Groendyke Transport, Inc. v. Davis

• Decision Date: 02 January 1969
• Docket Number: No. 26812.,26812.
• Citation: 406 F.2d 1158
• Parties: GROENDYKE TRANSPORT, INC., Appellee, v. Elmer DAVIS, Regional Director, 16th Region, National Labor Relations Board, Appellant, and Southern Conference of Teamsters, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

406 F.2d 1158 (1969)

GROENDYKE TRANSPORT, INC., Appellee, v. Elmer DAVIS, Regional Director, 16th Region, National Labor Relations Board, Appellant, and Southern Conference of Teamsters, Intervenor.

No. 26812.

United States Court of Appeals Fifth Circuit.

January 2, 1969.

COPYRIGHT MATERIAL OMITTED

Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Elmer P. Davis, Regional Director, N.L.R.B., Fort Worth, Tex., for appellant.

Payne Ratner, Wichita, Kan., Joe H. Tonahill, Jasper, Tex., for appellee.

L. N. D. Wells, Jr., Mullinax, Wells, Mauzy, Levy & Richards, Dallas, Tex., for intervenor, Southern Conference of Teamsters.

Before JOHN R. BROWN, Chief Judge, THORNBERRY, Circuit Judge, and TAYLOR, District Judge.

JOHN R. BROWN, Chief Judge:

This case raises two questions, the first, perhaps more important than the second, concerns the method by which we determine the cause. The second, more traditional, goes to the merits. We conclude that expedited disposition by summary proceedings on briefs but without oral argument is called for and proper. To the merits our answer is reversal of the Trial Court's decree as an unwarranted intrusion into the domain of the Board.

I.

This case comes to us on a motion of the NLRB to summarily reverse an order of the District Court enjoining enforcement of an Excelsior¹ order issued by the Board directing Groendyke Transport Co., the Employer, to furnish to the Regional Director a list of the names and addresses of all employees in units eligible to participate in the Board-ordered election. The Employer opposes summary disposition.²

On June 5, 1968, the Board issued a Decision and Direction of Election in Board Case No. 16-RC-4660 and 4661 directing the Regional Director to conduct elections among certain units of Employer's employees. Pursuant to the rule announced in Excelsior Underwear, Inc., 1966, 156 NLRB No. 111, the Board, in its Decision and Direction of Election, ordered Employer to submit to the Regional Director a list of the names and addresses of its employees in each unit eligible in the elections.

The Employer refused to produce the list as directed. Consequently, on June 24, 1968, the Regional Office served on it a subpoena duces tecum for the information requested.

The Employer did not move to revoke the subpoena, as it is entitled to do under § 11(1) of the Act and § 102.66(c) of the Board's rules, 29 C.F.R. § 102.66 (c). Rather, on June 26, 1968, the Employer filed a complaint in the Court below seeking to enjoin the Regional Director from conducting the elections as directed by the Board, and permanently to enjoin the Regional Director from initiating proceedings in any Federal Court to enforce the subpoena duces tecum or otherwise to seek to enforce the Board's Excelsior requirement.

On July 5, the Regional Director filed a motion to dismiss the complaint on the grounds that the Court lacked jurisdiction over the subject matter of the action and the complaint failed to state a claim upon which relief can be granted.

After a hearing on July 12, the Court below, on August 1, issued its decision denying the Regional Director's motion to dismiss and enjoining him from enforcing or attempting to enforce the Board's Excelsior rule against the Employer. Relying on the decision of the First Circuit in Wyman-Gordon Co. v. N. L. R. B., 1 Cir., 1968, 397 F.2d 394, cert. granted, 393 U.S. 932, 89 S.Ct. 301, 21 L.Ed.2d 268, the Court below found that the Excelsior rule is unenforceable and void because it was issued in violation of §§ 2 and 3 of the Administrative Procedure Act (5 U.S.C.A. §§ 552, 553). The Court below therefore concluded that it had jurisdiction over the subject matter of the action under Leedom v. Kyne, 1958, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210, that the subpoena issued by the Board against the Employer should be enjoined, and that the Regional Director be permanently enjoined from seeking to enforce any Board subpoena ordering the production of the names and addresses of the Employer's employees as required by the Board's Excelsior rule and the Decision and Direction of Election issued on June 5, 1968.

II.

The Employer challenges vigorously this Court's power under FRAP Rule 2³ to summarily dispose of the appeal. Besides the suggestion of en banc determination of that question (see note 2 supra) it also moved for oral argument on the Board's motion for summary reversal. The motion was considered without oral argument in accordance with the long tradition of this Court. See Local Fifth Circuit Rule 10(c). Its argument almost demolishes FRAP Rule 2 by the broad assertion that the Rules having the force of a statute⁴ assure to litigants the regular (at a sometime-leisurely pace) procedure for filing of a printed record (or appendix), the preparation and filing of regular briefs, and the submission with oral argument when, and as, the Court with its schedule can calendar the case either routinely or specially.⁵

At a time in which courts are everywhere importuned to exhaust fully all imaginative resources of judicial inventiveness,⁶ it would be an amazing thing to read FRAP Rule 2 as a new, narrow restriction on the power of the Courts of Appeals to gear themselves to the exigencies of today's complex legal problems, procedural and substantive, and to the demands of administrative judicial productivity. The Rule — set out perhaps purposefully at the very beginning — recognizes the need for special handling and the parallel existence of power. The usual thing is for submission with oral argument. But when the case is judicially determined not to warrant or require that usual process the Court, consistent with a fair opportunity to the parties to advance and counter arguments and contentions, can and should prescribe the method of submission and disposition.

We can think of at least two circumstances under which summary disposition is necessary and proper. Both of them appear in this case. The first comprises those cases where time is truly of the essence. This includes situations where important public policy issues are involved or those where rights delayed are rights denied. Second, are those in which the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case, or where, as is more frequently the case, the appeal is frivolous. Without canvassing all other possible or likely situations, we hold that where either of these circumstances is found, summary disposition is proper.

As with the demands of statutes and rules, nothing in the constitutional concept of due process forbids special, summary disposition without all of the marks of a traditional submission. Parties are normally assured a "hearing" but that term does not demand that the communication be oral and audible. By long practice, and frequently by express rules⁷ important substantive or procedural issues are fully and finally disposed of by the highest of tribunals wholly on written papers without oral argument of any kind. The requisites of that portion of due process described as "hearing" are satisfied by providing the parties with the opportunity of affirmatively advancing argument with supporting authority and a like opportunity for response and counter-argument by the adversary. This may be done by briefs without oral argument. Oral argument, as such, is rarely, if ever, so essential to elemental fairness as to orbit to a constitutional apogee. Indeed, the practice of Courts of disposing of cases in a variety of situations on the papers, reflects the experience of mature judges that oral argument in many, many cases adds nothing to the process of enlightenment. In these times of exploded and exploding⁸ dockets every proper effort must be made to allow Courts to hear and decide more cases more expeditiously. Indeed, the due process and equality so cherished is denied by the very process of nominally treating all cases alike. Thus every time a frivolous appeal or one in which there is a practical certainty how it must be decided is calendared and argued orally, some other litigant with a meritorious appeal, presenting serious questions of law for consideration by the Court, is deprived of his place at the bar. And it seldom is any answer to say that relief to such postponed litigant should come by expedited special settings. It isn't long until nearly all are preference cases.

When a case is frivolous or its outcome so certain as a practical matter the appellate court is not compelled to sacrifice either the rights of other waiting suitors, its own irreplaceable judge-time or administrative efficiency in judicial output by a traditional submission with all the trappings.⁹

We therefore find more than ample authority for summary disposition by the Court on its own motion or that of a party. Having determined that we have the power, we summarily reverse. The fact that we term this a "summary" reversal does not imply that the legal question presented was not thoroughly considered on its merits.¹⁰

III.

The merits may be disposed of quickly. The injunction was issued on August 1, 1968, and has prohibited the Board from going ahead with the representation proceeding. Instead of a prompt resolution of the question whether a majority of Employer's employees in the designated plants desire to be represented by the petitioning union, this litigation has caused delay and uncertainty. It amounts to an unwarranted intrusion into matters committed to the Board with a frustrating effect on a statutory mechanism that is to be swift and subject to minimal judicial scrutiny and then only under precise circumstances. Court interference suspends or burdens the election process.¹¹

This Court has spoken clearly on need for speed and the limited review of representation proceedings. "Certification orders are normally reviewable only when the Board petitions a court of appeals...