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06/28/74 Afl-Cio, v. National Labor

June 28, 1974




Before leaving the jurisdictional issue, however, we again emphasize the narrow contours of our holding. Section 3(d) invests the General Counsel with broad and "final authority" over the prosecutorial aspects of the Board's administrative process. Yet it is readily apparent that the prosecutorial role may at times blend with the adjudicatory role. Also, even in its most elemental form -- for example, the unreviewable decision whether to issue a complaint -- the prosecutorial act often might, quite properly, encompass basic policy considerations. Thus, after a complaint has issued and the administrative process initiated, certain actions which broadly conceived might be characterized as "prosecutorial" assume essentially adjudicatory attributes. Such is the case where the General Counsel acting for the Board withdraws a complaint on the basis of an informal settlement agreement which provides for an adjustment of the conflicting interests of the private parties and thus partially or wholly remedies the underlying labor dispute. This action cannot meaningfully be distinguished from other types of Board action traditionally held to be within the review provisions of Section 10(f). III

Petition for Review of the Withdrawal of a Complaint by a Regional Director of the National Labor Relations Board.


Leventhal, MacKinnon and Wilkey, Circuit Judges.


Opinion for the Court filed by Circuit Judge MACKINNON.

MACKINNON, Circuit Judge:

The International Ladies' Garment Workers Union, Local 415, AFL-CIO (the Union) has petitioned this court to review the withdrawal of a complaint by a Regional Director of the National Labor Relations Board (the Board) prior to hearing as part of an informal settlement agreement entered into by the charged party, Arosa Knitting Corporation (the Company), and the Regional Director. Two principal issues are presented: (1) whether this court has jurisdiction under Section 10(f) of the National Labor Relations Act *fn1 to review such a withdrawal of a complaint in the absence of a formal order of the Board, and (2) whether the Union was entitled to a hearing on its objections to the informal settlement agreement. *fn2 We hold that this court has jurisdiction to entertain the petition, but dismiss it on the merits. I

In September 1971 the Union filed unfair labor practice charges against the Company with the Regional Director, alleging that the Company had violated Sections 8(a) (1) and (3) of the Act by laying off and refusing to reinstate three employees because of their Union membership or activities. The Regional Director issued a complaint based on these allegations as to two of the employees but determined that there was insufficient evidence as to the third. The General Counsel on appeal by the Union caused an amended complaint to issue to include the third employee. The hearing on the complaint, originally set for January 11, 1972, was rescheduled for January 24. On January 20, the hearing was postponed indefinitely and Board counsel informed the Union by letter of January 21 that the Company had executed an informal settlement agreement on that date. Although the Union contends that it was never requested to join in the settlement negotiations and was never informed that the Board had contacted the three employees, *fn3 it must have known that resolution by settlement might be forthcoming since the Company had answered both the original and the amended complaint, on December 9 and January 10, respectively, with the affirmative defense of amicable settlement with the three employees and copies of these answers were served on the Union's attorneys. *fn4 The informal "Settlement Agreement," executed on a standard Board form, was signed by the Company on January 21, 1972 and approved by the Regional Director on January 27, 1972.

The agreement recited that the Company "has made whole the employees . . . by payment [of $450] to each of them" and stipulated that the three employees "have refused and would refuse an offer of reinstatement." *fn5 The agreement also contained a "non-admission clause" stating that "by the execution of this Agreement the Employer does not thereby admit that it has violated any provisions of the" Act and provided for the posting of an appropriate notice in both Spanish and English. Pursuant to the standardized provisions of the agreement, the unfair labor practice complaint and the notice of hearing were withdrawn.

The January 21 letter advised the Union that the Settlement Agreement "appears to give as full a remedy as could be obtained even if the case was successfully litigated" and that "in the event you do not wish to participate in the agreement, please submit your reasons therefor within five (5) days . . . so that the Regional Director can consider your position." *fn6 By letter of January 24 the Union refused to execute the agreement, failed to submit its reasons for objecting and requested a hearing to place its objections on the record. *fn7 The Regional Director responded to the Union's letter that for his previously stated reasons "it does not appear that it would effectuate the purposes of the National Labor Relations Act to institute further proceedings at this time." J.A. at 39.

On appeal of this ruling to the General Counsel the Union asserted two objections: (1) "an informal settlement agreement with a 'non-admission clause' . . . will not cure the extensive violations of the Act engaged in by the [Company]," and (2) the Union was never consulted with respect to the monetary settlement with the employees. J.A. at 44-45. The Union also requested a hearing so that its "objections can be voiced on the record." On March 16 the General Counsel denied the appeal on the grounds that the agreement "adequately remedied the [charged] unfair labor practices," that the Union had been afforded an opportunity to object to the Regional Director, that it had so objected, and that this obviated the need for a hearing. It was also noted that the Union, even on appeal to the General Counsel, did not contend that the employees were entitled to more back pay than they had received in the settlement. *fn8

On July 21, 1972 the Union filed the instant petition to review these actions. II

Our jurisdiction to entertain on direct appeal a petition to review Board action rests upon Section 10(f) of the Act, 29 U.S.C. ยง 160(f) (1970):

Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in [an appropriate] United States court of appeals . . . .

The narrow question presented is whether the withdrawal of a complaint as part of an informal settlement agreement by the General Counsel constitutes a "final order of the Board." *fn9 The answer to this ultimate question depends in turn upon a resolution of two subsidiary issues: whether the General Counsel's action in this case constitutes Board action, and if so, whether this action is of the type made reviewable under Section 10(f). We conclude that such action by the General Counsel does constitute a final order of the Board reviewable by this court under Section 10(f). This conclusion is compelled by an analysis of: (1) the Board's settlement procedures as set forth in its rules and ...

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