National Labor Relations Board v. United Food and Commercial Workers Union, Local 23

Decision Date14 December 1987
Docket NumberAFL-CIO,No. 86-594,86-594
PartiesNATIONAL LABOR RELATIONS BOARD and Rosemary M. Collyer, General Counsel, National Labor Relations Board, Petitioners v. UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL 23,
CourtU.S. Supreme Court

National Labor Relations Board regulations implementing the unfair labor practice provisions of the National Labor Relations Act (NLRA or Act) provide that, after one of the Board's regional directors has filed a complaint but before a hearing is held thereon, the director may enter into either a formal or an informal settlement. The regulations allow a nonconsenting party to appeal a formal settlement to the Board's General Counsel and then to the Board itself, and the Board's order is subject to review in the federal courts of appeals under § 10(f) of the Act as "a final order of the Board." However, if such a settlement is informal in nature, the regulations permit an appeal to the General Counsel, but not to the Board. Respondent union filed charges alleging that an employer and another union had committed an unfair labor practice. After the Regional Director filed complaints, but before the scheduled hearing, the Director entered into an informal settlement agreement in which respondent refused to join. Pursuant to the regulations, respondent challenged the Director's action before the General Counsel, who sustained the settlement. Respondent then sought review in the Court of Appeals, which rejected the Board's contention that the petition for review should be dismissed for lack of jurisdiction to review an informal settlement that did not result in an order of the Board and that was entered into without hearings.


1. A postcomplaint, prehearing informal settlement decision by the General Counsel is not subject to judicial review under the NLRA. Pp. 123-130.

(a) The regulations' failure to provide for a judicially reviewable Board order on the General Counsel's postcomplaint, prehearing informal settlement decision is consistent with the NLRA and entitled to deference. The language, structure, and history of the NLRA, as amended, clearly reveal that Congress intended to differentiate between "prosecutorial" determinations, which are to be made solely by the General Counsel independent of the Board, and "adjudicatory" decisions, which are to be made by the Board subject to judicial review. It is a reasonable construction of the NLRA to find that postcomplaint, prehearing settlement determinations are prosecutorial in nature, since, until a hearing is held, the Board has taken no action and has therefore made no adjudication. Moreover, the General Counsel's unreviewable discretion to file and withdraw complaints supports a reading that he or she also has final authority to dismiss a complaint in favor of an informal settlement before a hearing begins. The legislative history indicates a congressional intent to give the General Counsel final authority to handle all aspects of prosecutions, not merely the filing of complaints. The legislative history's silence regarding settlements does not indicate an intention to deny the Board the usual flexibility accorded an agency in interpreting its authorizing statute and in developing new regulations to meet changing needs, since Congress was aware of the importance of settlements to the administrative labor relations process. Pp. 123-128.

(b) Respondent's contention that, because the General Counsel acts "on behalf of the Board" under § 3(d) of the NLRA, his or her final determinations are reviewable under § 10(f) as orders "of the Board," is refuted by the Act's plain language, structure, and history. Clearly, an act "on behalf of" the Board is not the same as an act "of the Board" itself. Further, the Act's provisions, particularly §§ 3 and 10, evidence a congressional intent to distinguish unreviewable prosecutorial orders of the General Counsel from judicially reviewable orders of the Board. The NLRA's history also confirms this distinction, demonstrating that the "on behalf of the Board" language was added to make it clear that the General Counsel acts within the agency, not to imply that the General Counsel's acts should be considered acts of the Board. Moreover, since respondent concedes that the General Counsel's decision not to file a complaint is not reviewable under § 10(f), there is no merit in the argument that the General Counsel's settlement decisions may be reviewable. Pp. 128-130.

2. The General Counsel's settlement determinations may not be judicially reviewed under the Administrative Procedure Act (APA) as final agency actions "for which there is no other adequate remedy in a court," since APA review is unavailable where "statutes preclude judicial review." Although the NLRA does not contain language expressly precluding APA review, the NLRA's structure and history clearly establish the requisite congressional intent to do so. The NLRA is a comprehensive statute that exhaustively sets out the stages through which unfair labor practice charges must pass and expressly provides for judicial review only as to Board orders. APA review of General Counsel settlement decisions would run directly counter to this scheme, and would be extremely illogical, since appeals would be to the district courts, would involve lengthy proceedings in an area where Congress felt speed of resolution to be necessary, and would provide a charged party with an incentive not to fulfill its settlement obligations until the proceedings were completed. Since postcomplaint, prehearing informal settlements represent a substantial portion of unfair labor practice charge dispositions, Congress could not have intended the potentially serious consequences that APA review would entail. Moreover, APA review would inevitably require the initial examination of the merits of charges to be made by federal courts rather than the Board, as Congress intended. Pp. 130-133.

788 F.2d 178 (CA3 1986), reversed and remanded.

BRENNAN, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined, post, p. 133.

Norton J. Come, Washington, D.C., for petitioners.

Laurence Gold, Washington, D.C., for respondent.

Justice BRENNAN delivered the opinion of the Court.

The question to be decided in this case is whether a federal court has authority to review a decision of the National Labor Relations Board's General Counsel dismissing an unfair labor practice complaint pursuant to an informal settlement in which the charging party refused to join. We hold that such a dismissal is not subject to judicial review under either the amended National Labor Relations Act or the Administrative Procedure Act.


In August 1984, respondent, the United Food Workers, filed unfair labor practice charges with the Pittsburgh re- gional office of the National Labor Relations Board (Board). The charges alleged that Charley Brothers, Inc., the owner of several grocery stores, and the United Steelworkers Union (Steelworkers) had committed an unfair labor practice by bargaining for and executing a collective-bargaining agreement for a Charley Brothers store where the Steelworkers did not represent an uncoerced majority of the employees. The Regional Director duly investigated the charges, and entered into settlement negotiations with Charley Brothers and the Steelworkers. No agreement was reached, and the Regional Director filed a formal complaint substantially incorporating respondent's charges.

On September 24, 1984, Vic's Market's, Inc. (Vic's), bought the relevant store, and the Regional Director filed a second complaint that reflected this fact. A hearing on the complaints was scheduled for December 4, 1984. However, shortly before the hearing was to begin, Vic's, Charley Brothers, the Steelworkers, and the Regional Director came to a tentative settlement agreement. The agreement called for the charged parties to take certain remedial action in return for dismissal of the complaint, but they were not required to admit that they had committed any unfair labor practice.1 The Regional Director invited respondent to join the agreement, but respondent refused, citing a number of purported deficiencies.2

Eventually, the settlement was entered into by all parties except respondent, who, as permitted by Board regulations, challenged the Regional Director's action before the General Counsel. The General Counsel determined that there was no need for an evidentiary hearing and sustained the settlement. Respondent then sought review in the United States Court of Appeals for the Third Circuit.

The Board argued that the petition for review should be dismissed on the ground that the court lacked jurisdiction to review an informal settlement that did not result in an order of the Board and that was entered into before hearings began. Alternatively, the Board argued that the settlement should be sustained. The Court of Appeals, considering itself bound by its own precedent,3 concluded that it had jurisdiction and on the merits held that the complaint should not have been dismissed without an evidentiary hearing. 788 F.2d 178 (1986). We granted the Board's petition for a writ of certiorari to resolve a conflict among the Courts of Appeals.4 479 U.S. 1029, 107 S.Ct. 871, 93 L.Ed.2d 826 (1987). We now reverse.


Petitioners argue that the courts of appeals have no jurisdiction under the National Labor Relations Act (NLRA) to review settlement decisions of the General Counsel that do not result in Board orders and that are entered into before the commencement of hearings on the complaint. Respondent asserts two grounds for jurisdiction. The first is that all settlements occurring after a complaint is filed must be approved by the Board. Because final orders of the Board are judicially reviewable under § 10(f) of the NLRA, 49 Stat. 455, as amended, ...

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