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October 9, 1962

Stuart ROTHMAN, General Counsel of the National Labor Relations Board, Frank W. McCulloch, Chairman; and Philip Ray Rodgers, Boyd Leedom, John H. Fanning and Gerald A. Brown, Members, National Labor Relations Board, Defendants

The opinion of the court was delivered by: WALSH

This matter comes before the Court on the motions of Defendants for dismissal of the complaint, or, in the alternative, for summary judgment; and on the motion of Plaintiff for summary judgment.

Plaintiff, Local Union No. 112, with headquarters in Cincinnati, by its complaint seeks injunctive relief and asks the Court for an order directing the General Counsel of the National Labor Relations Board, and the Board, to proceed to hear amended complaints issued in two cases.

Briefly, the undisputed facts are as follows:

 Two complaints were issued by the General Counsel against the Ficks Reed Company, with notice that a hearing would be held, the plaintiff herein, Local 112, being the charging party. The first complaint, designated as 9 CA2232, was issued January 6, 1961; and the second complaint, designated 9 CA2251, was issued January 19, 1961. Thereafter negotiations toward settlement of the complaints took place between the Regional Counsel, representing the NLRB, and the Ficks Reed Company, in which the charging party took no part. On February 2, 1961, Local 112 was informed of a proposed settlement, at which time it filed written objections to the proposed settlement with the Regional Director. On February 23, 1961, the Regional Director's Office forwarded executed copies of the settlement agreement to Local 112. That same day, Local 112 filed a petition and motion with the General Counsel, seeking to prohibit the Regional Director from entering into the proposed settlement over the objections of Local 112, and to take the necessary steps to bring the case on for hearing. Identical petitions and motions were also filed with the Board and with the Chief Trial Examiner of the Board. The settlement agreement was thereafter signed by the Regional Director, Local 112 refusing to sign it, and on March 3, 1961, the Regional Director dismissed the Plaintiff's charges not covered by the settlement agreement. The Plaintiff appealed the decision of the Regional Director to the General Counsel by letter of March 9, 1961. On April 6, 1961, the General Counsel sustained the ruling of the Regional Director, without granting the Plaintiff an opportunity for the submission of facts and argument. No Board order was entered. On May 1, 1961, the General Counsel notified Plaintiff that the motions filed with the Board on February 23, 1961, had been referred to the General Counsel by the Chairman of the NLRB, and reiterated that he had sustained the Regional Director's acceptance of the settlement agreement.

 Plaintiff herein, Local 112, alleges that the action of the General Counsel in sustaining the ruling of the Regional Director, and the action of the Board in its refusal to grant the petition and motion of Plaintiff to prohibit the Regional Director from entering into a settlement agreement, over objections of the charging party, and the refusal of the Board to bring the cases in for hearing, were arbitrary and capricious and in violation of the provisions of Title 5 U.S.C.A. § 1004(b) and § 1005(a), of Title 29 U.S.C.A. § 160, and of Sections 101.9, 101.10 and 102.38, Series 8 of the Rules and Regulations and States of Procedure of the NLRB.

 Defendants argue, first, that this Court has no jurisdiction over the NLRB or its individual members since Section 10(f) of the National Labor Relations Act gives the Courts of Appeal exclusive jurisdiction with respect to such proceedings. Going further, the Defendants argue that since the instant proceeding does not involve a Board action, this Court is without jurisdiction over the Board or its individual members, and therefore the complaint as to them, the Board, should be dismissed.

 Second, defendants argue that the General Counsel, by virtue of Section 3(d) of the Act, 29 U.S.C.A. § 153(d), has broad discretion with respect to the institution and prosecution of unfair labor practice proceedings and that his discretion is not reviewable.

 The instant case is a civil action, filed in the District Court under Title 28 U.S.C. § 1337, which provides:

 'The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies. June 25, 1948, c. 646, 62 Stat. 931.'

 In Capital Service, Inc. et al. v. N.L.R.B. (1954), 347 U.S. 501, 74 S. Ct. 699, 98 L. Ed. 887, the Court held that 28 U.S.C. § 1337 gives the District Court jurisdiction in civil actions or proceedings under the National Labor Relations Act. The Supreme Court said:

 'The District Court had jurisdiction of the subject matter, because this is a 'civil action or proceeding' arising under an Act of Congress 'regulating commerce.' 28 U.S.C. § 1337. The National Labor Relations Act is a law 'regulating commerce' ( National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1(14) (, 57 S. Ct. 615, 81 L. Ed. 893)).' (p. 504, 74 S. Ct. p. 702).

 Moving to the merits of this case, the sole question to be determined by this Court is whether or not a charging party has the right to be heard on its objections when the General Counsel, after issuance of a complaint on behalf of the Board, intends to enter into a settlement agreement with the respondent. The Court will not concern itself with the merits of ...

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