ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD (Board Nos. 4-CA-7575 and 4-RC-11699). Originally argued on February 24, 1978. 580 F.2d 55. Resubmitted for Panel Reconsideration on June 13, 1978.
Adams, Circuit Judge. Adams, Higginbotham, Circuit Judges, and Bechtle,*fn* District Judge.
The panel, having granted the NLRB's motion for rehearing, has the task of reconsidering the mandate of its earlier opinion in light of Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 98 S. Ct. 1197, 55 L. Ed. 2d 460, 46 L.W. 4301 (1978), decided shortly after we handed down the original decision in this matter. At issue is that aspect of the opinion dealing with the remedy of a bargaining order and, in particular, the direction that the NLRB itself state the reasons for such an order where, as here, the administrative law judge had provided a statement of the considerations prompting him to recommend a bargaining order. Because the panel has come to the view that its earlier determination with respect to the remedy of the bargaining order should not be sustained in light of principles enunciated in Vermont Yankee Nuclear Power, supra, we have determined that that portion of the earlier opinion and mandate should be vacated.
It is well to consider at the outset how the law relating to bargaining orders in labor cases has evolved in the recent opinions of this Court. The focal point for decisional analysis, as we see it, is the Supreme Court's discussion in N.L.R.B. v. Gissell Packing Co., Inc., 395 U.S. 575, 89 S. Ct. 1918, 23 L. Ed. 2d 547 (1969). In Gissell, the Court set forth the doctrine that bargaining orders, although not disfavored under the federal labor laws, constitute a type of remedy that should be employed only in situations clearly requiring such relief. Specifically, since a bargaining order displaces the normal mechanisms for electoral selection of bargaining representatives and injects the NLRB into the heart of the process of collective bargaining, such relief, Gissell declares, should be carefully confined to contexts wherein the underlying unfair labor practices make impossible or highly unlikely the prospect of an election based upon the employees' free choice. See 395 U.S. at 612-16.
Such a position is founded on a sensitivity to the role of a court in reviewing cases originating in proceedings before the NLRB, namely, that of being asked to enforce or not to enforce a given remedy imposed by the Board. When so requested to act, Gissell emphasizes, a court is effectively called upon to ascertain whether a bargaining order should not be enforced because the underlying circumstances do not sufficiently warrant such relief. See id.
Given Gissell's analysis of bargaining orders, a court of appeals, in determining whether the standards of Gissell have been satisfied, needs to have before it, at the very least, a statement of the reasons leading the administrative agency to impose a bargaining order.*fn1 That is the basic point undergirding the notion, expressed by this Court in N.L.R.B. v. Armcor Industries, Inc., 535 F.2d 239, 244-45 (3d Cir. 1976), that before a court of appeals may enforce a bargaining order, the record should contain an elaboration of the basis for the determination that such relief is necessary.*fn2 That stance has been reaffirmed in subsequent cases of this Court. See Hedstrom Co. v. N.L.R.B., 558 F.2d 1137, 1150-52 (3d Cir. 1977); N.L.R.B. v. Eagle Material Handling, Inc., 558 F.2d 160, 166-68 (3d Cir. 1977).*fn3
However, the standards of Gissell do not directly compel the result reached by the panel in its earlier decision in this case, which is that the Board itself must set forth the basis of a bargaining order in an independent statement, and may not simply incorporate by reference the comments of the ALJ. On reflection, it does not appear that such conclusion constitutes an implementation of the concept that some statement of reasons for the remedy of a bargaining order -- whether made by the ALJ, or by the NLRB itself -- is required before enforcement of that order.
In Vermont Yankee Nuclear Power, the Supreme Court stressed its concern about the danger that courts of appeals might misread or misapply "statutory and decisional law cautioning reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress." 435 U.S. 519 at 525, 46 L.W. at 4302. Although Vermont Yankee Nuclear Power dealt with a factual and administrative context different from that here and, in particular, involved the review of rule-making rather than of adjudicatory procedures, it expresses the basic philosophy that agencies should be relatively free to establish their own procedures and mechanisms for decision-making on subjects within the scope of their expertise.
Such an orientation of deference to agency procedures should not be adopted in an unmodulated fashion in every case, for to do so would effectively nullify the power of courts to oversee the fairness and legal propriety of agency-established procedures. However, the spirit of Vermont Yankee Nuclear Power must be given attention in a situation such as this one, where the question is posed whether the particular procedural requirement previously established by this panel should be sustained.
Upon reconsideration, we believe that the mandate of the prior opinion dealing with the bargaining order should not be upheld. So long as the ALJ has provided a statement of reasons for its recommendation of a bargaining order as it did here,*fn4 and so long as the NLRB has specifically indicated its adoption of the findings and reasoning of the ALJ, as was done in the present case,*fn5 the need for a separate elaboration of the factors prompting a bargaining order would appear to have been met. To go beyond that by asking the NLRB itself to provide an independent statement of reasons would seem to impose a requirement of "proper procedures" upon an agency "entrusted with substantive functions by Congress," and thus to be inconsistent with the approach taken in Vermont Yankee Nuclear Power.
We therefore have concluded that the portion of the earlier opinion and mandate dealing with the bargaining order will be vacated, the company's petition for review of the Board's order will be ...