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January 21, 1985

WILFORD W. JOHANSEN, Acting General Counsel, National Labor Relations Board, and FRANCIS W. HOEBER, Acting Regional Director, National Labor Relations Board, Defendants

The opinion of the court was delivered by: GERRY

 The plaintiff, Mobilab Union, has a collective bargaining relationship with the Mobil Research and Development Corporation (MRDC) and has had such a relationship for more than 25 years. In October 1983, the plaintiff and MRDC commenced negotiations for a collective bargaining agreement to succeed the contract due to expire on January 15, 1984. The negotiations did not prove to be fruitful, and on February 27, 1984, MRDC announced that it was making its "last and final offer." This offer was rejected. On March 26, 1984, taking the position that bargaining had reached an impasse, MRDC unilaterally implemented its last and final offer. Under National Labor Relations Board (NLRB) law, if an impasse has truly been reached, the employer is privileged to do what MRDC did here.

 On March 20, 1984, the plaintiff, taking the position that an impasse had not been reached, filed an unfair labor practice charge with the Board, alleging that MRDC's refusal to bargain any further constituted a violation of §§ 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA) (29 U.S.C. § 151 et seq.). On May 8, 1984, the NLRB's Acting Regional Director refused to issue an Unfair Labor Practice Complaint, stating by letter that:

By mid-March 1984, the parties had engaged in more than twenty negotiating sessions. There was insufficient evidence to establish that the Employer failed to meet its statutory obligation to bargain in good faith. . . . The investigation disclosed that each party made substantial modifications in its contract proposals, and that impasse was reached in mid-March. . . . As the parties had reached impasse . . . it was concluded that the Employer was privileged to unilaterally implement the terms of its last offer.

 The plaintiff appealed this decision to the NLRB's General Counsel, arguing that the Regional Director's decision was contrary to the law of "impasse," and also that the Regional Director had failed to comply with certain requirements of the NLRB Case Handling Manual. Mobilab Union's appeal to the NLRB General Counsel was summarily dismissed by correspondence dated June 13, 1984:

The appeal is denied substantially for the reasons set forth in the Acting Regional Director's letter, dated May 8, 1984.

 Not satisfied with that result, the plaintiff instituted this action, in which it is alleged that the decision of the General Counsel not to issue a complaint against MRDC is violative of § 8(a)(5) of the NLRA, for which a private right of action lies, and is also redressible under the Administrative Procedure Act, the due process guarantee of the Fifth Amendment, and may also be reviewed as a decision "wholly without a basis in law." By way of relief, the plaintiff seeks the following: an order vacating the decision of the General Counsel, and remanding the case for a statement of reasons for the decision, responding with particularity to the plaintiff's arguments on appeal; a reopening of the NLRB's factual investigation; a reconsideration of whether an impasse actually existed; and a reconsideration of whether a complaint should issue.

 The plaintiff has an uphill battle here, as the decisions of the General Counsel regarding the issuance of a complaint are not generally considered reviewable.

 The defendants have moved to dismiss, asserting that this court lacks subject matter jurisdiction, as well as that the complaint fails to state a claim on which relief may be granted. We will treat with these bases as equivalent.

 1. The National Labor Relations Act.

 The plaintiff argues, in essence, that there exists a private right of action under the NLRA to force the General Counsel to issue a complaint where the facts arguably warrant one, or to fully explain the refusal to issue a complaint. To refuse to issue a complaint, it presumably is being argued, sanctions employer conduct which is violative of the Act. The structure of the Act does not seem to support plaintiff's theory of its right to mandate particular actions of the General Counsel. Section 8(a) of the Act states nothing more than that certain types of conduct (including a refusal to bargain) are unlawful. Section 10(b) of the Act (29 U.S.C. § 160(b)) merely states that the Board, when faced with an unfair labor practice charge, "shall have the power to issue . . . a complaint," not that it must issue a complaint (emphasis added). And section 3(d) of the Act (29 U.S.C. § 153(d)) is the most explicit of all in the discretion vested in the General Counsel:

He shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10.

 Thus, the Act indicates that only the Board may prosecute unfair labor practice charges, and that the decision to issue a complaint is within the discretion of the General Counsel. The "final authority" language of section 3(d) suggests an absolute discretion, and courts have uniformly construed the section as one precluding judicial review of the General Counsel's decision not to issue a complaint, and precluding the issuance of orders in the nature of a mandamus. See, e.g., Vaca v. Sipes, 386 U.S. 171, 182, 17 L. Ed. 2d 842, 87 S. Ct. 903 (1967); Contractors Association of Philadelphia v. NLRB, 295 F.2d 526 (3d Cir. 1961); McLeod v. IBT, 330 F.2d 108 (2d Cir. 1964); National Maritime Union v. NLRB, 423 F.2d 625 (2d Cir. 1970); Associated Builders v. Irving, 610 F.2d 1221 (4th Cir. 1979); International Assoc. of Machinists v. Lubbers, 681 F.2d 598 (9th Cir. 1982); Baker v. IATSE, 691 F.2d 1291 (9th Cir. 1982); Hennepin Broadcasting v. NLRB, 408 F. Supp. 932 (D. Minn. 1975); Rockford ...

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