Staley, and Freedman, Circuit Judges, and Cohen, District Judge.
The Leeds & Northrup Company (Company), a Pennsylvania corporation, seeks review of the refusal of the Regional Director and General Counsel of the National Labor Relations Board (Board) to grant it, as a charging employer, an evidentiary hearing on its objections to an informal settlement agreement executed between the Regional Director and Leeds & Northrup Employees' Union (Union), under which agreement a complaint of unfair labor practices, initiated by the Company and issued by the Regional Director, was later withdrawn.
The controversy arises out of a plant strike by the Union between November 28th and December 13th, 1962.
The Company, with plants located at Philadelphia and North Wales and a sales office at Fort Washington, all in Pennsylvania, engages in the manufacture and sale of industrial and laboratory type electronic instruments, control systems, heat treatment furnaces, and heat measuring devices. The Union is the collective bargaining representative for certain of Company's employees and it authorized the strike in question.
On January 22, 1963, following termination of the strike, the Company filed charges against the Union, averring it had violated Section 8(b)(1) (A) and 8(b) (2) of the Labor Management Relations Act,*fn1 which makes it an unfair labor practice for a Union "to restrain or coerce employees in the exercise of the rights guaranteed in Section 7."*fn2 The Company alleged that the Union had coerced its employees during the strike, by obstructing ingress and egress to its plants; by threatening employees with violence and loss of employment if they crossed the picket lines; by threatening employees with union fines for crossing the picket lines and for refusing to participate in picketing and strike activities; by imposing and collecting fines against non-strikers in advance of union trials; by the application of dues on account of fines to be imposed, as contrasted to the waiver of dues for strikers; and by the subsequent imposition of fines in amounts equal to such wages as were earned during the strike.
An investigation of the Company's charges was conducted by the Regional Director of the Fourth Region, pursuant to which he concluded on behalf of the Board's General Counsel that a complaint should issue. On May 31, 1963, a complaint was filed against the Union alleging unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) of the Act. A hearing before a trial examiner was set for July 22, 1963, and later rescheduled for September 30, 1963. However, on September 24, 1963, the Regional Director unilaterally ordered the hearing postponed indefinitely.
Thereafter, on March 2, 1964, the Regional Director and the Union entered into an informal settlement agreement, without discussing with, or exhibiting such agreement to, the Company. This agreement does not appear in the record. (Exhibit 1 of the Joint Appendix, p. 38a, refers to such an agreement in a posted notice to the union employees.) Its terms were not before the Court. On April 29, 1964, the Regional Director and the Union executed another informal settlement agreement. The latter agreement provided for the posting of notices at the plants stating that the Union, in the future, would not obstruct employees or others from free ingress and egress, nor threaten employees with violence or loss of employment if they did not act in concert with the Union. This agreement also provided that its approval by the Regional Director would effect a withdrawal of the complaint and notice of hearing issued theretofore. The Company, although invited to become a party to this agreement refused to do so. Instead, as a charging employer, it filed a motion on May 7, 1964, with the Regional Director, requesting a hearing to be held on the complaint, and a week later filed formal objections to the settlement agreement of April 29, 1964. Regardless, the Regional Director approved the agreement, withdrew the complaint, denied the Company's request for hearing and rejected its objections.
Thereafter, in accordance with the administrative course prescribed by the Board through its Regional Director, the Company filed a request for review with the General Counsel.*fn3 By letter dated January 11, 1965, the General Counsel advised the Company that he approved the action of the Regional Director in executing the settlement agreement, and withdrawing the complaint. He observed further, that neither the fines levied nor the civil actions instituted to collect them constituted a violation of the Act (citing the Allis-Chalmers case, note 8 infra), and that the unfair labor practices had ceased. It is this action in denying an evidentiary hearing to the charging employer, which the Company contends is final action of the Board, acting through its General Counsel and Regional Director, that is sought to be reviewed and set aside.
In March, 1965, following the filing of the present petition for review, respondent moved for its dismissal. A full hearing was had before another Panel of this Court, and on April 12, 1965 an order denying the motion was entered without prejudice to its renewal at the argument on the merits of the petition for review.
In defense of its position the respondent Board emphasizes two aspects, contending: (1) in the absence of a final order of the Board, this Court lacks jurisdiction to review the actions of the Regional Director and the General Counsel, and (2) by reason of the informal settlement agreement the practices complained of have been discontinued and are moot, thereby obviating the necessity for a hearing on the complaint or on objections to the agreement.
As observed by both parties in their briefs and arguments, procedurally, in unfair labor practice matters, the Regional Director may enter into a formal settlement agreement, or an informal one, with the charged party. If a formal agreement is chosen by the Regional Director, the ensuing order, as a form or vehicle of his determination, is reviewable by the Board under the Act for its final disposition. However, if an informal agreement is made with the charged party, no order issues from the Board, and the sole route of review, under the rules and regulations of the Board, leads to and ends with the General Counsel. The respondent Board concedes that its final orders are judicially reviewable, but contends that informal agreements of its agents are not reviewable. The petitioning Company insists that respondent's argument is anomalous in that mere choice of the procedural form in these matters can foreclose judicial review, and this despite the absence of minimal standards in the Act and in the Board's own rules and regulations for determining the choice of procedure.
On the record before us we must disagree with the contentions of respondent. Jurisdiction of this petition obtains under Section 10(f) of the National Labor Relations Act, as amended (49 Stat. 449, 29 U.S.C. 160(f), and Section 10(c) of the Administrative Procedure Act (60 Stat. 237, 5 U.S.C. 1009(c)). The distinction of formal or informal final disposition under the facts of this case confuses incidence with substance. The absence of a formal order of the Board, which respondent insists is a fatal jurisdictional defect here, does not preclude review by this Court of a final disposition by an administrative agency. As stated by the Court in Columbia Broadcasting System, Inc. v. U.S., 316 U.S. 407, 86 L. Ed. 1563, 62 S. Ct. 1194 (1942), at page 424:
"We need not stop to discuss here the great variety of administrative rulings which, unlike this one, are not reviewable -- either because they do not adjudicate rights or declare them legislatively, or because there are adequate administrative remedies which must be pursued before resorting to judicial remedies, or because there is no occasion to resort to equitable remedies. But we should not for that reason fail to discriminate between them and this case in which, because of its peculiar circumstances, all the elements prerequisite to judicial review are present. The ultimate test of reviewability is not to be found in an ...