list, containing the names and addresses of all the eligible voters. The Regional Director, in turn, shall make this information available to all parties in the case. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed.

Id. at 1239-1240.

Section 6 of the National Labor Relations Act empowers the Board

to make . . . , in the manner prescribed by the Administrative Procedure Act, such rules and regulations as may be necessary to carry out the provisions of this Act.

29 U.S.C. 156. The Administrative Procedure Act contains specific provisions governing agency rulemaking, which it defines as "an agency statement of general or particular applicability and future

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effect," 5 U.S.C. § 551(4).2 The Act requires, among other things, publication in the Federal Register of notice of proposed rulemaking and of hearing; opportunity to be heard; a statement in the rule of its basis and purposes, and publication in the Federal Register of the rule as adopted. [89 S.Ct. 1429] See 5 U.S.C. § 553. The Board asks us to hold that it has discretion to promulgate new rules in adjudicatory proceedings, without complying with the requirements of the Administrative Procedure Act.

The rulemaking provisions of that Act, which the Board would avoid, were designed to assure fairness and mature consideration of rules of general application. See H.R.Rep. No.1980, 79th Cong., 2d Sess., 21-26 (1946); S.Rep. No. 752, 79th Cong., 1st Sess., 13-16 (1945). They may not be avoided by the process of making rules in the course of adjudicatory proceedings. There is no warrant in law for the Board to replace the statutory scheme with a rulemaking procedure of its own invention. Apart from the fact that the device fashioned by the Board does not comply with statutory command, it obviously falls short of the substance...

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