1 - National Labor Relations Board

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VII Supreme Court During fiscal year 1969, the Supreme Court decided five Board cases. Two cases 1 involved the power of the Board to order an employer to bargain with a union whose sole evidence of majority status consisted of authorization cards signed by a majority of the employees in an appropriate unit, and one of those cases also involved the scope of the protection accorded an employer's antiunion statements by section 8(c) of the Act. Another case concerned the validity of a Board requirement that the employer furnish the union with a list of the names and addresses of its employees eligible to vote in an election directed by the Board. A fourth case involved the legality of fines imposed by a union on its members for accepting payment for production in excess of ceilings imposed by the union and acquiesced in by the employer. And, the fifth case involved the power of the Board to issue a remedial order requiring an employer to pay certain benefits provided for in a collective-bargaining contract which he had unlawfully refused to abide by. The Board was upheld in all five cases, although one was remanded for further findings. A. Validity of Requirement That Employer Furnish Names and Addresses of Employees Eligible To Vote in Board Election In Wyman-Gordan, 2 the Supreme Court held that the Board was entitled to enforcement of a subpena directing the employer to furnish to all participants in a Board election a list of the names and addresses of the employees who would vote in the election. The Court readily concluded that this requirement, first ani N.L.R B v. Guam' Packing Co., 395 U.S. 575 (discussed, infra, pp. 113-114), covered four cases. The Court, in a single opinion, overturned three decisions by the Fourth Circuit (N.L.R.B. v. Giese( Packing Co., 398 F.2d 336, N.L.R.B. v. Heck'c, Inc., 398 F.2d 337, and General Steel Products v. N.L R B • 398 F 25 339), and sustained the decision of the First Circuit in N.L.R.B. v. The Sinclair Co., 397 F.2d 157. The three Fourth Circuit cases are treated as a single proceeding, and Sinclair is treated as a separate case. a N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, reversing 397 F.2d 394 (C.A. 1), Thirt y- third Annual Report (1968), p. 179, and afIg. 270 F.Supp. 280 (D.C.Mass.). 111
112 Thirty-fourth Annual Report of the National Labor Relations Board nounced in Excelsior Underwear Inc., 3 was substantively valid, since the Board has wide discretion to ensure the fair and free choice of bargaining representatives, and 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." The Court also had no difficulty in concluding that the list in question was encompassed by section 11 of the Act, which empowers the Board to subpena "any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question." The Court held that the term "evidence" in this context 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." However, the Court divided on the question whether the Board could properly establish a general names and addresses requirement in an adjudicatory proceeding, as it did in excelsior, or whether it should have followed the rulemaking procedures of the Administrative Procedure Act.4 The plurality opinion (written by Justice Fortas, and joined by Chief Justice Warren and Justices Stewart and White) concluded that the Board, in the Excelsior case itself, should have followed the APA rulemaking procedures, for the Board did not merely "provide a guide to action that the agency may be expected to take in future cases," but "purported to make a rule : i.e., to exercise its quasilegislative power." Indeed, the Board "did not even apply the rule it made to the parties . . . in that case." 5 But, the plurality opinion found that this procedural defect did not impair the Wyman-Gordon case, since the Board, in directing the election therein, had specifically ordered the employer to furnish a list of its employees' names and addresses for use by the unions in connection with the election. "This direction, which was part of the order directing that an election be held, is unquestionably valid. . . . it is an order in the present case that the respondent was required to obey." Justices Harlan and Douglas agreed that the Excelsior decision was defective because of the Board's failure to follow the APA '156 NLRB 1236 (1966), Thirty-first Annual Report (1966), pp 61-62. 4 Sec. 4 of the Administrative Procedure Act (5 U.S.C. § 553) requires, inter cilia, publication in the Federal Register of notice of proposed rulemaking, 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. 'In the Excelsior case, the Board held that the requirement enunciated therein would apply "only in those elections that are directed, or consented to, subsequent to 30 days from the date of [the] Decision." 156 NLRB at 1240, fn 5.
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TMR.TY-FOURM ANNUAL REPORT
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NATIONAL LABOR RELATIONS BOARD Memb
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7 TABLE OF CONTENTS CHAPTER I. Oper
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Table of Contents ix Page 1. Preser
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2 Thirty-fourth Annual Report of th
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1 8 Thirty-fourth Annual Report of
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PERCENT PERCENT 100 100 1111111 90
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II Jurisdiction of the Board The Bo
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V Representation Cases The Act requ
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Table 3A.—Formal Actions Taken in
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Table 4.—Remedial Actions Taken i
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Table 5.—Industrial Distribution
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Table 6.—Geographic Distribution
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Table 7.-Analysis of Methods of Dis
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it! All C cases CA cases CB cases C
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Stage of disposition ' Table 8.-Dis
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Table 10.-Analysis of Methods of Di
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Table 11A.—Analysis of Elections
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Table 13.-Final Outcome of Represen
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Participating unions AFL-CIO v. AFL
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Table 14.-Valid Votes Cast in Repre
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Participating unions AFL-CIO v. AFL
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144 0 Table 16.-Industrial Distribu
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1.) LA, iv Table 17.-Size of Units
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Table 18.-Distribution of Unfair La
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Table 19.-Litigation for Enforcemen
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Table 20.—Injunction Litigation U
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1 - National Labor Relations Board

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