Before GOODRICH, STALEY and HASTIE, Circuit Judges.
GOCDRICH, C.J.: This case presents a question of the power of the National Labor Relations Board under the Labor Management Relations Act of 1947.*fn1
The set of facts, at this stage of the litigation at any rate, is simple and there is involved a pure question of law. The Marine Engineers' Beneficial Association made charges to the National Labor Relations Board against a division of the International Longshoremen's Association and others. The matter had to do with pressure exerted by the I.L.A. against certain tugboat owners to compel the owners and to employ the members of Marine Engineers unless they joined the International Longshoremen's Association.*fn2
With the merits of the charge and the defense thereto we are not concerned at present. The Labor Board, following negotiation and conference, entered into a stipulation with the Longshoremen's Association and the other parties charged. Pursuant to that stipulation a "consent order" was entered. But the order was not consented to by the charging party, Marine Engineers. Indeed that organization protested against the terms of the settlement and asked for a hearing at which it could present evidence and make a record. This was refused by the Board. The case is here on petition of Marine Engineers seeking review of the Board's action.
From the above statement it is seen that not only is the question one of law but it presents but a single issue. It is whether the Labor Board and a party charged with a violation of the Labor Management Relations Act can effectively arrange a settlement without giving the charging party a hearing on his objections thereto. This is a matter of obvious importance. The Labor Board tells us that in the year 1951 about 70 per cent of the 5500 unfair labor practice cases were settled without the necessity of a contested proceeding. It points out that negotitation and settlement are inherent in the operation of Labor Board functions. Its brief also "estimates" that 5 per cent of the settlements are effect over the objections of the charging party. We do not know, however, who has done the estimating and we are not very much impressed with the figures even if the "estimate" is accurate because we know that a great many things go on administratively which have to be changed when administrative practice comes up for judicial examination.
The Board Cites N.L.R.B. v. Pure Oil Company, 103 F.2d 497 (5th Cir., 1939), as a case where the charging union was not a party to the settlement. That fact was denied by the petitioner here and we have obtained the record and the briefs in that case through the courtesy of the Clerk of the Court of Appeals for the Fifth Circuit. From that record it appears that the charging party through its attorney did participate in the stipulation as to the notice to be posted at the employers' refinery. It does not appear that the charging party was signatory to some of the other documents involved in the case. But we think that the fact that the signature of the charging party is on the stipulation mentioned is sufficient to show that the Board is mistaken in its citation of the case as authority for its position.
The question presented is one which is not settled so far as the parties or we have been able to discover. The Board enphasizes two things. One is the necessity of negotiation, agreement, persuasion, and settlement in the carrying out of its duties. The second is the public nature of the Board's interest; it is exercising a public function in carrying out the purposes of the Act, and individual workers or employers have no vested rights in the process or results of the exercise of that function.
We have no disagreement with that point of view. Back in 1941 this Court, in Jacobsen v. N.L.R.B., 120 F.2d 96, recognized that "the jurisdiction of the Board is not a compulsory jurisdiction." We said that the Board does not have to issue a complaint except in the exercise of its sound discretion, and that its discretion in this respect is not subject to court review.This is in accord with the views of other courts upon the same and similar questions.*fn3 That the Board is charged with the responsibility of representing public interest, not that of private litigants, we have stated has been said by courts "over and over again." N.L.R.B. v. Condenser Corp. of America, 128 F.2d 67, 81 (1942).
But this is one of those situations where general propositions do not decide concrete cases. Granted than no one has authority to compel the Labor Board to issue a complaint against a party accused of violating the statute (and note that that may be an employee charge or an employer charge under the present law), what is the situation if the Board does issue a complaint? We dealt with one phase of that question in the Jacobsen case just cited, and we concluded that either party could petition the court for leave to adduce additional evidence upon any pertinent issue.*fn4 In other words, we thought that if the complaint was once entered the situation changed. In Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 264 (1940), Mr. Chief Justice Hughes pointed out that it is the Board and the Board alone which has power to issue its complaint against the person charged with the unfair labor practice. But in the next sentence he says, "If complaint is issued, there must be a hearing before the Board or a member thereof or its agent." This statement if taken alone and literally would settle the question in our case in favor of the petitioner. It is doubtful whether the Court's language, however, was meant thus to be applied to quite a different situation, although the Chief Justice, on the next page of the report, does emphasize that the opportunity given to a person aggrieved is "an opportunity to contest a final order of the Board, not to enforce it."
We think there is quite a little, though not overwhelming, proof of the correctness of the petitioner's position in the practice of the Board itself. Its rules and regulations permit the charging party to be listed as a party to the proceedings from the outset instead of relegating him to intervention.*fn5 He is a party aggrieved under Section 10 of the statute and as the Edison opinion says "may contest" the correctness of the Board's order.*fn6
The petitioners have cited to us a book by Mr. Joseph Rosenfarb, sometime attorney for the N.L.R.B., called The National Labor Policy and How It Works. In the book Mr. Rosenfarb describes the forms used in these consent proceedings. They uniformly include the agreement of the charging party as well as the Board and the party against whom complaint is made.*fn7
We think, too, that the requirements of the Administrative Procedure Act*fn8 are in point. Section 5(b), 5 U.S.C. § 1004(b), provides:
"The agency shall afford all interested parties opportunity for (1) the submission and consideration of facts ... and (2) to the extent that the parties are unable so to determine any controversy by consent, hearing, and decision upon notice ...