Jackman v. N.L.R.B., 83-5073

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KEITH and KRUPANSKY, Circuit Judges, and PECK; KRUPANSKY
Citation784 F.2d 759
Parties121 L.R.R.M. (BNA) 3048, 104 Lab.Cas. P 11,813 Miles T. JACKMAN, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Docket NumberNo. 83-5073,83-5073
Decision Date05 March 1986

Page 759

784 F.2d 759
121 L.R.R.M. (BNA) 3048, 104 Lab.Cas. P 11,813
Miles T. JACKMAN, Petitioner,
No. 83-5073.
United States Court of Appeals,
Sixth Circuit.
Submitted Sept. 17, 1985.
Decided March 5, 1986.

Page 760

Miles T. Jackman, pro se.

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Jolane Findley, Margery Lieber and Bernard Gottfried, Region 7, Regional Director, Detroit, Mich., for respondent.

Before KEITH and KRUPANSKY, Circuit Judges, and PECK, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Petitioner Miles T. Jackman seeks review of a decision of the National Labor Relations Board's (the Board) General Counsel to withdraw an unfair labor practice complaint and enter into an informal settlement agreement.

On June 25, 1981, Jackman filed an unfair labor practice charge against Q.C. Design Services, Inc. (the Company) alleging that it had unlawfully provided financial assistance and support to Local 155, International Union of Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (the Union) which was seeking to become the bargaining agent for the Company's employees by monthly contributions to the Union, which contributions were equal to Union dues that would have been payable by the affected employees, in violation of Section 8(a)(2) of the National Labor Relations Act (the Act) 29 U.S.C. Sec. 158(a)(2) 1 and that he had been discharged because of his activities on behalf of the Union in violation of Section 8(a)(3) of the Act 29 U.S.C. Sec. 158(a)(3)). 2 On August 10, the Regional Director of the Board's Seventh Region issued a complaint against the Company alleging that it had rendered unlawful aid, assistance and support to the Union by, inter alia, contracting with and recognizing the Union as the exclusive collective bargaining representative of the Company's employees when the Union did not represent an uncoerced majority

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of the employees in the unit 3 in violation of Sections 8(a)(2) and (3) of the Act. The complaint also asserted that the Company unlawfully laid off and/or constructively discharged Jackman because of his protected concerted activities of complaining to other employees about the Company's actions and decisions concerning the terms and conditions of employment in violation of Section 8(a)(1) of the Act. 4 Further, the complaint noticed that a hearing would be conducted before a designated administrative law judge on July 12, 1982. On September 11, the Company filed its answer to the complaint. 5

Ten days later, and prior to the commencement of the scheduled hearing, settlement discussions between the Regional Office and the Company proved successful, and on September 21, 1981, the Regional Director and the Company entered into an informal settlement of all outstanding charges against the Company. Pursuant to the settlement, the Company agreed not to recognize the Union until the Union demonstrated that it duly represented an uncoerced majority of the Company's affected employees in the bargaining unit. It also agreed to pay Jackman two weeks' back wages and not retaliate or discriminate against employees who had engaged in protected concerted activities during the time period here in issue. The Company agreed to post a notice essentially incorporating its concessions. Jackman, however, was not offered reinstatement under the conditions of the agreement because the Regional Director's investigation had disclosed evidence that Jackman had sabotaged Company property and had made damaging telephone calls to Company customers.

On September 28, in a letter to the Regional Office, Jackman objected to the settlement agreement, asserting that its terms were not reasonable or acceptable to him. Jackman's objections were predicated solely upon the limited relief the agreement provided him. Jackman demanded full backpay with interest, and reinstatement to his former position. Further, he denied that he had sabotaged Company property or made damaging phone calls. 6

On September 30, 1981, the acting Regional Director notified Jackman by letter that he had approved the settlement agreement, a copy of which he enclosed, stating:

In view of the undertakings contained in the settlement agreement, it does not appear that it would effectuate the purposes of the National Labor Relations Act to institute further proceedings at this time.

Jackman thereupon appealed the Regional Director's approval of the agreement to the General Counsel, Office of Appeals in Washington, D.C. In his appeal Jackman argued that he had been denied due process and again denied making damaging telephone calls or destroying Company property. Finally, he contended that the witnesses who provided information concerning the phone calls and damage to Company property were biased against him.

Subsequent to an independent investigation by the Regional Director of Jackman's allegations of witness bias, the General Counsel rejected Jackman's appeal for substantially the same reasons set forth in the Regional Director's letter of September 30, 1981. Additionally, General Counsel's rejection letter fully addressed each of the

Page 762

allegations advanced by Jackman in his appeal.

Jackman continued to file charges with the Regional Office concerning the issues of property damage, the phone calls and witness bias. In a letter dated May 28, 1982, the Regional Director responded to the allegations by directing Jackman to the results of his investigations. Further, the Regional Director suggested that Jackman could formally move for reconsideration the Regional Director's settlement agreement. Jackman refused to avail himself of that opportunity. 7

Jackman now seeks review in this court of the General Counsel's adverse disposition of his appeal. The Board posits that this court lacks jurisdiction to review the General Counsel's decision because it is not a final appealable order of the Board but rather it is a nonreviewable discretionary prosecutorial act of General Counsel.

The jurisdiction of an appellate court to review Board action rests upon Section 10(f) of the National Labor Relations Act (the Act), 29 U.S.C. Sec. 160(f) which provides in pertinent part:

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain review of such order in any circuit court of appeals of the United States ... by filing in such court a written petition praying that the order of the Board be modified or set aside.

The narrow issue joined in this appellate review is whether General Counsel's dismissal of an unfair labor practice complaint, filed by the Regional Director, before hearing and disposition of the...

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    ...of appeals), and International Ladies' Garment Workers Union v. NLRB, 163 U.S.App.D.C. 263, 501 F.2d 823 (1974) (same), with Jackman v. NLRB, 784 F.2d 759 (CA6 1986) (finding no jurisdiction); cf. Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Ameri......
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    ...courts of appeals have routinely concluded that such action is not subject to judicial review. (Citations omitted.) Jackman v. NLRB, 784 F.2d 759, 763 (6th Cir.1986). In summary, I believe that because the district judge initially found the entire area to be preempted by federal law and the......
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    ...v. Brady, No. 92-2134, 7 F.3d 233, 1993 WL 384902, *2 (6th Cir. Sept. 28, 1993) (p.c.) (Guy, Nelson, Wellford); cf. Jackman v. NLRB, 784 F.2d 759, 764 (6th Cir.1986) (referring to "the generally accepted doctrine of promoting settlement agreements, which has been characterized as the `lifeb......
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    ...is “central to Title VII's statutory scheme.” Gavette v. Brady ... 1993 WL 384902, *2 (6th Cir. Sept. 28, 1993); cf. Jackman v. NLRB, 784 F.2d 759, 764 (6th Cir.1986) (referring to “the generally accepted doctrine of promoting settlement agreements, which has been characterized as the ‘life......
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