Wyman-Gordon Company v. National Labor Relations Board
397 F.2d 394
1st Cir.
1968
Check Treatment

*1 394 1962, April 2, reviewing suffered Goins after sioner’s order when the Court compensation pay- when conscientiously the date is unable to conclude ceased, report but neither con- supporting

ments the evidence such deci- tained definite statements that Goins sion is substantial. N. L. R. B. v. O. A. return to for- Super 1967, could not or should not his. Markets, Inc., Cir., Fuller 5 employment. mer Of one these 374 F.2d 197. Judge “A District found that less con- In our view the Trial Court was hardly report could crete and conclusive able to evaluate the several medical re imagined.” F.Supp. at 924. 226 ports, personal appear absence report, As to the other medical physicians, ances all the well Trial Court said it was Deputy finding Commissioner. His “presents that Goins evidence Deputy order Commissioner’s subsequent to March disabled supported by was not substantial evi F.Supp. 1962.” at 924. But 266 clearly erroneous, dence is not and we report “completely Court found this believe it is correct. Rule Fed.R.Civ.P. examining at odds” with the 52(a). physicians, and held that this doctor’s Affirmed. * * * jargon use of does “medical that his obscure the obvious fact report nothing more than a collec-

tion of medical woven around terms patient’s

thread statements own his

about the nature his accident

persistent complaints.” F.Supp. at 266

925. The Trial cited several Court appellate Louisiana decisions where al., WYMAN-GORDON COMPANY et diagnoses physician have been of this Appellants, criticized.2 v. NATIONAL scope judicial LABOR RELATIONS review BOARD, Appellee. findings Deputy Commissioner’s Longshoremen’s No. 7000. fact Act ease governed by the Proce Administrative Appeals United States Court of Act, seq., dure et 5 U.S.C. 1001 First Circuit. findings “the are this standard is that 12, June 1968. unsup they accepted to be unless 12,1968. Certiorari Granted Nov. ported by evidence substantial See 89 S.Ct. 301. O’Leary record considered a whole.” Inc., U.S. Brown-Pacific-Maxon, v. 340 504, 470, 472, 508, 483 95 L.Ed. (1951), Corp. (citing Camera Universal 474, Bd., v. National Labor Rel. 340 U.S. 456, (1951)).3 71 95 L.Ed. 456 S.Ct. review, however, mere not to Deputy

rubber-stamping Commis- 2. (1965); Com- S.Ct. v. W. Horace Williams 13 L.Ed.2d See Smith 895 La.App., pany, Orleans, O’Keeffe, Cir., 1967, Austin v. 84 So.2d 5 379 930; Liberty Higgins, 223; Donovan, F.2d Mutual Insurance Hall v. Inc. v. 5 Cir., 1967, Cir., Company, La.App., 18; So. 1 153 373 F.2d Alexander v. Leavey, 553; Cir., 1966, 536; American General 5 v. 2d Herbert 370 F.2d Cir., Company, La.App., Neuman, Cir., 1966, 4 Vicknair v. Insurance 5 832; F.2d O’Keeffe v. Pan 150 So.2d American Airways, Inc., Cir., 1964, World 319; Smith, Cunnyngham Donovan, Hinchman & F.2d See also v. O’Keeffe Grylls Cir., 1964, Assocs., Inc., 380 U.S. 328 F.2d 694.

Quentin Young, Boston, Mass., O. with Herrick, Donald, Farley Smith, whom & Judge, Coffin, dissented. Circuit Ketchum, Boston, Mass., brief, was on appellants. for Washington, C., Hirsh, Solomon I. D. Attorney, Ordman, with whom Arnold Counsel, Manoli, General Dominick L. As Genera] Counsel, sociate Mallet Marcel Prevost, Counsel, Asst. General and Dworski, Washington, C., Bernard D. Attorney, brief, appellee. for were ALDRICH, Judge, Before Chief McE Judges. COFFIN, NTEE Circuit ALDRICH, Judge. Chief appeal is an from order This enforcing compliance with district court Labor Relations Board sub- National poena fur- which ordered an its em- nish names and addresses ployees. The issuance of the unions, the In- stems from efforts of two ternationa] Boilermakers, Brotherhood of Forgers Ship Builders, Blacksmiths, Iron Helpers, (Boilermakers), AFL-CIO America, and the United Steelworkers represent (Steelworkers), AFL-CIO production some 1750 and maintenance appellant’s plants in three at The Board’s Massachusetts communities. Regional Director, investigation after hearing, ordered an election appellant, directed in accordance Under- rule announced in Excelsior 1236, to wear, Inc., limited to N.L.R.B. where channels of cases the names Board a list of information do furnish the not exist and that such eligible compulsory pri- and addresses all invades disclosure agreed vacy Appellant to furnish to vote. Likewise we are supply names, greatly impressed by a list refused the contention that Notwithstanding compelling refus- addresses. a list of and addresses names resulting held, al, appellant the election forces *3 to “interfere” awith Boilermakers, organization, 555 for the 226 votes for in violation of against any Steelworkers, 158(a) “thing (2), give and 903 the U.S.C. and to § organization, union. of value” to a labor in vio- of lation statute, 29 U.S.C. 186. The former unions, § by objection Re- the both On by as is the indicated cited cases gional election and set aside Director the by appellant, to us acts is concerned with affirmed one. The Board ordered a new of favoritism. It is difficult to think Again Regional Di- this the decision. supplying that the Board with informa- list, and rector demanded again Excelsior tion, pursuant order, to a Board which subpoena appellant refused. The give persons the Board will to all alike complaint then The Board filed a issued. legitimate interest, who show a or, seeking of enforcement proscribed gift. considered a mandatory injunction di- alternatively, a recting comply appellant with the however, question, A threshhold requirement. district Excelsior by appellant’s raised claim that of sub- court ordered enforcement because, Excelsior rule is invalid con By poena, appeal it this followed. cededly, promulgated disregard it was in appellant at- has launched a broadside publication of require the notice and against challeng- rule, tack ing the Excelsior ments of the Administrative Procedure substance, procedure of its its Act, 552, 5 U.S.C.A. 553.1 In the §§ promulgation, of basis opinion majority of the of the court subpoena power enforce it. invoked to issue is determinative. leading in not The court is of one mind Events of establishment being argu greatly impressed grew by the the rule of out two consolidated challenging coming ments of wisdom cases challenges before Board on union ground Excelsior but matter on this is elections on the majority employers which does not the court supply had refused to upon feel called a decision. We unions make with lists names and addresses briefly employees might mention insuring concern in of Board’s so that the unions employee elector campaign an informed answer by letter sent ate, management’s balancing company and in employees. Recognizing to the right plant problem in the access affecting one through right just parties with it, the mails than the Board before part of unions—and anti-union chose to solicit the assistance selected curiae, and, —to constantly to the ultimately, have access addresses amici to establish changing roster of a rule which apply not did not unnecessary repeat parties it, It is responses Board’s but did before ef take thirty days.2 Excelsior to the contentions fect for doing In so we authority compel Board, consider put its disclosure is bluntly, Davis, 1. We are here concerned with See Administrative § Daw 6.10 rules, publish (1958). them effect of failure compliance properly at, arrived selves 552(a) (1). Thirty days period In this § 5 U.S.C.A. is the which must Judge respect elapse agree publication with the views of we between and effective Friendly speaking promulgated for the United court date of a rule in accordance Aarons, Cir., 1962, procedures. 310 F.2d Sates v. with APA 5 U.S.C.A. § 553 (d). 347-348, valid such against of them. with actual notice severely rulemaking procedure, long and designed manner. It has been its own Congressional criticized, g., Peck, Atrophied part e. adopting Rule-Making chose, rejecting the the National Powers of mandate as Board, Labor Relations 70 Yale L.J. 729 rest. (1961); Davis, Law Administrative justifying position the presently (Supp.1967), apparent 6.13 ef- with no out for it- does not seek carve regret fect. We comes matter suggested our special defense self the before in connection with a us dissent, asserts Coffin in brother objection little we see or no proper administra- it did that what Yet, for which there is much to be said. approved action Court tive procedure to blink at this instance Chenery Corp., 332 U.S. SEC may approve result, because we we L.Ed. believe would be neither honest nor wise.3 is, course, there the Court true that It Congress provided exception no in the adjudicatory recognized adminis- improperly promulgated, APA for rules *4 may promulgate body trative court, but which some in a ease between through through more decision as well as agency individual, per- the and some was rule-making procedures. This is formal recognize suaded were sound. To consequence necessary and inevitable a exception an would to the be emasculate adjudication. Normally Board the statute. party and decide cases between must Chenery. party, in as the did Commission Judge We read Coffin’s dissent dis- result, mean The if stare decisis is agreeing only on this in matter he that any principle, once anything, de- is that promulgated “pro- believes the rule to be cided, guide future stands as a for cedural” within APA definition and may spoken Exam- of as a be rule. subject requirement therefore not legion. Sometimes, ples until that advance notice of the rule- intended may parties spoke, Board all have making, rule, and the substance be thought way. other “rule” was the given parties and that af- interested unfortunate, may it is nor- This but opportunity forded an 5 to comment. unavoidable, Chenery mally demon- U.S.C.A. 553. If the rule related sim- strates. ply conducting to the mechanics however, Excelsior, Board did superintending checking election, or party and not decide a case between voters, agree. we Excel- The or, party, exactly, it case decided opinion suggestion sior makes the way, lay down a took occasion to one purposes. is N.L. 156 Chenery way. rule in future R.B., supra, However, at 1242-1243. suggests approval of this. no fashion On effectively the Board’s decision contra- contrary, extent the Board was to the dicts own declaration. The Board al- deciding case, precisely is not ready requiring had a valid rule em- Congress as to where had it instructed ployer to furnish a checklist. The ad- procedure adopt. The it should requirement ditional of the Excelsior Congress. disregard Board has chosen expressly rule is apply not stated when * * * Although interval “too time brief time in this cir- the first for the union to be able make cuit, this is nor most neither first meaningful approxi- use of this information.” of Board severe action instance only Id. at mating fn. 14. We can conclude of the APA this contravention pears, comply tlie Board’s failure circuits are not unmindful two We brought supported with the APA was not NL Excelsior have rule. 52; Rohlen, Cir., 1967, courts’ attention. courts were con- F.2d RB v. Hosiery cerned with whether substance of the Division— NLRB v. Hanes rule-making Cir., 1967, Corp., rule the' F.2d was within Board’s Hanes cert, power, properly adopt- whether not it was denied 390 U.S. ap- However, ed. far as so L.Ed.2d ground ap- purpose it this is a Board, is what not relied on Excelsior’s face, provision re- a stand- pears seemed to assert on its to be employer to furnish inter- ard defense to a But quiring the standard assault. parties, parties assistance the same shoe fits for affirmative both ested conducting campaigns. court distinction which was their election divides this ap- obviously far from the concern of substance, Such assistance is “ * * * pellant, brief, which said in its degree only procedure. It differs recognized it clear the Board ex- requirement, for not in kind from a establishing procedure a new or having as- ample, that an proceedings in the conduct of election press sembly printing should hall or under Section 9 of the Act.” groups requesting it. make available furnishing The Board’s contentions legislative suggests history to me mailing expensive or serious- list grey areas doubt about nature ly burdensome, required be- or is of a rule should be resolved favor no effective substi- cause tute, may union has applying procedural label. In the justifications for the well be place, attempts first the few to define change they its character. do not equate terms rules with substantive Judge emphasis relative Coffin’s pursuant “rules issued au- burden, comparing the com- lack thority implement statutory policy, affording space pilation of the list with by fixing defining standards”, rates or board, suggests factual de- on a bulletin Attorney General’s Manual on the A.P.A. each case that seem terminations in (1947) 13 n. or with rules “other than *5 unnecessary His to re- at best. desire us * * * organizational procedural or questions aof of doubt in favor solve implement statute, the as, for ex- procedural importance to us label loses ample, proxy by the the issued Se- only purpose when one that its considers Exchange pur- curities and Commission affording parties tois avoid interested * * * suant to 15 U.S.C. 78n.” Man- opportunity present as an to their views ual, supra language at 30. I read the quite apparently, is, contro- to what a examples giving and these restrictive versial rule. expansive rather meanings than to “sub- compliance the also with It is true that stantive rule”. may the rule well the fairness of increase addition, In the Senate Committee on conclusory however, This, a election. is Judiciary the exempt- made clear that in argument. by Many actions the ing procedural rules from the notice re- may the election. add to fairness of quirement seeking encourage it ordering This them does mean that types rules because “those of rules procedural. particu- be done is larly We are vary greatly so in their contents by Coffin’s unmoved our brother occasion for their issuance that it seems suggestion up fact the sets wise to leave the matter of notice and positive distinguished nega- from a public procedures to the discretion of the requirement that it is is indicative tive Hist, agencies Legis. concerned.” not substantive. (1946), 18, A.P.A. judgment court is the district of The Excelsior rule itself seems me to set aside and is to dis- the court ordered clearly procedural complaint. side. It miss up positive requirement sets of furnish- COFFIN, Judge (dissenting). Circuit ing addresses as well as of names em- ployees, deciding appli- purpose applicable every For the of in election. cability provision respect pro- of notice differs from Act, scription selectively 5 U.S. of Administrative Procedure directed acts 1003(a), coercion appropriately Excelsior rule C.A. I view the which are more § accomplished through procedural despite ab- and thus valid unfair practice recognize procedures. I sence advance notice. “rights” toward ac- said to alter substantive unless requirement looks That beyond prior easy employer’s access to ad- reaches of which tion effect right. dignity party dresses rises to and the between relations Co., controlling Cf. 312 U.S. considera- Sibbach Wilson & ought not to be a 1, 14, (1941). any is reference L.Ed. tion, S.Ct. than Moreover, 101.19 terms requirement in 29 Excelsior rule C.F.R. § applies parties” Procedure” to “all include (the Board’s “Statements —which elections) “be hostile to new union or seek- governing that elections ing posting of publicized old one. Cf. adequately decertification of an Murray Co., establishment. NLRB in the Wallace 1968-1 CCH notices official ” * * * 22,256. Indeed, home of Dec. natural f to be would seem Excelsior rule would, reasons, I hold for the above 101.19.1 But the Excelsior rule was valid. would been end have think, also, relevance a factor It I ques case. There difficult remains the procedure issue that substance to the vs. how, all, if at Excelsior be can time, tion — employer’s ef- on burden properly enforced ? The district court being compelled forts, property in or ordered be honored. incon- furnish addresses power in the Board’s lies sequential. the court’s I do not share language granting right any copy “the requirement “differs conclusion that this any person being investigated evidence of degree from one and not kind” proceeded against or relates employer make an would force investigation ques matter under or in request. assembly I hall available ** *” 161(1). tion. 29 U.S.C.A. § dealing say with a that we degree dichotomy can difference where upheld The authorities which have or differ- in a difference of kind result subpoena power procure as available This, categorization. think, I ence pro- an Excelsior defined list3 have procedural by the noted illustrated above ceedings leading representation cer- requirement of election be that notices investigation tification as an and have posted “in the establishment” —in itself concept tortured the into “evidence” *6 employ- minimal a encroachment something helpful which is in “facilitat- domain. er’s ing fully a informed NLRB electorate”. forcing employers Rohlen, supra may v. While be 385 F.2d at 57. A scru- tiny previous yields of im- to share with unions their 29 U.S.C.A. 161 § knowledge may pression monopoly through- on of addresses that “evidence” used is strengthening out a of union more data have net result traditional sense as its proof power generally, a cannot relevant result be to of a fact in issue.4 such only primary Rohlen, (7th refers NLRB v. F.2d 1. All 385 52 Cir. of 1967); Hosiery objective Excelsior, NLRB v. to achieve better Hanes Divi secondary Corp., (4th fact sion—Hanes F.2d elections. The purpose, 384 188 cert, 1967), expeditious handling of chal- Cir. U.S. denied 390 88 1141; lenges eligibility, uneontro- S.Ct. 19 v. is L.Ed.2d NLRB voter Parts, vertedly procedural F.Supp. Inc., is an added factor of British Auto 266 368 (C.D.Cal.1967) ; significance. procedural Solien, Swift & v. While Co. some F.Supp. (E.D.Mo.1967) ; secondary a rule 274 not save 953 NLRB rule could Teledyne, Inc., clearly substantive, v. would 56 CCH Lab. Cas. otherwise 1f ambiguous (N.D.Cal.1967) ; purpose primary 12229 NLRB v. Beech that a seem Nut, Inc., (S.D.N.Y. might aided, F.Supp. is notice 274 432 insofar as effect secondary purpose. 1967). concerned, by approach goes beyond 4. A similar would be to the is- define what follows 2. While narrowly particular “investiga- court, the writer more sue which divides quest problem explore obliged tion” names as the for the and ad- feels conflicting With this has led to dresses enforcement interpre- reference, statutory frame of list of such names often strained and and addresses coud be considered tation. 400 citing ground quash subpoena, sympathetic one I with the courts which am willing leap. already employee not to make had have been unions Mfg. Q-T F.Supp. mailing Co., 279 lists. NLRB v. Shoe 19, 1968); (D.N.J., NLRB 1 Jan. filed remaining mode of This leads to the Ward, Inc., Montgomery Lab.

v. CCH enforcing rule, any if is indeed there (M.D.Fla.1967). Cas. 11659 f[ way injunction. The at all. This is the Congress has indicated statute suggested Q-T solution, A second authority prescribe the Board has Mfg. Co., supra, Shoe is that “regulations gov- of decision” way to enforce first the Excelsior rule is erning consent elections. U.S.C.A. § to secure a by that refusal determination 159(c) (4). Supreme Court has provide a list names made it clear “The control of the and addresses of constitutes proceeding, determina- election practice an unfair labor under 29 U.S. necessary steps tion of the to conduct 158(a) (1), C.A. and then seek the § * * * fairly mat- that election [are] aid court under U.S.C.A. § Congress ters which entrusted to 160(e). plausible This would until seem Board alone.” NLRB S.S. v. Waterman statutory of unfair definitions 206, 226, Corp. 309 U.S. practices are examined. (1940). 84 L.Ed. 704 wisely saying Excelsior from refrained step whether refusal between statute disclose and While there is a names present and Feaster, in United v. addresses would States constitute “interference, restraint, (5th 1964), 330 F.2d I or coercion” Cir. meaning If, principle. within see no of 29 U.S.C.A. difference (a) (1). Feaster, say statutory right I would that it at least to have ac- supported doubtful that cess to and records an in- of the effective books junction names, compelling “Inter- verbs would cover such a case. ad- access job dresses, adaptable, fere” is the most its entire of em- classifications ployees, aggressive, passive. predicated thrust so Ac- here cording authority regulate Dic- Webster’s International elections tionary (3d 1961), carrying Congressional policy int. ed. it means such out things “intermeddle”, support remedy. Or, and should “intervene”, same “interpose”. go Walling back to the observation Brooklyn Co., Braid 152 F.2d It cannot be said with assurance that (2d 1945), Cir. we should “consider respond a refusal to Excelsior rule injunction reasonably whether —unless, perhaps, repeated refusal— required aid in administration predictably an un- denominated statute, the end Con- practice.5 Moreover, fair labor constant gressional purposes underlying en- *7 litigation would ensue over the issue actment shall not be thwarted.” whether, given case, in a refusal to provide Assuming, therefore, validity a list had effect at all on the representation proceeding. example, the Excelsior For I see no other certain appellant way in the case at bar moved to in which it can be enforced than traditionally arguably tending as “evidence” relevant list evidence proof object investiga- tlie of the establish names and addresses the true ap- being sought. difficulty tion. Indeed served on with this pellant contemplated hearing approach before the is that tortures the word Regional quite appellant’s “investigation” something at Director dif- into president corporate testify from from 159. ferent its use U.S.C.A. concerning books and records the names prefer In addresses of lieu of I would add that I would some books, pro- a list would be received but lesser sanction for enforcement agents stemming after Board had “verified rules than that from an cedural practice proceeding. the sub- its contents examination unfair short, poenaed books and records”. injunction. the absence And while justification adequate remedy is no enforce- invention, judicial I feel

for lies within well ment of the I court. powers

equity the district for case remand the

would therefore Board’s alternative consideration injunction.

prayer for an ROSA, Appellant,

Ralph P. America,

UNITED STATES Appellee.

No. 24579. Appeals Court

United States Fifth Circuit.

June Jacob, Atlanta, ap- Ga.,

Bruce R. for pellant. Osman, Daniel, A.

Michael J. William Jr., Attys., A. Mead- Asst. U. S. William ows, Miami, Fla., Jr., Atty., for U. S. appellee. BROWN, Chief

Before R. JOHN *8 Judge, GOD- AINSWORTH Judges. BOLD, Circuit Judge: AINSWORTH, Circuit Rosa, Ralph appellant, was convict- P. in- jury ed on three counts of charging of 18 U.S. dictment violations