Fairmont Hotel

534 314 NLRB No. 93 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 The Respondent Union and counsel for the General Counsel filed oppositions to the Charging Party’s appeal on July 5 and 11, 1994, respectively. The Charging Party filed a response to the Respondent Union’s opposition. 2 313 NLRB 624 (1993). Briefly, Kaumagraph came to the Board as an interlocutory appeal of the administrative law judge’s ruling at the hearing about whether the charging party union would be per- mitted to seek a restoration remedy. At the commencement of the hearing, the General Counsel announced that he would not seek res- toration and reinstatement as a remedy. The administrative law judge then considered whether the charging party would be permitted to seek such a remedy. The administrative law judge ruled that he would not permit the charging party to introduce evidence in support of restoration at the hearing, but would permit the charging party to argue this matter in its brief. On appeal, the Board granted the charging party’s appeal, vacated the administrative law judge’s ruling, and directed the judge to per- mit the parties to introduce evidence bearing on whether restoration and reinstatement is an appropriate remedy. In its order, the Board, discussing the General Counsel’s jurisdiction in this area, observed: Section 3(d) of the Act vests the General Counsel with exclu- sive jurisdiction with respect to the investigation and prosecution of unfair labor practice complaints on behalf of the Board, in- cluding the decision whether to issue a complaint. Once a com- plaint has issued, however, responsibility for fashioning an ap- propriate remedy for the alleged unfair labor practices rests with the Board. See Section 10(c) of the Act. The General Counsel’s authority under Section 3(d) does not extend so far as to pre- clude litigation over the question of whether the Board’s usual restoration and reinstatement remedy is appropriate here with the result being that this issue is resolved via an administrative in- vestigation. [Id.] 3 484 U.S. at 124. 4 The General Counsel’s authority not to prosecute includes settle- ment of a case over the Charging Party’s objections where a com- plaint has issued but the hearing has not opened. See also Sec. 102.18 of the Board’s Rules and Regulations and Sec. 101.9 of the Statements of Procedure. On the other hand, if the General Counsel rejects a proffered settlement and wishes to continue to prosecute the case, the Board will be called on to exercise its adjudicatory func- tion. In that connection, the Board may rule on the adequacy of the proffered settlement, pursuant to a respondent motion to dismiss. See Independent Stave Co., 287 NLRB 740 (1987). Fairmont Hotel, et al. and Melissa (Hale) Forbes Teamsters Local 856 and Melissa (Hales) Forbes. Cases 20–CA–22948 and 20–CB–8167 July 27, 1994 ORDER DENYING APPEAL BY CHAIRMAN GOULD AND MEMBERS STEPHENS, DEVANEY, BROWNING, AND COHEN On August 23, 1991, the Regional Director for Re- gion 20 of the National Labor Relations Board issued an order consolidating cases, consolidating complaint 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 ap- proved 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 reconsider- ation 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 Pro- vided in Post-Complaint Unilateral Settlement.’’ The Charging Party contends that the Board should review the propriety of the remedies the General Counsel ac- cepted over the Charging Party’s objections.1 More specifically, the Charging Party contends that the rem- edies 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, 484 U.S. 112 (1987). The Federal judiciary has authority to re- view only those Board orders which are final. See Sec- tion 10(f) of the Act. In Food & Commercial Workers, supra, the Supreme Court made clear that the judi- ciary’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’’ along a prosecu- torial versus adjudicatory lines.3 Accordingly, if the General Counsel, exercising his ‘‘prosecutorial discretion,’’ decides to withdraw a com- plaint, pursuant to a prehearing settlement, such a de- termination 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 535 FAIRMONT HOTEL 5 To the extent that there is any ambiguity in the Order in Kaumagraph, supra, we clarify the penultimate paragraph, second sentence and hold: Once a complaint has issued, however, and the hearing has opened, responsibility for fashioning an appropriate rem- edy for the alleged unfair labor practices rests with the Board. judge, the Board has the authority to determine wheth- er withdrawal of the complaint is appropriate. Having duly considered the matter, the Board notes that the Charging Party does not dispute that here, un- like Kaumagraph, supra, the hearing had not opened. In these circumstances, whether to (l) proceed with the case, or (2) settle the case over the Charging Party’s objections falls under the General Counsel’s jurisdic- tion.5 Accordingly, IT IS ORDERED that the Charging Party’s appeal is denied.