UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL
UNION 201, AFL-CIO, PETITIONER V. NATIONAL LABOR RELATIONS BOARD

   No. 86-450

   In the Supreme Court of the United States

   October Term, 1986

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Memorandum for the National Labor Relations Board in Opposition

the International Union's Constitution, which bound petitioner, gave
the representative of the International Union "controlling authority
to execute a binding agreement with the Employer Association" and
that, in addition, the representative "was * * * cloaked with apparent
authority to negotiate and execute a collective-bargaining agreement"
under the circumstances of this case (id. at C2).  The regional
director also rejected petitioner's claims that the International
Union deceived petitioner regarding its intent to sign the agreement
and found that the Employer Association did not unlawfully refuse to
bargain with petitioner (id. at C2-C3).  The regional director
accordingly declined to issue a complaint in response to petitioner's
charges (id. at C3).  Petitioner appealed to the Board's General
Counsel, who upheld the regional director's refusal to issue a
complaint "substantially for the reasons set forth in the Regional
Director's letter dated April 30, 1984" (id. at B1).

   The court of appeals unanimously dismissed the petition for review
filed by petitioner (Pet. App. A1-A3).  The court concluded that it
lacked jurisdiction to review the General Counsel's decision not to
issue a complaint, observing that "(s)uch decisions are not generally
reviewable" (id. at A2).  The court suggested that judicial review of
the General Counsel's decision not to issue a complaint might be
available in certain limited situations -- if the decision were
"'contrary to a specific prohibition of the Act,'" if it resulted in
the violation of constitutional rights, or if it were "wholly without
basis in law" -- but noted that "(n)one of these situations is present
here" (id. at A2-A3 (citation omitted)).

   2. The decision of the court below is correct and does not conflict
with any decision of this Court or another court of appeals.  Further
review by this Court is not warranted.

   Section 10(f) of the National Labor Relations Act, 29 U.S.C.
160(f), endows the courts of appeals with jurisdiction to review
"final order(s) of the Board." The General Counsel's refusal to issue
an unfair labor practice complaint does not constitute a final Board
order subject to judicial review under Section 10(f).  NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 155 (1975);  Vaca v. Sipes, 386 U.S. 171,
182 (1967).  Nor is the General Counsel's refusal to issue a complaint
reviewable in federal district court pursuant to the general grant of
jurisdiction over cases raising a federal question (see 28 U.S.C.
1331).  The Administrative Procedure Act (APA) specifies that judicial
review of agency action is not available when "agency action is
committed to agency discretion by law" (5 U.S.C. 701(a)(2)).  The
General Counsel's decision not to issue a complaint is a decision
committed to her prosecutorial discretion;  judicial review is
therefore precluded by Section 701(a)(2).  Vaca v. Sipes, 386 U.S. at
182;  see also Heckler v. Chaney, No. 83-1878 (Mar. 20, 1985), slip
op. 9.

   Contrary to petitioner's assertion (Pet. 5), there is no conflict
among the courts of appeals concerning the question presented in this
case.  Some courts have indicated, in dicta, that the General
Counsel's refusal to issue a complaint might be reviewable in
particular limited circumstances.  See, e.g., Pet. App. A2-A3;
International Association of Machinists v. Lubbers, 681 F.2d 598,
603-604 (9th Cir. 1982);  Bova v. Pipefitters & Plumbers Local 60, 554
F.2d 226, 228-229 (5th Cir. 1977).  But those statements are not
implicated here because, as the court of appeals observed (Pet. App.
A3), this case involves no circumstances that even arguably fall
within these purported grounds for review.  /*/

   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.

   CHARLES FRIED

      Solicitor General

   ROSEMARY M. COLLYER

      General Counsel National Labor Relations Board

   NOVEMBER 1986

   /*/ The question presented here is unrelated to the questions
presented in NLRB v. United Food & Commercial Workers, Local 23,
petition for cert. pending, No. 86-594.  That case involves the
reviewability of the General Counsel's decision to withdraw a
complaint pursuant to an informal settlement agreement and the General
Counsel's obligation to hold a hearing prior to withdrawing a
complaint.  Resolution of the issues presented in United Food &
Commercial Workers does not require reexamination of the settled
principle that the General Counsel's refusal to issue a complaint in
the first instance is not subject to judicial review;  indeed, the
question in that case is whether the policies underlying that settled
principle also bar review of the General Counsel's decision to
withdraw a complaint.  Accordingly, there is no reason for the Court
to hold the petition in the present case pending the disposition of
United Food & Commercial Workers.