Operations In Fiscal Year 1988 - National Labor Relations Board

132 Fifty-Third Annual Report of the National Labor Relations Boardment. The General Counsel determined that there was no needfor an evidentiary hearing and sustained the settlement.Local 23 petitioned for review in the Court of Appeals for theThird Circuit. That court, considering itself bound by its ownprecedents, 4 held that it had jurisdiction to review the GeneralCounsel's action in approving the informal settlement because,inasmuch as a complaint had issued, the General Counsel's actionmust be deemed that of the Board. On the merits, the court heldthe complaint should not have been dismissed without an evidentiaryhearing on Local 23's objections to the settlement.The Supreme Court reversed the Third Circuit's jurisdictionalholding. The Court concluded that the "words, structure, andhistory". of the 1947 amendments to the NLRA establishing aseparate Office of the General Counsel with prosecutorial responsibility5 reveal that Congress intended to differentiate between"prosecutorial" determinations, which are to be madesolely by the General Counsel independent of the Board, and"adjudicatory" decisions, which are to be made by the Boardsubject to judicial review (108 S.Ct. at 421). The Court furtherconcluded that it is a reasonable construction of the Act to treatpostcomplaint prehearing settlement determinations as prosecutorialbecause, until a hearing is held, "the Board has taken noaction [and] no adjudication has yet taken place" (id. at 422, emphasisin original). The Court added that the General Counsel'sconcededly "unreviewable discretion to ffie [or refuse to file] acomplaint, in turn, logically supports a reading that she must alsohave fmal authority to dismiss a complaint in favor of an informalsettlement, at least before a hearing begins" (ibid.). Nor, inthe Court's view, does the legislative history's silence respectingsettlements indicate a congressional intention to carry forwardthe practice prior to 1947 under which all postcomplaint settlementswere reviewed by the Board. For the history shows thatCongress intended to give the General Counsel fmal authority tohandle all aspects of prosecutions, not merely the filing of complaints.Moreover, it does not indicate "an intention to deny theBoard the usual flexibility accorded an agency in interpreting itsauthorizing statute and in developing new regulations to meetchanging needs" (id. at 423, footnote omitted).The Court rejected the contention that, because Section 3(d)of the Act states that the General Counsel acts "on behalf of theBoard," her fmal determinations are reviewable under Section10(f) as orders of the Board; The Court observed that that languagehad been added to Section 3(d) to make clear that "theGeneral Counsel acted within the agency, not to imply that theacts of the General Counsel would be considered acts of theBoard" (id. at 424), and that, although Section 10(f) "fflairly read4 Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir. 1966).5 Sec. 3(d) of the Act provides that the General Counsel has "final authority, on behalf of theBoard," regarding the investigation, filing, and prosecution of unfair labor practice complaints.