Following a unit determination hearing, the National Labor
Relations Board (NLRB) regional director concluded that three
individuals were employees, rather than supervisors, and thus
includible in the proposed bargaining unit at petitioner company's
plant. The NLRB denied petitioner's request for review. Following
an election, the regional director certified the union as the
exclusive bargaining representative. Subsequently, the NLRB upheld
a finding that petitioner's refusal to bargain constituted an
unfair labor practice. Petitioner moved for reconsideration on the
ground that the NLRB was required to give plenary review to the
regional director's representation determination before issuing an
unfair labor practice order based on that determination. The motion
was denied, and the Court of Appeals enforced the NLRB's order.
Held: Under § 3(b) of the National Labor Relations Act,
the NLRB is permitted to delegate to the regional director its
authority to determine the appropriate bargaining unit, and plenary
review by the NLRB of such determination is not mandatory. Pp.
141-143.
427 F.2d 114, affirmed.
DOUGLAS, J., delivered the opinion for a unanimous Court.
Page 401 U. S. 138
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. [
Footnote
1] 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. [
Footnote 2]
Page 401 U. S. 139
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,
313 U. S. 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
Page 401 U. S. 140
discretion to reopen the issue where newly discovered
noncumulative evidence is available. [
Footnote 3]
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, [
Footnote 4]
Page 401 U. S. 141
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: [
Footnote 5]
"[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
Page 401 U. S. 142
Congress was primarily motivated by a desire to lighten the
Board's workload and speed up its processes. Its recent report
[
Footnote 6] 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 [
Footnote 7] 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 [
Footnote
8] make clear that the regional director is required to follow
the same rules as the Board respecting factfinding. [
Footnote 9] The regional director's
determination
Page 401 U. S. 143
if adopted by the trial examiner in the unfair labor practice
proceeding accompanies the case both to the Board [
Footnote 10] and to the Court of Appeals.
[
Footnote 11] In the present
case, the Court of Appeals concluded that the Board's order was
supported "by substantial evidence." [
Footnote 12]
Congress has required no greater showing than that.
Affirmed.
[
Footnote 1]
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. . . ."
[
Footnote 2]
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."
[
Footnote 3]
See rules,
supra, n 2.
[
Footnote 4]
The Tenth Circuit is in accord with the First.
See Meyer
Dairy, Inc. v. NLRB, 429 F.2d 697, 699-700.
[
Footnote 5]
105 Cong.Rec.19770.
[
Footnote 6]
34th Annual Report, Table 3B, 201 (1970).
[
Footnote 7]
107 Cong.Rec. 10223, 12905-12932.
[
Footnote 8]
See rules,
supra, n 2.
[
Footnote 9]
29 CFR § 102.67(b).
[
Footnote 10]
29 CFR § 102.45(a).
[
Footnote 11]
29 CFR § 101.14.
[
Footnote 12]
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,
340 U. S.
487.