National Labor Relations Board v. Wyman-Gordon Company/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

The Administrative Procedure Act, 5 U.S.C. § 553(b) provides that general notice 'of proposed rule making' shall be published in the Federal Register. Public participation-in essence a hearing is provided, § 553(c). And 'interested' persons are given the right to petition for the issuance, amendment, or repeal of a rule, § 553(c).

In Excelsior Underwear Inc., 156 N.L.R.B. 1236, the Board in 1966 decided (1) that an employer would be required to furnish the Regional Director, prior to the conducting of a representation election, the names and addresses of the eligible voters, which list would then be made available to all contestants in the election, but (2) that this requirement would apply only prospectively, to all elections directed or consented to subsequent to 30 days after the date of its decision there.

The notice and hearing procedure prescribed by § 553(b) was not followed; and in this case, an election was directed seven months after the Excelsior decision, the Board applying the Excelsior rule.

I am willing to assume that, if the Boar decided to treat each case on its special facts and perform its adjudicatory function in the conventional way, we should have no difficulty in affirming its action. The difficulty is that it chose a different course in the Excelsior case and, having done so, it should be bound to follow the procedures prescribed in the Act as may Brother HARLAN has outlined them. When we hold otherwise, we let the Board 'have its cake and eat it too.'

The Committee reports make plain that the Act 'provides quite different procedures for the 'legislative' and 'judicial' functions of administrative agencies.' S.Rep.No.752, 79th Cong., 1st Sess., 7; H.R.Rep.No.1980, 79th Cong., 2d Sess., 17.

'Except when notice or hearing is required by statute, this     subsection does not apply-

'(A) to interpretative rules, general statements of policy,     or rules of agency organization, procedure, or practice.'

We need not stop to inquire what the word 'procedure' in that context embraces. For § 553(d) provides, with exceptions not material here that:

'The required publication or service of a substantive rule     shall be made not less than 30 days before its effective date      *  *  * .' The Board apparently decided the Excelsior case with § 553(d) in mind, for it made the proposed new rule effective after 30 days. The House report states that § 553(d) (which was § 4(c) in its draft) 'does not provide procedures alternative to notice and other public proceedings required by the prior sections.' Id., at 25. And that report added, 'It will afford persons affected a reasonable time to prepare for the effective date of a rule or rules or to take any other action which the issuance of rules may prompt.' Ibid. And see S.Rep., supra. at 15.

The 'substantive' rules described by § 553(d) may possibly cover 'adjudications,' even though they represent performance of the 'judicial' function. But it is no answer to say that the order under review was 'adjudicatory.' For as my Brother HARLAN says, an agency is not adjudicating when it is making a rule to fit future cases. A rule like the one in Excelsior is designed to fit all cased at all times. It is not particularized to special facts. It is a statement of far-reaching policy covering all future represention elections.

It should therefore have been put down for the public hearing prescribed by the Act.

The rule-making procedure performs important functions. It gives notice to an entire segment of society of those controls or regimentation that is forthcoming. It gives an opportunity for persons affected to be heard. Recently the proposed Rules of the Federal Highway Administration governing the location and design of freeways, 33 Fed.Reg. 15663, were put down for a hearing; and the Governor of every State appeared or sent an emissary. The result was a revision of the Rules before they were promulgated. 34 Fed.Reg. 727.

That is not an uncommon experience. Agencies discover that they are not always repositories of ultimate wisdom; they learn from the suggestions of outsiders and often benefit from that advice. See H. Friendly, The Federal Administrative Agencies 45 (1962).

This is a healthy process that helps make a society viable. The Multiplication of agencies and their growing power make them more and more remote from the people aff cted by what they do and make more likely the arbitrary exercise of their powers. Public airing of problems through rule making makes the bureaucracy more responsive to public needs and is an important brake on the growth of absolutism in the regime that now governs all of us.

Many federal agencies touch on numerous aspects of the lives of the poor. Rule making for this group is discussed in Bonfield, Representation for the Poor in Federal Rulemaking, 67 Mich.L.Rev. 511, 512 (1969):

'An agency promulgating rules affecting the poor cannot     assume that it automatically knows what is best for such      people. Government administrators are usually persons with     middle-class backgounds, experiences, and associations;      therefore, they tend to have middle-class viewpoints,      orientations, and understandings. This means that the     personnel of federal agencies may be expected to reflect more      accurately the interests of the affluent than those of the      economically underprivileged. Consequently, there is a     special reason for concern when, as is now the case, the      interests of poor people are inadequately represented in the      rulemaking process.'

While that suggestion may not be relevant to the present labor-management area and the sophisticated opponents with which this case is concerned, it does illustrate that when we are lax and allow federal agencies to play fast and loose with rule making, we set a precedent with dangerous repercussions.

It has been stated that 'the survival of a questionable rule seems somewhat more likely when it is submerged in the facts of a given case' than when rule making is used. See Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 946-947 (1965). Moreover, 'agencies appear to be freer to disregard their own prior decisions than they are to depart from their regulations.' Id., at 947. Failure to make full use of rule-making power is attributable at least in part 'to administrative inertia and reluctance to take a clear stand.' Id., at 972.

Rule making is no cure-all; but it does force important issues into full public display and in that sense makes for more responsible administrative action.

I would hold the agencies governed by the rule making procedure strictly to its requirements and not allow them to play fast and loose as the National Labor Relations Board apparently likes to do.

As stated by the Court of Appeals, the procedure used in the Excelsior case plainly flouted the Act:

'Recognizing the problem to be one affecting more than just     the parties before it, the Board chose to solicit the      assistance of selected amici curiae, and, ultimately, to      establish a rule which not only did not apply to the parties      before it, but did not take effect for thirty days. In so     doing we consider that the Board, to put it bluntly, designed its own rule-making      procedure, adopting such part of the Congressional mandate as      it chose, and rejecting the rest.' 397 F.2d 394, 396-397.

I would affirm the judgment.