Sparks v. N.L.R.B., AFL-CI

• Decision Date: 10 December 1987
• Docket Number: R,No. 87-2617,AFL-CI,87-2617
• Citation: 835 F.2d 705
• Parties: 127 L.R.R.M. (BNA) 2110, 56 USLW 2392, 108 Lab.Cas. P 10,273, 10 Fed.R.Serv.3d 230 John E. SPARKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD; Salem Gravure Division of World Color Press; and Graphic Communications International Union, Local 554,espondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 705

835 F.2d 705

127 L.R.R.M. (BNA) 2110, 56 USLW 2392,

108 Lab.Cas. P 10,273,

10 Fed.R.Serv.3d 230

John E. SPARKS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD; Salem Gravure Division of

World Color Press; and Graphic Communications

International Union, Local 554, AFL-CIO,

Respondents.

No. 87-2617.

United States Court of Appeals, Seventh Circuit.

Submitted Nov. 17, 1987.

Decided Dec. 10, 1987.

Sharon A. Knapp, Carr, Korein, Schlichter, Kunin & Montroy, St. Louis, Ill., for petitioner.

Thomas D. Allison, Cotton, Watt, Jones & King, Chicago, Ill. (Michael H. Slutsky, of counsel), Eric G. Moskowitz, N.L.R.B., Washington, D.C. (Diane Rosse, of counsel), James P. Mannion, Jr., Bryan Cave McPheeters & McRoberts (Sabrina M. Wrenn, of counsel), St. Louis, Mo., for respondents.

Before POSNER, COFFEY, and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

The General Counsel of the National Labor Relations Board decided not to file an unfair labor practice complaint on behalf of John Sparks, who had been fired by his employer, and Sparks filed a petition with this court to review that decision, naming his employer, his union, and the Board as respondents. Now Sparks asks for a voluntary dismissal of the petition. Both his employer and his union want us to condition dismissal on Sparks' agreeing to pay the expense of defending against what these respondents correctly contend is a frivolous petition for review. See Fed.R.App.P. 42(b).

Overwhelming case authority establishes that a decision by the General Counsel of the Labor Board not to file an unfair labor practices complaint is not judicially reviewable. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138-39, 95 S.Ct. 1504, 1510-11, 44 L.Ed.2d 29 (1975). The motion for voluntary dismissal was filed when Sparks' counsel discovered this. Before then she had been proceeding in reliance on the language of the statute, 29 U.S.C. Sec. 160(f), authorizing judicial review of decisions by the Board. Read literally, the statute does not exempt decisions by the General Counsel (which formally are decisions by the Board, although the General Counsel is by statute independent from the Board's control) from judicial review. But when a statute has been judicially construed, it is the statute as construed, not the statute as it might have been construed as an original matter, which is "the law," for purposes of deciding whether an appeal or petition for review or other pleading has a colorable legal basis. This conclusion, although not clearly stated in any previous decision that has come to our attention, is implicit in the requirement of Rule 11 of the Federal Rules of Civil Procedure that no pleading be filed unless the person who signs it has a "belief formed after reasonable inquiry [that] it is ... warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law...." See Brown v. Neely, 830 F.2d 1429, 1435-36 (7th Cir.1987) (Rule 11 requires attorney to make "reasonable inquiry into the law"). It is implicit in our recent decision holding that sanctions are proper where controlling case authority has narrowed the generalities of section 1 of the Fourteenth Amendment. See Szabo Food Service, Inc. v. Canteen Corp., 823 F.2d 1073, 1080-81 (7th Cir.1987). A lawyer is no more entitled to file a pleading without doing any research on the construction of the statute on which the pleading is based than to file a pleading without having conducted a sufficient factual investigation to know whether it is potentially meritorious.

Although Rule 11 is not applicable as such to pleadings filed in this court, in interpreting Rule 38 of the Federal Rules of Appellate Procedure, which authorizes sanctions for frivolous appeals, we look to the principles that have evolved in the interpretation of Rule 11. See, e.g., Hill v. Norfolk & Western Ry., 814 F.2d 1192, 1200 (7th Cir.1987); Thornton v. Wahl, 787 F.2d 1151 (7th Cir.1986).

A lawyer does not expose himself to sanctions merely by...