NLRB Cases Archive 1960 - 1995, LABOR-RELATIONS 1993-94 CCH-NLRB ¶15,381, FAIRMONT HOTEL et al. and MELISSA (HALE) FORBES., (July 27, 1994), National Labor Relations Board, (Jul 27, 1994)

FAIRMONT HOTEL et al. and MELISSA (HALE) FORBES.

314 NLRB No. 93.Case Nos. 20-CA-22948 and 20-CB-8167. July 27, 1994

Before Gould, Stephens, Devaney, Browning and Cohen.

Settlement Agreements--Validity--NLRB Review.--An employer’s appeal to the NLRB of the General Counsel’s decision to withdraw his complaint against a union in light of a settlement agreement that was made over the employer’s objection was denied. The congressional intent of the NLRA in deciding whether to prosecute unfair labor practices was to differentiate between the General Counsel’s and the Board’s final authority along prosecutorial versus adjudicatory lines. Consequently, because a hearing into the unfair labor practice had not opened, it was within the sole discretion of the General Counsel whether to proceed with the case or to settle it over the employer’s objection. Section 10(a).

Back reference: ¶5630.921.

From Text of Board’s Decision

On August 23, 1991, the Regional Director for Region 20 of the National Labor Relations Board issued an order consolidating cases, consolidating compliant and notice of hearing in the above entitled proceeding and the hearing was scheduled for January 7, 1992. On January 3, 1992, the Acting Regional Director issued an order postponing hearing and subsequently approved a unilateral settlement agreement in both cases over the Charging Party’s objections. On February 4, 1994, the office of appeals denied the Charging Party’s appeal from the Regional Director’s approval of the settlement agreement. On May 25, 1994, the office of appeals denied Charging Party’s request for reconsideration of the February 4, 1994 action.

On June 1, 1994, the Charging Party filed with the Board in Washington, D.C., a document entitled “Kaumagraph Appeal of the Deficient Remedies Provided in Post-Complaint Unilateral Settlement.” The Charging Party contends that the Board should review the propriety of the remedies the General Counsel accepted over the Charging Party’s objections. [1] More specifically, the Charging Party contends that the remedies accepted by the General Counsel “are fatally flawed by their failure to provide the Board’s ‘usual’ make whole remedies,” and that the Board’s order in Kaumagraph Corp. [2] conferred absolute jurisdiction over remedies to the Board. In support thereof, the Charging Party relies on the following statement in Kaumagraph: “Once a complaint has issued, however, responsibility for fashioning an appropriate remedy for the alleged unfair labor practices rests with the Board.”

The appropriate starting point for consideration of this matter is the Supreme Court’s decision in NLRB v. Food & Commercial Workers, Local 23, [107 LC ¶10,193] 484 U.S. 112 (1987). The Federal judiciary has authority to review only those Board orders which are final. See Section 10(f) of the Act. In Food & Commercial Workers, supra, the Supreme Court made clear that the judiciary’s “final” authority covers only the adjudication of complaints:

The words, structure, and history of the ... NLRA clearly reveal that Congress intended to differentiate between the General Counsel’s and the Board’s “final authority” alone a prosecutorial versus adjudicatory lines. [3]

Accordingly, if the General Counsel, exercising his “prosecutorial discretion,” decides to withdraw a complaint, pursuant to a prehearing settlement, such a determination is not subject to court review. [4] On the other hand, where withdrawal of the complaint was a matter for “adjudication” before an administrative law judge, the Board has the authority to determine whether withdrawal of the complaint is appropriate.

Having duly considered the matter, the Board notes that the Charging Party does not dispute that here, unlike Kaumagraph, supra, the hearing had not opened. In these circumstances, whether to (1) proceed with the case, or (2) settle the case over the Charging Party’s objections falls under the General Counsel’s jurisdiction. [5]

Accordingly,

It is ordered that the Charging Party’s appeal is denied.