Fairmont Hotel

National Labor Relations Board - Board Decisions

Jul 27, 1994

314 N.L.R.B. 534 (N.L.R.B. 1994)

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
535FAIRMONT 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.