explaining that the “on behalf of the Board” language in 29 U.S.C. § 153 (d) was Nos. 23-1899/1946 Rieth-Riley Constr. Co. v. NLRB Page 8 added “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”
How later courts described this case
- explaining that the “on behalf of the Board” language in 29 U.S.C. § 153 (d) was Nos. 23-1899/1946 Rieth-Riley Constr. Co. v. NLRB Page 8 added “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”
- explaining that when considering the question of whether an NLRB action is prosecutorial or adjudicatory, a court’s “task . . . is not judicially to categorize each agency determination, but rather to decide whether the agency’s regulatory placement is permissible”
- explaining that “since respondent concedes that the General Counsel’s decision not to file a complaint is not reviewable under § 10(f), we perceive no merit or logic in the argument that a settlement decision of the General Counsel may be”
- holding that a federal court has no authority to review a decision of the NLRB's General Counsel dismissing an unfair labor practice complaint pursuant to an informal settlement in which the charging party refused to join
Written by the judges who cited it.
The opinion
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. *134 NRC, 266 U. S. App. D. C. 381, 386, 824 F. 2d 108 , 113 (1987); International Union, United Automobile, Aerospace and Agricultural Implement Workers v. Brock, 259 U. S. App. D. C. 457, 460-461, 816 F. 2d 761 , 764-765 (1987); Adams House Health Care v. Heckler, 817 F. 2d 587, 593-594 (CA9 1987). If the dicta of Cardoza-Fonseca , as opposed to its expressed adherence to Chevron, were to be applied here, surely the question whether dismissal of complaints requires Board approval and thus qualifies for judicial review under 29 U. S. C. § 160 (f) would be “a pure question of statutory construction” rather than the application of a “standar[d] to a particular set of facts,” as to which “the courts must respect the interpretation of the agency,” 480 U. S., at 446, 448 . Were we to follow those dicta, therefore, we would be deciding this issue conclusively and authoritatively, rather than merely “deciding] whether the agency’s regulatory placement is permissible,” ante, at 125. The same would be true, moreover, of the many other decisions alluded to by the Court in which “we have traditionally accorded the Board deference with regard to its interpretation of the NLRA,” ante, at 123. Those cases, and this, are decided correctly only because “the statute is silent or ambiguous” with respect to an issue relevant to the agency’s administration of the law committed to its charge — which is the test for deference set forth in Chevron.