Sheet Metal Workers Local 28 (American Elgen)

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 981 (N.L.R.B. 1992)

981
306 NLRB No. 198
SHEET METAL WORKERS LOCAL 28 (AMERICAN ELGEN)
1 Judge Green relied on NLRB v. Food & Commercial Workers
Local 23, 484 U.S. 112 (1987).
2 Pursuant to counsel for the General Counsel’s request, Judge
Green stayed his order pending Board consideration of the General
Counsel’s appeal. On February 20, 1992, the Board issued an unpub-
lished order vacating the administrative law judge’s order and direct-
ing him to grant the General Counsel’s motion to withdraw the com-
plaint. The Board’s order further advised that a fully articulated deci-
sion would follow.
3 The Respondent filed a brief in support of the General Counsel’s
appeal, contending, inter alia, that Sec. 3(d) of the Act vests the
General Counsel with ‘‘final authority’’ regarding the filing, inves-
tigation, and ‘‘prosecution’’ of complaints, that since no evidence
was introduced, authority to withdraw the complaint lies with the
General Counsel, and that under Sec. 102.19 of the Rules and Regu-
lations any appeal is to the General Counsel in Washington, not the
Board.
Sheet Metal Workers International Association,
Local Union 28, AFL–CIO and American
Elgen and Sheet Metal and Air Conditioning
Contractors Association of New York City Inc.
and SMACMA of Long Island, Inc., Parties to
the Contract. Case 2–CE–155
March 31, 1992
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On July 1, 1991, the Regional Director for Region
2 issued a complaint and notice of hearing in the
above-entitled proceeding alleging violation of Section
8(e) of the National Labor Relations Act based on Re-
spondent’s enforcement of hot cargo agreements with
the parties to the contract with the object of forcing or
requiring those employers to cease doing business with
the Charging Party.
A hearing opened before Administrative Law Judge
Raymond P. Green on December 9, 1991. As a result
of Respondent counsel’s illness, the hearing was ad-
journed to December 27, 1991, without any evidence
being introduced. When the hearing resumed on De-
cember 27, 1991, counsel for the General Counsel
moved to withdraw the complaint, advising that, on the
basis of information obtained in her investigation of
the unfair labor practice charge, including evidence rel-
evant to the Respondent’s work preservation defense
obtained after issuance of the complaint from pre-
viously uncooperative witnesses, she had concluded
that further prosecution was not warranted. Charging
Party opposed the motion to withdraw on two grounds:
(1) the Charging Party has a different theory of the
case and (2) Charging Party asserts that it is not privy
to the new evidence relied on by the General Counsel
and wishes to assure itself that such new evidence is
true and correct.
By order dated January 27, 1992, Judge Green de-
nied the General Counsel’s motion. In his order Judge
Green noted that had the complaint been withdrawn
prior to opening of the hearing, the General Counsel’s
action would have been nonreviewable under Section
3(d) of the Act.1 However, although no evidence had
been received, Judge Green held that because the hear-
ing had opened, any final order is reviewable by the
Board and the courts, that the administrative law judge
must either grant or deny the motion to withdraw, ex-
ercising his or her discretion in so doing, and that the
exercise of discretion ‘‘requires at least some degree of
independent fact finding and cannot be based on a
blind reliance on facts as represented by one side
only.’’ At the same time, however, Judge Green con-
cluded that a full evidentiary hearing is not required.
Rather, Judge Green ordered the General Counsel to
‘‘turn over to me, to the Charging Party and to the Re-
spondent no later than February 11, 1992, any non-
privileged statements given by contractors which were
relied on as the basis for the General Counsel’s motion
to withdraw the complaint.’’
On February 4, 1992, the General Counsel filed a
request for special permission to appeal an order of the
administrative law judge.2 The General Counsel con-
tends that the postcomplaint investigation of the Re-
spondent’s work preservation defense establishes that a
majority of the disputed work has been historically
fabricated by members of the parties to the contract
and that General Counsel would not be justified in
continuing to prosecute the complaint. Therefore, the
General Counsel requests the Board to reverse the
judge’s ruling and order him to grant the motion to
withdraw the complaint and dismiss the charge.
On February 10, 1992, the Charging Party filed an
opposition to the General Counsel’s appeal. The
Charging Party argues that the judge’s order con-
stitutes a reasonable exercise of his discretion which
accommodates the General Counsel’s interest in pre-
serving the confidentiality of her file, the administra-
tive law judge’s duty to evaluate the merits, and the
Charging Party’s right to respond to the General Coun-
sel’s motion. Charging Party further contends that the
General Counsel’s argument that the judge’s order su-
persedes the General Counsel’s investigatory and pros-
ecutorial authority ‘‘is intellectually dishonest’’ be-
cause the General Counsel has conceded that once the
record has opened, the decision to withdraw a com-
plaint no longer lies within the General Counsel’s ex-
clusive authority.3
For the following reasons, we conclude that the
General Counsel has unreviewable discretion—i.e., dis-
cretion is not subject to either Board or court review—
to withdraw a complaint after the hearing on it has
opened but before any evidence has been introduced,
at least so long as there is no contention that a legal
issue is ripe for adjudication on the parties’ pleadings
alone.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Solano Rail Car Co., Case 20–CA–20941, unpublished order
issued October 27, 1987, petition for review denied Boilermakers
Local 6 v. NLRB, 872 F.2d 331 (9th Cir. 1989).
Section 3(d) of the Act vests the General Counsel
with ‘‘final authority, on behalf of the Board, in re-
spect of the investigation of charges and issuance of
complaints under Section 10’’ of the Act and ‘‘in re-
spect of the prosecution of such complaints before the
Board.’’ It is settled that under a reasonable reading of
Section 3(d), the General Counsel possesses
unreviewable ‘‘final authority’’ that includes not only
authority to decide whether to issue unfair labor prac-
tice complaints, but also, in some circumstances, au-
thority extending beyond the point at which a com-
plaint is issued. NLRB v. Food & Commercial Work-
ers, 484 U.S. 112, 122–123, 125–126 (1987). That au-
thority includes a purely ‘‘prosecutorial’’ decision to
withdraw a complaint, i.e., effectively a dismissal. Id.
at 125–126 (authority to dismiss complaint pursuant to
prehearing informal settlement); George Banta Co. v.
NLRB, 626 F.2d 354 (4th Cir. 1980), cert. denied 449
U.S. 1080 (1981) (in context of prehearing informal
settlement, authority to dismiss a complaint allegation
on grounds that investigation failed to provide suffi-
cient supporting evidence).
At some point, however, a complaint may be said to
have advanced so far into the adjudicatory process that
a dismissal takes on the character of an adjudication,
and at that point the General Counsel no longer pos-
sesses unreviewable authority in the matter. Thus, the
Board has held that ‘‘where . . . relevant evidence has
been adduced at a hearing, the General Counsel no
longer retains absolute control over the complaint; and
a subsequent motion to dismiss the complaint or any
portion thereof is within the [administrative law
judge’s] discretionary authority.’’ General Mainte-
nance Engineers, 142 NLRB 295 (1963) (footnote
omitted). Accord: United Aircraft Corp., 91 NLRB 215
(1950). See also Graphic Communications Workers
(Mueller Color), 230 NLRB 1219 fn. 4 (1978)
(midhearing grant of General Counsel’s motion to
withdraw complaint on the ground of an interim
change in Board law approved as an action within the
administrative law judge’s discretion).
The exact dividing line is not made plain in the text
of the Act. As the Supreme Court noted in Food &
Commercial Workers, although some decisions ‘‘can
be said with certainty to fall on one side or the other’’
of the ‘‘prosecutorial and adjudicatory line,’’ others
come within a middle range ‘‘that might fairly be said
to fall on either side of the division.’’ 484 U.S. at 125.
Without purporting to decide where the line is to be
drawn in all circumstances, we hold that where, as
here, (1) a hearing has opened, (2) the General Coun-
sel seeks to withdraw complaint allegations because he
believes the evidence obtained in the investigation
does not, taken as a whole, support the allegations, and
(3) counsel for the General Counsel has not introduced
evidence in support of the allegations (i.e., the evi-
dentiary hearing has not effectively commenced), the
General Counsel retains unreviewable authority under
Section 3(d) to withdraw the complaint allegations in
question. This is the conclusion we reached in a pre-
vious case decided in an unpublished order that was
upheld upon review,4 and we reach the same conclu-
sion here. Furthermore, because such a decision to
withdraw complaint allegations is within the General
Counsel’s unreviewable ‘‘final authority’’ under Sec-
tion 3(d), we find no basis for permitting the Charging
Party or the judge to compel the General Counsel to
produce her investigatory file for review of her deci-
sion not to continue the prosecution of those allega-
tions. Just as the Ninth Circuit observed in Boiler-
makers Local 6 v. NLRB, supra at 334, regarding an
attempt to compel the General Counsel to introduce
evidence at the hearing in support of the allegations or
to allow the charging party to produce the evidence,
we find that such an intrusion ‘‘must either severely
compromise the prosecutorial independence of the
General Counsel or in effect convert the proceeding
into a two-party private litigation’’ (between the re-
spondent and the charging party).
In summary, where, as here, the hearing has opened
but no evidence has been introduced, discretionary au-
thority to withdraw the complaint lies with the General
Counsel. Accordingly,
IT IS ORDERED that the General Counsel’s request
for special permission to appeal is granted, and the ad-
ministrative law judge’s ruling is vacated, the General
Counsel’s motion to withdraw the complaint is grant-
ed, and the above-entitled proceeding is remanded to
the Regional Director for Region 2 for further appro-
priate action consistent with this Order.