The plaintiffs are newspaper publishers in New York City.
Local 471 of the Newsboys Union filed with appellant State Labor Relations Board a petition under section 705 of the Labor Law, alleging therein that plaintiffs had refused to recognize petitioner as the exclusive bargaining agent of certain newsboys and newsdealers. The union demanded that it be certified by the Board as such exclusive agent. Following its usual practice, the Board thereupon held, at its office, a preliminary conference to which plaintiffs were invited and at which their representatives attended. At that conference (a sort of "pre-trial" meeting) plaintiffs' representatives stated to the Board that the newsboys or newsdealers, whose chosen agent Local 471 claimed to be, were not employees of any of the plaintiffs, but were independent merchants. This the union denied. The Board took no testimony and made no determination of any kind but gave notice of a formal public hearing (see Labor Law, § 705, subd. 3). Meanwhile another union (Local 22,371 of the Newsdealers Federal Labor Union) intervened in the proceeding pending before the Board, insisting that it, and not Local 471 of the other union, was the chosen bargaining agent of the newsboys or newsdealers. This entrance into the proceedings, of Local 22,371, was the occasion for plaintiffs asserting another objection to the Board's taking jurisdiction. Plaintiffs told the Board that the rival locals were both affiliates of the American Federation of Labor (controversies between such associated unions are removed from the Board's jurisdiction by subdivision *Page 191 3 of section 705 of the Labor Law). Plaintiffs then requested the Board to adjourn the proposed public hearing until plaintiffs should have an opportunity to bring actions for declaratory judgments in the Supreme Court. The Board did not order the adjournment and the present suits were brought. In their complaints, plaintiffs again take the position that the newsdealers or newsboys are no employees of theirs but are engaged in business for themselves. On that ground, and because, as plaintiffs say, the contending unions are of the same parentage, plaintiffs in these actions pray for judgments declaring that the Board has no jurisdiction in the premises, and enjoining the Board from doing anything further in the matter. (The Board, while taking the position that it has power at least to go ahead and investigate the facts as to employer-employee relationship and as to the affiliations of the local unions, has not taken any further steps in the case before it.)
The Board served answers in these declaratory judgment suits. It denied any knowledge or information sufficient to form a belief as to the truth of the assertions made by plaintiffs that the union members are entrepreneurs, not employees, and that the two unions are both included in the American Federation of Labor. Both these questions, alleged the Board in separate defenses, are "for the Board alone to determine in the first instance." Elsewhere in the answers the Board pointed out that it has taken no testimony and made no determination in the pending Board proceeding, that plaintiffs are not aggrieved at this time, that they have not exhausted the administrative remedies given by the Labor Law and that there is no justiciable controversy between plaintiffs and the Board. The Board prayed for a dismissal of the complaint or for judgments in its favor against plaintiffs.
After service of the pleadings, defendant Board moved in each of the four above-entitled actions, for judgment on the pleadings, and for summary judgment. All motions were denied by the courts below. (For reasons to be stated at the end of this opinion, we will deal herein with the motions for judgments on the pleadings only.)
Stated in simplest terms, the position of plaintiffs is that they are entitled to maintain these actions because, as they contend, *Page 192 the Board is attempting to act without jurisdiction — that the Labor Relations Act itself forbids the Board to act because the newsdealers or newsboys are not "employees" at all, and because the two locals are sister unions. Put in equally simple terms, the Board's stand is this: it says that, whatever the facts may turn out to be as to employer-employee relationship or as to common parentage of the two unions, those are the very questions which the statute requires the Board itself to decide. So far the Board has not decided them. Jurisdiction to hear and pass on those questions has been expressly given to it by the Legislature, says the Board. The courts, it says, should not oust the Board of that jurisdiction, or pre-empt the place assigned to the Board by statute.
Plaintiffs cite many precedents for the propriety of the use of a declaratory judgment suit to stay the hand of an administrative body when it attempts to act without jurisdiction. But those are all cases "where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved" (New York Operators v. State LiquorAuthority, 285 N.Y. 272, 276, citing Dun Bradstreet, Inc., v. City of New York, 276 N.Y. 198, 206). Typical are the tax and licensing cases, such as New York Operators v. StateLiquor Authority (supra); Dun Bradstreet, Inc., v. Cityof New York, supra; Aerated Products Co. v. Godfrey (263 App. Div. 685, revd. on other grounds, 290 N.Y. 92); and Booth v.City of New York (296 N.Y. 573.) In such situations where it is not the facts which are in dispute but the meaning or legality of the statute under which the administrative body is purporting to deal with the citizen, then the courts, doing the traditional work of courts, will entertain declaratory judgment suits to pass on the question of law as to the statute's meaning or validity. Appellant Board was itself held subject to that kind of judicial control in Bank of Yorktown v. Boland (280 N.Y. 673) andAllegheny Ludlum Steel Corp. v. Kelley (295 N.Y. 607). But in the Yorktown and Allegheny cases the courts did not take over, as they are asked to do in the present cases, the arbitrament of factual questions which the Legislature has seen fit to submit to the Labor Relations Board. Of course, the presence of issues of fact does not in itself require the dismissal of a suit for declaratory judgment (see rule 213 of the *Page 193 Rules of Civil Practice; Rockland Light Power Co. v. City ofNew York, 289 N.Y. 45, 52). But where those questions of fact are cognizable by a tribunal other than the court and there is no compelling reason for ousting that tribunal of jurisdiction, then there is neither need nor right of resort to the declaratory judgment action.
Whether or not the administrative process is "our generation's answer to the inadequacy of the judicial and the legislative processes" (Landis on The Administrative Process, p. 46), the use thereof by our State Legislature, as an instrument of public control, is firmly established. No constitutional or other impediment stands in the way of the lawmakers when they use such processes to effectuate public policies declared by them. Nothing in the fundamental law prevents the Legislature from "leaving to selected instrumentalities * * * the determination of facts to which the policy as declared by the legislature is to apply" (Chief Justice HUGHES in the Schechter case, 295 U.S. 495,530). In 1937, with the passage of a Labor Relations Act, New York entered into a wholly new State activity: the investigation and punishment of "unfair labor practices", including the enforcement of the right of employees to collective bargaining through selected agents. Involved in that new State activity was the certification of such bargaining agents, by the Labor Relations Board. (No one, up to now, has ever suggested that any tribunal other than the Board has this power and duty, so I do not see what turns on the omission of the unnecessary word "exclusive" from sections 705 and 706 of the Labor Law). In making such certifications the Board must, if a dispute arises, decide which one (if any), of competitor unions has in fact been selected by a group of employees as their bargainer. In plainest language the Legislature, in section 705 of the Labor Law, directed the Board to settle such contests by holding elections, or by other appropriate methods. Of course, this was all quite new. Just as this State had long ago changed the status of party nominating conventions as "private fights", and brought them under strict regulation by public bodies, so, for sufficient reasons, this State, by enacting the Labor Relations Law, took upon itself the task of presiding over the selection of bargaining agents and of certifying the results thereof. In so doing, the Labor Relations Board is no one's antagonist *Page 194 or champion. It is an umpire, keeping and announcing the score. Since the Board's function in certification proceedings is merely that of presiding over a contest in which it takes no position, the State Labor Relations Act, like its Federal prototype, provides no court review of such certification (see Matter ofWallach's, Inc., v. Boland, 277 N.Y. 345; American Federationof Labor v. National Labor Relations Board, 308 U.S. 401; alsoSwitchmen's Union v. National Mediation Board, 320 U.S. 297). To the argument that the lack of such a direct judicial review of a certification may lead to hardships and to industrial conflict, the answer is that given by the dissenting justice in the Appellate Division in the present case: that such a criticism of the Act should be addressed to the Legislature, not to the courts (see, likewise, Justice STONE in American Federation of Labor v. National Labor Relations Board, supra, 308 U.S. 401).
Of course, the Board certifies bargaining agents for "employees" only. When there is a preliminary dispute as to whether those who seek certification are or are not employees of the putative employer, who is to decide that question? Who decides the same question when in a hearing on a workmen's compensation or unemployment insurance claim, issue is joined as to whether or not the claimant is or was in fact an employee? Is it conceivable that all or any of thousands of hearings held before workmen's compensation or unemployment insurance referees would be held up so that an alleged employer might take to the Supreme Court, in a declaratory judgment suit, his assertion that the claimant was no employee of his? Those questions answer themselves. The Legislature, in delegating to its creatures, the administrative tribunals, the trial of certain claims or petitions by "employees", empowered those tribunals to decide simple questions of fact as to who are "employees." In acting under such grants of power, the boards usurp no constitutional or traditional office of the courts. Any questions of law are still for the courts. As Justice BRANDEIS wrote in 1936: "The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly" (concurring opinion in St. Joseph Stock Yards Co. v.United States, 298 U.S. 38, 84). That requirement, however, does not *Page 195 mean that every single determination of a fact-finding agency must, for validity, be subject to an immediate court review. Much less does it mean that a party who asserts that the facts of his case remove it from the Board's jurisdiction may insist that the determination and announcement of those facts be made in thefirst instance by a court, rather than by the Board authorized by the Legislature to make that very ruling. Indeed, in the present case no necessity appears, at least presently, for such a resort to the courts. If it be the incontestable fact, as plaintiffs tell us it is, that the members of these local unions were never employed by plaintiffs, what basis is there for a fear that the Board will, for some unaccountable reason, hold the other way? Even if the Board should so hold, against all the evidence, plaintiffs will not thereby be put in jeopardy. Any certification of one or the other union will be an interlocutory determination only (see Matter of Wallach's, Inc., v. Boland,supra) with no immediate impact on plaintiffs. Such a certification will settle the rivalry between the locals but it will not order plaintiffs to do, or to refrain from doing, anything. If, thereafter the Board, in a later proceeding (see § 706) should go further and make an order finding plaintiffs guilty of unfair labor practices for refusal to bargain with the certified union, then, under the statute (Labor Law, § 707, subd. 4), plaintiffs may appeal to the courts (see 5 Benjamin on Administrative Adjudication, pp. 161, 162). That is the point in the proceeding at which, as the Legislature plainly intended, the aggrieved employer (or alleged employer) will have, if he needs it, his day in a court of law. Taking that plainly marked path did not unduly prejudice the employer in, for instance, Matterof Columbia University v. Herzog (295 N.Y. 605).
"There should be mentioned, finally, the doctrine that in various circumstances a party must exhaust available administrative remedies before resorting to the courts, and the related doctrine that in various circumstances a statutory provision for one method of judicial review will exclude resort to other judicial proceedings" (1 Benjamin on Administrative Adjudication, pp. 365-366, and cases cited in footnotes 17 and 18).
The language of section 473 of the Civil Practice Act, which sets up declaratory judgment procedures in the State, is broad and comprehensive. But, while "no limitation has been placed *Page 196 or attempted to be placed upon its use" (James v. AldertonDock Yards, 256 N.Y. 298, 305) the power to grant declaratory judgments "is not unlimited * * * nor are its bounds unmarked" (New York Operators v. State Liquor Authority, supra, 285 N Y at p. 275). "Implicit in the statute and the public policy which it expresses" are "limitations upon the exercise of the power with respect to the nature of the controversy" (New YorkOperators case, supra, 285 N.Y. at p. 276). As Justice McLAUGHLIN observed at Special Term in the New York Operators case (see 173 Misc. 540, 541): "If, every time a party felt so disposed, he could come into this court and have his relations with the law-enforcing authorities passed upon, then the Supreme Court would be, in effect, running the executive and administrative departments of government as well as usurping the powers of all the law-enforcing agencies" (see, also, LongIsland Lighting Co. v. Maltbie, 262 App. Div. 376, 378, affd.287 N.Y. 691). That is strong language, but it fits the present cases. Plaintiffs say that the Labor Board may decide, wrongly, that the newsdealers are plaintiffs' employees. Such a declaration by the Board, say plaintiffs, will be embarrassing to them, may stir up strife or strikes, will put plaintiffs in a false position before the public. But in all this plaintiffs are saying no more than the Board may give the wrong answer to a question of fact, may declare some union to be the bargaining agent of supposed employees who in truth are no employees at all (see Long Island Lighting Co. v. Maltbie, supra). "Jurisdiction is authority to decide the case either way" (TheFair v. Kohler Die Co., 228 U.S. 22, 25; see People v.Sturtevant, 9 N.Y. 263). The risk that the ruling of a qualified tribunal may be a wrong one is a risk every citizen must run (see Stoll v. Gottlieb, 305 U.S. 165, 171). Here that risk is not one of grave or irreparable injury. Plaintiffs are not in the plight of the New York Foreign Trade ZoneOperators (285 N.Y. 272) who, as against the Liquor Board's assertion of authority over them, had no remedy except to sit back, refuse to take out a license and then defend a criminal prosecution or injunction suit when brought. Those essentially negative remedies were not, we held, adequate protection for the Foreign Trade Zone Operators. Entirely different is the position of plaintiffs who, when and if the Board proceeds *Page 197 directly against them, will have an immediate right of recourse to the courts under section 707 of the Labor Law with no danger of criminal prosecution, tax levy or penalty enforcement, meanwhile. The present suits are, therefore, not within the purview of the declaratory judgment statute. Whether we say that the entertaining of these suits was legal error, or that the refusal of the courts to dismiss them was an abuse of discretion, the same result follows. The complaints on their face show the absence of any case for declaratory judgment. Defendant Board was entitled to have the suits dismissed on motion.
Respondents argue that, by moving for judgment on the pleadings, defendant Board admitted the allegations of the complaint that the union members were independent businessmen and that the rival unions were both affiliated with the American Federation of Labor. "If the defendant moves, he admits every material fact set out in the complaint * * *". (Emanuel v.Walter, 138 App. Div. 818, 819.) But such a constructive admission does not include every statement found in a complaint. What has been said in preceding paragraphs hereof establishes, we think, that the complaint's averments that the newsdealers were not employees and that the unions were both members of the same Federation, were not material to any litigable controversy between plaintiffs and the State Labor Relations Board. The Board could not, by any kind of action or proceeding, be forced to carry on any such dispute with plaintiffs, in another forum. Plaintiffs, pleading their own unproven version of the facts as to these two mooted matters, could not put the Board to an admission or a denial thereof. The Board could, as it did, deny that it knew what the true facts were, and insist that whatever the facts were, the Board itself was the State agency commissioned by the Legislature to perform the judicial or quasi-judicial act of determining those facts. Plaintiffs say that the Board is frequently cast in the role of adversary to employers or alleged employers. So it is, where the Legislature has commanded it to play such a role. But not in representation proceedings, where the Board is the merest umpire or stakeholder.
Furthermore, plaintiffs have failed to join either of the unions, or any of the individual newsboys or newsdealers, as defendants. Plaintiffs say, and the courts below held, that this was at worst a mere defect of parties defendant, subject to correction but not *Page 198 requiring a dismissal of the complaint (see Civ. Prac. Act, § 193, and Rules Civ. Prac., rule 102). Actually, it is a failure to sue any party between whom and plaintiffs there exists a justiciable controversy (see Manhattan Storage Warehouse Co. v. Movers Assn., 289 N.Y. 82; Wood v. City of Salamanca,289 N.Y. 279; Varrichio v. Varrichio, 269 App. Div. 678,679). No practical effect would follow from judgments in favor of plaintiffs. The unions, much less their members, would not be bound thereby. We need not decide whether the absence of the unions as parties would in itself be sufficient ground for dismissal. It at least strengthens the position of the Board that the latter may not be forced, in these actions, to fight out with plaintiffs, in court, the very questions that should be fought out before the Board itself, as a fact-finding tribunal.
Plaintiffs argue that, at least as to the question of whether the disputant unions are or are not sister organizations, the Board is barred by the statute itself (Labor Law, § 705, subd. 3) from all "authority to investigate any question or controversy" between affiliates. Therefore, say plaintiffs, the Board may not even investigate to see whether such a relationship exists between the unions. That is the same as saying that an employer may stop a representation proceeding merely by asserting the alleged affinity of unions whose competing claims are before the Board. We see no difference in kind between that question and the question of employer-employee relationship. The Board is, of course, of limited jurisdiction. But when the existence or not of that jurisdiction depends on an issue of fact, the Board itself, and no other tribunal, is the appointed trier of that fact.
In all the above, we have been treating the question as to the status of the newsdealers as if it were a simple or single issue of pure fact, with no complications or complexes of fact, no room for conflicting inferences. It may turn out to be something quite different. Such seemingly simple problems as whether a transaction was or was not a sale, and whether a certain place was or was not a factory, turned out to be matters of judgment for experienced administrators (Matter of Mounting FinishingCo. v. McGoldrick, 294 N.Y. 104; Red Hook Cold Storage Co. v. *Page 199 Department of Labor, 295 N.Y. 1). "Of course, statutory construction is the function of the courts, but where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court's function is limited (Board v. Hearst Publications, 322 U.S. 111, 131). The administrative determination is to be accepted by the courts `if it has "warrant in the record" and a reasonable basis in law'" (Matter of Mounting Finishing Co. v. McGoldrick,supra, p. 108).
The working out of the inter-relation between administrative agencies and courts has been a slow and difficult one. It is unfortunate that the discussion, too often carried on in an atmosphere of contest, has generated so much heat. The courts and the boards are not rivals. "* * * in construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim" (United States v.Morgan, 307 U.S. 183, 191). The dismissal of this suit will not take from the Supreme Court any of its time-honored functions. A reversal here leaves the law of this State as it has been for a century (People v. Goodwin, 5 N.Y. 568): duly authorized boards make their own findings of fact, independently of the courts. Neither at common law (People ex rel. Haines v.Smith, 45 N.Y. 772, 776, 777) nor under any statute, past or present, have the courts in certiorari proceedings, or otherwise, ever had any duty or right of reviewing generally on the facts the decisions of Legislature-created administrative bodies. By defeating at the 1938 election the proposed new Judiciary Article of *Page 200 the State Constitution, the People of this State rejected a proposal that there should be court review of such decisions "upon both the law and the facts". It is the plaintiffs who are trying to upset all this by seeking first-instance determinations on the facts by the court, through the device of actions for declaratory judgments. Declaratory judgments did not exist in this State until authorized by the Legislature in 1920. There is no reason whatever for concluding that the Legislature, in setting up that new form of action, intended to allow its use in the way attempted here. Quite the contrary appears since, in the 1937 enactment of article 78 of the Civil Practice Act, the Legislature codified and restated the rules which prohibit examination by the courts of the weight of evidence, etc., in proceedings before quasi-judicial bodies (Civ. Prac. Act, § 1296).
We repeat: we are not saying that the Labor Relations Board may never be sued for a declaratory judgment (Bank of Yorktown v.Boland, supra; Allegheny Ludlum Steel Corp. v. Kelley,supra). If the Board strays outside its statutory bounds by taking any palpably arbitrary or unlawful action, then the protection of an affected party may, under special circumstances, require and justify the interposition of a court, even though there be lacking specific statutory provision for certiorari or other court review of, or stay of, the particular Board determination. Such a situation would be analogous to those above described (Booth v. City and similar cases cited, supra), where taxing bodies make levies against persons clearly not subject to the particular taxes. But no such stage has been reached in any procedures this Board has conducted against these plaintiffs. Defendant Board cannot be accused of making an arbitrary or capricious decision since it has made no decision at all, or even taken testimony. It cannot be held to have gone outside its statutory jurisdiction since the fact questions on which its jurisdiction depends are at issue, disputed and unresolved, before the Board itself. And surely the Board has not violated any constitutional right of plaintiffs, since the whole matter of designating bargaining agents is statutory, and no constitutional question is involved.
We have not treated at any length herein the denial by the courts below of the motions of defendant Board for summary judgments. Were defendant's other motions for judgments on *Page 201 the pleadings granted, summary judgments would serve no purpose. Beside, the refusal to order a summary judgment is ordinarily a discretionary determination with which we do not interfere. Nor do we think that the courts below were bound to grant declaratory judgments to defendant Board. Judgments in its favor dismissing the complaints would be sufficient for all purposes.
In each of the above-entitled actions the orders appealed from should be reversed, with costs in all courts. The first certified question should be answered in the affirmative, the other certified question not answered.
LOUGHRAN, Ch. J., LEWIS, THACHER and DYE, JJ., concur with CONWAY, J.; DESMOND, J., dissents in opinion in which FULD, J., concurs.
Orders affirmed, etc.