source: Caselaw Access Project

author: Mr. Justice Douglas

license: Public Domain

text:
    MAGNESIUM CASTING CO. v. NATIONAL LABOR RELATIONS BOARD
    No. 370.
    Argued January 18-19, 1971
    Decided February 23, 1971
    Douglas, J., delivered the opinion for a unanimous Court.

      Louis Chandler argued the cause for petitioner. With him on the brief was Jerome H. Somers.

      Norton J. Come argued the cause for respondent. With him on the brief were Solicitor General Griswold, Wm. Terry Bray, Arnold Ordman, and Dominick L. Manoli.

    Briefs of amici curiae urging reversal were filed by Jerry Kronenberg and Alan Raywid for the Terminal Freight Cooperative Association, and by William L. Dennis for Olson Bodies, Inc.

      Briefs of amici curiae urging affirmance were filed by-Bernard Kleiman, Elliot Bredhofj, Michael H. Gottes-man, and George H. Cohen for the United Steelworkers of America, AFL-CIO, and by Benjamin Rubenstein for International Union, U. A. W.
   Mr. Justice Douglas

delivered the opinion of the Court.

Section 3 (b) of the National Labor Relations Act, as amended, 61 Stat. 139, 73 Stat. 542, 29 U. S. C. § 153 (b), authorizes the National Labor Relations Board to delegate to its regional directors the power to determine the unit appropriate for collective bargaining. The Board accordingly adopted rules delegating to its regional directors its powers to determine representation issues and defining the conditions when the Board will review the determination of a regional director.

On filing of a representation petition, §9 (c)(1) provides that a hearing shall be held to determine if a question of representation exists and, if so, the appropriate bargaining unit. If an election is directed and the union prevails, it is certified as the employees’ bargaining representative. An employer who contests the election, including the unit determination, can only obtain court review under § 10 after an unfair labor practice charge has been made against him by the Board for refusing to bargain collectively “with the representatives of his employees” as provided in § 8 (a) (5).

In that review, however, the determination of the bargaining unit by the regional director need not be reviewed by the Board. Whether the Board reviews the initial decision on the merits, see Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 162, or the employer fails to request review of the action of the regional director, or the Board denies a request for review, the Board has discretion to reopen the issue where newly discovered noncumulative evidence is available.

The United Steelworkers filed a petition requesting a representation election among the production and maintenance employees at petitioner’s Hyde Park, Massachusetts, plant. The regional director provided a hearing and the essential issues tendered concerned four individuals classified as “assistant foremen.” The question was whether they were employees and properly within the unit or supervisors as defined in § 2 (11) of the Act and therefore excluded. The regional director found that three were employees and ordered an election in a unit consisting of all the employees, including the three.

Petitioner filed a request with the Board to review the decision of the regional director that the three men in question were employees, contending that such determination was clearly erroneous. The Board denied petitioner’s request for review and an election was held. Thereafter the regional director certified the union as the exclusive bargaining representative of the employees. When petitioner refused to bargain, the union filed an unfair labor practice charge with the Board. The trial examiner found for the union and the Board affirmed. 175 N. L. R. B. No. 68.

Petitioner moved for reconsideration claiming the Board must review the regional director’s representation determination before issuing an unfair labor practice order based on it. Petitioner’s reliance was on Pepsi-Cola Co. v. NLRB, 409 F. 2d 676, decided by the Court of Appeals for the Second Circuit. The Board denied that motion, noting its disagreement with the Pepsi-Cola case.

The Court of Appeals enforced the Board’s order, 427 F. 2d 114, thus creating the conflict among the circuits which led us to grant the petition for certiorari. 400 U. S. 818.

Petitioner argues that plenary review by the Board of the regional director’s unit determination is necessary at some point. Historically, the representation issue once fully litigated in the representation proceeding could not be relitigated in an unfair labor practice proceeding. We so held in Pittsburgh Plate Glass Co. v. NLRB, supra. That case, of course, was decided when the determination of the appropriate unit was made by the Board itself. In 1959, § 3 (b) was added. Senator Goldwater, a member of the Conference Committee explained its purpose:

“[Section 3 (b)] is a new provision, not in either the House or Senate bills, designed to expedite final disposition of cases by the Board, by turning over part of its caseload to its regional directors for final determination.
“Under this provision, the regional directors can exercise no authority in representation cases which is greater or not the same as the statutory powers of the Board with respect to such cases. In the handling of such cases, the regional directors are required to follow the lawful rules, regulations, procedures, and precedents of the Board and to act in all respects as the Board itself would act.
“This authority to delegate to the regional directors is designed, as indicated, to speed the work of the Board. . . .”

We take this statement to reflect the considered judgment of Congress that the regional directors have an expertise concerning unit determinations. Or perhaps Congress was primarily motivated by a desire to lighten the Board’s workload and speed up its processes. Its recent report shows that in fiscal year 1969, a total of 1,999 formal representation decisions were issued either directing elections or dismissing election petitions; 1,872 of these were rendered by regional directors, and 127 by the Board (100 on direct transfer from the regional directors for initial decision and 27 on grant of a request for review of the regional director’s decision).

But for the 1959 amendment the Board would have decided all of those cases.

Whatever the reason for the delegation, Congress has made a clear choice; and the fact that the Board has only discretionary review of the determination of the regional director creates no possible infirmity within the range of our imagination.

The fact that Congress in 1961 rejected a reorganization plan which would have delegated decisionmaking power in unfair labor practice cases to the hands of trial examiners subject to discretionary Board review has no bearing on the present problem. The choices Congress may make in deciding what delegation of authority is appropriate do not in the present context raise any semblance of a substantial question. For it is unmistakably plain here that by § 3 (b) Congress did allow the Board to make a delegation of its authority over determination of the appropriate bargaining unit to the regional director.

The Board’s rules make clear that the regional director is required to follow the same rules as the Board respecting factfinding. The regional director’s determination if adopted by the trial examiner in the unfair labor practice proceeding accompanies the case both to the Board and to the Court of Appeals. In the present case the Court of Appeals concluded that the Board’s order was supported “by substantial evidence.” Congress has required no greater showing than that.

Affirmed.

       Sec. 3 (b) provides in relevant part:
      “The Board is also authorized to delegate to its regional directors its powers under section 9 to determine the unit appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists, and to direct an election or take a secret ballot under subsection (c) or (e) of section 9 and certify the results thereof, except that upon the filing of a request therefor with the Board by any interested person, the Board may review any action of a regional director delegated to him under this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of any action taken by the regional director. . . .”

       The rules are contained in 29 CFR § 102.67. Subsections 102.67 (c), (d), and (f) state in relevant part:
      “(c) The Board will grant a request for review only where compelling reasons exist therefor. Accordingly, a request for review may be granted only upon one or more of the following grounds:
      “(1) That a substantial question of law or policy is raised because of (i) the absence of, or (ii) a departure from, officially reported Board precedent.
      “(2) That the regional director’s decision on a substantial factual issue is clearly erroneous on the record and such error prejudicially affects the rights of a party.
      “(3) That the conduct of the hearing or any ruling made in connection with the proceeding has resulted in prejudicial error.
      “(4) That there are compelling reasons for reconsideration of an important Board rule or policy.
      “(d) . . . With respect to paragraph (c)(2) of this section, and other grounds where appropriate, said request must contain a summary of all evidence or rulings bearing on the issues together with page citations from the transcript and a summary of argument. But such request may not raise any issue or allege any facts not timely presented to the regional director.”
      “(f) . . . Failure to request review shall preclude such parties from relitigating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude relitigating any such issues in any related subsequent unfair labor practice proceeding.”

       See rules, supra, n. 2.

       The Tenth Circuit is in accord with the First. See Meyer Dairy, Inc. v. NLRB, 429 F. 2d 697, 699-700.

       105 Cong. Rec. 19770.

       34th Annual Report, Table 3B, 201 (1970).

       107 Cong. Rec. 10223, 12905-12932.

       See rules, supra, n. 2.

       29 CFR § 102.67 (b).

       29 CFR §102.45 (a).

       29 CFR § 101.14.

       There is no different standard of review prescribed by the Administrative Procedure Act. 5 U. S. C. §706 (1964 ed., Supp. V). See Universal Camera Corp. v. NLRB, 340 U. S. 474, 487.


author: Mr. Justice Harlan

text:
    SANKS et al. v. GEORGIA et al.
    No. 28.
    Argued December 8, 1969 Reargued November 17-18, 1970
    Decided February 23, 1971
    HarlaN, J., delivered the opinion of the Court, in which Burger, C. J., and Douglas, BreNNAN, Stewart, White, Marshall, and BlacKMUn, JJ., joined. Black, J., filed a statement concurring in the judgment, post, p. 153.

      Michael D. Padnos reargued the cause for appellants. With him on the brief were Nancy S. Cheves and John William Brent.

      Alfred L. Evans, Jr., Assistant Attorney General of Georgia, reargued the cause for appellees. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, and A. Joseph Nardone, Jr., Assistant Attorney General.

      Frank B. Zeigler filed a brief for the Legal Aid Office of Savannah, Inc., as amicus curiae urging reversal.
   Mr. Justice Harlan

delivered the opinion of the Court.

We noted probable jurisdiction in this case, 395 U. S. 974 (1969), because the judgment of the Georgia Supreme Court appeared to raise substantial questions under the Fourteenth Amendment that were deserving of our plenary consideration, and because whatever conclusion this Court might reach with respect to them would definitively settle this aspect of the litigation. In brief, the Georgia Supreme Court upheld, over due process and equal protection challenges, a state statutory scheme that compelled appellants, both indigent persons who sought to contest landlord petitions for summary eviction from their homes, to post, as a condition precedent to offering any defense to summary eviction, a surety bond in double the potential amount of rent due at the end of trial. The statutes, this aspect of which was also upheld by the Georgia Supreme Court, provided further that the landlords would become entitled to such double rent should the tenant-appellants lose their cases.

The case was first heard by us at the 1969 Term, and was thereafter set for reargument at the present Term. 399 U. S. 922 (1970). At reargument it became apparent that events occurring subsequent to our notation of probable jurisdiction had so drastically undermined the premises on which we originally set this case for plenary consideration as to lead us to conclude that, with due regard for the proper functioning of this Court, we should not now adjudicate it.

I

The Georgia statutory scheme under which this case was initiated, Ga. Code Ann. §§ 61-301 to 61-305 (1966), and § 61-306 (Supp. 1969), operated in the following manner. A landlord seeking summary eviction could file an affidavit in a local court, alleging that the tenant, for one or more statutorily enumerated reasons, was unlawfully holding possession of the premises and had refused the landlord’s demand to relinquish possession. (§ 61-301.) When such an affidavit had been filed the local judicial officer was required to issue a “warrant or process” to the sheriff directing him to “deliver to the owner” the premises described in the affidavit. (§ 61-302.) The sheriff was to give the tenant four days’ notice before executing the dispossessory warrant. (§61-306 (Supp. 1969).)

The tenant could prevent immediate eviction only by filing a counter-affidavit, alleging one of several specified defenses and accompanied by a surety bond “for the payment of such sum, with costs, as may be recovered against him on the trial of the case.” (§ 61-303.) Only if the tenant followed these procedures was he then entitled to a trial on the issues raised by the affidavits. (§ 61-304.) Against this background, § 61-305 provided:

“If the issue specified in the preceding section shall be determined against the tenant, judgment shall go against him for double the rent reserved or stipulated to be paid, or if he shall be a tenant at will or sufferance, for double what the rent of the premises is shown to be worth . . .

In the case before us, appellants Sanks and Momman were served with dispossessory warrants on May 21, 1968, and July 17, 1968, respectively (App. 3, 18), and then applied for (App. 5, 20), and eventually obtained (App. 24 — 39) from the Civil Court of Fulton County a “rule nisi” permitting appellants to remain in possession of their respective premises pending resolution of the factual issues raised by their applications, so long as they timely paid their rent into court during the pendency of the litigation. Both the bond-posting requirement (§61-303) and the double-rent damages measure (§ 61-305) were declared unconstitutional and, hence, inapplicable to these eviction proceedings. (App. 27-39.) On an interlocutory appeal, the trial court’s constitutional declarations were set aside by the Supreme Court of Georgia, 225 Ga. 88, 166 S. E. 2d 19 (1969), and the judgment of the lower court was reversed.

II

Since we noted probable jurisdiction the posture of this case has shifted dramatically. Both Mrs. Momman and Mrs. Sanks have removed from the premises originally sought to be recovered by their landlords. In addition, the Georgia General Assembly has repealed virtually the entire statutory scheme that has governed this litigation from its inception and replaced it with a new one, effective July 1, 1970, that contains neither the bond-posting nor double-rent requirement. 1 Ga. Laws 1970, pp. 968-972, Ga. Code Ann. §§ 61-302 to 61-305 (Supp. 1970). Under the new law, dispossessory actions will still be commenced by the landlord’s execution of an affidavit. Now, however, this merely compels the local judicial officer to cause the tenant to be summoned to a hearing (§ 61-302), and the tenant can retain possession and force a trial of any defenses he may wish to raise simply by answering the affidavit, orally or in writing, at the hearing. (§ 61-303.) Expedited trials are encouraged. If the litigation has not been concluded within a month of the execution of the landlord’s affidavit, the tenant may retain possession by paying into court all rent as it becomes due, in addition to any rent that was due but not paid prior to issuance of the summons. (§§ 61-303, 61-304.) If the landlord ultimately prevails, his monetary damages, if any, are to be based on the actual, not double, rent found due. (§ 61— 305.) Similarly, the tenant may, in effect, stay execution of the dispossessory warrant pending appeal of an adverse determination simply by paying rent, as it accrues, into the court. (§ 61-306.)

Ill

The crux of this controversy from its inception has been appellants’ insistence that they, not their alleged landlords, had the right to lawful possession of the premises in dispute and their demands that they be permitted to remain in possession pending the outcome of the litigation. With appellants’ voluntary removal from the premises this aspect of the case is clearly moot. We have been apprised of no basis in the statutes or case law for assuming that were this Court now to hold Mrs. Sanks and Mrs. Momman were constitutionally entitled to proceed in the trial court without first posting a double-rent bond, they could then seek a decree under the statutes here at issue returning them to possession of the premises. The repealed statute spoke only of enabling a tenant already in possession to contest forcible eviction upon posting a bond. Indeed, neither appellants nor appellees — all of whom resist the suggestion that the case as a whole is moot — contend that this aspect of it is not moot. There is thus no reason to believe that, on remand, either appellant, if successful in this Court, could litigate, in the context of any proceeding that might conceivably be governed by any of the provisions of these repealed Georgia statutes, a claim to be put in possession of the premises she originally occupied.

In support of the continued justiciability of the case, appellants rely upon a subsidiary aspect of this controversy which they claim remains alive. Were this Court to affirm the Georgia Supreme Court on the merits, the case would presumably be remanded to the trial court in accordance with the Georgia Supreme Court’s mandate. There, argue appellants, those who initially procured the dispossessory warrants might then move for entry of a judgment for double damages as provided in former § 61-305. Appellants fear that such a judgment might automatically be entered because their removal from the premises might be construed as effectively conceding their lack of substantive defenses or that, even if they are still technically entitled to raise defenses, appellants’ ability to do so will be conditioned on first posting the bond. Such a result is possible only if a number of factors coalesce. First, the original moving parties, the alleged lessors, would have to decide to seek such damages from these relatively impecunious appellants. Second, the Georgia courts would have to rule that such request for damages should be adjudicated under the repealed statutes. Third, it would also be necessary for the state courts to hold that those statutes contemplated awarding double rent in the circumstances here and (see infra) on a basis that renders material the bond-posting provision.

Beyond all this, the original posture of this case has been further upset by the apparent fact that prior to moving out, and in compliance with the order of the trial court, appellants paid their rent money into the court’s registry as it became due, money that still remains on deposit there. Tr. of Oral Rearg., Nov. 18, 1970, pp. 10-11, 26.

With the case in this Court thus so reoriented, it is impossible for us to predict whether and to what extent our adjudication of the issues originally presented would now be material to any further litigation that might ensue on remand. Whether the original initiating,parties will seek double damages is a matter wholly beyond the control of this, or any other, court. Whether the existence of funds in the registry of the trial court will necessitate an adversary proceeding to redistribute them and, if so, whether that proceeding would be governed by the repealed statutes which, on their face, do not even remotely speak to this problem, are matters of pure conjecture. Because the former statutes provided for double damages only where “the issue . . . [is] determined against the tenant” (former § 61-305) and provided for joinder of issue only where a double-rent bond had first been posted (former §§ 61-303, 61-304), we are quite unable to say whether the Georgia courts would nevertheless hold this language sufficiently elastic to permit a claim for double damages where eviction was arrested by court order rather than a bond, yet insufficiently flexible to permit simultaneous waiver of the bond-posting requirement before adjudication of such a claim. Nor can we predict whether and to what extent repeal of the former statutory scheme would, on remand, be held to alter any of the conclusions respecting it which the Georgia courts might otherwise adopt in this context. All these issues, so far as it appears, would be matters of first impression for the Georgia judiciary.

IV

Given this imponderable legal tangle, involving, as it does, purely matters of state law, we perceive no other responsible course for this Court than to decline, at this stage, to adjudicate the issues originally presented. We do not rest this conclusion on a determination that the case is moot. Conceivably, appellants may on remand be subjected to the double-rent or bond-posting requirements of the former statutes. But it has always been a matter of fundamental principle with this Court, a principle dictated by our very institutional nature and constitutional obligations, that we exercise our powers of judicial review only as a matter of necessity. As said in United States v. Petrillo, 332 U. S. 1, 5 (1947), “We have consistently refrained from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a precise constitutional issue is a necessity.” Manifestly, it cannot plausibly be maintained that this is such a case. Indeed, the only thing that is now apparent about this lawsuit is that the clear-cut constitutional issues it formerly presented cannot with any certainty be said to be relevant to the issues remaining in it, if, in fact, any issues do remain.

Moreover, even were the constitutional issues certain to arise below we cannot foretell the context in which they will appear. Possibly the double-rent provision will be successfully invoked, but not the bond-posting requirement. Similarly, if the latter is held applicable, we would at this stage be required to adjudicate, in advance of that fact, its validity as a precondition not to resisting summary eviction, which is its normal and clearly intended use, but to contesting a claim for damages only. The operative competing constitutional considerations, particularly the nature and scope of the State’s interest in imposing such a barrier to litigation, may well be significantly different depending on the principal purposes for which the bond is required. Yet, given the debilitated state of this lawsuit, we could address only the subsidiary problem — and this in a legal context where we would not know whether that problem will ever arise.

The principle of prudent restraint we invoke today is nothing new, although, happily, it has not frequently proved necessary to dispose of appeals on this basis. United States v. Fruehauf, 365 U. S. 146 (1961), provides an apt analogy. There the United States had appealed the dismissal of an indictment brought under § 302 (a) of the Taft-Hartley Act, 61 Stat. 157, which made it unlawful “for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees,” where the lower court had construed a Government pretrial memorandum as a concession that the transaction forming the basis of the indictment was a loan and held that the statute did not penalize management for loaning money to union officials. This Court noted probable jurisdiction to consider the validity of this construction of the statute, but after oral argument the Solicitor General represented to the Court that he felt the Government was free, on remand, to prove the transaction came within the statute because its particular facts revealed this was not a bona fide loan. This occurrence left the precise issue to be decided so opaque and the extent to which a decision would resolve the controversy so uncertain that the Court, in effect, was being asked to render an “advance expression of legal judgment upon issues which remain unfocused,” 365 U. S., at 157. Accordingly, the Court remanded the case without further adjudication.

In the case now before us subsequent events have produced similar consequences. The focus of this lawsuit has been completely blurred, if not altogether obliterated, and our judgment on the important issues involved is potentially immaterial. Indeed, the instant case is obviously more compelling than Fruehauf, since this one presents an issue of constitutional, not statutory, interpretation.

Similarly, in Rescue Army v. Municipal Court of Los Angeles, 331 U. S. 549 (1947), the Court declined to adjudicate an appeal presenting important constitutional issues because those issues were, on close inspection, so intertwined with complex problems of construing the Los Angeles Municipal Code that it was not possible to tell with precision at that stage in what context and to what extent the appellants’ freedom was being restrained. So, here, we do not know, assuming the bond-posting or double-damages provisions ultimately are successfully invoked, in what context this will occur, or what the precise rationale for applying them will be.

In short, resolution by this Court at this time, of the issues originally raised by appellants would not be appropriate. We leave ourselves completely free, of course, to review these issues should appellants’ fears that they will be adversely affected by the repealed statutes subsequently be confirmed by proceedings in the Georgia courts.

Accordingly, the appeal will be dismissed and the case remanded to the Supreme Court of Georgia.

It is so ordered.

Mr. Justice Black concurs in the judgment of the Court dismissing this appeal but does so specifically on the ground that the case is now moot.

       Mrs. Sanks intended to contest the dispossessory warrant on the ground that she is not, in fact, the tenant of the person seeking to evict her. App. 5.

       Georgia has a statutory policy disapproving the retroactive application of new statutes. Ga. Code Ann. § 102-104 (1968). However, the statute expressly distinguishes “[l]aws looking only to the remedy or mode of trial.” Conceivably, this case might be held to fall within that exception. Moreover, we cannot foretell whether a subsequent motion for double damages would be treated as, in effect, a new lawsuit filed well after passage of the new Act.