Beverly Health and Rehabilitation Services, Inc. v. Feinstein
| Decision Date | 04 March 1997 |
| Docket Number | No. 96-5206,96-5206 |
| Parties | 154 L.R.R.M. (BNA) 2090, 322 U.S.App.D.C. 245, 65 USLW 2467, 133 Lab.Cas. P 11,737 BEVERLY HEALTH AND REHABILITATION SERVICES, INC., Appellant, v. Frederick L. FEINSTEIN, General Counsel, National Labor Relations Board, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (No. 96cv00633).
William H. DuRoss, III, Washington, DC, argued the cause for appellant, with whom Hugh L. Reilly was on the brief.
Nancy E. Kessler Platt, Attorney, National Labor Relations Board, Washington, DC, argued the cause for appellee, with whom Margery E. Lieber, Assistant General Counsel, and Eric G. Moskowitz, Deputy Assistant General Counsel, were on the brief.
Before: WALD, WILLIAMS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
Beverly Health and Rehabilitation Services, Inc. ("Beverly"), a long-term health care company which employs 83,000 people in 33 states and the District of Columbia, brought this action in the district court to enforce a written agreement that it had entered into with the General Counsel of the National Labor Relations Board ("NLRB" or "Board"). The agreement purports to govern procedures for handling multiple unfair labor practice charges filed against Beverly and to restrict the content of complaints issued by the General Counsel that stem from such charges. Through this agreement, Beverly, which operates over 703 individual facilities, hoped to avoid (1) the consolidation of unfair labor practice charges lodged against individual Beverly facilities, (2) the identification of Beverly's various subsidiaries and affiliates as a "single employer," and (3) the imposition of nationwide remedial measures.
During the term of the agreement, the NLRB Director for Region 6, acting under power delegated to him by the General Counsel, issued orders consolidating three unfair labor practice charges against the Grandview Healthcare Center facility in Oil City, Pennsylvania. The consolidated complaint named Beverly, its Pennsylvania subsidiary, the Grandview facility and 19 other facilities located in Pennsylvania as respondents and sought a remedial order covering all of Beverly's Pennsylvania facilities, "not only the facilities listed in [the complaint]." Beverly responded by filing this action for breach of the written agreement in district court.
After Beverly filed this civil action, the Regional Director postponed indefinitely the administrative hearing on the consolidated complaint and the General Counsel of the NLRB gave ten days notice of his intention to terminate the agreement with Beverly, as permitted by its terms. After the termination of the agreement, the NLRB Director for Region 6 issued a second consolidated complaint. The second complaint incorporated different unfair labor practice charges than those included in the first complaint, although, as with the first complaint, it named Beverly, its Pennsylvania subsidiary and the same 20 Pennsylvania facilities as respondents. The second consolidated complaint also sought remedial measures applying to all Pennsylvania facilities. Beverly did not, however, amend its complaint in the civil action to add allegations concerning the issuance of the second consolidated complaint.
The General Counsel moved to dismiss this civil action, arguing, inter alia, that the district court lacked subject matter jurisdiction to entertain a breach of contract claim against the NLRB's General Counsel. The district court agreed, explaining that "a federal district court does not have jurisdiction to enjoin or restrain the Board or its agents from conducting unfair labor practice proceedings," unless "a party can show that the Board or General Counsel has violated a specific mandatory requirement in the National Labor Relations Act." Beverly Health and Rehabilitation Services, Inc. v. Feinstein, Civil Action No. 96-633(GK), slip op. at 3, 4, 1996 WL 523729 (D.D.C. July 25, 1996). Since the rights asserted by Beverly derived from the written agreement, not the National Labor Relations Act ("NLRA"), the district court determined that there was no justification for the court's invading the Board's normal autonomy in bringing and disposing of unfair labor practice cases. The district court explained that "the conduct at issue here is an exercise of prosecutorial discretion, which is not reviewable in this Court." Id. at 5. Accordingly, it dismissed the case, and Beverly brought this appeal. We review the district court's dismissal of Beverly's complaint de novo. Kidwell v. Department of Army, Bd. for Correction of Military Records, 56 F.3d 279, 283 (D.C.Cir.1995).
The single narrow issue we address on this appeal is whether the National Labor Relations Act, as amended by the Labor Management Relations Act, 29 U.S.C. § 151 et seq., prevents a district court from exercising subject matter jurisdiction in order to review a charging decision of the General Counsel of the NLRB when that decision is alleged to be in violation of an agreement entered into by the General Counsel. Because the NLRA insulates the General Counsel from judicial review of his prosecutorial functions, we hold that the General Counsel's decision to issue the first consolidated complaint cannot be challenged in a separate civil action to enforce the contract which purportedly limits his discretion in that regard. Accordingly, we affirm the district court's dismissal.
Enforcement of the NLRA's prohibition against unfair labor practices is accomplished through a split-enforcement system, assigning all prosecutorial functions to the General Counsel of the NLRB and all adjudicatory functions to the Board. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123-28, 108 S.Ct. 413, 420-24, 98 L.Ed.2d 429 (1987). Under the Act the administrative process begins with the filing by a private party of a "charge." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29 (1975); see 29 U.S.C. §§ 153(d), 160(b). The adjudication of such charges by the Board is predicated upon the issuance by the NLRB's General Counsel of a "complaint" based on the charges. NLRB v. Sears, Roebuck & Co., 421 U.S. at 138, 95 S.Ct. at 1510-11; see 29 U.S.C. §§ 153(d), 160(b). The complaint itself has no legal effect upon an employer's business, except to impose upon the employer the burden of defending itself in an agency adjudication. 29 U.S.C. § 160(b). The complaint may be disposed of through settlement or formal adjudication before the Board. Once the Board issues a final order, it is appealable to a United States Court of Appeals. Id. § 160(f).
Section 153(d) of the NLRA dictates that the General Counsel is the "final authority ... in respect of the investigation of charges and issuance of complaints ... and in respect of the prosecution of such complaints before the Board." 29 U.S.C. § 153(d). No provision of the Act provides for judicial review of any of these prosecutorial functions. On the other hand, the Act specifically provides for judicial review of "final order[s] of the Board." Id. § 160(f) (); see also id. § 160(e) (). 1 The Supreme Court accordingly has held that the Act does not authorize judicial review of the General Counsel's decision to file or withdraw a complaint. NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. at 124-26, 108 S.Ct. at 421-23; id. at 131, 108 S.Ct. at 425 ); NLRB v. Sears, Roebuck & Co., 421 U.S. at 138, 95 S.Ct. at 1510-11; Vaca v. Sipes, 386 U.S. 171, 182, 87 S.Ct. 903, 912-13, 17 L.Ed.2d 842 (1967).
In this case, the General Counsel issued a complaint consolidating several individual charges and seeking a remedy that would apply both to the specific Beverly facilities in Pennsylvania where the individual unfair labor practices are alleged to have occurred and to other Beverly facilities in Pennsylvania. Beverly contends that the General Counsel entered into a formal agreement not to pursue such consolidated complaints and not to seek such "extraordinary remedies." Beverly has asked the district court, in effect, to reach down into the administrative process, assess the contents of the first consolidated complaint issued against Beverly's Pennsylvania facilities and, if Beverly is right on the merits of its breach of contract claim, order the General Counsel to "fix" the complaint. Beverly argues that the judicial intervention it seeks does not clash with the protection afforded prosecutorial decisions under the NLRA because the conduct in dispute concerns only "the contents of the administrative complaints," not the "issuance of complaints." Appellant's Brief at 13 (emphasis in original). And, even if such decisions are deemed prosecutorial, continues Beverly, the General Counsel's signature on the written agreement underlying this dispute trumps the statutory protection ordinarily accorded to prosecutorial decisions.
We find little merit in Beverly's claim that its civil action would not invade the realm of prosecutorial discretion. A charging determination of the type challenged here is a quintessential example of a prosecutorial decision. It involves a balancing of culpability, evidence, prosecutorial resources, and the public interest. The weighing of all those considerations factors into the issuance of a complaint. The formulation of the proper contours of a complaint is a critical first step in the prosecutorial journey and Beverly's attempt to segregate the framing of the complaint...
To continue reading
Request your trial
-
Speed Mining v. Fed. Mine Saf. and Health Rev.
...administrative enforcement decisions. Twentymile, 456 F.3d at 157; see also Drake, 291 F.3d at 71; Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151, 153 (D.C.Cir. 1996). Finally, the fact that the Mine Act explicitly grants aggrieved parties the right to seek the Commission's......
-
Secretary of Labor v. Twentymile Coal Co.
...discretion is at issue, the matter is presumptively committed to agency discretion by law"); Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151, 153 (D.C.Cir.1996) (holding that the NLRB General Counsel's decision to issue an unfair labor practice complaint is unreviewable beca......
-
Pauma v. Nat'l Labor Relations Bd.
...prosecutorial functions to the General Counsel of the NLRB and all adjudicatory functions to the Board." Beverly Health & Rehab. Servs. v. Feinstein , 103 F.3d 151, 152 (D.C. Cir. 1996). "[T]he process of adjudicating unfair labor practice cases begins with the filing by a private party of ......
-
Gold v. State Plaza, Inc., Civ.A.06-329(CKK).
...F.2d at 1051 n. 29 ("Whatever the appropriate standard is under § 10(j)...."). Finally, much more recently in Beverly Health and Rehab. Servs., Inc., 103 F.3d 151 (D.C.Cir. 1997), the appellate court cited only to D'Amico, which of course applies the traditional four-pronged injunctive stan......