The opinion
REAL, District Judge
(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 Counsel’s decision nothing could be more final. If the Board will not act in the absence of action by General Counsel “on behalf of the Board,” Sears (supra) 421 U.S. at p. 138 , 95 S.Ct. at p. 1510 , permitting a complaint to be heard on its merits the action of General Counsel totally frustrates a party's attempt to vindicate a claimed right under the NLRA.
It appears that the majority reluctantly concedes some sort of reviewability of General Counsel’s action. In such a case the majority would relegate petitioner to institute proceedings in an appropriate United States District Court. Reliance on Leedom v. Kyne, 358 U.S. 184 , 79 S.Ct. 180 , 3 L.Ed.2d 210 (1958) for the principle of District Court review is questionable if not misplaced. Leedom (supra) concerned action claimed to be in excess of jurisdiction. Here the action claimed is clearly within the jurisdiction of the Board but alleged to be an abuse of discretion and violative of constitutional and statutory rights. This Court has the jurisdiction to remedy such violations under Section 10(f) of the NLRA and it should be exercised in this case.
The Board in support of its position is parallel to its performance in the disposition of petitioner’s complaint it has largely ignored the abuse of discretion issue relying almost entirely upon the jurisdictional question. The facts here exemplify a classic abuse of discretion and this Court ought to remedy the claimed violation in the manner courts have reviewed equivalent questions under Section 10 of the Administrative Procedure Act, 5 U.S.C. Section 701 (a)(2). Let me be clear that I would not draw jurisdictional succor from 5 U.S.C. Section 701 (a)(2) and the cases decided permitting review for abuse of discretion, but would rather rely upon the jurisdictional power given this Court by Section 10(f) of the NLRA permitting a party aggrieved to seek review in any Court of Appeals.
*1313 One final word. The position of the Board equating General Counsel with a public prosecutor is a distortion of their respective duties. A public prosecutor is elected or appointed to vindicate societal interests through the integrity of our criminal laws. Individual interests may benefit peripherally but that is neither the function of nor the result of a public prosecutor in the performance of his duty. General Counsel, in contrast, takes the position of an individual or entity in the vindication of a right peculiarly of personal interest to that individual or entity. The public may incidentally be benefited by peace in our industrial establishment but private rights are the primary concern of the function of General Counsel under the NLRA.
The matter ought to be remanded to the Board with instructions to file petitioner’s complaint.