Nlrb v. Food & Commercial Workers, 484 U.S. 112 (1987)

National Labor Relations Board v. United Food & Commercial

Workers Union, Local 23, AFL-CIO
No. 86-594

Argued October 5, 1987
Decided December 14, 1987
484 U.S. 112

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

Syllabus

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.

Held:

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, 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.