JUSTICE BRENNAN delivered the opinion of the Court.
The question to be decided in this case is whether a federal court has authority to review a decision of the National Labor Relations Board's General Counsel dismissing an unfair labor practice complaint pursuant to an informal settlement in which the charging party refused to join. We hold that such a dismissal is not subject to judicial review under either the amended National Labor Relations Act or the Administrative Procedure Act.
In August 1984, respondent, the United Food Workers, filed unfair labor practice charges with the Pittsburgh regional
On September 24, 1984, Vic's Market's, Inc. (Vic's), bought the relevant store, and the Regional Director filed a second complaint that reflected this fact. A hearing on the complaints was scheduled for December 4, 1984. However, shortly before the hearing was to begin, Vic's, Charley Brothers, the Steelworkers, and the Regional Director came to a tentative settlement agreement. The agreement called for the charged parties to take certain remedial action in return for dismissal of the complaint, but they were not required to admit that they had committed any unfair labor practice.
Eventually, the settlement was entered into by all parties except respondent, who, as permitted by Board regulations, challenged the Regional Director's action before the General Counsel. The General Counsel determined that there was no need for an evidentiary hearing and sustained the settlement. Respondent then sought review in the United States Court of Appeals for the Third Circuit.
The Board argued that the petition for review should be dismissed on the ground that the court lacked jurisdiction to review an informal settlement that did not result in an order of the Board and that was entered into before hearings began. Alternatively, the Board argued that the settlement should be sustained. The Court of Appeals, considering itself bound by its own precedent,
Petitioners argue that the courts of appeals have no jurisdiction under the National Labor Relations Act (NLRA) to review settlement decisions of the General Counsel that do not result in Board orders and that are entered into before the commencement of hearings on the complaint. Respondent asserts two grounds for jurisdiction. The first is that all settlements occurring after a complaint is filed must be approved by the Board. Because final orders of the Board are judicially reviewable under § 10(f) of the NLRA, 49 Stat. 455, as amended, 29 U. S. C. § 160(f), respondent maintains that the courts of appeals have jurisdiction to review settlements. Alternatively, respondent argues that because the General Counsel acts "on behalf of the Board," his or her decisions are subject to judicial review as if they were orders "of the Board." Neither of respondent's submissions persuades us.
The NLRA, as originally enacted, granted the Board plenary authority over all aspects of unfair labor practice disputes: the Board controlled not only the filing of complaints, but their prosecution and adjudication. The Labor Management Relations Act, 1947 (LMRA), 61 Stat. 136, altered this structure.
One of the major goals of the LMRA was to divide the old Board's prosecutorial and adjudicatory functions between
The methods and procedures for the resolution of unfair labor practice charges are set out in statutes and in regulations promulgated by the Board pursuant to congressional authority. § 156. A union, employer, or employee may bring an unfair labor practice charge to a regional office. Until such a charge is brought, the Board may take no enforcement action. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 156 (1975). Once a charge is brought and investigated, the regional director may, in his discretion, dismiss it.
If the regional director concludes that the charges have merit, and if no informal settlement is reached, he may issue a complaint. Once a complaint issues, it may be disposed of by withdrawal before hearing, settlement, or formal adjudication.
The regional director is authorized to withdraw a complaint on his own motion at any time before the hearing. Such a withdrawal may be appealed to the General Counsel, but no Board review is available.
Because a Board order is part of all formal settlements, Board approval is required before such an agreement may be executed. The applicable regulations expressly allow an opportunity for a nonconsenting party to appeal to the General Counsel, and from there to the Board. §§ 101.9(c)(1) and (2).
Once the hearing on the complaint begins, the Board's regulations do not permit the General Counsel to enter into an unreviewable settlement agreement, even if it is "informal." Rather, a nonconsenting party may challenge the settlement before the administrative law judge, and an appeal is available from the judge's determination to the Board.
The dispute in the case before us is a narrow one. The parties agree that the General Counsel's approval of a determination not to file an unfair labor practice complaint is not subject to judicial review, whether or not it is the result of an
We first address respondent's argument that the regulations just described, which permit the General Counsel to determine the validity of a postcomplaint informal settlement, but do not provide for an appeal to the Board, are inconsistent with the NLRA. Essentially, this is an argument that respondent was entitled to a Board order subject to judicial review under 29 U. S. C. § 160(f).
We review the validity of the relevant regulations, promulgated pursuant to congressional authority, under the standards prescribed in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). On a pure question of statutory construction, our first job is to try to determine congressional intent, using "traditional tools of statutory construction." If we can do so, then that interpretation must be given effect, and the regulations at issue must be fully consistent with it. Id., at 446-448. See also Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843, and n. 9 (1984). However, where "the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id., at 843. Under this principle, we have traditionally accorded the Board deference with regard to its interpretation of the NLRA as long as its interpretation is rational and consistent with the statute. See, e. g., Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); Ford Motor Co. v. NLRB, 441 U.S. 488,
The words, structure, and history of the LMRA amendments to the NLRA clearly reveal that Congress intended to differentiate between the General Counsel's and the Board's "final authority" along a prosecutorial versus adjudicatory line. Section 3(d) of the NLRA provides that the General Counsel has "final authority" regarding the filing, investigation, and "prosecution" of unfair labor practice complaints. Conversely, when the authority of the Board is discussed (with regard to unfair labor practice complaints), it is in the context of the adjudication of complaints. Specifically, § 10 of the Act refers to the Board and the procedures it must follow to decide unfair labor practice cases.
The history of the LMRA also reflects this dichotomy. The House Conference Report on the LMRA states: "The conference agreement does not make provision for an independent agency to exercise the investigating and prosecuting functions under the act, but does provide that there shall be a General Counsel of the Board . . . [who] is to have the final authority to act in the name of, but independently of any direction, control, or review by, the Board in respect of the investigation of charges and the issuance of complaints of
In light of the foregoing, the general congressional framework, dividing the final authority of the General Counsel and the Board along a prosecutorial and adjudicatory line, is easy to discern. Some agency decisions can be said with certainty to fall on one side or the other of this line. For example, as already discussed, decisions whether to file a complaint are prosecutorial. In contrast, the resolution of contested unfair labor practice cases is adjudicatory. But between these extremes are cases that might fairly be said to fall on either side of the division. Our task, under Cardoza-Fonseca and Chevron, is not judicially to categorize each agency determination, but rather to decide whether the agency's regulatory placement is permissible.
Respondent would have us hold that after a complaint is filed all dispositions can only be deemed adjudicatory. It is true that the filing of a complaint is the necessary first step to trigger the Board's adjudicatory authority. However, until a hearing is held the Board has taken no action; no adjudication has yet taken place. We hold that it is a reasonable construction
Moreover, we fail to see why the General Counsel should have the concededly unreviewable discretion to file a complaint, but not the same discretion to withdraw the complaint before hearing if further investigation discloses that the case is too weak to prosecute. See International Assn. of Machinists & Aerospace Workers v. Lubbers, 681 F.2d 598, 604 (CA9 1982), cert. denied, 459 U.S. 1201 (1983); George Banta Co. v. NLRB, 626 F.2d 354, 356-357 (CA4 1980), cert. denied, 449 U.S. 1080 (1981); Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. NLRB, 339 F.2d 795, 799 (CA2 1964); cf. Cuyahoga Valley R. Co. v. Transportation Union, 474 U.S. 3 (1985) (the Secretary of Labor's decision to dismiss an Occupational Safety and Health Act complaint is not subject to review by the Occupational Safety and Health Review Commission). The General Counsel's unreviewable discretion to file and withdraw a complaint, in turn, logically supports a reading that he or she must also have final authority to dismiss a complaint in favor of an informal settlement, at least before a hearing begins.
But respondent contends that the LMRA's legislative history makes clear Congress' understanding that the Board would review all dismissals once a complaint is filed. Our examination of the legislative history discloses no such support for respondent's argument. Indeed, we find that the legislative history supports petitioners' position.
Respondent asserts that at the time the LMRA was passed, in 1947, the practice of the Board was to delegate to
This inference is too strained to withstand scrutiny. It is clear of course that Congress intended to place final authority regarding the filing of complaints in the General Counsel. But it is equally clear that Congress intended the scope of the General Counsel's authority to be far broader than respondent suggests. Congress intended that the General Counsel should not only resolve appeals regarding the filing of complaints, but that he or she should be the "final authority" concerning the "prosecution" of complaints as well, a function not performed by the "anonymous committee" prior to 1947. We repeat that Congress intended to create an officer independent of the Board to handle prosecutions, not merely the filing of complaints.
Moreover, the silence of the legislative history regarding settlements does not suggest that Congress was carrying forward the prior settlement structure. For Congress was
In short, the Board's regulations are consistent with amended NLRA. Respondent was not entitled to Board review of the settlement.
Alternatively, respondent argues that because the General Counsel acts "on behalf of the Board" his or her final determinations are reviewable under the NLRA as orders "of the Board." We find this argument, too, unpersuasive.
The plain language cited by respondent reflects that the General Counsel acts "on behalf of" the Board. 29 U. S. C. § 153(d).
Further, the structure of the Act, far from supporting respondent, leads inescapably to the conclusion that Congress distinguished orders of the General Counsel from Board orders. The statute describing the organization of the agency,
The history of the Act confirms the distinction between orders of the General Counsel and Board orders. In the House bill, the General Counsel was styled the "Administrator of the National Labor Relations Act," and headed a separate agency. The Conference Committee decided to place the General Counsel within the agency, but to make the office independent of the Board's authority. The Committee added the language "on behalf of the Board" to make it clear that the General Counsel acted within the agency, not to imply that the acts of the General Counsel would be considered acts of the Board.
Again, the language, structure, and history of the NLRA, as amended, clearly differentiate between "prosecutorial" determinations, to be made solely by the General Counsel and which are not subject to review under the Act, and "adjudicatory" decisions, to be made by the Board and which are subject to judicial review. As the decision in this case was "prosecutorial," it cannot be judicially reviewed under the NLRA.
Respondent argues that if the NLRA provides no judicial review of "prosecutorial" determinations, they may be reviewed under the Administrative Procedure Act (APA) as final agency actions "for which there is no other adequate remedy in a court." 5 U. S. C. § 704. It is true that the General Counsel's decision was a "final" action, and that there is no other adequate remedy in a court. But review under the APA is unavailable of actions specified in 5 U. S. C. § 701(a), that is, (1) where "statutes preclude judicial review"; or (2) where "agency action is committed to agency discretion by law." Subsection (1) applies in this case.
The NLRA leaves no doubt that it is meant to be, and is, a comprehensive statute concerning the disposition and review of the merits of unfair labor practice charges. In particular, § 10 exhaustively sets out the stages through which such charges may pass, from the filing of a complaint, to a Board determination, and to judicial enforcement and review. Moreover, in the entire NLRA, judicial review is expressly provided only in respect of Board orders. We have already determined, supra, at 130, that Congress purposely excluded prosecutorial decisions from this review. We proceed to demonstrate why it would be illogical in the extreme to hold that Congress did so only to permit review under the APA.
To allow judicial review through the APA of the General Counsel's settlement determinations would run directly counter to the structure of the NLRA. Appeals from final orders or dispositions of the Board are expressly directed to the courts of appeals. Respondent nevertheless urges that the statute should be read to allow an APA suit, brought in the district court, to review final agency orders that are not adjudications. Such review would involve lengthy judicial
This sort of delay, unavoidable in the judicial setting, is untenable in the settlement context, for until the court ruled the parties could not know whether their settlement agreement was valid. In future cases, a charged party would have an incentive not to carry out its part of the bargain while judicial review is pending for fear that the settlement might be invalidated. Obviously, the willingness of charged parties to resolve unfair labor practice charges quickly and expeditiously by way of an informal settlement after a complaint is filed would be severely constrained if APA review were allowed.
The resulting consequences for the agency and the enforcement of the Act could be most serious. In 1983 almost one-third of all unfair labor practice charges brought (excluding those terminated through voluntary withdrawal by the charging party or outright dismissal of the charges) were disposed of by way of an informal settlement reached after a complaint was filed, but before a hearing began.
Finally, APA review of these settlements would inevitably require the federal courts, in the first adjudicatory instance, to examine the merits of unfair labor practice charges.
Given the comprehensive nature of the NLRA with regard to unfair labor practice charges, and the absurd results of allowing an APA action to be brought where there is no judicial review provided in the Act, we conclude that the exception defined in 5 U. S. C. § 701(a)(1) bars review here.
We conclude that the Court of Appeals had no jurisdiction to entertain this action under either the NLRA or the APA. Consequently, we need not determine whether an evidentiary hearing should have been ordered. We reverse the judgment of the Court of Appeals and remand with instructions to dismiss the cause for want of subject-matter jurisdiction.
It is so ordered.
JUSTICE SCALIA, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join, concurring.
I join the Court's opinion, and write separately only to note that our decision demonstrates the continuing and unchanged vitality of the test for judicial review of agency determinations of law set forth in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). Some courts have mistakenly concluded otherwise, on the basis of dicta in INS v. Cardoza-Fonseca, 480 U.S. 421, 446-448 (1987). See, e. g., Union of Concerned Scientists v.
"There shall be a General Counsel of the Board who shall be appointed by the President, by and with the advice and consent of the Senate, for a term of four years. The General Counsel of the Board . . . shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 10, and in respect of the prosecution of such complaints before the Board, and shall have such other duties as the Board may prescribe or as may be provided by law." 29 U. S. C. § 153(d).
"If the complainant refuses to withdraw the charge as recommended, the Regional Director dismisses the charge. The Regional Director thereupon informs the parties of this section [sic, probably should be `action'], together with a simple statement of the grounds therefor, and the complainant's right of appeal to the General Counsel in Washington, D. C., within 14 days. . . ."
"Before any complaint is issued or other formal action taken, the Regional Director affords an opportunity to all parties for the submission and consideration of facts, argument, offers of settlement, or proposals of adjustment, except where time, the nature of the proceeding, and the public interest do not permit. . . . These agreements, which are subject to the approval of the Regional Director, provide for an appeal to the General Counsel, as described in § 101.6, by a complainant who will not join in a settlement or adjustment deemed adequate by the Regional Director. . . ."
"After the issuance of a complaint, the Agency favors a formal settlement agreement, which is subject to the approval of the Board in Washington, DC. In such an agreement, the parties agree to waive their right to hearing and agree further that the Board may issue an order requiring the respondent to take action appropriate to the terms of the settlement. Ordinarily the formal settlement agreement also contains the respondent's consent to the Board's application for the entry of a judgment by the appropriate circuit court of appeals enforcing the Board's order."
"In some cases, however, the Regional Director, who has authority to withdraw the complaint before the hearing § 102.18) [sic], may conclude that an informal settlement agreement of the type described in § 101.7 is appropriate. Such agreement is not subject to approval by the Board and does not provide for a Board order. It provides for the withdrawal of the complaint."
"(1) If after issuance of complaint but before opening of the hearing, the charging party will not join in a settlement tentatively agreed upon by the Regional Director, the respondent, and any other parties whose consent may be required, the Regional Director serves a copy of the proposed settlement agreement on the charging party with a brief written statement of the reasons for proposing its approval. . . .
"(2) If the settlement agreement approved by the Regional Director is a formal one, providing for the entry of a Board order, the settlement agreement. . . [is] submitted to Washington, D. C., where [it is] reviewed by the General Counsel. If the General Counsel decides to approve the settlement agreement, the charging party is so informed and the agreement and accompanying documents are submitted to the Board, upon whose approval the settlement is contingent. . . ."
"(1) If the settlement occurs after the opening of the hearing and before issuance of the administrative law judge's decision and there is . . . [a settlement proposal and if] any party will not join in the settlement agreed to by the other parties, the administrative law judge will give such party an opportunity to state on the record or in writing its reasons for opposing the settlement.
"(2) If the administrative law judge decides to accept or reject the proposed settlement, any party aggrieved by such ruling may ask for leave to appeal to the Board as provided in § 102.26."
(Section 102.26 provides for interlocutory appeals to the Board, which are discretionary. Petitioners have not suggested that an order of the administrative law judge accepting a settlement would not always be subject to Board review.)
"If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue . . . an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action. . . as will effectuate the policies of this [Act] . . . . If upon the preponderance of the testimony taken the Board shall not be of the opinion that the person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue an order dismissing the said complaint. . . ."
"Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia . . . ."
"Presumably, under the conference agreement such appeals would be routed to the General Counsel's office rather than to the Board. The assumption that the Board itself presently reviews these appeals, however, is utterly erroneous. According to the testimony of the chairman of the Board these appeals are considered by an anonymous committee of subordinate employees. What the conference amendment does is simply to transfer this `vast and unreviewable power' from this anonymous little group to a statutory officer responsible to the President and to the Congress." 93 Cong. Rec. 6859 (1947).
Respondent also notes that the legislative history is silent concerning the procedure for entering into settlements.
"Mr. OWENS. I believe that one of the most important portions of this bill is the division of powers; that is, the division of the functions, the investigation, the prosecution, the complaints, and the judicial end. The gentleman mentioned that the general counsel would be absolutely independent.
"In the language [the bill] constantly refers to the Board.
"It is my understanding that the conference is saying to the House at this time that those different sections, where they mention the Board, mean that it is the general counsel who shall have the power to proceed with the investigation, with the complaint, and shall have complete power over the attorneys who are prosecuting; that the Board shall not control him or have the right of review in any way. Is that correct?
"Mr. HARTLEY. The gentleman's opinion is absolutely correct. The reference to the Board was necessary because, in order to have this man independent of the Board, we had to use the term `Board.' Otherwise we would have had to set up a completely independent agency. . . . He acts on behalf of the Board but completely independent of the Board.
"Mr. MACKINNON. But while he is completely independent of the Board, he is authorized insofar as his duties are concerned, to act in the name of the Board?
"Mr. HARTLEY. Yes; in the name of the Board."