Wyman-Gordon Company v. NLRB, No. 7000.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtALDRICH, , McENTEE and COFFIN, Circuit
Citation397 F.2d 394
Decision Date12 November 1968
Docket NumberNo. 7000.
PartiesWYMAN-GORDON COMPANY et al., Appellants, v. NATIONAL LABOR RELATIONS BOARD, Appellee.

397 F.2d 394 (1968)

WYMAN-GORDON COMPANY et al., Appellants,
v.
NATIONAL LABOR RELATIONS BOARD, Appellee.

No. 7000.

United States Court of Appeals First Circuit.

June 12, 1968.

Certiorari Granted November 12, 1968.


397 F.2d 395

Quentin O. Young, Boston, Mass., with whom Herrick, Smith, Donald, Farley & Ketchum, Boston, Mass., was on brief, for appellants.

Solomon I. Hirsh, Washington, D. C., Attorney, with whom Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, and Bernard Dworski, Washington, D. C., Attorney, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

Certiorari Granted November 12, 1968. See 89 S.Ct. 301.

ALDRICH, Chief Judge.

This is an appeal from an order of the district court enforcing compliance with a National Labor Relations Board subpoena which ordered an employer to furnish names and addresses to its employees. The issuance of the subpoena stems from efforts of two unions, the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO (Boilermakers), and the United Steelworkers of America, AFL-CIO (Steelworkers), to represent some 1750 production and maintenance employees at appellant's plants in three Massachusetts communities. The Board's Regional Director, after investigation and hearing, ordered an election and directed appellant, in accordance with the rule announced in Excelsior Underwear,

397 F.2d 396
Inc., 1966, 156 N.L.R.B. 1236, to furnish the Board a list of the names and addresses of all employees eligible to vote. Appellant agreed to furnish a list of names, but refused to supply addresses. Notwithstanding this refusal, the election was held, resulting in 226 votes for the Boilermakers, 555 for the Steelworkers, and 903 against any union

On objection by both unions, the Regional Director set aside the election and ordered a new one. The Board affirmed this decision. Again the Regional Director demanded an Excelsior list, and again appellant refused. The subpoena then issued. The Board filed a complaint seeking enforcement of the subpoena or, alternatively, a mandatory injunction directing appellant to comply with the Excelsior requirement. The district court ordered enforcement of the subpoena, and this appeal followed. By it appellant has launched a broadside attack against the Excelsior rule, challenging its substance, the procedure of its promulgation, and the statutory basis of the subpoena power invoked to enforce it.

The court is of one mind in not being greatly impressed by the arguments challenging the wisdom of the Excelsior rule, but this is a matter on which the majority of the court does not feel called upon to make a decision. We mention briefly the Board's concern in insuring an informed employee electorate, and in balancing management's right of access to employees in the plant through the mails with a right on the part of unions — and anti-union employees — to have access to the addresses of a constantly changing roster of employees. It is unnecessary to repeat the Board's responses in Excelsior to the contentions that its authority to compel disclosure is limited to cases where other channels of information do not exist and that such compulsory disclosure invades the privacy of employees. Likewise we are not greatly impressed by the contention that compelling a list of names and addresses forces appellant to "interfere" with a labor organization, in violation of 29 U.S.C. § 158(a) (2), and to give a "thing of value" to a labor organization, in violation of 29 U.S.C. § 186. The former statute, as is indicated by the cases cited to us by appellant, is concerned with acts of favoritism. It is difficult to think that supplying the Board with information, pursuant to a Board order, which the Board will give to all persons alike who show a legitimate interest, would be considered a proscribed gift.

A threshhold question, however, is raised by appellant's claim that the Excelsior rule is invalid because, concededly, it was promulgated in disregard of the notice and publication requirements of the Administrative Procedure Act, 5 U.S.C.A. §§ 552, 553.1 In the opinion of the majority of the court this issue is determinative.

Events leading to the establishment of the rule grew out of two consolidated cases coming before the Board on union challenges of elections on the ground that the employers had refused to supply the unions with lists of names and addresses of employees so that the unions might answer a campaign letter sent by the company to the employees. Recognizing the problem to be one affecting more than just the parties before it, the Board chose to solicit the assistance of selected amici curiae, and, ultimately, to establish a rule which not only did not apply to the parties before it, but did not take effect for thirty days.2 In so doing we consider that the Board, to put it bluntly,

397 F.2d 397
designed its own rulemaking procedure, adopting such part of the Congressional mandate as it chose, and rejecting the rest

In presently justifying its position the Board does not seek to carve out for itself the special defense suggested by our brother Coffin in dissent, but asserts that what it did was proper administrative action approved by the Court in SEC v. Chenery Corp., 1947, 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995. It is, of course, true that the Court there recognized that an adjudicatory administrative body may promulgate rules through decision as well as through more formal rule-making procedures. This is a necessary and inevitable consequence of adjudication. Normally the Board must decide cases between party and party, as the Commission did in Chenery. The result, if stare decisis is to mean anything, is that any principle, once decided, stands as a guide for the future and may be spoken of as a rule. Examples are legion. Sometimes, until the Board spoke, all parties may have thought the "rule" was the other way. This may be unfortunate, but it is normally unavoidable, as Chenery demonstrates.

In Excelsior, however, the Board did not decide a case between party and party, or, more exactly, it decided a case one way, and took occasion to lay down a future rule the other way. Chenery in no fashion suggests approval of this. On the contrary, to the extent the Board was not deciding a case, this is precisely where Congress had instructed it as to the procedure it should adopt. The Board has chosen to disregard Congress.

Although the first time in this circuit, this is neither the first nor the most severe instance of Board action approximating contravention of the APA in this manner. It has been long and severely criticized, e. g., Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961); 1 Davis, Administrative Law § 6.13 (Supp.1967), with no apparent effect. We regret that the matter comes before us in connection with a rule to which we see little or no objection and for which there is much to be said. Yet, to blink at this procedure in this instance because we may approve of the result, we believe would be neither honest nor wise.3 Congress provided no exception in the APA for rules improperly promulgated, but which some court, in a case between the agency and some individual, was persuaded were sound. To recognize such an exception would be to emasculate the statute.

We read Judge Coffin's dissent as disagreeing on this matter only in that he believes the rule promulgated to be "procedural" within the APA definition and therefore not subject to the requirement that advance notice of the intended rule-making, and the substance of the rule, be given and that interested parties be afforded an opportunity to comment. 5 U.S.C.A. § 553. If the rule related simply to the mechanics of conducting an election, to superintending or checking the voters, we would agree. The Excelsior opinion makes the suggestion that this is one of the purposes. 156 N.L. R.B., supra, at 1242-1243. However, the Board's decision effectively contradicts its own declaration. The Board already had a valid rule requiring the employer to furnish a checklist. The additional requirement of the Excelsior rule...

To continue reading

Request your trial
17 practice notes
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...Davis, 5 Cir. 1969, 406 F.2d 1158, cert. applied for 394 U.S. 1010, 89 S.Ct. 1628, 23 L.Ed. 2d 39; Wyman-Gordon Co. v. NLRB, 1 Cir. 1968, 397 F.2d 394, cert. granted 393 U.S. 932, 89 S.Ct. 301, 21 L.Ed.2d 18 See note 10, supra. --------...
  • National Labor Relations Board v. Company, WYMAN-GORDON
    • United States
    • United States Supreme Court
    • April 23, 1969
    ...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 b......
  • C-Line, Inc. v. United States, Civ. A. No. 4965.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • May 22, 1974
    ...Inc. See Thomas v. County Office Committee of Cameron County, 327 F.Supp. 1244 (S. D.Texas 1971); Wyman-Gordon Company v. N.L.R.B., 397 F.2d 394 (1st Cir. 1968), rev'd on other grounds, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). If said ruling had been published in the Federal Regi......
  • NLRB v. QT Shoe Manufacturing Co., No. 17203.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 11, 1969
    ...Swift & Co. v. Solien, 274 F.Supp. 953 (E.D.Mo.1967); NLRB v. Cone Mills Corp., 68 LRRM 2980 (D.S.C.1968). In Wyman-Gordon Co. v. NLRB, 397 F.2d 394 (1 Cir. 1968), the court, although not reaching the question, nevertheless stated that it was not impressed by the arguments advanced in chall......
  • Request a trial to view additional results
17 cases
  • Riverside Press, Inc. v. NLRB, No. 25783.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 11, 1969
    ...Davis, 5 Cir. 1969, 406 F.2d 1158, cert. applied for 394 U.S. 1010, 89 S.Ct. 1628, 23 L.Ed. 2d 39; Wyman-Gordon Co. v. NLRB, 1 Cir. 1968, 397 F.2d 394, cert. granted 393 U.S. 932, 89 S.Ct. 301, 21 L.Ed.2d 18 See note 10, supra. --------...
  • National Labor Relations Board v. Company, WYMAN-GORDON
    • United States
    • United States Supreme Court
    • April 23, 1969
    ...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 b......
  • C-Line, Inc. v. United States, Civ. A. No. 4965.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
    • May 22, 1974
    ...Inc. See Thomas v. County Office Committee of Cameron County, 327 F.Supp. 1244 (S. D.Texas 1971); Wyman-Gordon Company v. N.L.R.B., 397 F.2d 394 (1st Cir. 1968), rev'd on other grounds, 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). If said ruling had been published in the Federal Regi......
  • NLRB v. QT Shoe Manufacturing Co., No. 17203.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 11, 1969
    ...Swift & Co. v. Solien, 274 F.Supp. 953 (E.D.Mo.1967); NLRB v. Cone Mills Corp., 68 LRRM 2980 (D.S.C.1968). In Wyman-Gordon Co. v. NLRB, 397 F.2d 394 (1 Cir. 1968), the court, although not reaching the question, nevertheless stated that it was not impressed by the arguments advanced in chall......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT