Pittsburgh Plate Glass Co. v. Labor Board, 313 U.S. 146 (1941)

MR. JUSTICE STONE, dissenting.

I think the judgment below should be reversed.

The Board’s order, so far as it directs petitioner, the Glass Company, to recognize and bargain with respondent Federation as the representative of the Company’s employees at its Crystal City plant, cannot be sustained unless the Board’s certification of the Federation as the appropriate bargaining agency for those employees is upheld. I think that both should be set aside because of the Board’s failure in those proceedings to afford to petitioner, Crystal City Glass Workers’ Union, an "appropriate hearing," and its failure to determine the unfair labor practice issue on the evidence, both of which, to say nothing of constitutional requirements, are commanded by §§ 9(c) and 10(c) of the National Labor Relations Act.

The Federation, affiliated with the CIO, has organized local unions at each of the Company’s six plants except that at Crystal City, whose employees, some 1,600 in number, have been organized by the Union. The Company has recognized and bargained with the Federation as the representative of its employees at all except its Crystal City plant. In 1934, it entered into a written contract with the Federation which provided a method of settling grievances of employees at all its plants, through local unions of the Federation. These provisions were renewed in 1935, but, as the efforts of the Federation to organize a local union at Crystal City, begun in 1933 and continued actively during 1937 and since, have never succeeded, those provisions have remained inoperative at Crystal City. The renewal contract with the Federation in 1937, which is still in force, does not include the Crystal City plant.

The Union was incorporated in 1938. In April, it organized the employees at the Crystal City plant, and in the following month, the Board, on petition of the Federation, instituted the certification proceeding now before us. In June of that year, the Board issued its complaint, charging the Company with unfair labor practices, specifically alleging that it had "dominated and interfered with the formation and administration" of the Union. The Company answered denying the allegation. The Union was not a party to the proceeding, and, so far as appears, had no knowledge of it. The Board, without taking any evidence and without making any finding of an unfair labor practice, which is prerequisite to an order under § 10(c), made its order, on consent of the Company, directing it to cease and desist from "in any manner dominating or interfering with the administration" of the Union, or "contributing aid or support" to it and "from recognizing or dealing with it." The usual provision disestablishing the Union was omitted from the order.

As soon as the Board had made this order, it proceeded with hearings in the certification proceeding in which both the Federation and the Union participated and in which the Board certified the Federation as the appropriate bargaining agency for the employees in all six of the Company’s plants.

Upon the refusal of the Company to recognize the Federation as the agent of its employees at Crystal City, the Board, on complaint of the Federation, began the present unfair labor practice proceeding against the Company. An agreement was then entered into between the Company and the Federation that the existing bargaining contract with the Federation, which did not include Crystal City, should remain in force pending a final determination of the appropriate bargaining unit for Crystal City.

In the present unfair labor practice proceeding, the Board reconsidered and heard evidence on the question of the appropriate unit. In the course of the hearings, both the Union and the Company offered to prove: (1) that 1,500 out of the 1,800 employees at Crystal City belonged to the Union, and that these members were opposed to being represented by the Federation; (2) that the Union was not dominated by, nor had its formation or administration been interfered with by, the Company, and that the Company had not contributed to its financial or other support; (3) that the employees at Crystal City had distinct interests from those at the other plants of the Company; (4) that the representatives of the Union had bargained collectively for its members with the Company until the Company declined to continue such bargaining by reason of the consent order of September, 1938, which the Board had entered against it, to which order and proceedings leading to it the Union was not a party, and (5) that, since the order was made and since the certification of the Federation as the representative for collective bargaining of all the employees, the membership in the Union had increased.

All of these offers were rejected, and the proffered evidence was excluded. The Board reaffirmed its finding in the certification proceeding that the Federation was the appropriate bargaining agency, and made its order directing the company to bargain with the Federation.

One member of the Board, Mr. Leiserson, dissented on the ground that the Board’s decision was based upon an assumption that the Crystal City employees were incapable of making a free choice of representatives, and that the Board’s order imposed on the employees at that plant a representative not of their own choosing without any opportunity to express their own choice as to represent tion, and that it disregarded the history of the bargaining by the Company with the employees at the Crystal City plant and its existing contract with the Federation which excluded the Crystal City plant from its operation.

Throughout the certification and the later unfair labor practice proceedings, the Board took the position that the Union and the Glass Company, because of the consent order against the Company, were no longer free to urge the wishes of the Union members as to representation or to show the actual bargaining relation between the Union and the Company, or that the Company did not in fact dominate the Union. In the certification proceeding, the Board stated that the Union, by reason of the consent order, had "ceased to be able to function as a labor organization and its existence as such at Crystal City then terminated," and that, "[s]ince the Crystal City Union can no longer function as a labor organization, its wishes are immaterial."

In reviewing the evidence in the unfair labor practice proceeding, the Board adhered to its view that the Union, by reason of the consent order, must be treated by it as dominated by the Company, and that, for that reason, the proffered and rejected evidence on this point was without weight, and that accordingly it must be taken that there never had been a "genuine and legitimate attempt by the Crystal City employees to bargain with the Company separately from the other plants."

A substantial part of the Board’s findings in both proceedings is devoted to the inferences justifying its conclusion as to the appropriate unit, which it drew from this so-called finding of domination derived wholly from the consent order. It found that the wishes of the union were immaterial since, under the order, it could no longer function as a labor organization. It stated that the existence of the Union for more than three years

to a large degree explains the desire of the 1,500 Crystal City Employees for a separate bargaining unit as expressed in their petition, and such desires may well undergo a radical change as the effect of the termination of the Crystal City Union’s function as a labor organization is fully realized by those employees.

In addition, the Board thought that the evidence of negotiations between the Company and the Union could not be "evidence of genuine collective bargaining;" it found that the membership of the large majority of the Crystal City employees in the Union cannot be considered

as expressing the free choice of the employees at that plant, or as establishing the existence of another labor organization, in addition to the Federation, capable of bargaining with the respondent [company] for the employees there;

and it declared that one of the factors leading to the conclusion

that the interests of all the employees of the various plants are interwoven and that collective bargaining for all the employees involved can most effectively be achieved through the establishment of a single bargaining unit

was "the fact that the membership of the Crystal City union is coerced, and not voluntary." Thus, on the questions as to the desires of the employees in each of the six plants and the history of collective bargaining there -- both factors which the Board has uniformly considered heretofore in determining the probable effectiveness of future bargaining on the basis of a unit claimed to be appropriate -- the Board has not only rejected proffered evidence, admittedly relevant, but has drawn conclusions contrary to the rejected evidence, from facts found by the Board to be true, only by treating the conflicting evidence tendered by the Union as without weight.

In order to appraise the issues in the several proceedings before the Board and its action taken with respect to them, it is necessary to consider the function which the Board was called on to perform both in the certification proceedings and the unfair labor practice proceeding, both of which are now before us for review as provided by § 9(d) of the Act. Section 9(a) provides that representatives

designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.

And, under § 9(b), it is the duty of the Board to

decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of the Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.

The policies of the Act which the Board is to effectuate by its choice of the proper bargaining unit are declared by § 1 to be the mitigation and elimination of obstructions to interstate commerce resulting from labor disputes

by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing

for purposes of collective bargaining "or other mutual aid or protection."

It will be observed that the function assigned to the Board is not the choice of the labor organization to represent a bargaining unit, for that is to be the free choice of the majority of the employees in some defined group of employees which the Board finds to constitute the appropriate unit. In making the choice of the unit, whether composed of the employees of a plant, a craft, or of an employer, the Board is required to observe the standards prescribed by the Act, which are "to insure to employees the full benefit of their right to self-organization and to collective bargaining" and to protect "the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing."

These are obviously the standards to be applied in a certification proceeding under § 9(c) which provides that, when a question arises

concerning the representation of employees, the Board may investigate such controversy and certify to the parties, in writing, the name or names of the representatives that have been designated or selected. In any such investigation, the Board shall provide for an appropriate hearing upon due notice, either in conjunction with a proceeding under § 10 [complaints for unfair labor practices] or otherwise, and may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives.

A similar requirement is imposed on the Board upon complaint of unfair labor practices.

It is evident, therefore, that, in the present proceeding, the Board could not find the Company guilty of an unfair labor practice unless it had refused to bargain with the representative of an appropriate unit, which, in turn, required the Board to find from relevant evidence which it was required to hear whether the employees of the Crystal City plant constituted such a unit. In making that determination, the Board considered, as it could under § 9(d), the certification proceeding, but it was not required to, and did not, confine its consideration to that proceeding. It heard evidence by numerous witnesses bearing on the question of the appropriate unit. It was bound to receive and consider all the evidence relevant to that issue, which was whether the policies of the Act would be better effectuated and whether the right of all of the Company’s employees to self-organization would be fully secured by certifying a unit comprising all the employees of the six plants, or two units, one composed of the Crystal City employees and the other the employees in the five plants where the Federation admittedly had a majority.

The Board has always hitherto weighed the desires of the employees in determining the appropriate unit. And here, the Board concedes that the Crystal City employees strongly preferred to be represented by the Union. In refusing to attribute any weight to this fact, the Board found that their choice was not free, since it considered that the Union. because of the consent order, was company-dominated. Whether the Union and the employees were in fact dominated by the employer, and the nature of the bargaining relations with the employer, were thus crucial issues in the case to be determined on evidence. And we are confronted with the extraordinary fact that the Board has determined those issues without ever having heard any evidence on the subject, either in the present or the two earlier proceedings.

The present wishes of the employees, their freedom in self-organization from the domination and interference of the employer, their past bargaining relations with the employer, were all admittedly relevant considerations. Even though the Board could have refused to hear the evidence offered as to the wishes of the Crystal City employees and as to the prior bargaining history there, on the ground that, if true, the greater effectiveness of employee bargaining through a division-wide representative and the common interests of the employees in the six plants warranted the selection of the employees in the six plants as the appropriate unit, it did not attempt to do so. Instead, it rejected the evidence proffered by the Union not on technical or procedural grounds, nor because it thought these circumstances immaterial, or insufficient to change its determination, but on the sole ground that the Union was company-dominated, and "had ceased to function" by reason of the Board’s order directing the Company not to bargain with it. It did this without having found in the present or in either of the earlier proceedings that the Union had ever been dominated or interfered with by the Company, and without having made any order running against the Union or purporting to bind it. The position of the Board thus seems to be that the right of the Crystal City employees to act as a unit, and the right of the Union to represent them in proceedings for ascertaining the appropriate bargaining unit, and in collective bargaining with the employer, were forever foreclosed in a proceeding in which they were not represented, to which the Union was not a party, in which no evidence was received or finding made of any unfair labor practice, and which resulted only in an order on consent of the employer which did not purport to control the Crystal City employees or the Union, or determine their rights.

The only support which the opinion of the Court affords for a result so extraordinary is an intimation that the Crystal City employees and the Union had forfeited their right to have the proffered evidence considered by the Board because the Union had failed to intervene in the first proceeding in which the Board made its consent order against the Company, and because, in the opinion of the Court, the excluded evidence, if considered, would not have materially affected the outcome.

As the opinion of the Court itself points out, the first order of the Board did not run against or purport to bind the Union, see Labor Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, and as this Court has decided the Board is without authority under the provisions of the Act, to say nothing of constitutional limitations, to make any order determining the rights of a labor organization in a proceeding to which it is not made a party. It was because the Board purported thus to determine the rights of an absent party which had failed to intervene, that we modified its order in National Licorice Co. v. Labor Board, 309 U.S. 350, 362, 367. It is new doctrine in the law that one who is not a necessary party to a proceeding in which no order is made against him nevertheless, in some way and on some undisclosed theory, forfeits his rights if he does not voluntarily become a party. At the present term of Court, we have had occasion to reaffirm the long recognized principle that a judgment of a court which purports to bind parties not present or represented in the litigation is without efficacy to bind them because, if given such effect, the judgment would be a denial of due process. Hansberry v. Lee, 311 U.S. 32. The order of an administrative board can have no greater force.

There is no provision of the statute providing for notice or other procedure on the basis of which the rights of absent parties are to be foreclosed, and, in the present case, it does not even appear that the Union or the Crystal City employees were notified or were otherwise aware of the proceeding in which the order was made, on consent of the employer, which it is now asserted operated to terminate the existence of the Union and, for that reason, forfeited its right and the right of the employees to have relevant evidence considered in a representation proceeding.

The suggestion that an appropriate hearing upon evidence may be dispensed with because the rejected evidence would not have materially affected the outcome seems to be based either on the assumption that the Board has in some way passed on the weight of the rejected evidence without hearing it or that the Court is now free to appraise it and perform the function which the Board neglected to perform. Neither position is tenable. The Board refused to consider any of the proffered evidence on the sole and erroneous ground that the Union and the Crystal City employees had lost the status which they otherwise would have had entitling them to have their wishes and their relations with the employer considered in a representation proceeding. We have no warrant for saying that the Board would have attributed less weight to these factors than to others favorable to the Federation which it did consider, or that, if it had thought that it was free to consider them, the outcome would have been the same, or that, in any case, on review of the Board’s order, the interested parties would not have been entitled to urge that the Board, upon consideration of all the evidence, had not properly exercised its discretion.

As we are often reminded, most of the decisions of the Board involve discretion which is to be exercised by it alone, and not the courts. For that reason, the only substantial right of the litigant before the Board is, in most cases, the right to invoke the exercise of that discretion upon a full and fair consideration of all the relevant evidence. That right the Board has denied to petitioners in this case by refusing to consider the evidence upon palpably erroneous grounds. We are no more free in this case to pass upon the weight and sufficiency of the evidence, with the details of which, like the Board, we are unacquainted, than in any other case in which the Board is required to receive and pass upon evidence.

One of the most important safeguards of the rights of litigants, and the minimal constitutional requirement in proceedings before an administrative agency vested with discretion, is that it cannot rightly exclude from consideration facts and circumstances relevant to its inquiry which, upon due consideration, may be of persuasive weight in the exercise of its discretion. Interstate Commerce Commission v. Chicago, R.I. & P. Ry. Co., 218 U.S. 88, 102; St. Joseph Stock Yards Co. v. United States, 298 U.S. 38, 75, 78; Ohio Bell Telephone Co. v. Commission, 301 U.S. 292, 304-305.

THE CHIEF JUSTICE and MR. JUSTICE ROBERTS concur in this opinion.