National Labor Relations Board v. United Food & Commercial Workers Union, Local 23, AFL-CIO – Oral Argument – October 05, 1987

Media for National Labor Relations Board v. United Food & Commercial Workers Union, Local 23, AFL-CIO

Audio Transcription for Opinion Announcement – December 14, 1987 in National Labor Relations Board v. United Food & Commercial Workers Union, Local 23, AFL-CIO

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William H. Rehnquist:

We will now hear argument in Cause Number 86-594, National Labor Relations Board v. United Food and Commercial Workers Union.

Mr. Come, you may proceed when ready.

Norton J. Come:

Mr. Chief Justice, and may it please the Court:

This case presents two questions.

One, whether the withdrawal of an unfair labor practice complaint by the General Counsel of the National Labor Relations Board pursuant to an informal settlement entered into prior to the commencement of the hearing on the complaint constitutes agency action that is subject to judicial review.

The second question is whether, assuming that the GC’s action is subject to judicial review, the General Counsel must hold an evidentiary hearing whenever the party who file the unfair labor practice charge objects to the settlement agreement.

Now, before addressing these questions, I should like to spend a few minutes outlining the statutory scheme and the Board’s procedures for implementing it because I think it’s important to understanding the resolution of the question.

The National Labor Relations Board confers upon the National Labor Relations Board authority to prevent any person from engaging in an unfair labor practice affecting commerce, and it sets forth in general terms the procedure to be followed in determining whether an employer or a union has engaged in an unfair labor practice and the appropriate order, therefore.

However, Section 3(d) of the National Labor Relations Act provides that the Board’s General Counsel, who is a statutory officer appointed by the President with the consent of the Senate, shall have final authority on behalf of the Board in respect to the investigation of unfair labor practice charges and the issuance of complaints in respect the prosecution of such complaints before the Board.

Now, the procedure the Board has devised attempts to effectuate this separation that 3(d) makes between the Board’s prosecutory authority on the one hand and its adjudicatory authority on the other.

An unfair labor practice charge case is initiated by the filing of a charge.

It’s investigated by the Regional Director, and if the investigation indicates the charge has merits,–

Byron R. White:

Where does the charge come from?

Norton J. Come:

–Any person may file a charge.

In this case, it was filed by the Food and Commercial Workers Union.

Byron R. White:

You mean just any person in the United States?

Norton J. Come:

Yes, Your Honor.

Byron R. White:

Whether he’s an employer or employee?

Norton J. Come:

That is correct.

Usually the charges are filed by the employer or an employee or the union.

Harry A. Blackmun:

Well, this particular case is one between two unions, isn’t it?

Norton J. Come:

Between two unions and an employer.

If the investigation reveals that the charge does not have merit, it is either withdrawn or dismissed, in which case the charging party has an appeal to the Board’s General Counsel.

If the Regional Director concludes that it has merit, he affords an opportunity for a settlement of the charge.

At this stage of the proceeding, the settlement is usually what is called an informal settlement, which does not require the entry of a Board order or a court decree.

It consists of a commitment by the charge party to take the agreed-upon remedial action and the case is closed upon compliance with that commitment.

If, later, there is a failure to comply, the charge, the prosecution of the charge can be resumed.

Now, if no settlement is reached at this stage, a complaint issues, and if the complaint goes to hearing,–

William J. Brennan, Jr.:

Does the Regional Director decide the complaint solution?

Norton J. Come:

–The Regional Director does.

Norton J. Come:

He’s acting as the agent of the General Counsel.

William J. Brennan, Jr.:

He’s not the Board’s representative?

Norton J. Come:

No, he’s not the Board’s representative.

He… the statute, as I indicated, gives the Regional Director final authority over the investigation of unfair labor practice charges.

The statute also gives the General Counsel supervision over the employees and the regional offices, and when the Regional Director is working on the unfair labor practice phase of the proceeding, he is exercising the General Counsel’s 3(d) authority.

When he’s working on representation cases, which lead to elections, he is also working under the supervision of the General Counsel, but, there, the General Counsel has been delegated by the Board the authority to handle representation, supervise the handling of representation cases.

But with respect to the complaint phase, the Regional Director is acting as the agent of the General Counsel.

Surprisingly, these things, over time, have been kept straight, although it may seem difficult to conceive of it.

But if a settlement cannot be reached, as I indicated, the case… yes, Your Honor?

William J. Brennan, Jr.:

There’s something in the way of a case.

He may try then to effect settlement, is that correct?

Norton J. Come:

Yes, Your Honor.

William J. Brennan, Jr.:

But suppose the party doesn’t want to engage in any settlement discussions, does he have an appeal?

Norton J. Come:

At that point, he issues a complaint.

William J. Brennan, Jr.:

Oh.

The Regional Director issues a complaint.

Norton J. Come:

He issues a complaint.

William J. Brennan, Jr.:

And the party against whom it’s issued has no appeal to the General Counsel before he has to answer the complaint, does he?

Norton J. Come:

Not normally.

I mean, the procedure on appeal is usually invoked where a charge is dismissed, but, as I say, after a complaint issues, it may go to formal hearing, but there is usually a two to three month period between the issuance of the complaint and the formal hearing, and during that time, there is further opportunity for settlement of the case or the complaint may be withdrawn because the Regional Director, in preparing for trial, finds that his evidence just won’t stand up.

Now, under the Board’s rules, the Regional Director can withdraw a complaint prior to hearing on his own motion.

This is a provision that’s been in the rules, even way back in the Wagner Act days.

Similarly, as I said, he can enter into a settlement agreement.

At this stage, the post-complaint stage, the settlement agreements can be of two forms.

You can have a formal settlement, which provides for a Board order and often a consent decree, and that goes on up to the Board because it requires a Board order and Board approval.

Byron R. White:

These settlements are provided for by regulations, aren’t they?

Norton J. Come:

Yes, they are, Your Honor.

Byron R. White:

And both the formal and the informal?

Norton J. Come:

Yes, Your Honor.

We have set forth at the Appendix to our brief the Board’s regulations with respect to the settlement procedure.

Byron R. White:

Does it indicate how old those regulations are?

Norton J. Come:

Those regulations were promulgated many years ago.

In general form, they were in the Act from right after the start of Taft-Hartley and, then about twenty-two years ago, they got amplified, but, essentially, this procedure has been a long-standing procedure that was worked out by the Board and the General Counsel right after the enactment of Taft-Hartley in an effort to make 3(d) mesh with the Board’s adjudicatory procedures.

Antonin Scalia:

That shows something of the ambivalence of the whole scheme, though, doesn’t it?

You said that the Board’s regulations permit the Regional Director to dismiss the complaint before any action is taken, yet you told us earlier that the Regional Director was not the agent of the Board but the agent of the General Counsel.

If that were purely the case, one would expect the General-Counsel to issue some regulations as to what his Regional Directors can do.

Norton J. Come:

Well, for housekeeping purposes, Congress decided instead of setting up a separate administrator to put the General Counsel in the same agency as the Board, and the way these regulations work out or have worked out is that although they are issued in the name of the Board, those having to do with the operation of the General Counsel’s phase of the administration are worked out jointly with the Board and the General Counsel.

There is a joint committee that has worked on these regulations.

What would happen if you got to a point where you couldn’t have agreement is an interesting question, but that has not, fortunately, been the case.

Now, what we have here is not a formal settlement, but an informal settlement that was worked out post-complaint.

William J. Brennan, Jr.:

Where there’s a formal settlement, any order of the Board is subject to judicial review, is it?

Norton J. Come:

That is correct, Your Honor.

William J. Brennan, Jr.:

And the question we have here is whether where there’s an informal settlement, is it subject to judicial review.

Norton J. Come:

Yes.

Informal settlement.

William J. Brennan, Jr.:

Do we have any other issue to decide in this case?

Norton J. Come:

If, only if, you decide that it is subject to judicial review, would you have to reach the second question as to whether or not a charging party who objects at the settlement is entitled to an evidentiary hearing on its objections because that is what the 3rd Circuit held and the remand is for the Board to hold such an evidentiary hearing.

Sandra Day O’Connor:

Mr. Come, if the case had proceeded far enough to have a hearing, at that point, is there any authority to settle the case and dismiss it on the part of the General Counsel alone?

Norton J. Come:

The General Counsel cannot do that unilaterally.

Once it goes to hearing, the adjudicatory process is invoked and the withdrawal of the complaint or any settlement agreement that’s entered into would have to be with the approval of the administrative law judge and an appeal lies from that to the Board.

So that what we’re really talking about here is a very narrow time span, as it were.

The period after issuance of the complaint and prior to the opening of the hearing.

William H. Rehnquist:

What’s the difference, Mr. Come, between a formal settlement and an informal settlement?

Norton J. Come:

The difference is that a formal settlement leads to a Board order that is enforceable in the Court of Appeals, and so that if there is non-compliance with that order, the Board can either proceed to get it enforced on consent or, if there was a consent also to a court decree, move for contempt of the order.

With respect to an informal settlement, the only consequence is that the prosecution of the case is stopped, and if there is compliance with the commitment, the case is closed on compliance.

If it should subsequently it appear that there is not compliance, then the settlement is withdrawn and the General Counsel is free to resume the prosecution of the case.

Antonin Scalia:

Suppose the General Counsel changes his mind after one of these informal settlements, there hasn’t been any violation of the informal settlement by the party with whom it’s made, but the General Counsel just decides it was a bad idea, would anything prevent him from going ahead to reinstitute the complaint?

Norton J. Come:

No, I don’t think so, Your Honor, because he acts in the public interest here and there’s no estoppel, as it were, that would operate against him, but–

Antonin Scalia:

Has it ever happened, to your knowledge, that without a violation of the informal consent agreement, the General Counsel just decides–

Norton J. Come:

–I wouldn’t say never, but if it’s ever happened, it’s so rare that–

Antonin Scalia:

–You don’t personally know that it’s ever happened?

Norton J. Come:

–No.

I mean, these settlements play a very key role in the administration of the Act.

The Board settles over ninety-two percent of its cases, and as the Attorney General’s committee pointed out in its Seminole Study back in 1941, it’s the life blood of the administrative process, and so that–

John Paul Stevens:

Mr. Come, doesn’t that ninety-two percent figure cover settlements pre-complaint?

Norton J. Come:

–There’s a substantial number pre-complaint.

John Paul Stevens:

Are there very many of these post-complaint pre-hearing settlements?

Norton J. Come:

Yes, there are.

There are about thirty-five percent, according to the ’83 statistics, that we have in our brief, of which most of those are post-complaint informal settlements.

The reason for that is that the experience has shown that many times parties are not going to settle a case until you get them on the courthouse steps, and, so,–

John Paul Stevens:

Let me ask one other question on the universe we’re dealing with.

How often in those settlements does the charging party seek review as they did here?

Fairly rare, isn’t it?

Norton J. Come:

–We have not had many cases.

However, that is not to say that if it were established by this Court that there is a right to review and that–

John Paul Stevens:

Well, there’s been a right to review in the 6th Circuit for twenty years without any cases, hasn’t there?

Norton J. Come:

–In the 3rd Circuit.

John Paul Stevens:

3rd Circuit, I mean.

Norton J. Come:

In the 3rd Circuit.

John Paul Stevens:

Twenty years, they had this rule, and nobody ever used it for twenty years, isn’t that right?

Norton J. Come:

But as I say, the potential would be there and human nature being what it is, it is not unreasonable to expect that if there were not only the right to review but also the right to Board review, as my brother here is urging, that a party for technical reasons would play out the string here, and this isn’t just a labor versus management-kind of issue because the employer can be in the role of the objecting party as can the union, and experience has shown that in order to resolve most effectively labor-management disputes, the… it’s better to get things resolved quickly and with some degree of certainty and that if you tack on review to an informal settlement, there would be a strong disincentive to settle because one of the reasons for settling is to avoid the cost and also the risk of litigation.

William J. Brennan, Jr.:

Well, Mr. Come, in the ninety-two percent of the cases settled how many are… what proportion are informal and what proportion formal?

Norton J. Come:

I would say that the vast majority are informal settlements and, of those,–

William J. Brennan, Jr.:

When you say vast, is that half of the ninety-two percent or three-quarters or what?

Norton J. Come:

–Well, in the 1983 statistics, which we have in our brief, the formal settlements were about six-tenths of a percent of the total number of settlements.

So, the informals are really the bulk of the settlements.

Of those, about sixty-five percent occur before complaint and you’ve got about thirty-five percent remainder.

William J. Brennan, Jr.:

But in either event, neither is subject to judicial review, is it, pre or post?

Norton J. Come:

That is correct, with the possible exception that an informal that is entered into after hearing, where you have to get the approval of the administrative law judge and the Board, those… there have been two such cases in the 7th Circuit and those have been reviewed.

William H. Rehnquist:

But as between formal and informal settlements after complaint issues, what is roughly thirty-five percent of the total universe is informal, and.6 percent is formal?

Norton J. Come:

The.6 percent… yes, that’s about right, Your Honor.

Those statistics are set forth in Table 7 of the 1983 Annual Report, which is cited in our brief.

The most recent report that has been published, but, currently, the mix is not to dissimilar.

Antonin Scalia:

Mr. Come, I don’t understand what you just said.

You said that some informal complaints do require the approval of the Board?

Do you still consider it an informal complaint if it’s entered after the hearing begins and requires the approval of the ALJ and also the approval of the Board?

Do you still consider that an informal settlement?

Norton J. Come:

Yes, because it hasn’t resulted in a Board order in the conventional sense that–

Antonin Scalia:

Why isn’t the approval of the Board a Board order?

That might well be a Board order as far as the Administrative Procedure Act is concerned.

Norton J. Come:

–Well, I think that it is, and that’s why we’ve… those have been reviewed.

Antonin Scalia:

But you say it just doesn’t result in any command by the Board, the violation of which you–

Norton J. Come:

That is correct, Your Honor.

I’d like to reserve the balance of my time.

William H. Rehnquist:

Very well, Mr. Come.

We’ll hear now from you, Mr. Gold.

Laurence E. Gold:

Mr. Chief Justice and may it please the Court:

As Mr. Come has indicated, the issue here is the reviewability of the settlement that was made over the opposition of the Union which was the charging party, the Food and Commercial Workers Union.

The same issue would be presented whether the charging party were a union or an employer.

The system works the same way whomever has filed the charge.

It’s our view that what Congress intended in 1947 was to provide that settlements that are entered into post-complaint are to be presented to the Board itself and that the requirement is across-the-board whether or not the settlement is labelled informal or formal.

Sandra Day O’Connor:

Well, Mr. Gold, the statute certainly doesn’t expressly make that clear.

Laurence E. Gold:

No.

The–

Sandra Day O’Connor:

Is this not a case where some difference to the interpretation of the statute by the agency is due?

Laurence E. Gold:

–In this instance, Your Honor, we do think that the statute pushes very hard in the direction of the position we take and that this is what the understanding was at the time.

It’s very difficult to understand exactly how it is that the Board has come to the conclusion it has.

Originally, right after the enactment of Taft-Hartley, the position we urged was the position that was followed by the Board.

One year later, without any explanation, the Board changed its view and that–

Sandra Day O’Connor:

It’s been consistent since then?

Laurence E. Gold:

–Yes, it has been consistent since then, but–

Sandra Day O’Connor:

Well, do you think that’s an unreasonable interpretation of this language of the statute?

Laurence E. Gold:

–I think that it’s an interpretation of the statute which cuts very deeply against the statutory provisions and, moreover, as the discussion thus far has indicated, it is an interpretation of a statute which has resulted in a number of lines being drawn, none of which seems to have much in the way of logic.

First of all, there’s a line between an informal settlement and a formal settlement, but an informal settlement is what the General Counsel says it is and the formal settlement is what the General Counsel says that is.

Formal settlements do not necessarily create any enforceable rights in court.

So, that’s line number one, which this system creates.

Line number two is that–

Antonin Scalia:

Excuse me.

Why do you… I didn’t… I don’t follow that.

I thought that the General Counsel calls a formal settlement only something that results in a Board order in the sense of a command to the parties, and that he considers those Board orders that merely approve the dismissal of the complaint to be not formal settlements but informal settlements.

It’s a question of terminology, but I understand his use of terminology to be as I just described it.

Laurence E. Gold:

–That isn’t the way it works.

There are really three kinds of settlements.

They’re informal settlements which the General Counsel enters into on his or her own hook.

They’re formal settlements that don’t provide for court enforcement, which are presented to the Board, and it results in a Board order, and then–

Antonin Scalia:

He calls them informal settlements, I think.

They do not produce a Board order.

Laurence E. Gold:

–They produce a Board order, it would seem to me, in the sense that under 10(f), it’s certainly an order of the Board and nobody would protest that it’s not reviewable.

On the other hand, the order does not provide for court enforcement if there’s back sliding–

Antonin Scalia:

All right.

Laurence E. Gold:

–by the Respondent.

Antonin Scalia:

You call those formal settlements and you think he calls them that, too?

Laurence E. Gold:

Yes.

That is my understanding, but, at any rate, then there is another kind of settlement, a settlement in which the Board demands that you consent to court enforcement in a contempt-like action, as if you had been through the whole proceeding.

And all I’m saying is that this system, which has grown like topsy, divides these up according, more or less, at least between informal settlement, kind number one, and informal settlement, kind number two, according to the General Counsel’s whim.

Next, there is the rule that if the matter goes to hearing, then there has to be the kind of presentment to the Board which we think Congress intended for all post-complaint cases.

Thus, insofar as this is an administrative system which has grown up without much scrutiny, without much judicial consideration, and relatively little Board consideration, it was neither the original understanding nor is it an understanding–

William J. Brennan, Jr.:

Mr. Gold, is anything judicially reviewable that does not involve a Board order?

Laurence E. Gold:

–As we read 10(e) and 10(f), you need a Board order, but–

William J. Brennan, Jr.:

Yes.

William J. Brennan, Jr.:

Well, then, if that’s so, in these informal settlements, is there any Board order?

Laurence E. Gold:

–The language of the statute–

William J. Brennan, Jr.:

No.

Is there?

Laurence E. Gold:

–We think so.

William J. Brennan, Jr.:

And what is it?

Laurence E. Gold:

The language of the statute says that orders of the Board are reviewable in court or at least certain kinds of orders of the Board are reviewable in court.

It also says under Section 3(d) that the General Counsel acts on behalf of the Board.

We don’t believe, for example, if the General Counsel entered into something called a formal settlement and didn’t use the right processes, we think that would be reviewable in court.

We don’t think that this kind of–

William J. Brennan, Jr.:

Even though there exists no formal Board order?

Laurence E. Gold:

–Yes.

But a General Counsel order having all the substance of the Board order, we believe, is judicially reviewable under 10(e) and 10(f)–

Sandra Day O’Connor:

Mr. Gold, if you were right in your interpretation, then, presumably, even an order withdrawing, deciding not to file a complaint in the first instance, would be a final order by the Board.

Laurence E. Gold:

–No.

I don’t believe that.

Sandra Day O’Connor:

I mean, I just think your logic would carry you to a very peculiar place.

Laurence E. Gold:

Well, there–

Sandra Day O’Connor:

For every action that the General Counsel takes is automatically a final order of the Board by your reading of the statute, then even his decision not to file a complaint would be reviewable.

Laurence E. Gold:

–No, we don’t think that that’s what the statute says, Your Honor.

If I could, Section 10(f) says that

“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 any Circuit Court of Appeals. “

The understanding of that language–

Sandra Day O’Connor:

But if you apply the APA to this, under your reading, of Section 153(d), anything the General Counsel did becomes a final order of the Board.

Laurence E. Gold:

–There’s an exception in the APA for matters left to agency discretion.

My point about 10(e) and 10(f) and the understanding pre-1947 as well as post-1947 is that the reference to a final order of the Board granting or denying in whole or in part the relief sought is the relief sought in the complaint, not the relief that the individual comes to the agency and asks to be embodied in a complaint.

The request of somebody to have a complaint issued and the refusal to do so was not reviewable prior to 1947, and we don’t believe that it’s reviewable now.

The language was the same in this instance pre-1947 and post-1947.

So, we think that the logic of the statute, both before 1947 and after, is that there is a line that Congress drew.

They’re informal proceedings in which the individual comes to the agency, says I have a charge of a violation which has merit, please create a formal proceeding by issuing a complaint, and the situation after the complaint issues, in which there is a formal proceeding.

Laurence E. Gold:

We think that those formal proceedings, as is true in a variety of formal proceedings, were intended to be terminated only with the approval of the adjudicatory agency.

In other words, we think that the filing of the complaint and we believe that this was Congress’ understanding, clear understanding, that the filing of the complaint was like the filing of a complaint in court and answer after which you can only withdraw the case with judicial approval or the filing of a criminal case in court which reaches a certain procedure which, again, can only be settled or withdrawn with the approval of the tribunal.

John Paul Stevens:

Mr. Gold, if you take the language of 10(f) literally, the review should be directly in the Court of Appeals.

Laurence E. Gold:

Yes, and that is what we did here.

John Paul Stevens:

And where then does the authority for the evidentiary hearing come?

Laurence E. Gold:

Well, we had… we are making a procedural complaint.

So, it is that we did not get the procedure we were due in the agency.

I take it–

John Paul Stevens:

So that your position… just so I’m clear, is it if a General Counsel dismisses a complaint and they say it’s not reviewable before the Board, you say your remedy is to go directly to the Court of Appeals?

Laurence E. Gold:

–Yes.

We are saying that whether the General Counsel issues something called an order finding the Respondent in violation without going through the procedures and the Respondent says wait a minute and seeks review of that or whether the General Counsel goes the other way, that where there is a settlement issue, that the procedure we are due under the statute is a hearing on the settlement, if there isn’t an amicable agreement, in this three-party–

John Paul Stevens:

Hearing before whom?

Laurence E. Gold:

–lawsuit… a hearing before an administrative law judge and the Board.

In other words, that we–

John Paul Stevens:

But you don’t say that hearing is commanded by 10(f)?

Laurence E. Gold:

–No, no.

We’re saying that that… the–

John Paul Stevens:

What statutory provision commands that hearing?

Laurence E. Gold:

–Right.

Seems to us that 10(a) and 10(b) demand that.

There’s an internal system for handling complaints, and we’re saying that part of that internal system within the agency for handling complaints is that once the complaint issues, the statute contemplates that the Board will determine what happens to the case and the Board has all the options as an agency that any other agency has or that a court has.

William H. Rehnquist:

Well, supposing that’s true, what issues are there in the evidentiary hearing that you say you have a right to?

Is that just what the charging party wants to litigate?

Laurence E. Gold:

Yes.

It would be the… in our view, it is the same kind of hearing that a district court would conduct.

William H. Rehnquist:

Well, a district court ordinarily doesn’t conduct any hearing if the parties stipulate to a settlement.

Laurence E. Gold:

But here one party doesn’t.

Obviously, if all the parties stipulate to the settlement, it’s like a summary judgment case.

The proposition that there has to be a hearing doesn’t make any sense, but, here, a party, namely the charging party,–

William H. Rehnquist:

The charging party.

Laurence E. Gold:

–doesn’t agree and that’s why–

William H. Rehnquist:

So, what, then, are the issues?

Laurence E. Gold:

–The issues are it would seem to us the same kind of issues that a district court has to–

William H. Rehnquist:

Okay.

What are those issues?

Laurence E. Gold:

–Whether it is fit and proper for the settlement to be entered into, whether it carries out the intent of the Act, whether there have been irregularities.

William H. Rehnquist:

It’s a review of the General Counsel’s exercise of his discretion.

Laurence E. Gold:

In the… the only reason I’m afraid of that statement, Chief Justice, is that it says you said “his discretion”.

We don’t believe that in that regard he has a discretion, any more… that he has an unfettered discretion.

Let me put it that way.

Obviously, there is a discretion in that the General Counsel’s view are going to weigh very heavily with the hearing, just the way the prosecutor’s views or the plaintiff’s views are going to weigh very heavily with the court.

John Paul Stevens:

You said here one of the parties hasn’t agreed to the settlement.

Did the… the charging party isn’t necessarily or automatically a party to the complaint hearing.

Doesn’t he have to give an order to intervene?

What is this?

See, I just don’t… what is this?

Laurence E. Gold:

Yes.

The statute and the rules contemplate that the charging party is a party to the proceeding.

John Paul Stevens:

Even without a special order of intervention?

Laurence E. Gold:

Yes.

John Paul Stevens:

He’s automatically a party.

I see.

Mr. Gold, I’d like to ask a question.

It relates to Justice Stevens’ question earlier about whether this belongs in the district court or the Court of Appeals.

You’re reading 10(f), any person aggrieved by a final order of the Board, as meaning any order of the Board, any final order of the Board.

Laurence E. Gold:

Any order finally disposing of a complaint.

Antonin Scalia:

Finally disposing of a complaint.

Laurence E. Gold:

Yes.

In other words, we don’t… prior to 1947, and correctly in our judgment, the actions of the agency when it was a unitary agency with regard to whether a complaint was issued, has never been regarded as reviewable.

We think that the intent of 10(f) was correctly captured in those decisions.

Antonin Scalia:

Well, I don’t see that.

That’s sort of a middle ground.

I can see how 10(f) might be read to mean any order whatever, which would produce a very strange result.

You’d have review in the Court of Appeals where there’s no record below.

So, you would really want to use the usual district court review rather than the Court of Appeals.

That’s one extreme.

It seems to me that the alternative to that is regarding 10(f) as referring to the order described in 10(c), which is very clear.

It says in 10(c) that after a complaint’s filed, if, upon the preponderance of the testimony, the Board shall be of the opinion that any person named has engaged or–

Laurence E. Gold:

Yes.

Antonin Scalia:

–is engaging in an unfair labor practice, the Board shall state its findings of fact and shall issue and shall cause to be served on such person an order in one direction or the other.

That’s the order, it seems to me, that 10(f) refers to.

And that is not the kind of order at issue here.

Laurence E. Gold:

It’s partially the kind of order because you have… in part, it is that kind of order, and what we’re… I guess what we’re struggling with is what happens in this class of case.

The defendant comes in and says I am prepared not to fight on issues 1, 2, 3 and 4, if you enter an order which doesn’t carry any court consequence.

Antonin Scalia:

But 10(c) only says an order requiring such person to cease and desist from such unfair labor practice.

That’s the kind of order it’s referring to.

Laurence E. Gold:

Well, the order–

Antonin Scalia:

The whole section it entitled Prevention of Unfair Labor Practices.

It sets forth the whole structure.

In (c) it says what kind of an order the Board shall issue and then in (f) it says any person aggrieved by an order of the Board.

It seems to me it’s obviously referring to the same order that’s described in (c).

Laurence E. Gold:

–Well, in those terms, an order… there’s more of 10(c).

An order saying that there is no unfair labor practice wouldn’t be reviewable, but, obviously, both 10(c) and the logic of the situation indicate that an order saying that there’s a violation, an order saying that there’s not a violation, are reviewable.

Now, what about an order saying that the Respondent will consent to an order which doesn’t carry a contempt sanction, saying that he will not do certain things which would be an unfair labor practice and the individual who brought the charge and who has a recognized status says that’s not enough?

Antonin Scalia:

It may be reviewable but not under 10(f).

Laurence E. Gold:

Well, if we–

Antonin Scalia:

If it’s reviewable, it would be under the APA, which means it would go into district court, which is where it should be if there hasn’t been any formal proceeding.

You need a record to be made.

Laurence E. Gold:

–Perhaps it’s where it should be if you’re fighting about the substance of the settlement, but if the claim is that the General Counsel has run around the procedure entirely, so… and has taken an action which is in reality an action which we believe is an action which can only be taken by the Board, it seemed to us that the logic of the situation was that kind of law question, when, as well, and ostensibly to the Court of Appeals.

We argue, as an alternative, that the APA gives us a right to test this question of whether Congress intended that the Board must be given an opportunity to pass on these proposed settlements.

Laurence E. Gold:

If that argument is right, then it would lead to, at least in the future, a review in the district courts rather than under 10(f), and we certainly think for the reasons we give, that a total failure of an agency to follow the procedure contemplated in the statute ought to lead to APA review and that it’s senseless to send us back to the district court–

Byron R. White:

Mr. Gold, if the Government is right, I take it that the Board itself could not prohibit the General Counsel from entering into informal settlements.

Laurence E. Gold:

–That’s right.

I mean, unless the Board… unless the Government’s position here is that they can do whatever they want, it seems to me that where we actually are is that the General Counsel has the trump card.

If he enters into–

Byron R. White:

Why shouldn’t that be the same trump card if the proceeding has started, if the hearing has started?

Laurence E. Gold:

–That’s what’s a total mystery to us and it may be that if you rule for the Board here, the Board will greatly regret having joined hands with the General Counsel.

William H. Rehnquist:

Mr. Gold, take the stage of the proceeding where the General Counsel issued a complaint but the charge party has issued no response.

Now, you say a settlement even at that stage requires… you’re entitled to a hearing and it is reviewable.

Now, that’s not like your district court proceeding at all, it seems to me.

That’s where the plaintiff has filed a complaint, the defendant hasn’t filed an answer, and that’s dismissable at the will of the plaintiff in the district court.

Laurence E. Gold:

That is the rule in the district court, but our argument here is that the statute draws a different line.

Obviously, it could draw that line,–

William H. Rehnquist:

But you were arguing before that you had the same kind of hearing that a district court would have.

I thought you meant that the proceedings were analogous; they’re really not analogous.

Laurence E. Gold:

–I’m saying that the issues to be presented to the tribunal in this kind of a three-party situation are analogous to the issues on whether or not to approve a settlement in a normal district court case brought by a plaintiff after answer in a class action case brought after the class is certified, which is very close, because that, too, is one where you have a representative rather than just one party on the plaintiff’s side.

William H. Rehnquist:

Those district court case examples have gone considerably further than just the filing of a complaint, which is all we have here.

Laurence E. Gold:

That’s true, but it is also true that the mere filing of a complaint is a less painstaking process than in a civil case than the filing of a complaint by this public agency after quite an elaborate system for trying to separate the wheat from the chaff.

I want to take advantage of the rest of my time to emphasize the following point.

In 1947, the general understanding, and, indeed, while there are quibbles from the Board, we think that the only possible understanding from the written materials was that the Board itself passed on settlements, post-complaint.

Byron R. White:

Formal or informal or whatever?

Laurence E. Gold:

Formal or informal or whatever, and that the overall thrust of the 1947 amendments were to provide a higher level of procedures, open procedures, by disinterested decision-makers and less staff determination than had been true prior to 1947.

We believe it turns this statute absolutely upside down to say that one piece of Congress’ effort to reach a higher due process stage in the adjudication of unfair labor practice cases, namely the creation of an independent General Counsel, worked without anybody saying so to limit the right of the charging party to get either an administrative law judge or, if you go to that point, the Board’s determination, a more disinterested determination on whether the settlement really effectuates the policies of the Act and protects the interests of–

Byron R. White:

Mr. Gold, the due process concerns that motivated Taft-Hartley weren’t basically concerns about fairness to the charging party, were they?

Laurence E. Gold:

–Oh, I think they were, Your Honor, because as the Court has remarked in other circumstances, what was sauce for the goose became sauce for the gander because Taft-Hartley for the first time created charging party rights in employers against unions, and Senator Taft and his colleagues were very solicitous of the rights and interests of that new class of charging parties.

Certainly, there was nothing that anybody said or anything that was indicated which would cut back into that.

The reason for creating the General Counsel was to keep the Board out of something that was considered not to be a proper adjudicatory function, namely the issuance of complaints, the determination to go forward, but it is a proper adjudicatory function as we’ve indicated and has always been understood to be such for the tribunal before whom the proceeding is pending at a certain stage to say whether or not a settlement should be accepted.

Byron R. White:

You think they’ve just been making a mistake for thirty years, forty years?

Laurence E. Gold:

It’s been a mistake which–

Byron R. White:

This whole–

Laurence E. Gold:

–Well, first of all,–

Byron R. White:

–practice has been going on for a long time.

Laurence E. Gold:

–But without judicial approval.

The D.C. Circuit and the 3rd Circuit have said this is wrong and the Board just has continued to chug along as if that hasn’t happened.

So, the situation is one because I don’t think there are that many charging parties who relish the proposition of challenging their champion’s determination, the situation is one in which there hasn’t been sufficient motive, but as I say, before ’47, what we’re saying is Congress’ intent was so far as everything shows the practice.

From ’47 to–

Antonin Scalia:

Mr. Gold, that practice was a Board-created practice.

Laurence E. Gold:

–Yes.

Antonin Scalia:

And what you’re arguing here is that somehow Congress intended to freeze that practice and the only thing you can point to as being a freezing of that practice is 10(f), right?

Laurence E. Gold:

No. 10… I think that practice was one which the agency created but which was one which the statute has always intended because it seems to us that Section 10(b), which has always been there, contemplates that once the complaint issues, the matter will be determined by the Board.

Antonin Scalia:

But what I’m saying is if I don’t read 10(f) as applying to this kind of an order, the only thing that applies to this order is the Administrative Procedure Act, and there’s no intent there to freeze the agency into a particular administrative scheme that existed in 1947.

Laurence E. Gold:

I guess the way we view this case, Justice Scalia, that two aspects to the judicial review question.

Aspect Number 1 is what did Congress intend with regard to the procedures within the agency, and then Question Number 2, which we think depends on the resolution of Question Number 1, is if the agency doesn’t proceed in that way, does the party disadvantaged have a right to have a court say that you have followed an improper procedure.

William H. Rehnquist:

Thank you, Mr. Gold.

Your time has expired.

Mr. Come, do you have anything in rebuttal?

You have five minutes.

Norton J. Come:

Just a couple of points, Your Honor.

In the first place, Congress’ basic intention in enacting 3(d) was to separate the Board’s prosecutorial authority from its adjudicatory authority.

At the time of the ’47 amendments, the Board had delegated some of its prosecutorial authority, but it had retained some aspects of it.

We submit it is clearly unreasonable to conclude that Congress intended to freeze the situation which would have left prosecutorial authority that the Board was continuing to exercise still with the Board.

So, the point that Congress intended to freeze the situation pre ’47 just doesn’t stand up.

Byron R. White:

Mr. Come, could the Board require informal settlements by the General Counsel to be reviewed by the Board?

Norton J. Come:

Not, we believe, certainly prior to the issuance of the complaint, and–

Byron R. White:

Well, what about in this very case?

Norton J. Come:

–post-complaint, I think that the Board could not go back to the point of the issuance of the complaint without doing violence to 3(d) because 3(d) talks about the General Counsel’s final authority, extending not only to the investigation of charges and the issuance of complaints, but with respect to the prosecution of such complaints before the Board.

So, you have to allow some room post-complaint for the General Counsel’s final authority to operate in.

Byron R. White:

So, your answer is no, the Board could not require him to get the approval of the Board for informal settlements after the complaint is issued?

Norton J. Come:

At least up until before the hearing opens.

Byron R. White:

Well, what… why wouldn’t that same rule apply to post-hearing while the hearing is going on?

Byron R. White:

What if the General Counsel wants to settle?

Norton J. Come:

Well,–

Byron R. White:

I take it you agree then that the Board has to agree.

Norton J. Come:

–no.

At that point, I think that the adjudicatory process has commenced and that the Board as the adjudicator has the inherent authority of all adjudicatory bodies to regulate the order of proceedings once the adjudicatory phase has opened, and barring any restriction in the statute, which there is none here, the Board was reasonable in drawing the line at the opening of the hearing.

Now, my last point is that with respect to–

Byron R. White:

You mean the Board and the General Counsel was reasonable?

Norton J. Come:

–That is correct, Your Honor.

Antonin Scalia:

Just to settle terminology, do you consider that a formal settlement or an informal settlement, where all the Board approves is a dismissal of the complaint, no order from the Board?

Norton J. Come:

I would regard that as an informal settlement.

The formal settlement requires a Board order that requires a party to do something.

Now, whether that order provides for enforcement by a Court of Appeals or not does not deprive it of being a formal settlement because since the order… the parties have consented to the order, the Board can go into the Court of Appeals and get automatic enforcement of that order because under 10(e) the respondent has waived his right to contest the order and we have done that.

My last point is that we read 10(f) the way you have suggested.

Judge Scalia, as the type of order that is referred to is a 10(c) order, and that is made even plainer when you look at 10(e), which is the provision for the Board–

Antonin Scalia:

Your time–

Norton J. Come:

–to go for enforcement.

William H. Rehnquist:

–Mr. Come, your time has expired.

Norton J. Come:

Right.

William H. Rehnquist:

The case is submitted.