NLRB v. Food & Commercial Workers

484 U. S. 112

December 14, 1987

Before the National Labor Relations Board can adjudicate a dispute, a General Counsel must file a complaint. In this case, after a complaint was filed in a grocery store labor dispute, an informal agreement was arrived at, and the General Counsel decided to dismiss the complaint before Board adjudication began. A food workers union, which objected to the informal agreement, tried to get judicial review. But according to agency practice, judicial review only existed when Board action had occurred.

Unanimously, the Court held that the Counsel’s dismissal of the complaint prior to Board hearings could not be reviewed. The applicable statutes were ambiguous about the precise moment when judicial review attached to labor complaints, but the Court, with Brennan writing, felt constrained to defer to the agency’s rule of when the hearings began. He was unmoved by verbal wordgames about the Counsel acting “on behalf of” the Board and thus technically being a part of it. To close out, Brennan said that allowing for quick informal resolution was the lifeblood of the NLRB, and that to allow it to get bogged down in judicial review would make everyone miserable. On that basis, he rejected the claim that judicial scrutiny ought to lie under the Administrative Procedure Act.

Scalia, joined by Rehnquist, White, and O’Connor, pointed out that the majority opinion was a simple application of the Chevron rule. This decision appears to be correct, and I have little else to say about it, other than it being one of those rare, better-get-out-your-camera moments of Brennan and Marshall actually ruling against a labor union. Possibly, they knew that backing the food workers here would likely result in an unwanted backlash.


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