REX H. REED, PETITIONER V. ROSEMARY M. COLLYER, GENERAL COUNSEL OF THE NATIONAL LABOR RELATIONS BOARD No. 87-1757 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the Respondent in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-2a) is reported at 837 F.2d 1091 (Table). The opinion of the district court (Pet. App. 3a-7a) is unreported. JURISDICTION The judgment of the court of appeals was entered on January 27, 1988. The petition for a writ of certiorari was filed on April 25, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a decision by the General Counsel of the National Labor Relations Board not to issue a complaint in response to unfair labor practice charged filed by petitioner is subject to judicial review. STATEMENT 1. On August 7, 1985, petitioner Rex H. Reed, an official of the National Right to Work Legal Defense Foundation, filed unfair labor charges against General Motors Corporation (GM) and the United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO (UAW), with the National Labor Relations Board's Regional Office in Detroit, Michigan (Pet. 2). The charges alleged that GM and the UAW had violated Sections 8(a)(1), (2), and (3) and 8(b)(1)(A) and (2) of the National Labor Relations Act (29 U.S.C. 158(a)(1), (2), and (3), 158 (b)(1)(A) and (2)) by entering into and giving effect to the so-called "Saturn Agreement." That agreement gives employment preference, at an automobile manufacturing plant that Saturn Corporation, a GM subsidiary, planned to construct in Spring Hill, Tennessee, to GM employees in the unit currently represented by the UAW, and purports to recognize the UAW as the collective bargaining representative of the employees at the Saturn plant (Pet. 2-3). The Regional Director conducted a preliminary investigation and, pursuant to agency policy, /1/ referred the charges to the General Counsel's Division of Advice in Washington, D.C. (Pet. App. 5a). After receiving written statements and oral argument, the Division of Advise concluded that the unfair labor practice charges should either be withdrawn or dismissed (Pet. App. 13a-24a). It noted that "GM and the UAW have had a long and productive collective bargaining relationship" and that, as "(i)n any collective bargaining relationship, there is an obligation to bargain over the effects of a decision that could have a significant adverse impact on the unit employees" (id. at 17a). Indeed, it noted that many provisions of the GM-UAW collective bargaining agreement "represent a clear commitment by GM * * * to avoid job loss in the event of changes in the operation of the enterprise" and that "(t)here is no allegation that any of these commitments is illegal" (id. at 18a). It then found that the construction of the Saturn facility could "have a major impact on current unit employees" because it could lead to reduction, closure or conversion of other GM plants (id. at 19a-20a). The Division of Advice thus concluded that the Saturn Agreement, insofar as it gives an employment preference to GM employees in the unit currently represented by the UAW, "is the lawful product of required bargaining" (id. at 20a). The Division of Advice rejected petitioner's argument that, by entering into the Saturn Agreement, GM had discriminated against those who are not members of the UAW (Pet. App. 20a-24a). It said that "the evidence does not establish such discrimination" (id. at 20a), noting that the preference was based on whether an employee was in the bargaining unit represented by the UAW, not on whether an employee was a member of the UAW, and that, given Tennessee's status as a right-to-work state, employees hired at the Saturn plant would have no obligation to maintain union membership (id. at 20a-21a). It distinguished Board precedents where hiring preferences had been condemned, noting that those cases involved preferences that were extended to employees of wholly unrelated employers that the union represented, and not simply preferences extended to the employer's own employees (id. at 22a). The Division of Advice also concluded that, under the principles set forth in Houston Division of the Kroger Co., 219 N.L.R.B. 388 (1975), the Saturn Agreement did not constitute an unlawful premature recognition of the UAW (Pet. App. 24a-25a). It explained, that under Kroger, an agreement to recognize a union at a future facility is construed by the Board as an agreement that conditions such recognition on the union's actual attainment of majority support (id. at 25a). Accordingly, insofar as the Saturn Agreement provides for recognition of the UAW as the representative of the Saturn plant employees, it "is, in law, an agreement to recognize the UAW at Saturn, in (the) future, if and when the UAW achieved majority support there" (ibid.). Finally, the Division of Advice declined to "decide at this time" whether it would be lawful for GM and the UAW to enter into "a functioning collective bargaining relationship before UAW achieves majority status among employees working at Saturn" (Pet. App. 28a). It acknowledged that "(t)hat issue is not free from doubt" (id. at 26a). But it found that the "current evidence is insufficient to establish that GM and UAW have acted at variance with the Kroger principles * * * , i.e., that they have entered into a functioning collective bargaining relationship before any employees have begun working at (the Saturn plant)" (id. at 25a). Thus, it found it unnecessary to "pass on the issue" whether they could lawfully do so (ibid.). It added that, if further developments indicated that GM and the UAW had actually entered into a functioning collective bargaining relationship at the Saturn plant, a new unfair labor practice charge could be filed to present that issue (id. at 28a). 2. Upon the Regional Director's dismissal of the unfair labor practice charges, petitioner filed an appeal with the Office of Appeals of the General Counsel (Pet. App. 8a). The parties submitted additional written statements in support of their positions (id. at 9a). On November 14, 1986, the General Counsel, through her Office of Appeals, sent petitioner's attorney a letter denying the appeal (id. at 8a-12a). The General Counsel first rejected petitioner's contention that her refusal to issue a complaint was inconsistent with the Board's decision in Kroger Co. (Pet. App. 8a-9a). She stated that the Kroger Co. decision fully supports "the conclusion that the Saturn Agreement is, as a matter of law, subject to the condition subsequent that the UAW must obtain majority support prior to actual recognition" (id. at 8a). She noted that "it is clear that this recognition, if contained in the GM-UAW National Agreement covering current bargaining unit employees, would not be unlawful" (id. at 8a-9a), and concluded that "(t)he mere fact that it is included in a separate Memorandum of Agreement between the UAW and Saturn, which clearly has single employer status with General Motors, cannot render it unlawful" (id. at 9a). Finally, the General Counsel found that petitioner's "contention that all employees will be required to become members of the UAW as a result of the Saturn Agreement is incorrect" (Pet. App. 10a). She noted that the union security clause in the agreement "requires union membership only 'to the extent permitted by law,'" and that Tennessee has a right-to-work law. Thus, she stated (ibid.): (C)ontrary to your contention on appeal, General Motors has not granted hiring preferences at the Saturn facility on the basis of UAW membership; rather, these preferences have been extended to GM employees who are represented by the UAW regardless of their individual status vis-a-vis the Union. An Employer does not violate the law when it prefers its own employees for transfer as long as that preference is based on employment status and not on union membership. * * * (T)he UAW has merely negotiated initial transfer rights for bargaining unit employees whom it presently represents. There can be no doubt that as the exclusive bargaining representative of these employees, the UAW is authorized to negotiate for them on the subject of their transfer rights particularly where, as here, the Employer's creation of job opportunities elsewhere may adversely impact their current employment status. 3. Petitioner responded by filing a complaint for declaratory and injunctive relief in the United States District Court for the Middle District of Tennessee, seeking to compel the General Counsel to issue an unfair labor practice complaint (Pet. App. 4a). The district court, however, found that "(t)he law is well settled that the decisions of the General Counsel for the NLRB are not subject to judicial review" (id. at 5a (footnote omitted)); that "the Supreme Court has consistently upheld the unreviewable discretion of the General Counsel in this regard" (id. at 6a); and that the "principle of unreviewability has been asserted by all the circuits" (id. at 7a). It thus dismissed the complaint for lack of subject matter jurisdiction (ibid.). 4. The court of appeals affirmed (Pet. App. 1a-2a). Like the district court, it found that the "General Counsel's decision not to issue an unfair labor practice complaint is not subject to judicial review" (id. at 2a). ARGUMENT The decision of the court of appeals is correct. It does not conflict with any decision of this Court or of any other court of appeals. Accordingly, review by this Court is not warranted. 1. This Court has long recognized that a determination by the General Counsel not to issue an unfair labor practice complaint is not subject to judicial review. See, e.g., NLRB v. United Food & Commercial Workers Union, Local 23, No. 86-594 (Dec. 14, 1987), slip op. 9; Detroit Edison Co. v. NLRB, 440 U.S. 301, 316 (1979); NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 155 (1975); Vaca v. Sipes, 386 U.S. 171, 182 (1967). Thus, in Sears, the Court noted that, in Section 3(d) of the Act (29 U.S.C. 153(d)), Congress delegated to the General Counsel "the unreviewable authority to determine whether a complaint shall be filed" (421 U.S. at 138). The Court explained (id. at 139): The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration. The courts of appeals, accordingly, have consistently refused to allow review of the General Counsel's prosecutorial decisions. See, e.g., Lincourt v. NLRB, 170 F.2d 306, 307 (1st Cir. 1948); National Maritime Union v. NLRB, 423 F.2d 625, 626-627 (2d Cir. 1970); Newspaper Guild, Local 187 v. NLRB, 489 F.2d 416, 426 (3d Cir. 1973); Associated Builders v. Irving, 610 F.2d 1221, 1226 (4th Cir. 1979), cert. denied, 446 U.S. 965 (1980); Hernandez v. NLRB, 505 F.2d 119, 120 (5th Cir. 1974); Mayer v. Ordman, 391 F.2d 889, 890 (6th Cir.), cert. denied, 393 U.S. 925 (1968); Rockford Redi-Mix Co. v. Zipp, 632 F.2d 30, 32-33 (7th Cir. 1980), cert. denied, 450 U.S. 929 (1981); Royal Typewriter Co. v. NLRB, 533 F.2d 1030, 1040 (8th Cir. 1976); General Drivers, Local 886 v. NLRB, 179 F.2d 492 (10th Cir. 1950); Bandlow v. Rothman, 278 F.2d 866 (D.C. Cir.), cert. denied, 364 U.S. 909 (1960). 2. Petitioner acknowledges (Pet. 7) that the General Counsel's prosecutorial decisions are generally unreviewable, but contends (ibid. (emphasis omitted)) that "this atypical case presents the unique issue of whether the General Counsel's arbitrary refusal to adhere to her own stated standard for issuing complaints violates petitioner's due process and equal protection rights." This contention is both unfounded and meritless. Contrary to petitioner's assertion (Pet. 16), the General Counsel did not ignore her own prosecutorial policy. The Division of Advise expressly found (Pet. App. 20a, 25a) that the evidence was "insufficient to establish that GM and UAW * * * have entered into a functioning collective bargaining relationship before any employees have begun working at (Saturn)," and, therefore, that under the Board's decision in Kroger Co., "the Saturn Agreement is, in law, an agreement to recognize the UAW at Saturn, in (the) future, if and when the UAW achieves majority support there" (Pet. App. 25a). Thus, while the General Counsel generally does issue complaints where arguable violations are found, no such arguable violation existed here. To be sure, the Division of Advice suggested that the legal question whether it would be lawful for GM and the UAW to enter into a functioning collective bargaining relationship before any employees had begun working was "not free from doubt" (Pet. App. 26a). But that question was not presented on the facts of the case, and the Division of Advice therefore expressly declined to address it (id. at 25a, 28a). In doing the same, the General Counsel did not in any way ignore a proper charge concerning an arguable violation of the law; no arguable violation of the law had been established on the facts of the case. In any event, even if the General Counsel had determined not to issue a complaint despite the existence of an arguable violation, that action would not be subject to judicial review. It is settled that "'the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation' so long as 'the selection was (not) deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification'" (Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978), quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)). While petitioner attempts (Pet. 18-19) to liken the situation here to the "dismissal of unfair labor practice charges of black employees because they are black, female employees because they are female, or blond() employees because they are blond()," there is in fact no basis here for suggesting that petitioner's charges were dismissed because of his membership in a protected class, or for any other invidious reason. And no constitutional violation is established by petitioner's contention (Pet. 15) that the failure to issue a complaint deprives him of the benefits of the Act: A person who files an unfair labor practice charge has no constitutional right to have an unfair labor practice complaint issue. Saez v. Goslee, 463 F.2d 214, 215 (1st Cir.), cert. denied, 409 U.S. 1024 (1972); International Ass'n of Machinists v. Lubbers, 681 F.2d 598, 603 (9th Cir. 1982), cert. denied, 459 U.S. 1201 (1983). "Indeed, if a right to have a complaint issue can be said to exist at all, it exists subject to the limitations contained in the Act, including the exercise of discretion by the General Counsel." Mobilab Union, Inc. v. Johansen, 600 F. Supp. 826, 829 (D.N.J. 1985). 3. Finally, petitioner errs in suggesting (Pet. 13-15) that the decision below is inconsistent with this Court's decision in Leedom v. Kyne, 358 U.S. 184 (1958), which involved no review of the General Counsel's exercise of enforcement discretion. In Kyne, the Board directed a representation election in an admittedly mixed bargaining unit of professional and non-professional employees without first having "a majority of such professional employees vote for inclusion in such unit," as expressly required by Section 9(b)(1) of the Act (29 U.S.C. 159(b)(1)). The Court held that this decision, which was not reviewable through the appellate review procedures established in the Act, could be reviewed by a district court because the Board's action was "in excess of its delegated powers and contrary to a specific prohibition in the Act" (358 U.S. at 188). Here, there is no doubt that the General Counsel has the power, under Section 3(d) of the Act, to refuse to issue a complaint, even where there is an arguable violation, in order to further the policies of the Act. Kyne does not authorize judicial review in this context. See Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (Kyne does not sanction district court review "whenever it can be said that an erroneous assessment of the particular facts before the Board has led it to a conclusion which does not comport with the law"); see also Schilling v. Rogers, 363 U.S. 666, 676 (1960). /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel National Labor Relations Board MAY 1988 /1/ The Board's casehandling policies provide that regional directors should refer "novel, complex, or doubtful issues or policy issues" to the Division of Advice. See NLRB Casehandling Manual (Part One) (Pt. 1) Section 11751.1 (1983); see generally NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 141-142 (1975). /2/ For similar reasons, Harmon v. Brucker, 355 U.S. 579 (1958), is of no help to petitioner. Harmon presented the question whether the Secretary of the Army had acted in excess of his statutory powers by looking at pre-induction records in issuing discharge papers. See 355 U.S. at 583. As shown above, no similar issue of statutory authority is presented here.