Pacific Southwest Airlines v. National Labor Relations Board

611 F.2d 1309 103 L.R.R.M. (BNA) 2431 , 87 Lab.Cas. P 11,809 PACIFIC SOUTHWEST AIRLINES, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 78-1599. United States Court of Appeals, Ninth Circuit. Jan. 22, 1980. Ronald G. Rickard (argued), and Paul G. George, Meserve, Mumper & Hughes, Los Angeles, Cal., on brief for petitioner. Margery E. Lieber, N. L. R. B., Washington, D. C., for respondent. On Petition to Review a Determination of the National Labor Relations board. Before MERRILL and SNEED, Circuit Judges, and REAL * , District Judge. SNEED, Circuit Judge: 1 Pacific Southwest Airlines (PSA) petitions this court to review a determination of the General Counsel of the National Labor Relations Board (Board) not to issue an unfair labor practice complaint upon an unfair labor practice charge filed by PSA against the International Brotherhood of Teamsters, Airline, Aerospace & Allied Employees, Local 270 (Union) for its alleged refusal to permit disclosure of information required by PSA to prepare for arbitration of a grievance. PSA acknowledges the general principle that the General Counsel's determination not to issue a complaint is unreviewable by the Board or…

(dissenting).

I respectfully dissent.

I would send the matter back to the Board for consideration of what is an important and underlying issue in this case i. e., the reciprocity of the duty of good faith bargaining insofar as it would require a union to provide all relevant information to the employer to an informed and intelligent consideration of grievances and the arbitration process. Amicable settlement of the differences between labor and management is so fundamental to the statutory scheme of labor-management relations that such a decision should not be made by default as done in this case by the totally unsupported decision of the General Counsel not to process the complaint.

I believe the refusal of General Counsel to process a complaint is final Board action. NLRB v. Sears, Roebuck and Company, 421 U.S. 132,138, 155 , 95 S.Ct. 1504, 1510, 1518 , 44 L.Ed.2d 29, 40, 50 (1975). Although couched in terms of dictum, the logic of Sears (supra) is compelling on this issue. Finality is clear in light of the overwhelming thrust of the National Labor Relations Act to address claims of individual rights in labor relations. If the majority would preclude review of General…

Pacific Southwest Airlines (PSA) petitions this court to review a determination of the General Counsel of the National Labor Relations Board (Board) not to issue an unfair labor practice complaint upon an unfair labor practice charge filed by PSA against the International Brotherhood of Teamsters, Airline, Aerospace & Allied Employees, Local 270 (Union) for its alleged refusal to permit disclosure of information required by PSA to prepare for arbitration of a grievance. PSA acknowledges the general principle that the General Counsel’s determination not to issue a complaint is unreviewable by the Board or the Court of Appeals, but contends that review is nevertheless available where the General Counsel has acted contrary to constitutional or statutory mandates. The Board contends that the General Counsel’s determination is not a “final order” within the meaning of section 10(f) of the National Labor Relations Act (Act) and thus is not reviewable by the Court of Appeals. We hold that even assuming that the General Counsel’s determination was a final order, it is not subject to review on petition to this court.

I. FACTUAL BACKGROUND

On September 12, 1977, PSA filed an unfair labor…