National Labor Relations Board v. Wyman-Gordon Company

PETITIONER:National Labor Relations Board
RESPONDENT:Wyman-Gordon Company
LOCATION:United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 463
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 394 US 759 (1969)
ARGUED: Mar 03, 1969
DECIDED: Apr 23, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – March 03, 1969 in National Labor Relations Board v. Wyman-Gordon Company

Earl Warren:

Number 463, National Labor Relations Board, petitioner, versus Wyman-Gordon Co.

Mr. Solicitor General.

Erwin N. Griswold:

Mr. Chief Justice and may it please the Court.

This case presents a question of administrative law, perhaps more suitable to discussion by a law school seminar than meriting extensive consideration by this Court because I believe that there are decisions of the Court which, though not directly authoritatively appoint, point the way to the decision which should be reached.

The legal problem began in 1966, when the National Labor Relations Board decided the case of Excelsior Underwear Company in 156 NLRB.

This opinion appears in full twice in the papers before the Court, once as appendix C to the petition for certiorari at pages 14 (a) through 33 (a), and also in the appendix or record at pages 12-28.

The Excelsior case involved a representation election proceeding under Section 9 (c) (1) of the National Labor Relations Act.

The vote went strongly against the Labor Union, petitioner, in that case and it filed objections to the conduct of the election.

One of the objections was, and I quote from page 13 of the appendix, “the employer’s conduct,” right at the middle of the page, “the employer’s conduct in refusing to supply the Union with a list of employees and their addresses for the purpose of allowing the Union to answer the letter referred to in objection number one.”

In due course, the Excelsior case and another case came before the Board for a hearing and it determined, and here I quote from page 14 of the appendix, this too being in the Excelsior opinion, “that the employer’s denial of the petitioner’s request where the names and addresses of employees eligible to vote in the elections in these two cases presented a question of substantial importance in the administration of the National Labor Relations Act.”

And, the Board then invited further briefs on this issue from the parties.

It also invited other interested parties to file briefs amici and to participate in the oral argument.

Potter Stewart:

Right there, Mr. Solicitor General, did the — was it the Board which selected this groups who should receive invitations to —

Erwin N. Griswold:

As I understand it, Mr. Justice, it was.

Potter Stewart:

In other words, this– unlike the rule making procedure, this was not left open for anybody in this system.

Erwin N. Griswold:

The opinion says that the Board invited certain interested parties to file briefs.

It was not like the rule making procedure where there is a notice and whoever becomes aware of that notice can participate in filing briefs.

Potter Stewart:

It was — these were — I see, these were invitations to a somewhat exclusive group, or at least —

Erwin N. Griswold:

Yes, but a rather representative group.

There were two national employer’s associations and six labor unions which participated, but I agree, it is not the procedure prescribed by the Administrative Procedure Act for rule making.

If it had been, the case would not be here.

Arguments were held on May 20, 1965 and, on the basis of the briefs and oral arguments, the Board entered its decision on February 4, 1966.

That appears on page 33 of the appendix.

In its decision, the Board concluded that higher standards of disclosure than we have here, before, imposed are necessary, and it established a requirement that will be applied in all lection — election cases, quoting from page 17 of the appendix.

Did it apply them in that case?

Erwin N. Griswold:

That’s the point, Mr. Justice.

It did not.

Under this requirement, let me state the requirement and then state what’s next.

Under this requirement, “within seven days after the Regional Director has approved a consent election agreement, the employer must file with the Regional Director an election eligibility list containing the names and addresses of all of the eligible voters and this information is then made available to all of the parties in this case.

Now, in answer to Mr. Justice Harlan’s question, I refer to footnote 5 of the Board’s opinion on page 17, the second paragraph of that footnote.

Erwin N. Griswold:

The same thing also appears later at the conclusion of the opinion on page 27, but what the Board said there was “however, the rule we have here announced is to be applied prospectively only.

It will not apply in the instant cases, but only in those elections that are directed or consented to, subsequent to 30 days from the date of this decision.

We impose this brief period of delay to ensure that all parties to forthcoming representation elections are fully aware of their rights and obligations as here stated.”

Potter Stewart:

So, the effect of this was to prevent any judicial review?

The Excelsior case itself, I suppose, because the Excelsior case decided in the favor of the employer, didn’t it?

And, the only way you could’ve — in other words —

Erwin N. Griswold:

Mr. Justice, I don’t see —

Potter Stewart:

The employer then had no duty to bargain with either one of the Unions.

Erwin N. Griswold:

There was no opportunity for judicial review in the Excelsior case.

Potter Stewart:

Yes, that’s what I mean.

Erwin N. Griswold:

But, I see no reason why there can’t be judicial review of the propriety of the regulation.

Indeed, we have briefed it and our opponents have briefed it of the order in the Wyman-Gordon case or whatever other case is taken up.

Potter Stewart:

That’s — my question was directed to the practical effect of what the Board did in the Excelsior case.

My —

Erwin N. Griswold:

The practical effect —

Potter Stewart:

By writing in an opinion in favor of the Unions and making a decision in favor of the employer.

The Board in fact, deliberately or otherwise, good or bad, rightly or wrongly, significantly or insignificantly did prevent judicial review of its opinion in ruling in that case, didn’t it?

Erwin N. Griswold:

It precluded review in that case.

Indeed, there is not generally judicial review of orders in representation.

Potter Stewart:

Well, except by refusal to bargain.

And, here, the Court’s —

Erwin N. Griswold:

That is not the —

Potter Stewart:

Decision was that the employer had no duty to bargain.

Erwin N. Griswold:

That is not the representation case.

That would be a subsequent unfair labor practice case which might arise —

Potter Stewart:

Which could stop the election, is that right?

Erwin N. Griswold:

Which might arise as a consequence of the decision in the Excelsior case but, in this case, there was no such subsequent unfair labor practice case.

Potter Stewart:

But in the Excelsior case the employer could not have been guilty of a refusal to bargain because the decision in that case, unless I misunderstood what you said, was in favor of the employer that he did not have to recognize the Union.

Erwin N. Griswold:

I agree, Mr. Justice.

At a later time, if the — a year later, for example, if the employer had been ordered to bargu — bargain, it could’ve had a review.

Erwin N. Griswold:

There is potential review in this case which arose six months later.

This was the background of the present case which began on July 12, 1966, about five months after the Excelsior case was decided when the International Union of Boilermakers filed a petition seeking to represent the employees of the respondent company.

Another Union also intervened.

The Regional Director determined that an election should be held, and he directed that the company, as required by the Board’s Excelsior decision, furnish a list of the names and addresses of the eligible voters.

The company refused to furnish the list.

The election was held and the Unions lost.

The Unions objected because of the company’s failure to provide the list of names and addresses.

This objection was sustained by the Regional Director and by the Board.

And, the Regional Director again directed the company to provide an employee list.

When the company again refused, the Regional Director issued a subpoena requiring the company to produce its books and records showing the names and addresses of its employees or, in the alternative, to furnish a list containing that information.

The Board denied the motion — the company’s motion to quash the subpoena.

When the company still refused to comply, the Board brought an action in the United States District Court for the District of Massachusetts to enforce the subpoena or, in the alternative, or a mandatory injunction directing the company to comply with the Excelsior requirement, and that is this case.

The District Court granted an order enforcing the subpoena.

The case —

Byron R. White:

I suppose that’s — I hope that question is here on whatever you do with this stuff.

Erwin N. Griswold:

Yes, Mr. Justice, I think it is here.

Byron R. White:

Whether — even if that rule ever going to give the list, I suppose, proceeding to the right of the Board to issue a subpoena.

You mentioned that if the District Court does concur, we’ve got to decide that.

Erwin N. Griswold:

Well, that’s one of the arguments which I hope to advance, that at least the Excelsior opinion is a great dictum.

Upon which, the Board can rely in making a later decision, which is this case.

In this case, where it is charged with an investigation as a part of the process of carrying out fair representative elections, it has determined that this company should provide a list of names and addresses and when that has not been provided, it has started this proceeding in Court to enforce its determination which, as Mr. Justice White suggests, is before this Court now.

Byron R. White:

Would this power to issue a subpoena be decided the same way, I suppose, even if the subsequent rule has never been there?

Erwin N. Griswold:

That seems to me, you might — well, I think the warning of the Excelsior rule eliminates argument about fairness which might surprise — which might be made in answer to something which came simply in this case, but I know of no reason why the Board could not have made no Excelsior decision but have decided in this case that Wyman-Gordon should provide a list of names and addresses and have started proceedings to enforce that decision.

Byron R. White:

Would it need to operate under the rule which is now the subpoena?

Do you think an order that this gives himself should have an order or is that one?

Erwin N. Griswold:

I believe, Mr. Justice, that the only orders that the Board can issue which are susceptible as such of enforcement in the Courts are orders in unfair labor practice cases.

Beyond that, it’s — it has power to issue subpoenas.

It also has power to make orders, which it can seek to have enforced in the District Courts under the power of the District Courts to enforce orders made by agencies engaged in the regulation of commerce.

Byron R. White:

It does having a report that — having made a rule, I think the Excelsior case gives anymore powers in that respect when the courtroom opened up?

Erwin N. Griswold:

I think perhaps, analytically, it does not.

Erwin N. Griswold:

It certainly provides a helpful background to sustain the propriety of the order, in that, people have had adequate notice.

But, I think that we might have very much the same case here without the Excelsior decision, in which event, we would not have problems under the Administrative Procedure Act and things of that sort.

Byron R. White:

Well, if the rule had been enacted or adopted in a rule making proceeding which no one questioned, the Board would still have an enforcement problem.

Erwin N. Griswold:

The Board would still have an enforcement problem which would be —

Byron R. White:

Just like this one.

Erwin N. Griswold:

Which would be very similar to what it has here.

Abe Fortas:

Mr. Solicitor General, in the other cases involving the Excelsior rule, did the question arise similarly, that is to say, as a consequence of a particularized order issued in the particular case?

Erwin N. Griswold:

Yes, Mr. Justice.

There are five decisions of Courts of Appeals sustaining the Excelsior rule and sustaining orders of the District Court to enforce it and all of them are cases analogous to this.

Abe Fortas:

There has never been an attempt to enforce the Excelsior rule as a rule, that is, for example, by — has the Board ever instituted, let us say, an unfair practice proceeding by a — for a failure to comply with the rule, absent an order in the particular case?

Erwin N. Griswold:

To the best of my knowledge, there has not been such a case.

Certainly, there has been no such case in the Courts of Appeals.

Potter Stewart:

As I understand, it’s not — is it your submission that the failure would be an unfair labor practice?

Erwin N. Griswold:

Yes, Mr. Justice, I think it would, but the unfair labor practice proceeding is somewhat complicated and prolonged and makes it very difficult to carry out elections promptly, which is the Board’s duty under Section 9 of the Act.

Potter Stewart:

The case is so far, as I understood your answer to Mr. Justice Fortas, have all arise as this one did, that is, by — and in all the other cases, the District Courts enforced the Board’s efforts to require the employer to furnish the list.

Is that right?

Erwin N. Griswold:

I think there’s one District Court decision in New Jersey which refused to enforce it, all of those which have gone to Courts of Appeals, the Board’s effort to enforce has been sustained except for this case.

This case went to the Court of Appeals for the First Circuit in an opinion by Chief Judge Aldrich, the District Court was reversed but Judge Coffin dissented.

The basis of Judge Aldrich’s opinion was that because the Excelsior requirement was made prospective only.

It was rule making rather than decision, and that it was invalid since it had not been promulgated in accordance with the procedures provided in the Administrative Procedure Act.

The Court also held that the Excelsior rule was not “procedural,” but was substantive and, thus, that it did not come within an expressed exception in the Administrative Procedure Act for procedural matters.

And, Judge Coffin dissented on this point too.

Now, we come to consideration of the legal question involved.

It requires consideration of the language of the National Labor Relations Act and of the Administrative Procedure Act.

Some portions of these two statutes are set out in appendix A of our brief on pages 55-60.

Unfortunately, despite the detail of these statutes, there’s nothing in them that sheds much light on the precise problem now before the Court.

The Administrative Procedure Act does tell an agency how to conduct rule making proceedings.

It does tell it what procedures to follow in adjudicatory proceeding, but it does not really tell when a matter is one or the other.

That, it seems to me, has to be determined out of more general principles.

Abe Fortas:

This was never published in the Federal Register, was it, the Excelsior rule?

Erwin N. Griswold:

No, Mr. Justice, because it didn’t follow the Administrative Procedure Act’s procedure.

Abe Fortas:

And on this, what I would deem to be, alternative theory, you’re not contending that this is rule making thing?

Erwin N. Griswold:

No, Mr. Justice.

We are contending that it’s adjudication and, therefore, it did not need to follow the procedure.

Abe Fortas:

And, do you also contend that even though it is adjudication and not rule making that it is self — that it has a self-contained imperative in the sense that, absent an order in the particular case, an affected party would have to comply with this?

Erwin N. Griswold:

It is the background for an order in a particular case with which the party, we submit, must comply.

Abe Fortas:

But, absent an order in the particular case, you would not contend that there’s an obligation on an affected company to comply with it, would you?

Erwin N. Griswold:

Yes, Mr. Justice.

I think there is just a decision of this Court that establishes law.

The decision of the National Labor Relations Board in the Excelsior case established the ways of administering this particular statue with which the — with whose administration the Board is charged.

Abe Fortas:

I see.

Erwin N. Griswold:

And, we think that the — that all employers are under a legal obligation to comply with.

Abe Fortas:

Well, then, you are saying that the effect of the Excelsior rule, even though it was adjudication, is the same as if it were a rule — an Excelsior rule making power?

Erwin N. Griswold:

I think I will say the same.

I was about to say much the same.

Abe Fortas:

Yes.

Erwin N. Griswold:

But, it is the same as is a rule established by adjudication, which is much the same as that of one established by rule making.

Byron R. White:

But, you don’t get — you don’t change your mandate rule making rule by an adjudication, do you?

Erwin N. Griswold:

Were this an amendment of a rule, Mr. Justice, it might be more difficult.

Byron R. White:

Yes, so there is the difference —

Erwin N. Griswold:

There is the decision of this Court which involves that, to which I will refer later.

This is the establishment of a way of dealing with election representation cases as a result of the Board’s experience which, in our view, was appropriately adjudicatory in nature.

The National Labor Relations Board — National Labor Relations Act gives the Board broad powers to administer the Act and we know from the Chenery case of more than 20 years ago that such powers are to be construed broadly, that they can be exercised by decisions of the administrative agency reached in adjudicatory proceedings.

It’s true that the decision in the Chenery case was applicable to that case.

Indeed, that was part of the problem there and was not prospective only, but there is much in this Court’s opinion in the Chenery case which would suggest the result for which we contend here.

There was, here, an actual controversy in the Excelsior case.

There was a hearing, as required by Section 9 (c) (1) of the National Labor Relations Act.

There was extensive briefing in oral argument and a full reasoned opinion by the Board.

In its opinion, the Board reached a conclusion as to the appropriate rule of decision for such cases, but then held, because of considerations of fairness to the parties then before it, that that rule should be applied only to subsequent cases.

We submit that the Board in the Excelsior case was engaged in adjudication and that the result which it reached in determining that controversy was validly arrived at in the process of adjudication.

Erwin N. Griswold:

It was a real case.

There was no faint issue, no effort by the Board to make rules simply because it thought that would be a good idea.

The matter was handled in an adjudicatory proceeding with all the care and safeguards required for the appropriate consideration and resolution of a case.

Out of that consideration, the Board came to a conclusion which it announced as its decision with careful reasoning to support it.

The decision represented a departure, as decisions often do, and the Board concluded that the solution it reached should be applied prospectively only.

Abe Fortas:

Mr. Solicitor General, is this a unique situation?

Erwin N. Griswold:

No, Mr. Justice.

Abe Fortas:

Is there anything else like it in Board practice?

Erwin N. Griswold:

As to the National Labor Relations Board, I am not aware of any other thing like it.

Abe Fortas:

Well, is there any other administrative agency that, so far as you know, that has done something like this?

Erwin N. Griswold:

No, but there are many Courts.

There may be administrative agencies.

I don’t know.

Abe Fortas:

Well, I think, the problem might be different.

I just wondered if you knew of anything where this same kind of curious situation is apparent.

Erwin N. Griswold:

No, Mr. Justice, I do not know of anything either in the Labor Board or in other administrative agencies.

Nevertheless, in determining what is adjudication, it seems to me, not inappropriate to look to what Courts do.

And, decisions which are prospective only in their operation have been known in this Court at least as far back as the Sunburst Oil and Refining case in 287 US, some-35 years ago.

In recent years, this Court has frequently decided that certain decisions should and can be applied prospectively only and no one has opposed that the Court was not adjudicating, not acting as a Court, when it did so.

Several of these cases are cited on pages 22 and 23 of this brief, I haven’t had a chance to study the opinions, but Allen against the State Board of Elections decided this morning appears to be another one.

And, perhaps the cases closest to the present situation are England against the Louisiana State Board of Medical Examiners in 375 US and James against the United States in 366 US.

In both of which, this Court announced rules in the James case overruling an earlier case in the England case, clarifying a situation which was uncertain as somewhat as in the Excelsior case.

And, in each case, the Court, for one reason or another, reasons of fairness to the parties in the particular case, announced that the rule would not be applied in this case.

In the England case, this Court’s words were “on the record in the instant case, the rule we announce today would call for affirmance of the District Court’s judgment, but we are unwilling to apply the rule against these appellants.”

No one has ever contended that, in the England case or in the James case, that the Court was engaged in rule making.

On the contrary, in both cases, this Court was acting as a Court.

It was deciding the cases hen before it and articulating the somewhat complicated reason which led it to the conclusion which it then reached.

Neither the England case nor the James case is dealt within the respondent’s brief here.

I should point out, however, that the respondent cites one case in his brief which is not dealt with in ours and which points the other way.

This is on page 13 of the respondent’s brief.

Erwin N. Griswold:

It is a per curiam decision of this Court in Chicago & North Western Railway Company against Chicago, Burlington & Quincy Railroad Company where this Court affirmed a judgment of a District Court dismissing an effort by the Interstate Commerce Commission to enforce an order because, in that case, the Interstate Commerce Commission had made an order far broader than the matters before the Commission.

Indeed, the Commissioner’s hearing examiner had said that these matters are not involved in this case and no consideration has been given to them.

When the matter went to the Commission, the Commission issued a broad order applicable not only to the case, but to the whole field.

Now, the District Court refused to enforce an order based on that, and this Court affirmed it per curiam.

On the —

Potter Stewart:

That case arose, I gather from just reading its description in the respondent’s brief, as though this — we have before us now the Excelsior case itself.

Is that right?

Although, I suppose, it’s a bit different.

Erwin N. Griswold:

No, I think not, Mr. Justice.

I think that —

Potter Stewart:

Well, in that case, the Lower Court had held that the promulgation of a rule for future application, though done in the course of an adjudicatory proceeding —

Erwin N. Griswold:

And it was in — the other parties then sued to —

Potter Stewart:

To us.

Erwin N. Griswold:

To prevent the enforcement of the rule and future applications.

Potter Stewart:

I suppose —

Erwin N. Griswold:

And, this Court summarily held that —

Potter Stewart:

The issue is the same however it arises, I suppose.

Erwin N. Griswold:

The issue is the same, but I think the factual situation is distinguished.

Byron R. White:

Some are distinguished.

Erwin N. Griswold:

No.

Well, I think it’s distinguishable from this, in that, there, the Interstate Commerce Commission went beyond this case and decided a broad general proposition, as to which there had been no hearing of any sort.

Indeed, the hearing examiner had announced that the broad issue was not involved in the case.

Abe Fortas:

Unless it would strike at the theory of the Federal Register Act, wouldn’t it, and that is to say that here in the Federal Register Act is a company subject to the National Labor Relations Act if it wants to find out what the rules are and consult the Federal Register Act and rely with confidence on what appears there.

Surely you, as well as I, remember the controversy that led to that.

And, here, what you’re saying is that they also had to consult the adjudicated cases, not merely to find principles, but also to find a specific and detailed rule such as this Excelsior rule.

Erwin N. Griswold:

Yes, Mr. Justice.

I don’ think the Federal Register Act has anything to do with it that it hasn’t been relied upon by the respondents.

One has to look to many things besides the — what’s in the Federal Register to learn what the law is, including the decisions of this Court.

Moreover, the Federal Register Act expressly provides that its rule that an unpublished regulation is not binding, is not applicable to a person who has actual notice of the rule.

And, there isn’t any doubt that Wyman-Gordon had actual notice of this rule and deliberately chose not to comply with.

Erwin N. Griswold:

So, I don’t think the Federal Register Act has anything to do with it.

The problem of how you find out what the law is, I suppose, is the lawyer’s problem and I would suggest anybody involved in a labor case should look to the decisions as well as to the rules because, for better or for worse, the National Labor Relations Board has never proceeded in the rule making basis and there is no material in the Federal Register on this.

Potter Stewart:

Why hasn’t the Board used its explicit rule making power?

Is there any — did — has it ever given an explanation?

Erwin N. Griswold:

There was a slight explanation last fall in a statement made to Congress in which they said that they thought they would sometime as far as I know, they haven’t yet.

I can understand why it is the nature of their area is delicate and difficult and evolving and things don’t formulate in rule fashion the way they do in the treasury system where it’s fairly easy to make rules.

Potter Stewart:

Even with respect to something like the amount in contro — I can’t think they phrased in term of art, but the amount of money involved —

Erwin N. Griswold:

Yes, but, Justice, they do have —

Potter Stewart:

Which is a — that’s a rule and they do that in the —

Erwin N. Griswold:

They do that by press release.

Potter Stewart:

Yes.

Erwin N. Griswold:

And I don’t understand at all, I can say, is that that’s not involved in this case.

Potter Stewart:

No.

Erwin N. Griswold:

And, perhaps I’m glad.

There are other contentions. [Laughter]

There are other contentions in the case which are dealt with in our brief, and my time has expired so I’ll have to leave them to that.

Earl Warren:

Mr. Young.

Quentin O. Young:

I would please the Court.

I apologize for my voice today, but I’ve had laryngitis or something for the last week and I can’t speak very well.

I would like to direct myself to a question that you asked, Mr. Justice, of the Solicitor General as to why the Board does not use the rule making powers.

I think one of the reasons is explicit here because they developed the Excelsior rule in a fashion and in a manner which it was not directly subject to Court review either by the Excelsior Company or by any other company in the country that was involved in the various Excelsior cases.

The Solicitor General has indicated that the Wyman-Gordon Co. refused, refused, and refused as though we were doing something illegal and not complying with the Board’s Excelsior rule.

Actually, we were doing the only thing which we could do in order to test the Excelsior rule because of the way that the Board had promulgated it.

I think that the Administrative Procedure Act and the National Labor Relations Act make it very clear that the Board should and must follow the Administrative Procedure Act in promulgating its rules, even though it is arbitrarily for the last 30-odd years, refused to follow this position.

You asked the question as to whether an attorney representing a client could look to the Federal Register and find out what the Board’s rules were or whether he could — it would be necessary for him to go into the cases.

Well, actually, I have found over the course of the years that when I advice a client on Friday what he can do under the National Labor Relations Act, I must also advice him that, on Monday morning, I may change my opinion and tell him what he could do on Friday he couldn’t do on Monday.

I think that the Board, and now I’m getting away from my argument, the Board should be required to follow the Administrative Procedure Act because it is the duty of the Board to stabilize labor relations in this nation.

And, actually, what they have done by proceeding on an ad hoc basis, they have unstabilized labor relations.

The point that lawyers advice their client at their peril, and I think that if the Board were to make extensive use of their rule making power, all of this confusion would be —

Abe Fortas:

Would you —

Quentin O. Young:

Pardon?

Abe Fortas:

An order was issued against you in this specific case.

Quentin O. Young:

I didn’t — I’m sorry?

Abe Fortas:

I say, an order was issued against you in this specific case, an order commanding you to comply with the Excelsior procedures.

Quentin O. Young:

Well, that order, if you call it that, sir, came out —

Abe Fortas:

Well, wasn’t it an order?

Quentin O. Young:

Well, it was in effect, but it w — when the Board sends notice that a petition for an election has been filed, it also sends a notification in regard the Excelsior list.

So that, the only way we could contest Excelsior is by refusing to give the Excelsior list to the Board.

Abe Fortas:

Well, then you — I suppose you would —

Quentin O. Young:

We had no other means —

Abe Fortas:

I suppose you would agree that you really have to contest two things here.

One, you hope you can contest the Excelsior order as improper rule making, but you’ve also got to contest the order issue — the validity of the order issued in this particular case even if it had never appeared in the Excelsior litigation.

Quentin O. Young:

I would say we would have to do it that — exactly that.

I would like to get back here in my argument.

In Section 6, the National Labor Relations Board is specifically directed to use — to make, from time to time, amend and rescind in the manner prescribed by the Administrative Procedure Act, such rules and regulations as maybe necessary to carry out the provisions of this subcontract.

This is what we contend the Board did in Excelsior and it has not followed the rule established in the Administrative Procedure Act in Section 4 and 5, whereby all agency’s rules and regulations of a general policy nature must be published and a hearing held in accordance with the pos — provisions of the Administrative Procedure Act.

I think of what — of most importance —

Byron R. White:

Well, Mr. Young, do you — is it your suggestion that this is the only way the Board could’ve proceeded?

Quentin O. Young:

No, it is not my position, but it’s my position that this is a rule of the nature that should’ve been published in a proc — following the procedure — the Administrative Procedure Act.

Byron R. White:

You say, no, it isn’t the only way it could’ve proceeded there?

Quentin O. Young:

I recognize the fact that the agency has a right to make rules in an adjudicatory fashion and in a quasi-legislative fashion.

Byron R. White:

Couldn’t it made this one in adjudicative —

Quentin O. Young:

Well, I — it’s our contention —

Byron R. White:

Context without purporting to an argument?

Quentin O. Young:

It’s our contention that it is improper adjudicatory deci — rule making here because they decided case one way between Excelsior and the Board.

They said as far as Excelsior is concerned —

Byron R. White:

Yes, but the date — I suppose that they’ve decided — they certainly have decided you against you.

Quentin O. Young:

Well, they hadn’t made no decision as such.

The Board hasn’t made any decision against me.

Byron R. White:

Why not?

Quentin O. Young:

Because they haven’t — I refuse to give them the list where the sole purpose is to turn around and hand it to the units.

Byron R. White:

And then what did the Board do?

Quentin O. Young:

Then the Board filed a subpoena.

Byron R. White:

Issued a subpoena.

Quentin O. Young:

Issued a subpoena.

Byron R. White:

And the —

Quentin O. Young:

The District Court upheld the subpoena and the Circuit —

Byron R. White:

The Board, in this case, this concrete case now before us has said that, “in connection with this election, you must furnish the list,” and you said “no, we don’t” and that’s when they got a subpoena.

And, we have the validity of that subpoena at issue.

Quentin O. Young:

That’s correct.

Byron R. White:

Now, assume that subpoena is valid.

Just assume that for the moment.

Is there anything left of the case?

Quentin O. Young:

No.

Byron R. White:

If you concede —

Quentin O. Young:

If the subpoena is valid, I have to give up the list, but I —

Byron R. White:

You might end up — you say the subpoena — part for the reason for your saying the subpoena is invalid is because of the Excelsior rule?

Quentin O. Young:

We claim that the Excelsior rule is invalid, that the list is not subject to subpoena powers of the District Court because it is not evidence and it is not to be used to resolve any investigation.

Byron R. White:

That would be the same question whether Excelsior had been adopted or —

Quentin O. Young:

It would be the same whether Excelsior existed or not, but it is my further contention —

Byron R. White:

But how is the rule itself involved here?

Quentin O. Young:

Pardon?

Byron R. White:

How is the rule itself involved here?

Quentin O. Young:

Well, the subpoena was issued on the basis of the rule.

Byron R. White:

Well, it was also issued just on the basis of the Board’s decision in this case if they want the list.

Quentin O. Young:

No, sir.

The way the Board’s order reads it is based solely upon Excelsior and they have proceeded to seek the subpoenas on the basis of Excelsior, that the list constitutes evidence.

And, it’s our contention that the lists are no evidence and are not subject to the subpoena powers of the District Courts.

Byron R. White:

I suppose even if their rule that they adopted was not valid that they might, in this case, have said “well, we think, in the context of this case, the employer should furnish the list of employees.”

Quentin O. Young:

They could’ve done that, but they did not.

Byron R. White:

So, you could — you agree they could’ve done that?

Quentin O. Young:

I agree that they possibly could’ve done it and we would’ve had a trial —

Byron R. White:

In the context of this specific case?

Quentin O. Young:

We would have had to follow the same procedure in order to contest it.

I think one of the most important things here is that, as cited by the Solicitor General and in — set forth in our brief, on April 2 in 1965, and this is a quote — a direct quote from the Excelsior decision, the Board decided “these two cases presented a question of substantial importance in the administration of the National Labor Relations Act.

Now, if they can make a statement like that in their own decision, I don’t see how they can avoid the rule making requirements of Section 6.

The Board, in effect, in inviting certain parties to file briefs, were — was giving lip service to the Administrative Procedure Act, but I think it’s interesting to review the invitees who were asked to participate as amici in the Excelsior decision.

The Board invited, as interested parties, the Chamber of Commerce, the United States, the AFL-CIO, the IUE, the National Association of Manufacturers, retail clerks, Textile Workers Union, and the Teamsters Union.

I submit, even on the basis of the interested parties that the Board invited to file amicus briefs that the Courts were stacked against the employers.

The Board, in its brief on page 15, argues that it is impractical for the Board to follow the Administrative Procedure Act because such a procedure is too rigid and too flexible — too inflexible for it to proceed in industrial relations field.

Actually, this statement in the Board’s brief on page 15 is a gross misstatement of the law because the law, under Section 6, has specific and explicit authority to make any rule at any regulation that it wishes.

The argument that the APA procedure is too inflexible just will not stand up under scrutiny of Section 6 of the Act.

The Board has placed a great deal of emphasis in its brief in its argument on the Chenery case, but it is this exact case that Judge Aldrich in the First Circuit found distinguishable and, upon which, he was able to strike down the Excelsior rule.

The Excel — the Chenery case was a decision between an agency and an individual group.

It applied — the decision was applicable to that group and to that case and also for future operation.

Excelsior, however, the Board decided the case in one way in an adjudicatory proceeding and then used that as a vehicle for announcing an absolutely free and new rule which had never been applied in any of the NLRB election procedures.

Supposing they’ve applied it in the original Excelsior case and, thus, respectively lead it to that case.

Quentin O. Young:

I would’ve had a very much more difficult time in arguing the case, sir.

Now, how do you draw the line of it being in the character of the rules subject to the rule making process?

Quentin O. Young:

Well, I think that anything that is of the general purpose effects the policy of the administrative agency that is involved should be using rule making powers rather than adjudicatory powers because this stabilizes, at the state of law, the individual practitioners.

And, if all agencies were to follow it, we would have at least not — 30-day notice if there’s going to be a change in the law and we could accommodate ourselves to it.

This way, we have to read the morning — Monday morning papers to know what the Board has done on Friday.

This is one of the pleas that I’m making here that is collateral to the actual Wyman-Gordon case.

You have to do that in the Supreme Court, don’t you?

Quentin O. Young:

Well, it’s not quite that broad, sir.

Thurgood Marshall:

Mr. Young, this had been litigated at least five times — six times through all the fields, right?

Quentin O. Young:

Yes, sir.

Thurgood Marshall:

Is that notice?

Quentin O. Young:

Pardon?

Thurgood Marshall:

Is that notice or labor on it?

Quentin O. Young:

We’re not claiming lack of notice in his particular case because we did have notice, but we’re — what I’m claiming that if we had the orderly use of the Administrative Procedure Act, practitioners in this field would have a great deal of more stabilized area in which to operate.

Thurgood Marshall:

Well, has the NLRB ever varied from the Excelsior rule since they set it down?

Quentin O. Young:

In some slight instances where there has been a mistake — an innocent mistake, let us say, or in case —

Thurgood Marshall:

Such innocent mistake, they have followed it uniformly?

Quentin O. Young:

No, they have overlooked it.

I mean, what I’m saying “innocent mistake,” several names were misspelled, several addresses were incorrect and then, again, they do not apply it under Section 7 in the construction industry where you can have a very early election.

Thurgood Marshall:

Well, isn’t that notice?

Quentin O. Young:

Isn’t what notice?

Thurgood Marshall:

The fact that they uniformly followed it since the date it was promulgated?

Quentin O. Young:

Yes.

Thurgood Marshall:

Just the same as if it had been a rule?

Quentin O. Young:

This is correct.

Thurgood Marshall:

What is your complaint?

Quentin O. Young:

My complaint is that they had no authority under the Act to issue this rule, and they did it in an illegal manner.

Thurgood Marshall:

Well, you say it’s a rule.

They say it’s an adjudication.

Quentin O. Young:

Yes, sir.

Thurgood Marshall:

Do you want us to make the differential?

Quentin O. Young:

No.

Well, I think that where they decide a case one way in regard to the party, here Excelsior, and then they used that as a vehicle to set down a rule —

Thurgood Marshall:

If they published it in the Federal Register, would you be satisfied?

Quentin O. Young:

No, sir.

I think we should have — no, sir —

Thurgood Marshall:

Sir, would you?

Quentin O. Young:

I think, under the terms of the Administrative Procedure Act, I think we have the right to be heard before a rule become effective under APA.

Thurgood Marshall:

Weren’t you heard in the District Court in the Court of Appeals, deny you not now being heard?

Quentin O. Young:

This is after the facts, sir.

Thurgood Marshall:

Well, I mean, you haven’t given up your list yet.

Quentin O. Young:

No, sir.

Thurgood Marshall:

Well, how is it after the fact?

Quentin O. Young:

Pardon?

Thurgood Marshall:

How is it after the fact?

You haven’t given the —

Quentin O. Young:

It’s after the fact of Excelsior is what I meant.

Thurgood Marshall:

Well, you haven’t given your list up yet.

Quentin O. Young:

That’s correct.

Thurgood Marshall:

And you’re not going to give it up unless the Court —

Quentin O. Young:

Unless you say I have to.

Thurgood Marshall:

Will leave you to it.

So, aren’t you getting all the hearing you’d get any place?

Quentin O. Young:

Well, I’d like the decision in my favor though.

Thurgood Marshall:

Oh, that’s the complaint.

I can understand your complaint.

Quentin O. Young:

In discussing their failure to follow the Administrative Procedure Act, the Board said at page 27 of their brief, it is extremely unlikely that it would’ve obtained more enlightenment on the problem if it had followed the Administrative Procedure Act.

I think this is a complete misstatement of their obligations under the Act to Congress.

Congress has directed the Board in Section 6 to establish rules and to amend rules and to rescind rules through the use of the Administrative Procedure Act and, yet, the Board arbitrarily, over the years, has taken no notice of its obligations under Section 6.

The Board again tries to say that there was no disadvantage to Excelsior because of the application of the rule to the future rather than to the past, but it is our argument here that all other employers who have to participate in an Excelsior rule are at a disadvantage because the only way Excelsior can be challenged is by the means that we have adopted here.

I think I’d like to get back to Excelsior itself and the purposes of it, the Board claims that the purpose of Excelsior is two-fold.

One is to approve — improve communications between Unions and employees who may be prospective Union members, and to im — minimize the challenges that may follow Board-conducted election.

But, I think this is a false statement.

Earl Warren:

We’ll recess now, Mr. — we’ll recess now.

You may continue your argument.

Quentin O. Young:

I’d like to discuss briefly the Excelsior decision itself and what it purports to do and, in effect, what it does.

The Board states that there’s a two-fold purpose in deciding Excelsior.

One is to improve communications between Union business agents and perspective Union members and, two, it is to minimize challenges to voters after an election has been held.

And yet, when you analyze it, the Board has adopted what I consider per se rule here and says that only in this manner can Unions properly inform the electric of the issues involved.

And yet, the Board, in holding to Excelsior, has refused to admit any other means of communication.

In one case which is currently pending petition for certiorari in Teledyne, the Board refused to permit the mailing of notices or solicitations by an in — disinterested third party.

In Teledyne, for example, at first, Teledyne Corporation stated that there would be no prohibition for solicitation of Union membership in the plant and in working — unworking time.

The Board refused to accept this as sufficient form of communication.

Quentin O. Young:

Teledyne then offered to send each employee the stamped envelope addressed to the Regional Director of the National Labor Relations Board an telling the Regional Director that he had the right to give his name and address to the Unions.

Finally, Teledyne offered to the use of the American Arbitration Association, offered at its own expense, Teledyne’s expense to mail to the Union any communications that the Unions wished.

None of these were sufficient for the Board.

I think that their argument that this is to favor communications is not exactly truthful.

I think what they’re actually trying to do is to encourage Union business agents, Union officials to visit these employees in their homes, and this is the sole reason why they’re doing it and yet, at the same time, it has long been established that if an employer, during an election campaign, visits the employee’s home to discuss Union matters with him, automatically commits an unfair labor practice.

I think this dual standard strikes at the heart of the Excelsior decision itself.

Earl Warren:

By the same reasoning, are you saying that they should not omit this rule to be effective so that the Union official will be prevented from seeing?

Quentin O. Young:

No, I’m saying that —

Earl Warren:

Visiting the homes?

Quentin O. Young:

This is an extension of the law beyond anything that this Court has ever upheld.

It permits and encourages visitation in the homes by Union organizers and this Court, in —

Earl Warren:

You feel that that’s contrary to the Act?

Quentin O. Young:

I don’t think it’s necessary to the Act or if you going to permit the Union organizers into the homes, then I think you ought to permit the employers into the homes.

I think it constitutes dual standard.

The second basis of —

Hugo L. Black:

Well, would there be anything that prohibited the employers from coming?

Quentin O. Young:

Pardon, sir?

Hugo L. Black:

Is it your idea that the rule bars employers but permits Union men to come into the home?

Quentin O. Young:

The Excelsior rule permits Union men to visit the homes by a long series of cases, other cases.

It has been held that if employer does the same thing, this goes back well before Excelsior, that if employer visits a home for the purpose of discussing Union activities in their Union organization, it is an automatic per se unfair labor practice.

The second purpose that the Board has stated was the justification of Excelsior is that it minimizes and reduces challenges to voters after an election.

I think the facts in our Wyman-Gordon case —

Byron R. White:

Are there cases that say that Union visitation in the home is not an unfair thing?

Quentin O. Young:

I can’t cite you the specific case, but I know that there’s never been a case that says the Union organizer cannot visit the homes.

I think that the fallacy of listening of challenges by the use of the Excelsior list is clearly demonstrated in our brief at page 4 where, of approximately 1,750 voters, there are exactly six challenges.

Now, I don’t know how many — what percentage figure that works out t, but it certainly indicates that challenges had no real place in the Wyman-Gordon election in 1966.

Further, I have analyzed the 30th annual report of the Labor Board which is from the count for the fiscal year 1965 and the annual report for fiscal year 1967.

These are the years — full year prior to Excelsior and the full year after Excelsior.

In 1965, there were 7 — some-7,776 elections.

In its annual report, they have a table 11 which has listed the cha — cases in which challenges have been involved.

Quentin O. Young:

They list under the heading of “challenges only.”

There are 312 elections out of the 7,000 involving challenges.

Thus, only 4.01% out of all the election cases held, the year prior to Excelsior, involved challenges.

Turning then to the Sixth 32nd annual report, it shows that in the fiscal year 1967 8,116 elections were held.

In table 11, it indicates under “challenges only” that there were 371 elections in which challenges were held, this results in a 4.5% of the — cases of the elections held by the Board in fiscal 1957 involving challenges.

The improvement factor after the Excelsior requirement was put into effect.

It’s a -56 — -0.56%.

So, the Board by its own records clearly shows that the Excelsior rule has no bearing whatsoever on minimizing challenges after the election.

Another thing that I would like to point out is that this per se rule applies to all elections, and I can see no justification of the application of Excelsior rule in elections with two, three, four, and five people involved in the unit.

I’d like briefly to go forward and —

Earl Warren:

They probably wouldn’t be asking for it there, would they?

Quentin O. Young:

Well, the Board requires that you may not have an election, except when you comply with Excelsior.

This is one of my complaints about it.

There’s no need for it.

Earl Warren:

As a matter of practicality, if there are only four or five people, they’d know where their homes are.

Quentin O. Young:

Of course, they are.

Earl Warren:

They have to, don’t they?

Quentin O. Young:

But, this is a rule.

Earl Warren:

Do they know where all of your people live?

Quentin O. Young:

They can find out.

Earl Warren:

How will they find out?

Quentin O. Young:

We have, in the City of Wister Greater — City of Wister, directory which lists all employees in the Greater Wister area showing that they are employees of Wyman-Gordon.

This, I have suggested as an alternate means for the Union contacting anybody who wants to find out Wyman-Gordon employees can go to the Wister Public Library and get the Wister Directory and they’ll find every one of our employee’s name therein.

Earl Warren:

How often is that directory changed?

Quentin O. Young:

On my recollection, it’s once every two years.

Earl Warren:

Every two years?

Quentin O. Young:

Yes.

Earl Warren:

How much of a turnover do you have in your plant?

Quentin O. Young:

We have a relatively minor turnover.

Earl Warren:

Some of them have a —

Quentin O. Young:

Some of them, yes, indeed.

Earl Warren:

A great turnover, don’t they?

Quentin O. Young:

But, we are the biggest employer in Wister area and we have a relatively small —

Earl Warren:

Yes.

Quentin O. Young:

I’d like to turn now to the question of whether this list constitutes evidence, and I believe that they do not.

The purpose of this list is solely for the Board to take the list in one hand and then hand it right over to the Union.

It is not used to prove anything.

It is not used to disprove anything.

I submit that, under the ordinary definition of evidence, the Excelsior list do not — does not come within that — those terms.

In actual practice, the Board requests the list when everything has been done in an election proceeding, except the actual voting itself, so that there’s no evidentiary matter that is under investigation.

There’s no question open, other than the final results of the election.

I think that the Excelsior list does not come within the common accepted definition of what evidence is.

Corpus jurors of 31 CJS evidence is a demonstration of a fact that signifies that which demonstrates, makes clear, ascertains the truth of the point — truth of a factor appointing issue, either on one side or another.

In legal acceptant, the term “evidence” includes all the means by which any alleged matter of fact, the truth of which, is submitted to investigation is established or disproved.

I don’t see how anybody can hold that taking a list of employees and turning them over without even looking at it, insofar as the Board is concerned, constitutes evidence.

It is submitted —

Hugo L. Black:

What arm do you think it does?

Quentin O. Young:

Well, I think it greatly enhances the Union’s right to approach employees, and I don’t think that this is —

Hugo L. Black:

Do you say that they shouldn’t have the right to have the addresses?

Quentin O. Young:

This is my contention because I think that violates the right of privacy.

I don’t think any employer —

Hugo L. Black:

Whose?

Quentin O. Young:

Pardon?

Hugo L. Black:

Whose right of privacy?

Quentin O. Young:

The right of privacy of the employees.

I don’t think it has —

Hugo L. Black:

The company has the right to raise that?

Quentin O. Young:

Pardon?

Hugo L. Black:

Do you think the company had the right to invade the employee’s right of privacy?

Quentin O. Young:

I do, indeed.

Quentin O. Young:

I think this is an invasion of the employee’s right of privacy and I have covered this in my brief.

I don’t think any employer should have the right to give a list of names and addresses of his employees to anybody outside the federal government and for their purposes, but not to be turned over to an outside agency.

Earl Warren:

Mr. Young, I understood you to say that you do turn them over to some publication that puts him in the public library.

Quentin O. Young:

We do not give our employee’s names.

They obtain —

Earl Warren:

How would they get them?

Quentin O. Young:

I do not know, but it’s R.L. Polk Company from Cleveland or Cincinnati that puts it out.

I know that much, but I don’t know how they obtain them.

They don’t obtain them from the company because the company has had a long policy of not giving the names and addresses.

Hugo L. Black:

What provision of the Act do you think would support that?

Quentin O. Young:

Support what?

Hugo L. Black:

The view that the company somehow goes contrary to the Act when asked to give out the names of the employees to the Board so that they can let Unions in?

Quentin O. Young:

Well, I think that is an assistance to the Union on — in a violation in Section 8 (a) (2) and of a violation of Section 302 in regard to giving a thing of value to the Board that can be turned over to the Unions.

Further, one last idea, I don’t think that if you compare the language of Section 11 of the National Labor Relations Act and the language of the Railway Labor Act, giving the Board authority to investigate, you will find that there’s any authority for the Labor Board to obtain these lists and turn them over to the Union.

In the Railway Labor Act, the Board is powered — empowered to issue subpoenas for such information as may be deemed necessary by it to carry out the purposes of the Act.

No such authority is granted to the Labor Board in the National Labor Relations Act.

Erwin N. Griswold:

Mr. Chief Justice, may I make a correction in one of my —

Earl Warren:

Yes.

Erwin N. Griswold:

Interest to a question.

Earl Warren:

You may, Mr. Solicitor General.

Erwin N. Griswold:

I was asked whether there were other instances where the Labor Board or other agencies had made prospective determinations in adjudicatory proceedings, and I said I was unaware of them.

This was a clear slip.

On page 14 of our brief in footnote 11, there are listed several other instances both involving the Board and involving other agencies.

This is not a unique situation.

Earl Warren:

Very well.