42 558 International Telephone and Telegraph Corporation, Communications Equipment and Systems Division v. Local 134, International Brotherhood of Electrical Workers 8212 1313

• Citation: 42 L. Ed. 2d 558,419 U.S. 428,95 S.Ct. 600
• Decision Date: 14 January 1975
• Docket Number: AFL-CIO,No. 73,73
• Parties: . 42 L.Ed.2d 558 INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, COMMUNICATIONS EQUIPMENT AND SYSTEMS DIVISION, Petitioner, v. LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,, et al. —1313
• Court: United States Supreme Court

419 U.S. 428

95 S.Ct. 600.

42 L.Ed.2d 558

INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, COMMUNICATIONS EQUIPMENT AND SYSTEMS DIVISION, Petitioner,

v LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al.

No. 73—1313.

Argued Nov. 19, 1974.

Decided Jan. 14, 1975.

Syllabus

Petitioner employer filed an unfair labor practice charge against respondent union under § 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for a labor organization to induce employees to strike to force an employer to assign particular work to employees in a particular labor organization. Section 10(k) of the NLRA provides that whenever a § 8(b)(4)(D) unfair labor practice charge is filed, the National Labor Relations Board shall hear and determine the dispute out of which such unfair labor practice arose, unless within 10 days after notice that such charge has been filed the parties submit evidence that they have adjusted the dispute, in which case or upon compliance with the Board's decision, such charge shall be dismissed. Pursuant to § 10(k) a hearing was held before a hearing officer, and subsequently the Board rendered a decision adverse to respondent, which then indicated it would not comply therewith. The Board's General Counsel thereafter issued a complaint on the unfair labor practice charge, and at a trial examiner's hearing, at which the General Counsel was represented by the same attorney who had been the hearing officer in the § 10(k) proceeding, the trial examiner concluded that respondent had violated § 8(b)(4)(D), and the Board issued a cease-and-desist order. The Court of Appeals, on respondent's petition to set aside the order, agreed that respondent had violated § 8(b)(4)(D), but refused to enforce the order, on the ground that because the § 10(k) hearing officer had participated in both the § 10(k) and the § 8(b)(4)(D) proceedings, the Board had not complied with 5 U.S.C. § 554(a), the Administrative Procedure Act (APA), which prohibits commingling prosecutorial and adjudicatory functions in agency proceedings, and generally applies to 'every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,' 5 U.S.C. § 551(7) defining 'adjudication' as 'agency process for the formulation of an order,' and § 551(6) defining 'order' as 'the whole or a part of a final disposition . . . of an agency in a matter other than rule making.' Held: The APA, 5 U.S.C. § 554, does not govern proceedings conducted under § 10(k) of the NLRA. Pp. 441—448.

(a) The § 10(k) determination is not itself a 'final disposition' within the meaning of 'order' and 'adjudication' in the APA. When Congress defined 'order' in terms of a 'final disposition,' it required that 'final disposition' to have some determinate consequences for the party to the proceeding, and here the Board does not order anybody to do anything at the conclusion of the § 10(k) proceeding. Pp. 441—444.

(b) Nor is such determination 'agency process for the formulation of an order' within the meaning of 5 U.S.C. § 551(7). Although important practical consequences in the § 8(b)(4)(D) proceeding result from the Board's determination in the § 10(k) proceeding, they do not alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former 'agency process' for the formulation of the order of the latter. The § 10(k) proceeding is unlike the typical hearing before an administrative law judge which is then subject to consideration by the agency. The issues in a § 10(k) proceeding are similar to but not identical with the focus of the § 8(b)(4)(D) proceeding. The standard of proof is different, and the inquiry in a § 8(b)(4)(D) proceeding is whether the union engaged in forbidden conduct with a forbidden objective. The proceedings are separate, and the agency makes the determination in each of them. Pp. 444—448.

486 F.2d 863, reversed and remanded.

Matthew E. Murray, Chicago, Ill., for petitioner.

Norton J. Come, Washington, D.C., for respondent NLRB in support of petitioner.

Robert E. Fitzgerald, Jr., Chicago, Ill., for respondent Local 134, IBEW.

Mr. Justice REHNQUIST delivered the opinion of the Court.

In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding § 8(b)(4)(D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization.¹ In the belief that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions, NLRB v. Radio & Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 576—577, 81 S.Ct. 330, 332—333, 5 L.Ed.2d 302 (1961) (hereinafter CBS), Congress at the same time enacted § 10(k), 29 U.S.C. § 160(k),² to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals.

One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang Sung v. McGrath, 339 U.S. 33, 36—41, 70 S.Ct. 445, 447—450, 94 L.Ed. 616 (1950), by enacting the Administrative Procedure Act (Act).³ Section 5 of that Act, now 5 U.S.C. § 554, establishes requirements governing certain agency proceedings that come within the Act's definition of 'adjudication.' We granted certiorari to the Court of Appeals for the Seventh Circuit in this case, 416 U.S. 981 (1974), to review its conclusion that 5 U.S.C. § 554 applied to a § 10(k) proceeding conducted by the Board, 486 F.2d 863 (1973). Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to § 554, Bricklayers, Masons and Plasterers International Union of America v. NLRB, 155 U.S.App.D.C. 47, 475 F.2d 1316 (1973).

The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner Internicians, who were represented by the which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems.⁴ In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone Co., who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as 'pulling cable'; petitioner subcontracted this work to the C. A. Riley Electric Construction Co. whose employees are represented by respondent. Second, by a process known as 'terminating the cable,' the cable would be connected to the telephone instruments. Petitioner planned to have its own technational Telephone & Telegraph Corp., CWA, perform this work.

C. A. Riley had hoped to perform the terminating work and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent's business agent was quite explicit: 'We'd better get that work or there will be trouble.'⁵

When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work, all of respondent's members left their jobs.⁶ That after- noon a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.⁷

On December 3, 1970, petitioner filed a charge alleging that respondent had violated § 8(b)(4)(D) of the National Labor Relations Act, 29 U.S.C. § 158(b) (4)(D). The Board's Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of § 10(k):

'Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)(D) of section 158(b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.' 29 U.S.C. § 160(k).

Respondent was notified that a hearing would be conducted by a hearing officer ⁸ upon the dispute alleged in the charge, and the hearing was held on March 12, 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional...