Auto Workers v. Scofield, 382 U.S. 205 (1965)

Topics:  UAW

From the U.S. Government Printing Office via GPO Access
 
Case:   AUTO WORKERS V. SCOFIELD 

Case #: 382US205


NO. 18.  ARGUED OCTOBER 20, 1965.  - DECIDED DECEMBER 7, 1965.* - NO.
53, 339 F.2D 801, AND NO. 18, REVERSED AND REMANDED. 

*TOGETHER WITH NO. 53, INTERNATIONAL UNION, UNITED AUTOMOBILE,
AEROSPACE & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, LOCAL 133, UAW,
AFL-CIO V. FAFNIR BEARING CO. ET AL., ON CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SECOND CIRCUIT. 


IN NO. 18, A UNION WAS CHARGED BY INDIVIDUAL EMPLOYEES WITH VIOLATIONS
OF THE NATIONAL LABOR RELATIONS ACT, AND THE BOARD'S GENERAL COUNSEL
ISSUED A COMPLAINT.  THE NLRB DISMISSED THE COMPLAINT AFTER A HEARING
AND THE INDIVIDUAL EMPLOYEES SOUGHT REVIEW IN THE COURT OF APPEALS. 
THE NLRB FILED AN ANSWER SUPPORTING THE DECISION.  A MOTION OF
INTERVENTION FILED BY THE UNION, ALTHOUGH NOT OPPOSED BY THE NLRB OR
THE EMPLOYEES, WAS DENIED BY THE COURT.  THE UNION WAS PERMITTED TO
FILE A BRIEF AS AMICUS CURIAE.  IN NO. 53, A UNION FILED CHARGES
AGAINST A COMPANY AND THE BOARD'S GENERAL COUNSEL ISSUED A COMPLAINT. 
AFTER A HEARING THE NLRB ISSUED A CEASE-AND-DESIST ORDER AGAINST THE
COMPANY, WHICH PETITIONED FOR REVIEW IN THE COURT OF APPEALS.  THE NLRB
CROSS-PETITIONED FOR ENFORCEMENT AND THE UNION MOVED TO INTERVENE. 
BOTH THE COMPANY AND THE NLRB OPPOSED INTERVENTION.  THE COURT DENIED
THE MOTION AND AUTHORIZED THE UNION TO FILE AN AMICUS BRIEF. 
CERTIORARI WAS GRANTED IN BOTH CASES.  HELD: 

1.  ALTHOUGH UNDER 28 U.S.C. SEC. 1254(1) ONLY A "PARTY" TO A CASE IN
THE COURT OF APPEALS (WHICH DOES NOT INCLUDE AN AMICUS CURIAE) MAY SEEK
REVIEW HERE, OUR DECISION MAKES CLEAR THAT THE PETITIONERS HAD A RIGHT
TO OBTAIN REVIEW OF THE ORDERS DENYING INTERVENTION.  PP. 208-209. 

2.  THE SUCCESSFUL CHARGED PARTY IN NLRB PROCEEDINGS HAS THE RIGHT TO
INTERVENE IN APPELLATE PROCEEDINGS BROUGHT BY THE UNSUCCESSFUL CHARGING
PARTY.  PP. 209-217. 

(A)  WHILE THE ACT DOES NOT SPECIFICALLY PROVIDE FOR INTERVENTION AT
THE APPELLATE LEVEL, MOST COURTS HAVE RECOGNIZED THE RIGHT OF THE
SUCCESSFUL CHARGED PARTY TO INTERVENE.  P. 211. 

(B)  TO PERMIT SUCH INTERVENTION IN THE INITIAL APPELLATE REVIEW
PROCEEDINGS WILL AVOID DUPLICATION OF PROCEEDINGS, ADHERE TO THE GOAL
OF OBTAINING JUST RESULTS WITH A MINIMUM OF TECHNICAL REQUIREMENTS,
ACCOMPLISH THE OBJECTIVE OF PROMPT DETERMINATION OF LABOR DISPUTES,
INSURE FAIRNESS TO THE WOULD-BE INTERVENOR, AND WILL NOT AFFECT THIS
COURT'S DISCRETIONARY REVIEW POWERS NOR DELAY OR COMPLICATE APPELLATE
PROCEDURES.  PP. 212-216. 

(C)  THE ELEMENT OF FORTUITY, WHEREBY THE UNSUCCESSFUL CHARGED PARTY
HAS A RIGHT TO REVIEW BUT THE SUCCESSFUL CHARGED PARTY DOES NOT, IS
REMOVED.  PP. 216-217. 

(D)  ANALOGIES IN THE JUDICIAL REVIEW ACT OF 1950, AND THE FEDERAL
RULES OF CIVIL PROCEDURE MANIFEST CONGRESSIONAL CONCERN THAT INTERESTED
PRIVATE PARTIES BE GIVEN A RIGHT TO INTERVENE AND PARTICIPATE IN AGENCY
REVIEW PROCEEDINGS.  PP. 216-217. 

3.  THE SUCCESSFUL CHARGING PARTY IN NLRB PROCEEDINGS ALSO HAS THE
RIGHT TO INTERVENE IN THE APPELLATE REVIEW.  PP. 217-222. 

(A)  A SUCCESSFUL CHARGING PARTY, BEING NOT ONLY A MEMBER OF THE
GENERAL PUBLIC WHOSE INTERESTS ARE PROTECTED BY THE NLRB BUT ALSO ONE
WITH VITAL PRIVATE INTERESTS WHICH ARE INVOLVED AND PROTECTED BY THE
ACT IN ITS BLENDING OF BOTH INTERESTS, IS ENTITLED TO RECOGNITION AS A
PARTY IN APPELLATE PROCEEDINGS.  AMALGAMATED UTIL.  WORKERS V.
CONSOLIDATED EDISON CO., 309 U.S. 261, DISTINGUISHED.  PP. 219-221. 

(B)  WHEN THE COURT RULES ON THE MERITS OF AN NLRB ORDER, THE ACT
SUPPORTS THE VIEW THAT THE COURT AND NOT THE AGENCY DEFINES THE PUBLIC
INTEREST.  P. 221. 

(C)  THIS COURT, AND NOT THE LABOR BOARD, IS THE BODY HAVING
DISCRETION TO DECIDE WHICH CASES ARE SUITABLE VEHICLES TO RAISE
IMPORTANT ISSUES ON CERTIORARI.  P. 221. 

(D)  AS IN THE CASE OF THE CHARGED PARTY, THE SUCCESSFUL CHARGING
PARTY SHOULD HAVE THE SAME RIGHT AS AN UNSUCCESSFUL PARTY IN APPEARING
BEFORE AN APPELLATE COURT.  P. 222. 

INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE & AGRICULTURAL
IMPLEMENT WORKERS OF AMERICA, AFL-CIO, LOCAL 283 V. SCOFIELD ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH
CIRCUIT. 

MR. CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT. 

THE TWO CASES BEFORE US PRESENT CONVERSE SIDES OF A SINGLE QUESTION -
WHETHER PARTIES WHO ARE WHOLLY SUCCESSFUL IN UNFAIR LABOR PRACTICE
PROCEEDINGS BEFORE THE NATIONAL LABOR RELATIONS BOARD HAVE A RIGHT TO
INTERVENE IN THE COURT OF APPEALS REVIEW PROCEEDINGS. 

IN NO. 18 (SCOFIELD), THE UNION LOCAL WAS CHARGED BY FOUR INDIVIDUAL
EMPLOYEES WITH VIOLATIONS OF THE NATIONAL LABOR RELATIONS ACT, AS
AMENDED, 61 STAT. 136, 73 STAT. 519, 29 U.S.C. SEC. 151 ET SEQ. (1964
ED.), FOR FINING CERTAIN UNION MEMBERS FOR EXCEEDING INCENTIVE PAY
CEILINGS SET BY THE UNION.  THE GENERAL COUNSEL OF THE BOARD ISSUED A
COMPLAINT.  AFTER A FULL HEARING, THE BOARD DISMISSED THE COMPLAINT,
145 N.L.R.B. 1097.  THE INDIVIDUAL EMPLOYEES THEN SOUGHT REVIEW IN THE
SEVENTH CIRCUIT.  THE GENERAL COUNSEL FILED AN ANSWER SUPPORTING THE
DECISION.  AT THIS POINT, THE UNION FILED A TIMELY MOTION OF
INTERVENTION, ALLEGING THAT IT WOULD BE DIRECTLY AFFECTED SHOULD THE
APPELLATE COURT SET ASIDE THE BOARD'S DECISION AND DIRECT THE ENTRY OF
A REMEDIAL ORDER AGAINST IT.  NEITHER THE INDIVIDUAL EMPLOYEES NOT THE
BOARD OPPOSED INTERVENTION.  A DIVISION OF THE SEVENTH CIRCUIT DENIED
THE MOTION TO INTERVENE, BUT AUTHORIZED THE UNION TO FILE A BRIEF AS
AMICUS CURAE WITHOUT LEAVE TO PARTICIPATE IN ORAL ARGUMENT.  THE UNION
SOUGHT REVIEW HERE, AND WE GRANTED CERTIORARI TO REVIEW THE DENIAL OF
INTERVENTION BECAUSE OF THE IMPORTANCE OF THE ISSUE AND THE CONFLICT
AMONG THE COURTS OF APPEALS, 379 U.S. 959.  FURTHER PROCEEDINGS WERE
STAYED PENDING THE COMPLETION OF OUR REVIEW. 

IN NO. 53 (FAFNIR), THE LOCAL FILED UNFAIR LABOR PRACTICE CHARGES
AGAINST THE FAFNIR BEARING COMPANY.  THE CHARGING PARTY ALLEGED THAT
THE COMPANY HAD VIOLATED ITS STATUTORY BARGAINING OBLIGATION BY
REFUSING TO PERMIT THE CONTRACTING UNION TO CONDUCT ITS OWN TIME
STUDIES OF JOB OPERATIONS IN THE PLANT.  THE UNION ALLEGEDLY NEEDED TO
CONDUCT THESE STUDIES TO ASCERTAIN WHETHER IT SHOULD PROCEED TO
ARBITRATION.  THE GENERAL COUNSEL ISSUED A COMPLAINT, A HEARING WAS
HELD, AND THE BOARD ENTERED A CEASE-AND-DESIST ORDER AGAINST THE
COMPANY, 146 N.L.R.B. 1582.  THE COMPANY PETITIONED FOR REVIEW IN THE
SECOND CIRCUIT, AND THE BOARD FILED A CROSS-PETITION FOR ENFORCEMENT. 
THE UNION - THE SUCCESSFUL PARTY BEFORE THE BOARD - MOVED TO INTERVENE,
ALLEGING NUMEROUS GROUNDS IN SUPPORT.  BOTH THE COMPANY AND THE BOARD
OPPOSED INTERVENTION.  THE SECOND CIRCUIT DENIED THE MOTION, ALTHOUGH
COGNIZANT OF THE DIFFICULTIES OF THE PROBLEM, AND AUTHORIZED THE UNION
TO FILE AN AMICUS BRIEF.  339 F.2D 801.  WE GRANTED CERTIORARI, 380
U.S. 950, AND CONSOLIDATED FAFNIR WITH SCOFIELD IN ORDER TO CONSIDER
BOTH FACETS OF THE INTERVENTION PROBLEM. 

WE HOLD THAT BOTH THE SUCCESSFUL CHARGED PARTY (IN SCOFIELD) AND THE
SUCCESSFUL CHARGING PARY (IN FAFNIR) HAVE A RIGHT TO INTERVENE IN THE
COURT OF APPEALS PROCEEDING WHICH REVIEWS OR ENFORCES LABOR BOARD
ORDERS.  WE THINK THAT CONGRESS INTENDED TO CONFER INTERVENTION RIGHTS
UPON THE SUCCESSFUL PARTY TO THE LABOR BOARD PROCEEDINGS IN THE COURT
IN WHICH THE UNSUCCESSFUL PARTY CHALLENGES THE BOARD'S DECISION. 

A THRESHOLD QUESTION CONCERNS OUR JURISDICTION TO GRANT CERTIORARI. 
UNDER SEC. 1254(1) OF THE JUDICIAL CODE, (FN1) ONLY A "PARTY" TO A CASE
IN THE COURT OF APPEALS MAY SEEK REVIEW HERE.  IN BOTH THESE CASES, THE
UNION SEEKING CERTIORARI WAS DENIED INTERVENTION AND RELEGATED TO THE
STATUS OF AN AMICUS CURIAE.  BECAUSE AN AMICUS IS NOT A "PARTY" TO THE
CASE, IT WOULD NOT HAVE BEEN ENTITLED TO FILE A PETITION TO REVIEW A
JUDGMENT ON THE MERITS BY THE COURT OF APPEALS, EX PARTE LEAF TOBACCO
BOARD, 222 U.S. 578, 581; EX PARTE CUTTING, 94 U.S. 14, 20-22.  IN VIEW
OF OUR DECISION HEREIN, WE THINK THAT SEC. 1254(1) PERMITS US TO REVIEW
THE ORDERS DENYING INTERVENTION.  SEE RAILROAD TRAINMEN V. BALTIMORE &
O.R. CO., 331 U.S. 519. 

     I. 

CONGRESS HAS MADE A CAREFUL ADJUSTMENT OF THE INDIVIDUAL AND
ADMINISTRATIVE INTERESTS THOUGHOUT THE COURSE OF LITIGATION OVER A
LABOR DISPUTE.  THE LABOR ACT DOES NOT, HOWEVER, PROVIDE EXPLICITLY FOR
INTERVENTION AT THE APPELLATE COURT LEVEL.  SECTION 10(F) OF THE ACT,
61 STAT. 148, AS AMENDED, 29 U.S.C. SEC. 160(F)(1964 ED.), SERVES AS
OUR GUIDE, EVEN THOUGH IT IS SILENT ON THE INTERVENTION PROBLEM.  IT
STATES, IN PERTINENT PART: 

"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, BY FILING
IN SUCH A COURT A WRITTEN PETITION PRAYING THAT THE ORDER OF THE BOARD
BE MODIFIED OR SET ASIDE." 

SIMILARLY, NO SPECIFIC STANDARDS GOVERN THE PROPRIETY OF INTERVENTION
IN LABOR BOARD REVIEW PROCEEDINGS.  THE RULES OF THE COURTS OF APPEALS
TYPICALLY PROVIDE:  "A PERSON DESIRING TO INTERVENE IN A CASE WHERE THE
APPLICABLE STATUTE DOES NOT PROVIDE FOR INTERVENTION SHALL FILE WITH
THE COURT AND SERVE UPON ALL PARTIES A MOTION FOR LEAVE TO INTERVENE." 
(FN2) 

LACKING A CLEAR DIRECTIVE ON THE SUBJECT, WE LOOK TO THE STATUTORY
DESIGN OF THE ACT.  CF. SCRIPPS-HOWARD RADIO V. COMMISSION, 316 U.S. 4,
11.  OF COURSE, IN CONSIDERING THE PROPRIETY OF INTERVENTION IN THE
COURTS OF APPEALS, OUR DISCUSSION IS LIMITED TO LABOR BOARD REVIEW
PROCEEDINGS.  FEDERAL AGENCIES ARE NOT FUNGIBLES FOR INTERVENTION
PURPOSES - CONGRESS HAS TREATED THE MATTER WITH ATTENTION TO THE
PARTICULAR STATUTORY SCHEME AND AGENCY. 

IN SOME INSTANCES, THE WORDS OF THE STATUTE THEMSELVES ELICIT AN
ANSWER.  WHEN THE BOARD ENTERS A FINAL ORDER AGAINST THE CHARGED PARTY,
IT IS CLEAR THAT THE PHRASE "ANY PERSON AGGRIEVED" IN SEC. 10(F)
ENABLES HIM TO SEEK IMMEDIATE REVIEW IN THE APPROPRIATE COURT OF
APPEALS.  ALTERNATIVELY, IF THE BOARD DETERMINES THAT A COMPLAINT
SHOULD BE DISMISSED, THE CHARGING PARTY HAS A STATUTORY RIGHT TO REVIEW
AS A "PERSON AGGRIEVED."  A HYBRID SITUATION OCCURS WHEN THE BOARD
DISMISSES CERTAIN PORTIONS OF THE COMPLAINT AND ISSUES AN ORDER ON
OTHERS.   AS TO THAT PORTION WHICH RESULTS IN A REMEDIAL ORDER AGAINST
HIM, THE CHARGED PARTY IS AGGRIEVED; LIKEWISE, THE CHARGING PARTY IS
AGGRIEVED WITH RESPECT TO THE PORTION OF THE DECISION DISMISSING THE
COMPLAINT.  EACH ONE IS A "PARTY" IN A CONSOLIDATED APPEAL, AND HAS
INVARIABLY BEEN GRANTED LEAVE TO INTERVENE WITH REGARD TO THE PORTION
OF THE ORDER ON WHICH THE BOARD FOUND IN HIS FAVOR.  (FN3) 

SCOFIELD SERVES AS AN EXAMPLE OF ANOTHER VARIANT IN REVIEW
PROCEEDINGS.  THE UNSUCCESSFUL CHARGING PARTY TO THE BOARD PROCEEDINGS
PETITIONED FOR REVIEW, AND THE SUCCESSFUL CHARGED PARTY WISHED TO
INTERVENE.  THE VAST MAJORITY OF THE COURTS HAVE RECOGNIZED HIS RIGHT
TO DO SO.  (FN4)  RECOGNITION OF INTERVENTION RIGHTS IN THIS INSTANCE
IS IN COMPLETE ACCORD WITH THE STATEMENTS IN FORD MOTOR CO. V. LABOR
BOARD, 305 U.S. 364, 369, 373, THAT: 

"WHILE SEC. 10(F) ASSURES TO ANY AGGRIEVED PERSON OPPORTUNITY TO
CONTEST THE BOARD'S ORDER, IT DOES NOT REQUIRE ANY UNNECESSARY
DUPLICATION OF PROCEEDINGS.  THE AIM OF THE ACT IS TO ATTAIN SIMPLICITY
AND DIRECTNESS BOTH IN THE ADMINISTRATIVE PROCEDURE AND ON JUDICIAL
REVIEW  ..  .  

    *         *         *         *         * 

"  ..  THHE JURISDICTION TO REVIEW THE ORDERS OF THE LABOR RELATIONS
BOARD IS VESTED IN A COURT WITH EQUITY POWERS, AND WHILE THE COURT MUST
ACT WITHIN THE BOUNDS OF THE STATUTE AND WITHOUT INTRUDING UPON THE
ADMINISTRATIVE PROVINCE, IT MAY ADJUST ITS RELIEF TO THE EXIGENCIES OF
THE CASE IN ACCORDANCE WITH THE EQUITABLE PRINCIPLES GOVERNING JUDICIAL
ACTION.  THE PURPOSE OF THE JUDICIAL REVIEW IS CONSONANT WITH THAT OF
THE ADMINISTRATIVE PROCEEDING ITSELF, - TO SECURE A JUST RESULT WITH A
MINIMUM OF TECHNICAL REQUIREMENTS  ..  ."" 

TO ALLOW INTERVENTION TO THE CHARGED PARTY IN THE FIRST APPELLATE
REVIEW PROCEEDING IS TO AVOID "UNNECESSARY DUPLICATION OF PROCEEDINGS,"
AND TO ADHERE TO THE GOAL OF OBTAINING "A JUST RESULT WITH A MINIMUM OF
TECHNICAL REQUIREMENTS."  ANALYSIS OF THE ACT'S MACHINERY IN PRACTICE
SO INDICATES.  A DECISION OF THE REVIEWING COURT TO SET ASIDE THE BOARD
ORDER DISMISSING A COMPLAINT HAS THE EFFECT OF RETURNING THE CASE TO
THE BOARD FOR FURTHER PROCEEDINGS.  THIS NORMALLY RESULTS IN THE
BOARD'S ENTERING AN ORDER AGAINST THE CHARGED PARTY.  FROM THIS
REMEDIAL ORDER, AS NOTED, THE CHARGED PARTY IS AGGRIEVED AND MAY SEEK
REVIEW.  JUDICIAL TIME AND ENERGY IS THEN EXPENDED IN PURSUIT OF ISSUES
ALREADY RESOLVED IN THE FIRST APPEAL.  (FN5)  MOREOVER, THE SECOND
APPEAL COULD LEAD TO UNDESIRABLE "CIRCUIT SHOPPING" AND USELESS
PROLIFERATION OF JUDICIAL EFFORT.  UNDER SEC. 10(F), AN AGGRIEVED
PERSON HAS THE OPTION OF OBTAINING REVIEW EITHER IN THE CIRCUIT IN
WHICH HE MAINTAINS HIS RESIDENCE OR PLACE OF BUSINESS OR IN THE COURT
OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.  IN THE SECOND
APPELLATE PROCEEDING, HE COULD OBTAIN A HEARING IN THE CIRCUIT WHICH
DID NOT ORIGINALLY DECIDE THE VALIDITY OF THE BOARD'S DISMISSAL OF THE
COMPLAINT.  PERMITTING INTERVENTION IN THE FIRST REVIEW THUS
CENTRALIZES THE CONTROVERSY AND LIMITS IT TO A SINGLE DECISION,
ACCELERATING FINAL RESOLUTION.  THIS IS IN ACCORD WITH ONE OF THE
OBJECTIVES OF THE LABOR ACT - THE PROMPT DETERMINATION OF THE LABOR
DISPUTES. 

PERMITTING INTERVENTION ALSO INSURES FAIRNESS TO THE WOULD-BE
INTERVENOR.  IF INTERVENTION IS PERMITTED, THE PARTIES TO THE BOARD
PROCEEDINGS ARE ABLE TO PRESENT THEIR ARGUMENTS ON THE ISSUES TO A
REVIEWING COURT WHICH HAS NOT CRYSTALLIZED ITS VIEWS.  TO BE SURE, IF
INTERVENTION IS DENIED IN THE INITIAL REVIEW PROCEEDING, THE CHARGED
PARTY WOULD NOT BE BOUND BY THE DECISION UNDER TECHNICAL RES JUDICATA
RULES.  STILL, THE SALIENT FACTS HAVING BEEN RESOLVED AND THE LEGAL
PROBLEMS ANSWERED IN THIS INITIAL REVIEW, SUBSEQUENT LITIGATION SERVES
LITTLE PRACTICAL VALUE TO THE POTENTIAL INTERVENOR.  IN THE SECOND
APPELLATE PROCEEDING, THE COURT OF APPEALS WOULD ALMOST INVARIABLY
DEFER TO THE INITIAL DECISION AS A METTER OF STARE DECISIS OR OF
COMITY.  (FN6)  SEE, E.G., SIEGEL CO. V. LABOR BOARD, 340 F.2D 309;
ZDANOK V. GLIDDEN CO., 327 F.2D 944, 949-950, CERT. DENIED, 377 U.S.
934. 

ALLOWING INTERVENTION DOES NOT AFFECT THE DISCRETIONARY REVIEW POWERS
OF THIS COURT.  ONE OCCUPYING THE STATUS OF INTERVENOR IN THE COURT OF
APPEALS PROCEEDING MAY SEEK CERTIORARI FROM THE DECISION THERE,
STEELWORKERS V. LABOR BOARD, 373 U.S. 908, 376 U.S. 492; MINE WORKERS
V. EAGLE-PICHER CO., 325 U.S. 335, 338-339.  DENIAL OF INTERVENTION IN
THE INITIAL REVIEW PROCEEDINGS - AND THE ATTENDANT REMAND TO THE BOARD
AND SECOND APPEAL TO THE COURT OF APPEALS - ONLY RESULTS IN A DELAY OF
THE TIME WHEN THE DISAFFECTED PARTY MAY SEEK REVIEW HERE.  SHOULD WE
DECIDE TO GRANT CERTIORARI, THE FIRST REVIEW WOULD SEEM THE MORE
PROPITIOUS TIME, SINCE ALL THE PARTIES ARE THEN BEFORE THE COURT AND
THE DISPUTE HAS BEEN FULLY DEVELOPED WITHOUT INCONVENIENCE TO EITHER
PRIVATE PARTY.  STEELWORKERS V. LABOR BOARD, 376 U.S. 492, AFFORDS AN
APT ILLUSTRATION.  THE COURT OF APPEALS HAD PERMITTED INTERVENTION TO
BE CHARGED PARTY WHO SOUGHT REVIEW FROM THE ADVERSE DECISION THERE.  WE
REVERSED UNANIMOUSLY.  THE BOARD ITSELF HAD NOT SOUGHT CERTIORARI
BECAUSE "THE SOLICITOR GENERAL CONCLUDED THAT OTHER CASES WERE ENTITLED
TO PRIORITY IN SELECTING THE LIMITED NUMBER OF CASES WHICH THE
GOVERNMENT COULD PROPERLY ASK THIS COURT TO REVIEW."  MEMORANDUM FOR
THE NLRB, P. 2, FILED IN CONNECTION WITH THE PETITION FOR CERTIORARI,
NO. 89, OCTOBER TERM, 1963.  HAD THE CHARGED PARTY BEEN DENIED
INTERVENTION IN THE COURT OF APPEALS, THE DECISION OF THE GOVERNMENT
NOT TO APPLY FOR CERTIORARI - UNRELATED TO THE MERITS OF THE CAUSE -
WOULD HAVE UNNECESSARILY POSTPONED RESOLUTION ON THAT IMPORTANT ISSUE. 
(FN7). 

IN FACT, THE LABOR BOARD ITSELF AGREES THAT INTERVENTION BY CHARGED
PARTIES WILL NOT IMPAIR EFFECTIVE DISCHARGE OF ITS DUTIES AND MAY WELL
PROMOTE THE PUBLIC INTEREST.  THE RIGHTS TYPICALLY SECURED TO AN
INTERVENOR IN A REVIEWING COURT - TO PARTICIPATE IN DESIGNATING THE
RECORD, TO PARTICIPATE IN PREHEARING CONFERENCES PREPARATORY TO
SIMPLIFICATION OF THE ISSUES, TO FILE A BRIEF, TO ENGAGE IN ORAL
ARGUMENT, TO PETITION FOR REHEARING IN THE APPELLATE COURT OR TO THIS
COURT FOR CERTIORARI - ARE NOT PRODUCTIVE OF DELAY NOR DO THEY CAUSE
COMPLICATIONS IN THE APPELLATE COURTS.  APPELLATE RECORDS IN LABOR
BOARD CASES ARE GENERALLY COMPLETE, AND WHATEVER MATERIAL THE CHARGED
PARTY MAY SEE FIT TO ADD TO THE APPENDIX WILL NOT AFFECT THE BURDEN IN
PREPARATION.  PARTICIPATION IN DEFINING THE ISSUES BEFORE THE COURT
GUARANTEES THAT ALL RELEVANT MATERIAL IS BROUGHT TO ITS ATTENTION, AND
MAKES THE BRIEFS ON THE MERITS MORE MEANINGFUL.  THE CHARGED PARTY IS
USUALLY ACCORDED THE RIGHT AS AN AMICUS TO FILE A BRIEF ON THE MERITS
EVEN IF DENIED INTERVENTION.  PARTICIPATION IN ORAL ARGUMENT DOES NOT
NECESSARILY ENLARGE THE TOTAL TIME ALLOCATED, SINCE PARTIES ALIGNED ON
THE SAME SIDE ARE USUALLY REQUIRED TO SHARE THE TIME.  (FN8)  AND, AS
NOTED, PETITIONING FOR CERTIORARI AT THIS TIME HAS THE SALUTARY EFFECT
OF INSURING PROMPT ADJUDICATION.  FURTHER, IF A CHARGED PARTY PERMITTED
TO INTERVENE DECIDES TO ACQUIESCE IN THE DECISION OR IF CERTIORARI IS
DENIED BY THIS COURT, IT IS LIKELY THAT HE WILL THEN STIPULATE TO THE
ENTRY OF AN ORDER AGAINST HIM.  THIS WOULD OBVIATE THE NEED FOR
SUPPLEMENTAL AGENCY OR COURT PROCEEDINGS.  ON THE OTHER HAND, AN AMICUS
- WITH THE EXCEPTION OF THE RIGHT TO FILE A BRIEF - MIGHT BE UNABLE
ADEQUATELY TO PRESENT ALL THE RELEVANT DATA TO THE COURT. 

FINALLY, AN ELEMENT OF FORTUITY WOULD BE INJECTED BY THE DENIAL OF
INTERVENTION TO A SUCCESSFUL PARTY IN THE BOARD PROCEEDINGS.  WHEN THE
CHARGED PARTY LOSES BEFORE THE BOARD, HE IS ACCORDED A STATUTORY RIGHT
TO IMMEDIATE REVIEW AND MAY SEEK OR OPPOSE THIS COURT'S ULTIMATE REVIEW
OF THE CASE.   IF HE PREVAILS AT THE AGENCY LEVEL, HOWEVER, DENIAL OF
INTERVENTION DEPRIVES HIM OF THE RIGHTS ACCORDED A LOSING PARTY, EVEN
THOUGH THE ISSUE BEFORE THE REVIEWING COURT IS IDENTICAL - WHETHER A
REMEDIAL ORDER SHOULD HAVE BEEN ENTERED AGAINST THE CHARGED PARTY. 
THESE CONSIDERATIONS LEAD US TO THE ASSUMPTION THAT CONGRESS WOULD NOT
INTEND, WITHOUT CLEARLY EXPRESSING A VIEW TO THE CONTRARY, THAT A PARTY
SHOULD SUFFER BY HIS OWN SUCCESS BEFORE THE AGENCY. 

ADDITIONALLY, HELPFUL ANALOGIES MAY BE FOUND INTHE JUDICIAL REVIEW
ACT OF 1950, GOVERNING INTERVENTION IN THE COURTS OF APPEALS BY PRIVATE
PARTIES DIRECTLY AFFECTED BY AGENCY ORDERS, (FN9) AND IN THE FEDERAL
RULES OF CIVIL PROCEDURE.  (FN10)  WE TAKE THESE PROVISIONS TO MEAN
THAT CONGRESS HAS EXHIBITED A CONCERN THAT INTERESTED PRIVATE PARTIES
BE GIVEN A RIGHT TO INTERVENE AND PARTICIPATE IN THE REVIEW PROCEEDINGS
INVOLVING THE SPECIFIED AGENCY AND ITS ORDERS. 

                                  II. 

THE PROBLEM OF WHETHER INTERVENTION SHOULD BE GRANTED TO THE
SUCCESSFUL CHARGING PARTY TO THE LABOR BOARD PROCEEDINGS PRESENTS
CONSIDERATIONS SOMEWHAT DISTINCT FROM THE CASE OF THE INTERVENING
CHARGED PARTY.  RESOLUTION OF THE PROBLEM IS NO EASY MATTER, AND IT IS
UNDERSTANDABLE THAT THE COURTS HAVE DIVIDED ON THE ISSUE.  (FN11)
STILL, WE BELIEVE THAT CONGRESS INTENDED INTERVENTION RIGHTS TO
OBTAIN. 

THE BOARD OPPOSES INTERVENTION IN FAFNIR.  A CHARGED PARTY MAY INCUR
A LIABILITY ON ACCOUNT OF AN ORDER BEING ENTERED AGAINST HIM.  FAIRNESS
TO HIM THUS REQUIRES THAT HE BE ALLOWED TO INTERVENE TO PRECLUDE THAT
POSSIBILITY.  ON THE OTHER HAND, THE BOARD REASONS, THE CHARGING PARTY
STANDS ONLY TO BECOME A BENEFICIARY OF AN ORDER ENTERED.  (FN12)  AS
SUCH, HE IS BUT ANOTHER MEMBER OF THE PUBLIC WHOSE INTERESTS THE BOARD
IS DESIGNED TO SERVE.  THE LABOR BOARD IS SAID TO BE THE CUSTODIAN OF
THE "PUBLIC INTEREST," TO THE EXCLUSION OF THE SO-CALLED "PRIVATE
INTERESTS" AT STAKE.  SUPPORT FOR THIS VIEW IS CLAIMED TO BE FOUND IN
OUR DECISION IN AMALGAMATED UTIL.  WORKERS V. CONSOLIDATED EDISON CO.,
309 U.S. 261 (1940).  ALSO, THE BOARD FEARS THAT ENABLING THE
INTERVENOR TO PETITION FOR CERTIORARI FROM AN ADVERSE CIRCUIT DECISION
WILL BE INIMICAL TO THE PUBLIC INTEREST.  WE DISAGREE. 

IN PRIOR DECISIONS, THIS COURT HAS OBSERVED THAT THE LABOR ACT
RECOGNIZES THE EXISTENCE OF PRIVATE RIGHTS WITHIN THE STATUTORY
SCHEME.  (FN13)  THESE CASES HAVE, TO BE SURE, EMPHASIZED THE "PUBLIC
INTEREST" FACTOR.  TO EMPLOY THE RHETORIC OF "PUBLIC INTEREST,"
HOWEVER, IS NOT TO IMPLY THAT THE PUBLIC RIGHT EXCLUDES RECOGNITION OF
PAROCHIAL PRIVATE INTERESTS.  A PERUSAL OF THE STATUTORY SCHEME AND THE
BOARD'S RULES AND REGULATIONS IS ILLUSTRATIVE. 

THE STATUTORY MACHINERY BEGINS WITH THE FILING OF AN UNFAIR LABOR
PRACTICE CHARGE BY A PRIVATE PERSON, SEC. 10(B), 61 STAT. 146; SEE
ALSO, 24 FED. REG. 9102 (1959), 29 CFR SEC. 102.9 (1965).  WHEN THE
GENERAL COUNSEL ISSUES A COMPLAINT AND THE PROCEEDING REACHES THE
ADJUDICATIVE STAGE, THE COURSE THE HEARING WILL TAKE IS IN THE AGENCY'S
CONTROL, BUT THE CHARGING PARTY IS ACCORDED FORMAL RECOGNITION:  HE
PARTICIPATES IN THE HEARINGS AS A "PARTY"; (FN14) HE MAY CALL WITNESSES
AND CROSS-EXAMINE OTHERS, MAY FILE EXCEPTIONS TO ANY ORDER OF THE TRIAL
EXAMINER, AND MAY FILE A PETITION FOR RECONSIDERATION TO A BOARD ORDER,
28 FED. REG. 7973 (1963), AS AMENDED, 29 CFR SEC. 102.46 (1965).  OF
COURSE, IF THE BOARD DISMISSES THE COMPLAINT, HE CAN OBTAIN REVIEW AS A
PERSON AGGRIEVED, WHICH SERVES THE "PUBLIC INTEREST" BY GUARANTEEING
THAT THE BOARD INTERPRETATION OF THE RELEVANT PROVISIONS ACCORDS WITH
THE INTENT OF CONGRESS.  (FN15) 

AND THAT THE CHARGING PARTY MAY HAVE VITAL "PRIVATE RIGHTS" IN THE
BOARD PROCEEDING IS CLEAR IN THIS VERY CASE, WHICH ALSO INVOLVES,
POTENTIALLY, A BREACH OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. 
(FN16)  UNDER OUR DECISIONS IN THE STEELWORKERS TRILOGY, 363 U.S. 564,
574, 593, AND CAREY V. WESTINGHOUSE CORP., 375 U.S. 261, THE UNION
COULD TAKE WHATEVER CONTRACTURAL CLAIM IT HAD TO ARBITRATION AND FROM
THERE TO A FEDERAL COURT.  AND WHILE IT IS TRUE THAT THE RIGHTS AND
DUTIES UNDER SEC. 301(A) OF THE LABOR ACT, 61 STAT. 156, ARE NOT
COEXTENSIVE WITH THOSE REDRESSED IN LABOR BOARD PROCEEDINGS, A
DETERMINATION BY AN APPELLATE COURT THAT THE UNION HAS NO STATUTORY
RIGHT TO CONDUCT ITS OWN TIME STUDIES WILL SURELY HAVE AN IMPACT UPON A
LATER DECISION BY AN ARBITRATOR OR AN APPELLATE COURT UNDER SEC. 301(A)
ON THE CONTRACTUAL ISSUE. 

IN SHORT, WE THINK THAT THE STATUTORY PATTERN OF THE LABOR ACT DOES
NOT DICHOTOMIZE "PUBLIC" AS OPPOSED TO "PRIVATE" INTERESTS.  RATHER,
THE TWO INTERBLEND IN THE INTRICATE STATUTORY SCHEME.  (FN17)  NOR DO
WE THINK THAT OUR HOLDING IN AMALGAMATED UTIL.  WORKERS, 309 U.S. 261,
CASTS DOUBT ON THESE NOTIONS.  THE COURT THERE HELD THAT PRIVATE
PARTIES WHO INITIATED UNFAIR LABOR PRACTICE CHARGES MAY NOT PROSECUTE A
CONTEMPT ACTION AGAINST THE CHARGED PARTY IN THE COURT WHICH ENFORCES
THE LABOR BOARD ORDER.  (FN18)  IN THE SAME CASE, THE PRIVATE PARTIES
HAD BEEN PERMITTED TO INTERVENE IN THE COURT OF APPEALS WHEN THE MERITS
OF THE BOARD'S DECISION WERE AT STAKE, 309 U.S., AT 263.  WE FIND
NOTHING INCONSISTENT IN DENYING THE RIGHT OF A PRIVATE PARTY TO
INSTITUTE A CONTEMPT PROCEEDING - WHERE THE BOARD'S EXPERTNESS IN
ACHIEVING COMPLIANCE WITH ORDERS IS CHALLENGED - AND, ON THE OTHER
HAND, IN PERMITTING INTERVENTION IN A PROCEEDING ALREADY IN THE COURT
FOR DECISION.  WHEN THE COURT IS TO RULE ON THE MERITS OF THE BOARD'S
ORDER, THE ACT SUPPORTS THE VIEW THAT IT IS THE COURT AND NOT THE
AGENCY WHICH WILL DEFINE THE PUBLIC INTEREST, SEE SEC. 10(D), 49 STAT.
454, FORD MOTOR CO. V. LABOR BOARD, 305 U.S. 364. 

THE BOARD ALSO ARGUES THAT PERMITTING INTERVENTION WILL ADVERSELY
AFFECT ITS TACTICAL OR BUDGETARY DECISION NOT TO BRING A CASE HERE FOR
REVIEW.  BUT THE OPPORTUNITY IS OPEN TO THE BOARD TO ADVISE THIS COURT
WHETHER A CASE THAT THE INTERVENING CHARGING PARTY BRINGS HERE IS AN
APPROPRIATE VEHICLE TO RAISE IMPORTANT ISSUES.  AND CONGRESS HAS
ENTRUSTED TO THIS COURT, RATHER THAN THE LABOR BOARD, DISCRETIONARY
JURISDICTION TO REVIEW CASES DECIDED BY THE COURTS OF APPEALS.  (FN19) 

MANY OF THE CONSIDERATIONS WHICH FAVOR INTERVENTION IN SCOFIELD ARE
ALSO PERTINENT HERE.  (FN20) OF SPECIAL NOTE IS THE CAPRICIOUSNESS WE
WOULD HAVE TO ASCRIBE TO CONGRESS IN REFUSING TO AFFORD THE SUCCESSFUL
PARTY TO A LABOR BOARD PROCEEDING AN OPPORTUNITY TANTAMOUNT TO THAT OF
THE UNSUCCESSFUL PARTY IN PERSUADING AN APPELLATE COURT.  THE CHARGING
PARTY, LIKE THE CHARGED PARTY, SHOULD NOT BE PREJUDICED BY HIS SUCCESS
BEFORE THE AGENCY.  ACCORDINGLY, WE REVERSE BOTH CASES AND REMAND THEM
TO THE RESPECTIVE COURTS FOR FURTHER PROCEEDINGS.  IT IS SO ORDERED. 

FN1  SECTION 1254(1), 28 U.S.C. SEC. 1254(1) (1964 ED.), PROVIDES: 

"CASES IN THE COURTS OF APPEALS MAY BE REVIEWED BY THE SUPREME COURT
..  :  

"(1) BY WRIT OF CERTIORARI GRANTED UPON THE PETITION OF ANY PARTY TO
ANY CIVIL  ..  CAASE, BEFORE OR AFTER RENDITION OF JUDGMENT OR
DECREE." 

FN2  SECOND CIRCUIT RULE 13(F); SEVENTH CIRCUIT RULE 14(F).  THE
OTHER CIRCUITS WHICH PROVIDE FOR INTERVENTION HAVE SUBSTANTIVELY
IDENTICAL RULES:  FIRST CIRCUIT RULE 16(6); THIRD CIRCUIT RULE 18(6);
FOURTH CIRCUIT RULE 27(6); SIXTH CIRCUIT RULE 13(6); EIGHTH CIRCUIT
RULE 27(F); NINTH CIRCUIT RULE 34(6); TENTH CIRCUIT RULE 34(6);
DISTRICT OF COLUMBIA CIRCUIT RULE 38(F). 

FN3  DARLINGTON MFG. CO. V. LABOR BOARD, 325 F.2D 682 (C.A. 4TH
CIR.), VACATED AND REMANDED ON OTHER GROUNDS, SUB NOM. TEXTILE WORKERS
V. DARLINGTON CO., 380 U.S. 263; INDUSTRIAL UNION OF MARINE &
SHIPBUILDINGWORKERS V. LABOR BOARD, 320 F.2D 615 (C.A. 3D CIR.); LABOR
BOARD V. WOOSTER DIV. OF BORG-WARNER CORP., 236 F.2D 898 (C.A. 6TH
CIR.); SEE ALSO AMERICAN NEWSPAPER PUBLISHERS ASSN. V. LABOR BOARD, 190
F.2D 45 (C.A. 7TH CIR.). 

FN4  CARRIER CORP. V. LABOR BOARD, 311 F.2D 135 (C.A.2D CIR.),
REVERSED ON OTHER GROUNDS, SUB NOM. STEELWORKERS V. LABOR BOARD, 376
U.S. 492; LOCAL 1441, RETAIL CLERKS INTERNATIONAL ASSN. V. LABOR BOARD,
326 F.2D 663 (C.A.D.C. CIR.); AMALGAMATED CLOTHING WORKERS OF AMERICA
V. LABOR BOARD, 324 F.2D 228 (C.A.2D CIR.); MINNESOTA MILK CO. V. LABOR
BOARD, 314 F.2D 761 (C.A. 8TH CIR.); GREAT WESTERN BROADCASTING CORP.
V. LABOR BOARD, 310 F.2D 591 (C.A. 9TH CIR.); SELBY-BATTERSBY & CO. V.
LABOR BOARD, 259 F.2D 151 (C.A. 4TH CIR.); KOVACH V. LABOR BOARD, 229
F.2D 138 (C.A. 7TH CIR.). CONTRA, SUPERIOR DERRICK CORP. V. LABOR
BOARD, 273 F.2D 891 (C.A. 5TH CIR.), CERT. DENIED, 364 U.S. 816;
AMALGAMATED MEAT CUTTERS V. LABOR BOARD, 267 F.2D 169 (C.A. 1ST CIR.),
CERT. DENIED, 361 U.S. 863; HALESTON DRUG STORES, INC. V. LABOR BOARD,
190 F.2D 1022 (C.A. 9TH CIR.). 

FN5  THERE ARE, OF COURSE, CASES IN WHICH THE COURT OF APPEALS WILL
REMAND TO THE BOARD TO TAKE ADDITIONAL EVIDENCE OR TO RECONSIDER THE
ORDER IN LIGHT OF LITIGATIONAL DEVELOPMENTS.  IN THESE CASES, THERE IS
A GREATER OPPORTUNITY FOR THE PARTY ORIGINALLY VICTORIOUS BEFORE THE
BOARD SUCCESSFULLY TO PERSUADE IT OR THE APPELLATE COURT THAN IN THE
CASE IN WHICH NO ADDITIONAL EVIDENCE NEED BE TAKEN.  STILL, THE
CONSIDERATIONS DISCUSSED HEREIN STRONGLY SUGGEST THE PROPRIETY OF
INTERVENTION IN THESE CASES AS WELL, ESPECIALLY SINCE, AT THE TIME A
MOTION FOR LEAVE TO INTERVENE IS FILED, THE REVIEWING COURT WILL NOT BE
FULLY APPRISED OF THE ISSUES INVOLVED IN THE CASE. 

THEN, TOO, ONLY 12 PROCEEDINGS IN WHICH THE BOARD HAD ENTERED AN
ORDER DISMISSING THE COMPLAINT AND THE CHARGING PARTY APPEALED THE
DISMISSAL IN THE COURT OF APPEALS OCCURRED DURING THE 1964 FISCAL
YEAR.  SEE 29 NLRB ANN. REP. 201, TABLE 19 (1964).  IN EIGHT OF THESE,
THE BOARD ORDERS WERE AFFIRMED IN FULL.  IBID.  THE SMALL CASELOAD
GIVES FURTHER SUPPORT FOR THE NOTION THAT THE COURTS OF APPEALS, AND
THE BOARD, WILL NOT BE DISADVANTAGED BY ALLOWING INTERVENTION TO THE
CHARGED PARTY. 

FN6  IN THE RATE INSTANCE IN WHICH THE REVIEWING COURT DOES NOT ABIDE
BY THESE PRINCIPLES, AN EVEN MORE AGGRAVATED SITUATION COULD RESULT. 
IN THE SECOND REVIEW PROCEEDING, IF THE NOW-SUCCESSFUL CHARGING PARTY
IS DENIED INTERVENTION AND THE APPELLATE COURT TAKES A DIFFERENT CIEW
OF THE APPLICABLE LAW, THE CHARGING PARTY MIGHT LATER HAVE THE
OPPORTUNITY TO SEEK REVIEW AGAIN AS A "PERSON AGGRIEVED."  THUS, THREE
OR EVEN MORE REVIEW PROCEEDINGS COULD BE ENGENDERED OUT OF THE FAILURE
TO PERMIT INTERVENTION AT THE MOST CONVENIENT STAGE - THE INITIAL
REVIEW PROCEEDING.  SUCH AN INCONGRUOUS RESULT SHOULD NOT BE SANCTIONED
IN LIGHT OF OUR STATEMENT IN FORD MOTOR CO. V. LABOR BOARD, 305 U.S.
364, 370, THAT ALTHOUGH "THERE ARE TWO PROCEEDINGS, SEPARATELY CARRIED
ON THE DOCKET, THEY WERE ESSENTIALL ONE SO FAR AS ANY QUESTION AS TO
THE LEGALITY OF THE BOARD'S ORDER WAS CONCERNED." 

FN7 THE LABOR BOARD MAY ALSO ADVERSELY AFFECT THE RIGHTS OF THE
PRIVATE PARTIES IN OTHER INSTANCES.  FOR EXAMPLE, THE BOARD MAY DECIDE
A CASE AND LATER RE-EVALUATE ITS POSITION AT A TIME WHEN THAT CASE IS
BEFORE AN APPELLATE COURT.  THE GENERAL COUNSEL, IN SUCH A SITUATION,
CANNOT BE EXPECTED WHOLEHEARTEDLY TO ATTEMPT TO CONVINCE AN APPELLATE
COURT OF THE CORRECTNESS OF A DOCTRINE WHICH THE BOARD ITSELF HAS
ABANDONED. 

FN8  FIRST CIRCUIT RULE 28(3); SECOND CIRCUIT RULE 23(C); THIRD
CIRCUIT RULE 31(3); COURT CIRCUIT RULE 15(3); FIFTH CIRCUIT RULE 25(3);
SIXTH CIRCUIT RULE 20(3); SEVENTH CIRCUIT RULE 21(B); EIGHTH CIRCUIT
RULE 13(C); NINTH CIRCUIT RULE 20(3); TENTH CIRCUIT RULE 20(3);
DISTRICT OF COLUMBIA CIRCUIT RULE 19(C). 

ADDITIONALLY, ALL THE CIRCUITS HAVE RULES WHICH PERMIT THE COURT TO
INCREASE THE TIME FOR ORAL ARGUMENT UPON A SHOWING OF GOOD CAUSE. 

FN9  REVIEW OF COMMISSION ORDERS IN GENERAL IS GOVERNED BY THE
PROVISIONS OF THE JUDICIAL REVIEW ACT OF 1950 (THE HOBBS ACT), 64 STAT.
1129, 5 U.S.C. SECS. 1031-1042 (1964 ED.).  THE PROVISION REGARDING
APPELLATE COURT INTERVENTION, 5 U.S.C. SEC. 1038, PROVIDES AS FOLLOWS: 

"THE ATTORNEY GENERAL SHALL BE RESPONSIBLE FOR AND HAVE CHARGE AND
CONTROL OF THE INTERESTS OF THE GOVERNMENT IN ALL COURT PROCEEDINGS
AUTHORIZED BY THIS CHAPTER.  THE AGENCY, AND ANY PARTY OR PARTIES IN
INTEREST IN THE PROCEEDING BEFORE THE AGENCY WHOSE INTERESTS WILL BE
AFFECTED IF AN ORDER OF THE AGENCY IS OR IS NOT ENJOINED, SET ASIDE, OR
SUSPENDED, MAY APPEAR AS PARTIES THERETO OF THEIR OWN MOTION AND AS OF
RIGHT, AND BE REPRESENTED BY COUNSEL IN ANY PROCEEDING TO REVIEW SUCH
ORDER ..  ."" 

FN10  THE FEDERAL RULES OF CIVIL PROCEDURE, OF COURSE, APPLY ONLY IN
THE FEDERAL DISTRICT COURTS.  STILL, THE POLICIES UNDERLYING
INTERVENTION MAY BE APPLICABLE IN APPELLATE COURTS.  UNDER RULE
24(A)(2) OR RULE 24(B)(2), WE THINK THE CHARGED PARTY WOULD BE ENTITLED
TO INTERVENE.  SEE MISSOURI-KANSAS PIPE LINE CO. V. UNITED STATES, 312
U.S. 502, 505-506; TEXTILE WORKERS UNION OF AMERICA V. ALLENDALE CO.,
96 U.S. APP. D.C. 401, 403-404, 226 F.2D 765, 767-768.    THE ADVISORY
PANEL ON LABOR-MANAGEMENT RELATIONS LAW ISSUED A REPORT, S. DOC. NO.
81, 86TH CONG., 2D SESS. (1960), WHICH CONTAINED A STATEMENT OF POLICY
THAT "ANY PARTY TO NLRB PROCEEDINGS SHOULD BE ALLOWED TO INTERVENE IN
THE APPELLATE PROCEEDINGS," P. 17. 

FN11  THE CASES WHICH HAVE PERMITTED INTERVENTION USUALLY HAVE NOT
DISCUSSED THE QUESTION, E.G., LABOR BOARD V. JOHNSON, 322 F.2D 216
(C.A. 6TH CIR.); KEARNEY & TRECKER CORP. V. LABOR BOARD, 210 F.2D 852
(C.A. 7TH CIR.), CERT. DENIED, SUB NOM. KEARNEY-TRECKER EMPLOYEES, UAW
V. LABOR BOARD, 348 U.S. 824; WEST TEXAS UTILITIES CO. V. LABOR BOARD,
184 F.2D 233 (C.A.D.C CIR.), CERT. DENIED, 341 U.S. 939.  CONTRA, LABOR
BOARD V. RETAIL CLERKS ASSN., 243 F.2D 777, 783 (C.A. 9TH CIR.);
STEWART DIE CASTING CORP. V. LABOR BOARD, 132 F.2D 801 (C.A. 7TH CIR.);
ALUMINUM ORE CO. V. LABOR BOARD, 131 F.2D 485, 488 (C.A. 7TH CIR.). 

FN12  CF. HART AND WECHSLER, THE FEDERAL COURTS AND THE FEDERAL
SYSTEM, 326 (1953): 

"HAVEN'T YOU NOTICED HOW FREQUENTLY THE PROTECTED GROUPS IN AN
ADMINISTRATIVE PROGRAM PAY FOR THEIR PROTECTION BY A SACRIFICE OF
PROCEDURAL AND LITIGATING RIGHTS?  THE AGENCY BECOMES THEIR CHAMPION
AND THEY STAND OR FALL BY IT.  DOES THIS PHENOMENON REFLECT A DISREGARD
OR A RECOGNITION OF THE EQUITIES OF THE SITUATION?"  SEE ALSO JAFFE,
THE PUBLIC RIGHT DOGMA IN LABOR BOARD CASES, 59 HARV. L. REV. 720
(1946). 

FN13  LABOR BOARD V. FANSTEEL METALLURIGICAL CORP., 306 U.S. 240,
258; PHELPS DODGE CORP. V. LABOR BOARD, 313 U.S. 177, 194; NATHANSON V.
LABOR BOARD, 344 U.S. 25, 27; SMITH V. EVENING NEWS ASSN., 371 U.S.
195.  SEE JAFFE, THE INDIVIDUAL RIGHT TO INITIATE ADMINISTRATIVE
PROCESS, 25 IOWA L. REV. 485, 528-531 (1940). 

FN14  THE NLRB RULES AND REGULATIONS AND STATEMENTS OF PROCEDURE, 29
CFR SEC. 102.8 (1965), AFFORD THE CHARGING PARTY THIS STATUS.  THE

"THE TERM 'PARTY' AS USED HEREIN SHALL MEAN  ..  ANNY PERSON NAMED OR
ADMITTED AS A PARTY, OR PROPERLY SEEKING AND ENTITLED AS OF RIGHT TO BE
ADMITTED AS A PARTY, IN ANY BOARD PROCEEDING, INCLUDING, WITHOUT
LIMITATION, ANY PERSON FILING A CHARGE OR PETITION UNDER THE ACT, ANY
PERSON NAMED AS RESPONDENT, AS EMPLOYER, OR AS PARTY TO A CONTRACT IN
ANY PROCEEDING UNDER THE ACT  .. ."  

FN15  FOR AN ANALYSIS OF THE RIGHTS OF A CHARGING PARTY BEFORE THE
BOARD, SEE COMMENT, 32 U. CHI.  L. REV. 786 (1965).  OF COURSE, THE
CONSIDERATIONS INVOLVED IN DETERMINING WHETHER THE CHARGING PARTY HAS
CERTAIN RIGHTS BEFORE THE BOARD ARE NOT DISPOSITIVE ON THE QUESTION OF
APPELLATE INTERVENTION.  IN THE FIRST PLACE, THE NEED FOR CENTRALIZED
CONTROL OVER THE AGENCY HEARINGS AND THE STANDARDS UNDER WHICH THEY
OPERATE IS MUCH GREATER AT THE ADMINISTRATIVE THAN THE APPELLATE LEVEL,
WHERE PERFORCE AN ADEQUATE RECORD HAS BEEN MADE FOR ADJUDICATION. 
ALSO, THE STATISTICS OF THE NLRB REVEAL THAT OVER 97 PERCENT OF THE
UNFAIR LABOR PRACTICE CHARGES ARE RESOLVED BEFORE THE CIRCUIT COURT HAS
ENTERED A DECREE.  29 NLRB ANN. REP. 178-179, TABLE 7 (1964).  THIS
WINNOWING PROCESS DIMINISHES ONCE A CASE IS LODGED IN THE CIRCUIT COURT
AND FALLS WITHIN OUR SUPERVISORY POWER OVER THE FEDERAL COURTS.  THEN,
TOO, MANPOWER AND BUDGETARY CONSIDERATIONS ARE OF GREAT CONCERN AT THE
ADMINISTRATIVE LEVEL.  THESE FACTORS ARE NOT NEARLY AS GREAT WHEN A
LABOR DISPUTE REACHES THE APPELLATE COURTS SINCE THE BOARD WILL
INVARIABLY APPEAR TO DEFEND ITS ORDER. 

FN16  IN THE BOARD'S OPINION IN FAFNIR, THE CHARGING PARTY'S
INTERESTS WERE REFERRED TO A DOZEN TIMES AS A STATUTORY RIGHT OF THE
"PRIVATE PARTY," 146 N.L.R.B., AT 1585-1587. 

FN17  SEE RETAIL CLERKS LOCAL 137 V. FOOD EMPLOYERS COUNCIL, INC.,
351 F.2D 525. 

FN18  THE COURT PLACED GREAT WEIGHT UPON THE LANGUAGE AND LEGISLATIVE
HISTORY BEHIND SEC. 10(A), 49 STAT. 453, AS IT READ AT THAT TIME: 

"THE BOARD IS EMPOWERED, AS HEREINAFTER PROVIDED, TO PREVENT ANY
PERSON FROM ENGAGING IN ANY UNFAIR LABOR PRACTICE (LISTED IN SECTION 8)
AFFECTING COMMERCE.  THIS POWER SHALL BE EXCLUSIVE, AND SHALL NOT BE
AFFECTED BY ANY OTHER MEANS OF ADJUSTMENT OR PREVENTION THAT HAS BEEN
OR MAY BE ESTABLISHED BY AGREEMENT, CODE, LAW, OR OTHERWISE." 

THE ITALICIZED PORTION OF SEC. 10(A) WAS DELETED IN THE TAFT-HARTLEY
AMENDMENTS TO THE WAGNER ACT IN 1947, WHEN CONGRESS ADDED THE UNION
UNFAIR LABOR PRACTICE PROVISIONS AND ENACTED SEC. 301(A).  WHILE IT IS
TRUE THAT THE LABOR BOARD DOES NOT CONFER A PRIVATE ADMINISTRATIVE
REMEDY, IT IS EQUALLY TRUE THAT, SINCE 1947, IT SERVES SUBSTANTIALLY AS
AN ORGAN FOR ADJUDICATING PRIVATE DISPUTES.  SEE REPORT OF THE ADVISORY
PANEL ON LABOR-MANAGEMENT RELATIONS LAW, SUPRA, N. 10, P. 5. 

FN19 THE BOARD ALSO CLAIMS THAT THE CHARGING PARTY, IF PERMITTED TO
INTERVENE, WILL BE ABLE TO THWART PROPOSED SETTLEMENTS BETWEEN THE
BOARD AND THE CHARGED PARTY WHEN THE CASE IS IN THE APPELLATE COURT. 
NOTHING IN THE RECORD INDICATES THAT THIS WILL BE THE CONSEQUENCE OF
ALLOWING INTERVENTION AND WE INTIMATE NO VIEW OF THE QUESTION. 

FN20  AS IN THE CASE OF THE CHARGED PARTY, DISALLOWING INTERVENTION
COULD LEAD TO DUPLICITY IN APPELLATE REVIEW, "CIRCUIT SHOPPING,"
UNFAIRNESS TO THE SUCCESSFUL PARTY TO THE BOARD PROCEEDINGS, ETC.