National Labor Relations Board v. Wyman-Gordon Co.

394 U.S. 759, 89 S. Ct. 1426, 22 L. Ed. 2d 709, 1969 U.S. LEXIS 3101

Opinions

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 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), and the Excelsior rule had not been promulgated in accordance with the requirements that the Administrative Procedure Act prescribes for rule making, 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 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 rule making, which it defines as “an agency statement of general or particular applicability and future effect,” 5 U. S. C. § 551 (4).² The Act requires, among other things, publication in the Federal Register of notice of proposed rule making 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. 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 rule-making 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 rule-making 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 of the requirements of the Administrative Procedure Act. The “rule” created in Excelsior was not published in the Federal Register, which is the statutory and accepted means of giving notice of a rule as adopted; only selected organizations were given notice of the “hearing,” whereas notice in the Federal Register would have been general in character; under the Administrative Procedure Act, the terms or substance of the rule would have to be stated in the notice of hearing, and all interested parties would have an opportunity to participate in the rule making.

The Solicitor General does not deny that the Board ignored the rule-making provisions of the Administrative Procedure Act.³ But he appears to argue that Excelsior’s command is a valid substantive regulation, binding upon this respondent as such, because the Board promulgated it in the Excelsior proceeding, in which the requirements for valid adjudication had been met. This argument misses the point. There is no question that, in an adjudicatory hearing, the Board could validly decide the issue whether the employer must furnish a list of employees to the union. But that is not what the Board did in Excelsior. The Board did not even apply the rule it made to the parties in the adjudicatory proceeding, the only entities that could properly be subject to the order in that case. Instead, the Board purported to make a rule: i. e., to exercise its quasi-legislative power.

Adjudicated cases may and do, of course, serve as vehicles for the formulation of agency policies, which are applied and announced therein. See H. Friendly, The Federal Administrative Agencies 36-52 (1962).⁴ They generally provide a guide to action that the agency may be expected to take in future cases. Subject to the qualified role of stare decisis in the administrative process, they may serve as precedents. But this is far from saying, as the Solicitor General suggests, that commands, decisions, or policies announced in adjudication are “rules” in the sense that they must, without more, be obeyed by the affected public.

In the present case, however, the respondent itself was specifically directed by the Board to submit a list of the names and addresses of its employees for use by the unions in connection with the election.⁵ This direction, which was part of the order directing that an election be held, is unquestionably valid. See, e. g., NLRB v. Waterman S. S. Co., 309 U. S. 206, 226 (1940). Even though the direction to furnish the list was followed by citation to “Excelsior Underwear Inc., 156 NLRB No. 111,” it is an order in the present case that the respondent was required to obey. Absent this direction by the Board, the respondent was under no compulsion to furnish the list because no statute and no validly adopted rule required it to do so.

Because the Board in an adjudicatory proceeding directed the respondent itself to furnish the list, the decision of the Court of Appeals for the First Circuit must be reversed.⁶

II.

The respondent also argues that it need not obey the Board’s order because the requirement of disclosure of employees’ names and addresses is substantively invalid. This argument lacks merit. The objections that the respondent raises to the requirement of disclosure were clearly and correctly answered by the Board in its Excelsior decision. All of the United States Courts of Appeals that have passed on the question have upheld the substantive validity of the disclosure requirement,⁷ and the court below strongly intimated a view that the requirement was substantively a proper one, 397 F. 2d, at 396.

We have held in a number of cases that Congress granted the Board a wide discretion to ensure the fair and free choice of bargaining representatives. See, e. g., NLRB v. Waterman S. S. Co., supra, at 226; NLRB v. A. J. Tower Co., 329 U. S. 324, 330 (1946). The disclosure requirement furthers this objective by encouraging an informed employee electorate and by allowing unions the right of access to employees that management already possesses. It is for the Board and not for this Court to weigh against this interest the asserted interest of employees in avoiding the problems that union solicitation may present.

III.

The respondent contends that even if the disclosure requirement is valid, the Board lacks power to enforce it by subpoena. Section 11 (1) of the National Labor Relations Act provides that the Board shall have access to “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question,” and empowers the Board to issue subpoenas “requiring the attendance and testimony of witnesses or the production of any evidence in such proceeding or investigation.” Section 11 (2) gives the district courts jurisdiction, upon application by the Board, to issue an order requiring a person who has refused to obey the Board's subpoena “to appear before the Board . . . there to produce evidence if so ordered, or there to give testimony touching the matter under investigation or in question . . . .” 29 U. S. C. §§ 161 (1), (2).

The respondent takes the position that these statutory provisions do not give the Board authority to subpoena the lists here in question because they are not “evidence” within the meaning of the statutory language. The District Court held, however, that “in the context of § 11 of the Act, 'evidence' means not only proof at a hearing but also books and records and other papers which will be of assistance to the Board in conducting a particular investigation.”⁸ The courts of appeals that have passed on the question have construed the term “evidence” in a similar manner. NLRB v. Hanes Hosiery Division, 384 F. 2d 188, 191-192 (C. A. 4th Cir. 1967). See NLRB v. Rohlen, 385 F. 2d 52, 55-58 (C. A. 7th Cir. 1967); NLRB v. Beech-Nut Life Savers, Inc., 406 F. 2d 253, 259 (C. A. 2d Cir. 1968); British Auto Parts, Inc. v. NLRB, 405 F. 2d 1182, 1184 (C. A. 9th Cir. 1968); NLRB v. Q-T Shoe Mfg. Co., 409 F. 2d 1247 (C. A. 3d Cir. 1969). We agree that the list here in issue is within the scope of § 11 so that the Board’s subpoena power may be validly exercised.

The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with directions to reinstate its judgment.

It is so ordered.

1

When we granted certiorari, the Fifth Circuit had expressly approved the procedure the Board followed in adopting the Excelsior rule. Howell Refining Co. v. NLRB, 400 F. 2d 213 (1968). Two other circuits had approved enforcement of the Excelsior rule without explicitly passing on the correctness of the method by which it was adopted. NLRB v. Hanes Hosiery Division, 384 F. 2d 188 (C. A. 4th Cir. 1967); NLRB v. Rohlen, 385 F. 2d 52 (C. A. 7th Cir. 1967). After our grant of certiorari in the present case; three more courts of appeals explicitly upheld the Excelsior rule and the procedure by which it was adopted, NLRB v. Beech-Nut Life Savers, Inc., 406 F. 2d 253 (C. A. 2d Cir. 1968); British Auto Parts, Inc. v. NLRB, 405 F. 2d 1182 (C. A. 9th Cir. 1968); NLRB v. Q-T Shoe Mfg. Co., 409 F. 2d 1247 (C. A. 3d Cir. 1969); and the Fifth Circuit reaffirmed its earlier holding in Howell Refining Co., Groendyke Transport, Inc. v. Davis, 406 F. 2d 1158 (1969).

2

We agree with the opinion of Chief Judge Aldrich below that the Excelsior rule involves matters of substance and that it therefore does not fall within any of the Act’s exceptions. See 5 U. S. C. §553 (b) (A).

3

The Board has never utilized the Act’s rule-making procedures. It has been criticized for contravening the Act in this manner. See, e. g., 1 K. Davis, Administrative Law Treatise § 6.13 (Supp. 1965); Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L. J. 729 (1961).

4

The Solicitor General argues that this Court has previously approved “rules” articulated by the Board in the adjudication of particular cases without questioning the propriety of that procedure. He cites Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); NLRB v. A. J. Tower Co., 329 U. S. 324 (1946); NLRB v. Seven-Up Bottling Co., 344 U. S. 344 (1953); and Brooks v. NLRB, 348 U. S. 96 (1954). In none of these cases has this Court ruled upon or sanctioned the exercise of quasi-legislative power—i. e., rule making—without compliance with § 6 of the NLRA and the rule-making provisions of the Administrative Procedure Act.

5

In his Decision and Direction of Election, the Regional Director ordered that “[a)n election eligibility list, containing the names and addresses of all the eligible voters, must be filed with the Regional Director within seven (7) days of the date of this Decision and Direction of Election. The Regional Director shall make the list available to all parties to the election. . . .”

6

Mr. Justice Harlan’s dissent argues that because the Board improperly relied upon the Excelsior “rule” in issuing its order, we are obliged to remand. He relies on SEC v. Chenery Corp., 318 U. S. 80 (1943). To remand would be an idle and useless formality. Chenery does not require that we convert judicial review of agency action into a ping-pong game. In Chenery, the Commission had applied the wrong standards to the adjudication of a complex factual situation, and the Court held that it would not undertake to decide whether the Commission’s result might have been justified on some other basis. Here, by contrast, the substance of the Board’s command is not seriously contestable. There is not the slightest uncertainty as to the outcome of a proceeding before the Board, whether the Board acted through a rule or an order. It would be meaningless to remand.

7

See NLRB v. J. P. Stevens & Co., 409 F. 2d 1207 (C. A. 4th Cir. 1969), and the cases cited in n. 1, supra.

8

270 F. Supp., at 285. The Court of Appeals did not reach the issue whether the Board could subpoena the lists in question.