Operations In Fiscal Year 1988 - National Labor Relations Board

VISupreme Court LitigationDuring fiscal year 1988, the Supreme Court decided two casesin which the Board was a party. The Board participated asamicus curiae in two other cases.A. Nonreviewability of the General Counsel's ProsecutorialDecisionsIn Food & Commercial Workers Local 23, 1 a unanimous SupremeCourt held that neither the National Labor Relations Actnor the Administrative Procedure Act affords judicial review ofa decision by the General Counsel to dismiss an unfair laborpractice complaint pursuant to a prehearing informal settlementthat the charging party refused to join.The Board's regulations provide that after a complaint hasbeen issued, but before commencement of a hearing thereon, theRegional Director who issued the complaint may enter intoeither a formal or informal settlement of the underlying unfairlabor practice charges. 2 The regulations expressly allow a nonconsentingparty to appeal a formal settlement to the GeneralCounsel and then to the Board itself, and the Board's order is "afmal order of the Board," subject to court review under Section10(f) of the Act. If the prehearing settlement is informal, however,the regulations permit an appeal to the General Counsel, butnot to the Board.3The Regional Director issued a complaint on Local 23'scharges alleging violations of the Act on the part of the employerand another union. Before the scheduled hearing, all parties,except Local 23, agreed to the Regional Director's proposal toenter into an informal settlement, which called for the chargedparties to take certain remedial action in return for dismissal ofthe complaint. Local 23 appealed to the General Counsel, requestingan evidentiary hearing on its objections to the settle-1 NLRB v. Food & Commercial Workers Local 23, 108 S.Ct. 413, revg. 788 F.2d 178 (3d Cir. 1986).2 A formal settlement requires Board approval and is accompanied by the charged party's agreementto a remedial Board order and usually consent to the entry of a court of appeals enforcementdecree. 29 CFR § 101.9(b)(1) (1987). An mformal settlement provides that the charged party will takeor refrain from taking certain action, in return for which the Regional Director agrees not to file acomplaint or to withdraw a previously filed complaint. 29 CFR §§ 101.7 and 101.9(b)(2).s See 29 CFR § 101.9(cX2) and (3).131