Neaton Auto Products Mfg.

National Labor Relations Board - Board Decisions

Sep 30, 2004

343 N.L.R.B. 256 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
343 NLRB No. 37
256
Neaton Auto Products Manufacturing, Inc. and
Robert E. Parker. Case 9–CA–37579
September 30, 2004
NOTICE OF PUBLICATION
On September 14, 2004, the attached inadvertently is-
sued as an unpublished Supplemental Order. The Board
had decided to publish the previously issued Supplemen-
tal Order in the bound volumes of its decisions.
SUPPLEMENTAL ORDER
September 14, 2004
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
MEISBURG
Counsel for the General Counsel’s Motion to Remand
Case to the Regional Director is granted. That motion is
unopposed by any party.1 Accordingly, this matter is
remanded to the Regional Director for Region 9 for fur-
ther appropriate action consistent with the Board’s deci-
sion in IBM Corp., 341 NLRB 1288 (2004).2
MEMBER LIEBMAN, dissenting.
This case is governed by the Board’s recent decision in
IBM Corp., 341 NLRB 1288 (2004), in which Member
Walsh and I dissented. It is ripe for decision. But rather
than applying IBM to dismiss the complaint on the mer-
its—a simple matter—my colleagues grant the General
Counsel’s motion to remand the case to permit his own
dismissal of the complaint.
That step threatens to foreclose the Charging Party
from seeking judicial review on the merits and thus from
challenging the correctness of the IBM decision. While

1 Even if the Charging Party did not “grasp the significance” of the
General Counsel’s motion, we would expect that, at the very least, he
would inquire of “his lawyer” [counsel for the General Counsel] as to
what the motion meant.
2 Our colleague says that, if there were a Board decision on the mer-
its, the Charging Party could seek judicial review. We are less certain
of this premise. The Charging Party did not make any arguments to the
Board, and the General Counsel’s final position before the Board is that
there is no violation. In these circumstances, it is at least questionable
whether the Charging Party would be free to argue to a circuit court
that there is a violation, for Sec. 10(e) and (f) provide that arguments
that are not made to the Board cannot be made to the court. However,
we need not decide that issue. For, even if the Charging Party could do
so, we would grant the General Counsel’s unopposed motion.
the Charging Party cannot generally seek review of the
General Counsel’s decision to withdraw a complaint,1 the
Charging Party can seek judicial review of an adverse
Board decision, even if he did not participate in the case
before the Board.2
I do not accuse my colleagues of trying to insulate
IBM from judicial review. But their failure to decide this
case on the merits is puzzling. Even if it is not clear
whether the Charging Party would seek judicial review,
we should not create obstacles to his doing so.3 Of
course, the Board’s decision today would itself seem to
be a reviewable order. But challenging that decision as a
means of seeking review of IBM is an unnecessarily cir-
cuitous route to require the Charging Party to take. Ac-
cordingly, I dissent.

1 NLRB v. Dood & Commercial Workers Local 23, 484 U.S. 112
(1987).
2 The Charging Party would be able to seek judicial review under
Sec. 10(f) of the Act, as a “person aggrieved by a final order of the
Board.” See Auto Workers Local 283 v. Scofield, 382 U.S. 205, 210
(1965). On review, the Charging Party would be entitled to make any
argument that had been presented to the Board by the General Counsel.
See, e.g., Hospital & Service Employees Local 399 v. NLRB, 798 F.2d
1245, 1248 (9th Cir. 1986). See also Postal Workers Union v. NLRB,
370 F.3d 25, 27–28 (D.C. Cir. 2004).
3 The Charging Party’s failure to oppose the General Counsel’s mo-
tion to remand makes no difference. The General Counsel has repre-
sented the interests of the Charging Party to this point. I would not
expect a pro se Charging Party—who has essentially just lost his law-
yer—to grasp the significance of recent events in this case and to
quickly mount an effective response.