Unreviewable Discretion of the NLRB General Counsel to Withdraw Complaints Pre-Hearing

Introduction

United Natural Foods, Inc. (“UNFI”) brought charges under the National Labor Relations Act (NLRA) against two Teamsters locals and was itself accused of unfair labor practices. After UNFI moved for summary judgment, the Acting General Counsel of the National Labor Relations Board (NLRB) directed a Regional Director to withdraw the portion of the consolidated complaint against the unions. UNFI sought the Board’s permission to appeal that withdrawal; the Board denied that request on the ground that the General Counsel’s decision to dismiss complaints is an unreviewable exercise of prosecutorial discretion. UNFI then petitioned the Fifth Circuit for review, which the court denied—relying on NLRB v. UFCW, 484 U.S. 112 (1987) and Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984)—only to have the Supreme Court vacate and remand after overruling Chevron in Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024). On remand, the Fifth Circuit again held that it had jurisdiction and that the withdrawal order was a nonreviewable prosecutorial act.

Summary of the Judgment

On May 28, 2025, a Fifth Circuit panel denied UNFI’s petition for review of the Board’s order refusing to entertain an appeal of the Regional Director’s withdrawal of the complaint against the unions. The court held:

The Board’s order denying special permission to appeal qualifies as a “final order of the Board” for purposes of judicial review under 29 U.S.C. § 160(f).
The Act entrusts the General Counsel with “final authority . . . in respect of the prosecution of . . . complaints” (29 U.S.C. § 153(d)), and under NLRB v. UFCW, the General Counsel’s decision to withdraw a complaint before an adjudicatory hearing is unreviewable prosecutorial discretion.
The Supreme Court’s overruling of Chevron in Loper Bright did not alter the conclusion; courts still “exercise their independent judgment” but give effect to the clear separations in the NLRA’s text and history.
Acting General Counsel Ohr’s removal of his predecessor and his own designation were lawful under the NLRA as interpreted in Exela Enterprise Solutions v. NLRB, 32 F.4th 436 (5th Cir. 2022).

Accordingly, UNFI’s petition for review was denied and the Board’s withdrawal of the complaint remained in effect.

Analysis

1. Precedents Cited

NLRB v. United Food & Commercial Workers Union, Local 23 (“UFCW”), 484 U.S. 112 (1987): Held that the NLRA’s division of prosecutorial and adjudicatory functions places pre-hearing complaint-withdrawal decisions squarely with the unreviewable discretion of the General Counsel.
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984): Formerly mandated deference to agency interpretations of statutory ambiguities; overruled by Loper Bright.
Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024): Overruled Chevron and directed courts to exercise independent judgment, though not disturbing precedents on the Board’s prosecutorial discretion under the NLRA.
Shell Chemical Co. v. NLRB, 495 F.2d 1116 (5th Cir. 1974): Established that only “final orders of the Board” dismissing complaints or directing remediessatisfy § 160(f)’s jurisdictional requirement.
Laundry Workers Int’l Union Local 221 v. NLRB, 197 F.2d 701 (5th Cir. 1952): Defined “final order” under the NLRA as an order dismissing a complaint or directing relief.
Boilermakers Union Local 6 v. NLRB, 872 F.2d 331 (9th Cir. 1989): Treated General Counsel withdrawal of a complaint as prosecutorial discretion not subject to judicial review.
Exela Enterprise Solutions v. NLRB, 32 F.4th 436 (5th Cir. 2022): Confirmed that the NLRA does not grant tenure protection to the General Counsel and upheld the validity of Acting General Counsel Ohr’s designation after Robb’s removal.

2. Legal Reasoning

a. Jurisdiction: The court applied Shell Chemical and Bennett v. Spear, 520 U.S. 154 (1997), to conclude that the Board’s denial of special permission to appeal a withdrawal order is in practical effect a dismissal of part of the complaint, thus qualifying as a “final order” under 29 U.S.C. § 160(f).

b. Statutory Text and Structure:
– Section 3(d) of the NLRA (29 U.S.C. § 153(d)) vests the General Counsel with “final authority . . . in respect of the prosecution of . . . complaints.”
– Section 10(c)–(e) (29 U.S.C. § 160(c)–(e)) assigns the Board its adjudicatory functions, culminating in an evidentiary hearing and issuance of fact-finding orders.
– The 1947 Taft-Hartley amendments deliberately separated prosecutorial and adjudicatory roles to insulate the General Counsel’s decisions from Board or judicial review.

c. Agency Regulations:
– 29 C.F.R. § 102.18: Allows a Regional Director to withdraw a complaint “before the hearing.”
– 29 C.F.R. § 102.26: Requires special permission from the Board to appeal a Regional Director’s rulings.
– 29 C.F.R. § 102.24(b): Permits summary-judgment motions but does not fetter withdrawal authority.

d. Independent Judicial Judgment Post-Loper Bright: Although Chevron deference has been overruled, the Fifth Circuit “must respect” the clear statutory delegation of prosecutorial authority to the General Counsel. Even under an independent-judgment framework, the Act’s text, history, and consistent agency practice confirm that withdrawing a complaint pre-hearing—even after a summary-judgment motion—is a nonreviewable prosecutorial act.

3. Impact

This decision clarifies and cements the NLRB General Counsel’s absolute discretion to withdraw unfair labor practice complaints up to the opening of the administrative hearing. Practically:

Employers and unions cannot seek Board or court review of a pre-hearing withdrawal decision, even if a motion for summary judgment has been filed.
The role of the NLRB’s Board remains strictly adjudicatory, beginning when a Notice to Show Cause is issued and a hearing is underway.
After Loper Bright, courts will continue to honor clear congressional delegations of authority to agencies without deferring under Chevron.
Parties will need to litigate summary-judgment motions in federal court if they wish to obtain interlocutory relief going directly to the merits of their unfair labor practice allegations.

Complex Concepts Simplified

Prosecutorial vs. Adjudicatory Functions: The NLRA splits power between the General Counsel (who decides which charges to prosecute or dismiss) and the Board (which holds trials and decides the facts).
“Final Order of the Board”: Only an order that dismisses a complaint or prescribes a remedy can be reviewed in a federal court under § 160(f).
Notice to Show Cause: A procedural step where the Board invites parties to argue why a summary-judgment motion should not be granted; issuance of that notice typically transfers the case to the Board for adjudication.
Chevron and Skidmore Deference: Older doctrines directing how much weight courts should give to agency interpretations; overruled in major part by Loper Bright, though longstanding precedents are not lightly overturned.

Conclusion

United Natural Foods v. NLRB reaffirms that under the NLRA, the NLRB General Counsel has “final authority” to prosecute or withdraw complaints before the commencement of an administrative hearing. That prosecutorial discretion is neither subject to Board review nor to judicial second-guessing, even in the face of summary-judgment motions. The Fifth Circuit’s decision also illustrates how courts will continue to give effect to clear statutory delegations of power—despite the Supreme Court’s rejection of Chevron deference—upholding the strict separation of functions Congress enacted in the 1947 amendments. Going forward, private parties seeking interlocutory relief on the merits of an unfair labor practice charge must look outside the NLRB’s internal processes (for example, to Article III courts) once the General Counsel has chosen to withdraw a complaint.