'the parties * * * by amicable adjustment * * *' may settle after the issuance of a complaint. What is meant by 'amicable adjustment' needs no explanation and certainly there is no doubt that the charging party is among 'the parties' referred to in section 101.9 of the regulations. Section 102.8 defines the word 'party' as used in the regulations as '* * * including without limitation, any person filing a charge or petition under the act * * *'.
What would therefore appear from a reading of section 3(d) of the Act and sections 101.9 and 102.8 of the regulations, is that neither Congress nor the Board, by any statute or regulation, placed within the hands of the General Counsel the authority to settle complaints after their issuance absent the agreement of all parties, which, of course, is not the situation in the instant case.
This would be even more certain in a case such as the instant case, where not only was a hearing denied, but the charging party did not agree to the settlement.
Recently the Court of Appeals for the District of Columbia Circuit in two cases discussed the question of a charging party's right to a hearing once a complaint has issued on behalf of the Board. Each of these cases differs factually from the instant case, in that each involved an appeal from an order entered by the Board. There is, of course, no Board order in the instant case.
In International Union of Electrical Radio and Machine Workers, AFL-CIO v. N.L.R.B. (1960), 110 U.S.App.D.C. 91, 289 F.2d 757, the Court made reference to a charging party's right to a hearing once a complaint has issued on behalf of the Board. However, this Court will consider that case only in light of Judge Fahy's opinion in Textile Workers of America, AFL-CIO v. N.L.R.B. (1961), 111 U.S.App.D.C. 109, 294 F.2d 738. In speaking for a unanimous division of that Court, Judge Fahy said:
'In Marine Engineers' Beneficial Ass'n v. N.L.R.B., 3 Cir., 1953, 202 F.2d 546, certiorari denied 346 U.S. 819, 74 S. Ct. 32, 98 L. Ed. 345, 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. Cf. International Union of Electrical Workers v. N.L.R.B., 110 U.S.App.D.C. 91, 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.' (emphasis supplied.)
In the Textile Worker's case, as in the instant case, the General Counsel entered into a settlement agreement over the objections of the charging party, who requested and was refused a hearing. The Board entered an order reciting '* * * The objections and request for a hearing are denied as lacking in merit.' With respect to the regulations of the Board concerning the rights of a charging party after issuance of a complaint, the Court stated:
'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.' (emphasis supplied)
Going further and deciding the case and remanding it back to the Board, the Court said:
'In this situation, and limiting ourselves to the circumstances of this case, we are of opinion the order cannot stand without either (1) a reasonable opportunity for the Union to be heard on its objections or (2) a presentation on the record of reasons for acceptance of the stipulation as the basis for the order notwithstanding the Union's objections -- a presentation which in light of those objections would enable a reviewing court to make an intelligent decision as to whether the Board's action was within the broad discretion we recognize the Board possesses.'
In the instant case, as in the Textile Workers case, supra, no reason is given for the denial of a hearing. Why the Board did not review the appeal made to it on February 23, 1961 by Local 112, choosing to refer it to the General Counsel for action, is not made clear by the record before the Court. The one thing made clear by the record is that the General Counsel, after the issuance of a complaint on behalf of the Board, entered into a settlement agreement with the respondent over the objections of the charging party; and the charging party was denied a requested hearing, no reason having been given for the denial. This the General Counsel cannot do. This would appear to be conclusively shown by the opinion of the Circuit Court in the Textile Workers case, in holding that the Board is obliged to afford a charging party opportunity to be heard, or in the alternative, that reason be stated. Certainly, if the Board is so obligated, the General Counsel is likewise obligated.
Without more, this Court, on the basis of the record before it, finds that plaintiff is entitled to the relief sought. The Court therefore:
(1) denies the motions of defendants to dismiss, or in the alternative for summary judgment; and
(2) grants the plaintiff's motion for summary judgment.
Counsel is directed to prepare an appropriate order.
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