Before BAZELON, FAHY and BASTIAN, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT. 1961.CDC.149
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FAHY
FAHY, C. J.: The Textile Workers Union of America, AFL-CIO, petitions this court to review and set aside an order of the National Labor Relations Board against Roselle Shoe Corporation, Harry A. Lebowitz, Charles Rosenthal, and Balfi Shoe Company, Incorporated, employers who were respondents before the Board and are intervenors in this court. The Union was the charging party in an unfair labor practice proceeding against intervenors. The Board investigated the charges and issued its complaint. Prior to a hearing on the complaint a stipulation was entered into between the Board's General Counsel and intervenors. The order was entered on the basis of this stipulation, which gave no reasons for its terms, merely stating them. The Union objected to the proposed order before its entry and requested a hearing on its objections, which was refused.
The Board contends that the consent of the charging party is not essential to settlement of an unfair labor practice proceeding. We may well agree, since the selection of cases to be pursued to the end through adversary proceedings is a responsibility of the Board. *fn1 A subsidiary principle and, as it might be described, a built-in if not an inherent characteristic of the appropriate administration of the Labor Act permits the Board to settle controversies within its jurisdiction. See Wallace Corp. v. NLRB, 323 U.S. 248, 253-54.
Our problem, however, is a more difficult and narrower one. It is whether in the circumstances of this case, though assuming that the charging party may not veto a settlement arranged between the General Counsel and a respondent to a Board complaint, the charging party nevertheless should have been heard on whether or not the Board should enter the order.
In Marine Engineers' Beneficial Ass'n v. NLRB, 202 F.2d 546 (3d Cir. 1953), cert. denied, 346 U.S. 819, it is held that once the Board has issued its complaint the charging party is entitled to a hearing as to whether the Board should conclude the proceeding on the basis of a stipulation for a consent order. The opinion analyzes the status of the charging party under the Labor Act and the rules of the Board and rests in part also upon the provisions of the Administrative Procedure Act. *fn2 Cf. International Union of Electrical Workers v. NLRB, - U.S. App. D.C. -, 289 F.2d 757.
We are disinclined to bring the present case within the broad scope, as it seems to us, of Marine Engineers and hold that because it was the charging party the Union, without more, was entitled to the hearing it sought. No provision in the statute so provides, and the rules of the Board are not clear about the matter. Section 102.83 of the rules does explicitly class "any person filing a charge" as a "party"4 And section 101.9, entitled "Settlement after issuance of complaint" provides:
(a) Even though formal proceedings have begun, the parties again have full opportunity at every stage to dispose of the case by amicable adjustment and in compliance with the law. Thus, after the complaint has been issued and a hearing scheduled or even begun, the attorney in charge of the case and the regional director afford all parties every opportunity for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except where time, the nature of the proceeding, and the public interest do not permit.
(b) All settlement stipulations which provide for the entry of an order by the Board are subject to the approval of the Board in Washington, D.C. If the settlement provides for the entry of an order by the Board, the parties agree to waive their right to hearing and agree further that the Board may issue an order requiring the respondent to take action appropriate to the terms of the adjustment. Usually the settlement stipulation also contains the respondent's consent to the Board's application for the entry of a decree by the appropriate circuit court of appeals enforcing the Board's order.5
These, the only regulations of which we are aware dealing with settlement after issuance of a complaint, seem to contemplate (1) amicable adjustment by the parties, and (2) opportunity to the parties for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except when time, the nature of the proceeding, and the public interest do not permit - exceptions not here relied upon by the Board. The provision of section 101.9(b) for waiver of the right to hearing plainly applies only where the parties have consented to a settlement. The charging party has not done so in our case.
It may be argued that these rules express a Board policy that a settlement after issuance of a complaint is to be on consent of the parties, which would include the charging party. But this is not entirely clear and we are unwilling to impose upon the Board this interpretation of ambiguous rules in this important area of its responsibilities. If the problem is to be resolved by reference to Board rules the wise course for the court is to await a clearer formulation of the Board's own position through its rules.Yet something clear and relevant does appear from the present rules, namely, that the charging party, even though he may not veto a settlement, is given the opportunity for submission of facts and argument, and is recognized as having a substantial part in assisting the Board in fulfilling its public responsibilities.
In the case before us it does not appear from the record that the Union was brought into the negotiations which led to the stipulation upon which alone the consent order is rested. Nor, when its protest and objections were filed6 does it appear on what basis they were considered. All we have is a footnote to the Board's decision, reading as follows:
On July 29, 1960, Textile Workers Union of America, AFL-CIO, herein called the Charging Party, filed objections to the Stipulation, and requested a hearing. On September 12, 1960, the Charging Party filed a brief in support of its objections. The ...