NLRB v. OIL, CHEMICAL AND ATOMIC WORKERS INT. U.

• Decision Date: 17 April 1973
• Docket Number: No. 72-1347,72-1379.,72-1347
• Citation: 476 F.2d 1031
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent. CATALYTIC INDUSTRIAL MAINTENANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — First Circuit

476 F.2d 1031 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, Respondent.

CATALYTIC INDUSTRIAL MAINTENANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. 72-1347, 72-1379.

United States Court of Appeals, First Circuit.

April 17, 1973.

Alan H. Randall, Hato Rey, P. R., with whom Edward M. Borges and O'Neill & Borges, Hato Rey, P. R., were on brief, for petitioner.

Lawrence D. Levien, Atty., Washington, D. C., with whom Peter G. Nash, Gen. Counsel, Patrick Hardin, Marcel Mallet-Prevost, Asst. Gen. Counsels, and Elliott Moore, Deputy Asst. Gen. Counsel, Washington, D. C., were on brief, for respondent.

Ginoris Vizcarra De Lopez-Lay, San Juan, P. R., with whom Lopez-Lay & Vizcarra, San Juan, P. R., was on brief, for intervenor, Oil, Chemical and Atomic Workers International Union, AFL-CIO.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

These proceedings involve an application for enforcement and petition for review of an order of the National Labor Relations Board (the Board) issued pursuant to a settlement agreement between the General Counsel and the Oil, Chemical and Atomic Workers International Union, AFL-CIO (the Union) entered into after an unfair labor practice complaint issued pursuant to the charges filed by the Catalytic Industrial Maintenance Company (the Company). The principal issue raised by the Company's challenge to the consent order concerns the conditions under which a charging party, dissatisfied with a consent order issued by the Board against a charged party, is entitled to an administrative hearing on its objections.

On March 17, 20, and April 3, 1972, the Company filed charges with the Regional Director alleging that since March 15, the Union had engaged in conduct violative of Sections 8(b)(1)(A) and 8(b)(4)(i) and (ii)(B). Specifically, one charge alleged that in the course of an organizational strike against the Company at the Puerto Rico Olefins job site, the Union coerced and restrained employees in the exercise of their rights under section 7 of the Act by blocking ingress and egress from the premises, threatening violence against those who entered the premises, and by mass picketing. The other charges were that by these and other means the Union prevented employees of other companies from working at the Olefins and later the so-called PPG Industries job site.

Subsequently, after a complaint issued, the Union and the General Counsel entered into a proposed consent settlement. The Company objected to the non-admission of proscribed conduct clause, claiming that this would prevent the Board from using the settlement as either a basis for court contempt proceedings or a broad Board order in the event of future violations. It also objected to the absence of the admittedly unusual remedy of back pay to employees who had been prevented from working during the strike. Pursuant to § 101.9(c) of the Board's Rules, 29 C.F. R. § 101.9(c), the Regional Director and the General Counsel each in turn wrote letters to the Company explaining their reasons for rejecting the Company's objections. After receiving a further statement of these objections, the Board finally approved the settlement.

After the Board applied to us for enforcement of its order, # 72-1347, the Company filed a motion to intervene, which the Board opposed. Because of our doubts as to the availability of intervention to a charging party opposing parts of a consent judgment in light of UAW, Local 283 v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965), we suggested that the Company file a petition for review of the Board's order which it did shortly thereafter, # 72-1379. The Union subsequently submitted an unopposed motion to intervene in the latter case to defend the consent order.

We now deny the Company's motion to intervene in the Board's application for enforcement and grant the Union's motion to intervene in the Company's petition for review. We find Scofield controlling, although it does not deal explicitly with this problem. There the Supreme Court held that a successful charging or successful charged party could intervene in the subsequent application for enforcement or petition for review. The Court found in each instance several policy reasons for permitting intervention. One underlying concern was that denying intervention to the winner would create the anomaly that the right to participation in subsequent court proceedings would hinge on the nature of the decision of the Board, the loser having an absolute statutory right to petition for review under § 10(f), 29 U.S.C. § 160(f), but the winner being made to "suffer by his own success". See 382 U.S. at 210, 216, 222, 86 S.Ct. 373. The Court's ruling there created a simple and clear procedural rule: the party supporting a Board order, or the part challenged, may intervene, while the party opposing a Board order or a portion of it may petition for review. We see no reason why this rule which applies when the Board issues an order after full adjudication should not apply when it does so based on a settlement agreement.¹ Since the Union is supporting the Board's order insofar as it rejected the Company's objections, it may intervene; since the Company is attacking the Board's order, it may come into court only on its petition for review.

This leads us to the Company's principal contention—that the charging party in an unfair labor practice proceeding has a right to a hearing before the Board on its objections to a proposed settlement between the Board and the charged party. We reject that claim here both because the charging party did not present this claim to the Board² and, assuming in light of the Board's stance in this court that such a presentation would have been unavailing and that we can consider the claim,³ because we find that the right to a hearing is not absolute and the necessary pre-conditions do not exist in this case.

Initially, we agree with the Second Circuit, Local 282, International Brotherhood of Teamsters v. N.L.R.B., 339 F.2d 795 (2d Cir. 1964), that section 5(b) of the Administrative Procedure Act, 5 U.S.C. § 554(c), does not guarantee the charging party a hearing on its objections to a settlement. We note first that were § 554(c) applicable it would not merely provide a right to a hearing on objections to a settlement, as the Third Circuit indicated, Marine Engineers Beneficial Ass'n No. 13 v. N.L. R.B., 202 F.2d 546 (3d Cir.), cert. denied, 346 U.S. 819, 74 S.Ct. 32, 98 L.Ed. 345 (1953), but would permit obstruction of the settlement itself and a right to a hearing on the merits of the complaint. If a charging party were held to be an "interested party" under that subsection, it could decide whether to "determine the controversy by consent" or insist on a "hearing and decision on notice".⁴ It would then have "a complete veto on the public interest in compromise", 339 F.2d at 801, a power wholly out of step with the unique and carefully structured role of a charging party in labor cases, see discussion infra. Moreover, the language of the APA does not compel such a holding. The term "interested parties" is not as broad as the term "person aggrieved" to whom rights to petition for court review are granted by the Labor Act or the term "persons entitled to notice of an agency hearing" used in the preceding subsection (b) of 5 U.S.C. § 554. "In this context, `interest' means a legally recognized private interest and not simply a possible pecuniary benefit resulting from an agency's enforcement of a public right." 339 F.2d at 800. As the court there notes, a person can make such a showing "only if the statute can fairly be construed as vesting him with a new private right." Id. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940), established that the ban on unfair labor practices was created to enforce the public's interest in peaceful and fair settlement of labor disputes and not to enhance the property rights of the labor disputants. Finally, the legislative history of the APA indicates that Congress did not intend more than to insure the availability of informal means of settlement; it did not address the question of who was entitled to demand a hearing. 339 F.2d at 801. Since 5 U.S.C. § 554(c) is not applicable, it neither permits the charging party to obstruct a settlement nor bestows any rights to a hearing on objections to a settlement.

Turning to the Labor Act, we note that courts of appeals have reacted variously to a charging party's claim to a hearing on its objections. At one end of the spectrum, the Third Circuit, in Marine Engineers, supra, held that a charging party is always entitled to a hearing on its objections to a settlement once a complaint has issued. This view was reaffirmed in Leeds & Northrup Co. v. N. L.R.B., 357 F.2d 527 (3d Cir. 1966), on which the petitioner heavily relies, and in Terminal Freight Cooperative Ass'n v. N.L.R.B., 447 F.2d 1099 (3d Cir. 1971), cert. denied, 409 U.S. 1063, 93 S.Ct. 553, 34 L.Ed.2d 516 (1972), in which the court refused to extend its holding to cases in which a complaint has not issued. In International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America v. N.L. R.B., 231 F.2d 237 (7th Cir.), cert. denied, 352 U.S. 908, 77 S.Ct. 146, 1 L.Ed. 2d 117 (1956), the Seventh Circuit adopted the position enunciated in Marine Engineers. At the other extreme, the Second Circuit held in Local 282, Teamsters, supra, that the charging party has no rights at all to a hearing on its objections.

The remaining circuits have taken intermediate positions. In Textile Workers Union of America v. N.L.R.B., 111 U.S.App.D.C. 109, 294 F.2d 738 (1961), the District of Columbia Circuit refused to lay down a general rule, insisting rather that:

"Regard must be had to the

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