UNITED STATES SUPREME COURT DECISIONS ON-LINE

Petitioner employer filed an unfair labor practice charge against respondent union under § 8(b)(4)(D) of the National Labor Relations Act (NLRA), which makes it an unfair labor practice for a labor organization to induce employees to strike to force an employer to assign particular work to employees in a particular labor organization. Section 10(k) of the NLRA provides that, whenever a § 8(b)(4)(D) unfair labor practice charge is filed, the National Labor Relations Board shall hear and determine the dispute out of which such unfair labor practice arose, unless, within 10 days after notice that such charge has been filed, the parties submit evidence that they have adjusted the dispute, in which case or upon compliance with the Board's decision, such charge shall be dismissed. Pursuant to § 10(k), a hearing was held before a hearing officer, and subsequently the Board rendered a decision adverse to respondent, which then indicated it would not comply therewith. The Board's General Counsel thereafter issued a complaint on the unfair labor practice charge, and at a trial examiner's hearing, at which the General Counsel was represented by the same attorney who had been the hearing officer in the § 10(k) proceeding, the trial examiner concluded that respondent had violated § 8(b)(4)(D), and the Board issued a cease and desist order. The Court of Appeals, on respondent's petition to set aside the order, agreed that respondent had violated § 8(b)(4)(D), but refused to enforce the order, on the ground that, because the § 10(k) hearing officer had participated in both the § 10(k) and the § 8(b)(4)(D) proceedings, the Board had not complied with the Administrative Procedure Act (APA), 5 clubjuris

Page 419 U. S. 429

U.S.C. § 554(a), which prohibits commingling prosecutorial and adjudicatory functions in agency proceedings, and generally applies to "every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing," 5 U.S.C. § 551(7), defining "adjudication" as "agency process for the formulation of an order," and § 551(6), defining "order" as "the whole or a part of a final disposition . . . of an agency in a matter other than rule making."

Held: The APA, 5 U.S.C. § 554, does not govern proceedings conducted under § 10(k) of the NLRA. Pp. 419 U. S. 441-448.

(a) The § 10(k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in the APA. When Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding, and here the Board does not order anybody to do anything at the conclusion of the § 10(k) proceeding. Pp. 419 U. S. 441-444.

(b) Nor is such determination "agency process for the formulation of an order" within the meaning of 5 U.S.C. § 551(7). Although important practical consequences in the § 8(b)(4)(D) proceeding result from the Board's determination in the § 10(k) proceeding, they do not alone make the § 10(k) proceeding related to the § 8(b)(4)(D) proceeding in a manner that would make the former "agency process" for the formulation of the order of the latter. The § 10(k) proceeding is unlike the typical hearing before an administrative law judge, which is then subject to consideration by the agency. The issues in a § 10(k) proceeding are similar to, but not identical with, the focus of the § 8(b)(4)(D) proceeding. The standard of proof is different, and the inquiry in a § 8(b)(4)(D) proceeding is whether the union engaged in forbidden conduct with a forbidden objective. The proceedings are separate, and the agency makes the determination in each of them. Pp. 419 U. S. 444-448.

486 F.2d 863, reversed and remanded.

REHNQUIST, J., delivered the opinion for a unanimous Court. clubjuris

Page 419 U. S. 430