APL LOGISTICS WAREHOUSE

National Labor Relations Board - Administrative Judge Opinions

May 16, 2008

09-CA-043431 (N.L.R.B. May. 16, 2008)

JD(ATL)-17-08
Shepherdsville, KY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
ATLANTA BRANCH OFFICE
DIVISION OF JUDGES
APL LOGISTICS WAREHOUSE
MANAGEMENT SERVICES, INC.
and Cases 9-CA-43431
9-CA-43719
INTERNATIONAL CHEMICAL WORKERS 9-CA-43858
UNION COUNCIL LOCAL 692C/ UNITED 9-CA-43876
FOOD & COMMERCIAL WORKERS 9-CA-44009
INTERNATIONAL UNION, CLC
Naima R. Clark, Esq. for the General Counsel.
Andrew J. Martone, Esq. (Bobroff, Hesse,
Lindmark & Martone), of St. Louis, Missouri,
for the Respondent.
Randall Vehar, Esq., of Akron, Ohio, for the
Charging Party.
DECISION AND ORDER APPROVING
FORMAL SETTLEMENT AGREEMENT
Statement of the Case
JOHN H. WEST, Administrative Law Judge. This case was tried in Louisville, Kentucky,
on January 23, 24, and 25, and February 26, 27, and 28, 2008. The charges in Case Numbers
9-CA-43431, 9-CA-43719, 9-CA-43858, 9-CA-43876, and 9-CA-44009 were filed, respectively
on January 29, July 19, September 11, September 18, and November 27, 2007, by International
Chemical Workers Union Council Local 692C/United Food & Commercial Workers International
Union, CLC (Union) against APL Logistics Warehouse Management Services, Inc.
(Respondent). As here pertinent, the third consolidated complaint (hereinafter referred to as the
complaint), which was issued on December 21, 2007, alleges that Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act, as amended, (Act) (1) by failing and refusing
to furnish the Union with information, namely (a) since about October 18, 2006, a list of all
temporary employees employed by Respondent,1 (b) since December 18, 2006, specified
information regarding Respondent's Sexual Harassment Policy2, (c) since July 16, 2007, copies
of all worker compensation claims and settlements since September 2006, and (d) since August
1, 2007, information about Respondent's drug and alcohol policies and procedures3, (2) by

1 This request was reiterated by letters dated October 23 and November 15 and 30, 2006.
Additionally, as noted below, it was reiterated by letter dated January 23, 2007.
2 As here pertinent, this request specified any additions or amendments to the sexual
harassment policy since January 7, 2004, the nature of each complaint to the "Employee Hot
Line," what action the company took to investigate each complaint, the results of each
investigation, and what action the company took against employees or management as a result
of any investigation.
3 The Union's August 1, 2007 letter or information request involves 18 numbered
Continued
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unreasonably delaying the providing to the Union information it sought by letter dated May 29,
2007 about the bargaining unit employees,4 their pay and benefits, all industrial hygiene reports
"on the plant," a copy of all specified regulatory citations involving health and safety issues at
Respondent's "plant operation," and a copy of all attachments to the current labor agreement
made between the Union and the Company in the form of letters of understanding, side
agreements, etc., (3) by on about September 11, 2007 withdrawing recognition from the Union,
and (4) by about October 1, 2007, unilaterally implementing for unit employees an across-the-
board wage increase and a merit increase system without prior notice to or without affording the
Union an opportunity to bargain with Respondent with respect to this conduct and in order to
discourage membership in the Union. The complaint also alleges that Respondent violated
Section 8(a)(1) and (3) of the Act by unilaterally implementing for unit employees an across-the-
board wage increase and a merit increase system because the employees of Respondent
formed, joined or assisted the Union and engaged in concerted activities and to discourage
employee from engaging in these activities. The Respondent denies violating the Act as
alleged.5
On January 27, 2008 Counsel for General Counsel moved to amend the complaint. Her
motion was granted. The amendment includes a number of additional allegations to the
_________________________
paragraphs, some of which contain subparagraphs. Only some of the paragraphs are involved
in this proceeding. As here pertinent, information is sought regarding (1) the relevant training of
the two supervisors who were allegedly involved in an attempt to have two employees take a
drug and alcohol test on August 1, 2007, (2) a list of all similarly trained supervisors, (3) whether
an employee assistance program is available and a copy of the program (Originally the
complaint included "7. If the employer has requested any employee to take a drug or alcohol
test and that employee has declined or refused, please give the name of the employee,
describe the circumstances under which the test was requested and the action taken." At
transcript page 97 Counsel for General Counsel indicated that this information had been
provided and she was withdrawing this allegation. The Charging Party did not object.) , (4) what
the testing procedures involve and the supporting documentation, (5) research involving what
drug levels impair an employee's ability to function on the job, (6) the procedures for insuring
that "false positives" do not occur, (7) the name of the laboratory used, the terms of the
agreement between Respondent and the lab, the lab's credentials, and whether the lab
participates in any proficiency testing programs (8) methods for confirming positive results,
especially where trace amounts may be from passive exposure, (9) if the Company suspects
illegal use of drugs (as defined in the Company's Policy) on company property involving
employees represented by the Union, state whom and the basis upon which the suspicions
exist, and (10) all data correlating substance abuse and safety and/or accident statistics.
4 The Union requested the name, address, telephone number, date of hire, classification,
rate of pay, age, sex, and current employment status of the bargaining unit employees.
5 Respondent asserts the following affirmative defenses: (1) the information requests are
moot, (2) this matter should be deferred to grievance/arbitration, (3) the Union is precluded from
requesting the information sought, (4) the involved allegations are barred by the doctrines of
waiver, latches, estoppel, unclean hands, and the applicable statute of limitations, (5)
Respondent withdrew recognition based on the Union's actual loss of majority status, and based
on a good faith belief that the Union lost majority status, (6) the complaint fails to state any
allegation upon which relief can be granted, (7) any changes to terms and conditions of
employment were made at a time that the Union no longer had majority support of unit
employees and/or were required by exigent circumstances which would justify unilateral action,
and (8) all or parts of the Amended Complaint violate Respondent's rights to due process and
equal protection of laws.
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complaint and some modifications in existing paragraphs to include reference to the additions
made by this amendment. See General Counsel's Exhibit 37. First, with respect to additional
allegations, the complaint was amended to add a date when the Respondent was requested to
provide the Union with a list of all temporary employees employed by Respondent. Second, a
paragraph was added which alleges that since about January 23, 2007, the Union, by letter,
requested that Respondent provide it with the positions and hours worked of all temporary
employees. Third, a paragraph was added to allege that about September 11, 2007,
Respondent unilaterally cancelled the paid time off (PTO) of bargaining unit employees for the
period September 11 to 16, 2007. Fourth, a paragraph was added to allege that about
September 12, 2007, Respondent unilaterally discontinued the deadline for scheduling PTO.
Fifth, a paragraph was added to allege that sometime after September 13, 2007, Respondent
unilaterally implemented a new PTO policy. Sixth, a paragraph was added to allege that
sometime in September or October 2007, Respondent unilaterally increased the starting wage
rate for new hires. Seventh, a paragraph was added to allege that Respondent engaged in the
conduct described in the last four preceding sentences herein without prior notice to and without
affording the Union an opportunity to bargain with Respondent with respect to this conduct.
Respondent denies all of the additional allegations except that it admits that (1) since about
January 23, 2007, the Union, by letter, requested that Respondent provide it with the positions
and hours worked of all temporary employees, (2) about September 11, 2007, Respondent
unilaterally cancelled the PTO of bargaining unit employees for the period September 11 to 16,
2007, and (3) in October 2007, Respondent unilaterally increased the starting wage rate for new
hires.6
A. Background
On January 7, 2004, the International Chemical Workers Union Council was certified as
the exclusive collective-bargaining representative of the following employees of Respondent,
which employees constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act:
All full-time and regular part-time warehousing employees employed by [Respondent] at
its Shepherdsville, Kentucky facility, but excluding all office clerical employees, all
employees employed by the temporary agencies, all professional employees,
administrative assistants, and guards and supervisors as defined in the Act, as set forth
at NLRB Case 9-RC-17821
In its answer to the complaint herein Respondent admits that after certification was
enforced by a U.S. Court of Appeals, Respondent recognized the Union as the collective-
bargaining representative, and such recognition was embodied in a collective-bargaining
agreement effective by its terms from September 11, 2006 to September 10, 2007.
The trial in this matter was continued on February 28, 2008 when Counsel for General
Counsel and Respondent indicated that they had reached a verbal settlement but needed time
to "hammer out" the terms of the settlement agreement and notice.7 Also, the Charging Party

6 As an affirmative defense, Respondent asserts that the information request was sought for
purposes of harassment and not for legitimate representational purposed.
7 By Order dated February 27, 2008, Judge Thomas B. Russell of the United States District
Court for the Western District of Kentucky, Louisville Division, in Gary W. Muffley v. APL
Logistics Management Warehouse Services, Inc., Case No. 3:08CV-26-R, granted the Petition
for Injunction of the Regional Director of the Ninth Region of the National Labor Relations Board
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requested time to draft its Memorandum in Opposition to the settlement.
By Order issued March 3, 2008, the filing schedule was specified. Extensions were
subsequently granted to Counsel for General Counsel and the Charging Party. Ultimately,
Counsel for General Counsel was directed to file a motion seeking approval of a settlement
agreement and notice by March 19, 2008, the Charging Party's motion in opposition was due by
April 7, 2008, and Counsel for General Counsel's and the Respondent's responses to the
Charging Party's motion in opposition were due April 21, 2008. It was also indicated that a
Decision and Order on the above-described motion of Counsel for General Counsel would be
subsequently issued. The Motion for Approval of Settlement Agreement was filed March 19,
2008, the Notice was filed March 25, 2008, the Charging Party's Memorandum in Opposition
was filed on April 7, 2008,8 and on April 21, 2008, Counsel for General Counsel and the
Respondent filed their responses to the Charging Party's Motion in Opposition. On April 15,
2008 the Charging Party filed a Notice to correct its Memorandum in Opposition. On April 22,
2008, the Respondent filed a Motion and Memorandum in Support to Strike Portions of the
Affidavit of Michael Elick which was submitted with the Charging Party's Memorandum in
Opposition. On April 23, 2008, the Charging Party filed a Request for Leave to File a Reply
Brief. On May 2, 2008 the Charging Party filed an Opposition pleading to Respondent's Motion
to Strike Portions of Elick's affidavit. And on May 5, 2008 the Charging Party filed a Notice of
Additional Objection to Counsel for the General Counsel's Motion for Approval of Settlement
Agreement. On May 9, 2008, Respondnet filed a Motion to Supplement its Reply.
B. The Settlement Stipulation
In her Motion, Counsel for General Counsel submits that with the exception of certain
allegations that Counsel for the General Counsel agreed to withdraw as a condition to reaching
settlement, the terms of the settlement will effectively remedy all of the allegations of the Third
Consolidated Complaint and amendments thereto in this matter. With respect to the allegations
which will be withdrawn, Counsel for General Counsel asserts that General Counsel agreed to
withdraw the allegations because, in the General Counsel's opinion, the record evidence
established that the Union had received the requested information, notwithstanding any delay.9
_________________________
(Board) and enjoined APL Logistics Management Warehouse Services, Inc. from failing and
refusing to recognize and bargain with International Chemical Workers Union Council, Local
692C/United Food and Commercial Workers International Union, AFL-CIO-CLC as the
exclusive collective-bargaining representative of employees in the unit represented by the Union
and from making unilateral changes in the wages and other terms and conditions.
8 The Charging Party includes a Motion to Correct Caption, pointing out that the Union's
parent labor organization, the United Food and Commercial Workers (UFCW) is not currently
affiliated with the AFL-CIO, having disaffiliated from the AFL-CIO on July 29, 2005. See Laurel
Baye Healthcare of Lake Lanier, LLC, 346 NLRB 159 (2005). The Charging Party indicates that
as of this date the UFCW has not re-affiliated with the AFL-CIO. This unopposed motion is
hereby granted.
9 Pursuant to the terms of the stipulation, Counsel for General Counsel would withdraw the
above-described allegation that Respondent unlawfully failed and refused to furnish the Union
with requested information by unreasonably delaying the providing to the Union information it
sought by letter dated May 29, 2007 about the bargaining unit employees, as described above.
Also Counsel for General Counsel would withdraw the word "claims" from the allegation that
Respondent failed and refused since July 16, 2007 to furnish the Union with copies of all worker
compensation claims and settlements since September 2006 and the attendant allegation.
Finally, she would withdraw "7. If the employer has requested any employee to take a drug or
Continued
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It is also pointed out that the Settlement provides for entry of a Board order remedying the
conduct alleged in the complaint and Respondent's consent to enforcement of the Order in a
United States Court of Appeals.
C. The Charging Party's Memorandum in Opposition
First, the Charging Party argues that since the proposed settlement is conditioned upon
the General Counsel withdrawing certain allegations from the complaint, the withdrawal of such
allegations must be approved by the Judge and later by the Board; and that since the proposed
settlement does not include or remedy all of the allegations still included in the complaint - such
as some of the allegations involving the January 23, 2007 letter seeking various categories of
information about the temporary employees, as well as the allegations involving APL's
unreasonable delay in providing the pension and other May 29, 2007 requested information -
and it is opposed by the Union, there is a question as to whether the Judge, even if he wished to
do so, is authorized to approve that settlement. See e.g. Section 9-420 of the NLRB Decision of
Judges Bench Book and Section 10166.1 of the NLRB's Casehandling Manual (Part One).
Second, the Charging Party argues that the Judge should not approve the withdrawal of
allegations regarding APL's unreasonable delay in providing information in response to the
Union's May 29, 2007 letter or the failure to remedy all of the allegations regarding the
temporary employee-requested information. Further the Charging Party argues that Counsel for
General Counsel has not even made clear in her motion that the settlement does not fully
address or remedy the newly-added allegations regarding the January 23, 2007 letter which
broadened the information being requested about the temporary employees; that the proposed
settlement would preclude this Judge from entering any factual-finding that the RD-Petition was
tainted by the fact that APL failed to provide the Union with the temporary employee-related
information and that this was discussed by the employees who signed the petition; and that
given APL's previous informal settlement in Case Nos. 9-CA-40618 et al where it agreed to
timely provide information, APL should not again escape an effective remedy for its continued
failure to timely provide the information to the Union.
Third, the Charging Party argues that since the Union may, and intends to, seek broader
or different remedies for violations of the Act than those sought by the General Counsel for the
violations alleged in the complaint, the settlement should not be approved; that while the
General Counsel, prior to the commencement of the hearing, may exercise prosecutorial
discretion on what allegations to make regarding what portions of the Act may have been
violated, the Board has the responsibility for fashioning an appropriate remedy; and that in
Kaumagraph Corp., 313 NLRB 624 (1994) the Board allowed that charging party to introduce
evidence bearing on a particular remedy that the General Counsel was not seeking.
Fourth, the Charging Party argues that since the Union has a right and a basis to seek
fees and expenses for litigating these matters for six (6) days in January and February, 2008 (as
well as in the previous pre-trial summary judgment matters), the Union should be permitted to
proceed with the hearing in an effort to seek such broader remedies; that when a respondent's
_________________________
alcohol test and that employee has declined or refused, please give the name of the employee,
describe the circumstances under which the test was requested and the action taken" and "13.
(A) If the Company suspects illegal use of drugs (as defined in the Company's Policy) on
company property involving employees represented by the Union, state whom and the basis
upon which the suspicions exist" and any attendant allegation regarding the August 1, 2007
drug and alcohol information request.
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litigation position has been advanced in bad faith or when an employer's defense to an unfair
labor practice allegation has been frivolous the Board can award litigation expenses, 675 West
End Owners Corp., 345 NLRB 324, 326 (2005); that at least in one case, the Board has granted
litigation expenses when the respondent's conduct was outrageous even though the employer's
defenses were 'debatable,' "J.P. Stevens & Co., 244 NLRB 407 (1979), enf'd and remanded,
668 F2d 767 (4th Cir. 1982), vacated and remanded, 458 U.S. 1118 (1982)"; that basically the
only question remaining with respect to the APL's delay in providing information in response to
the May 29, 2007 letter is whether the delay was legally unreasonable; that the Board has made
clear that the request for information regarding temporary employees who perform, or allegedly
perform, bargaining unit work involves presumptively relevant information, Pavilion at Forrestal
Nursing & Rehabilitation, 346 NLRB No. 46 (2002); that once the complaint was amended to
include the January 23, 2007 letter, which broadened the basis, as well as the breadth, of the
information request regarding the temporary employees, APL no longer could rely on a 'no
pending grievance' defense even as to questions of the affirmative remedy, since the January
23, 2007 request made clear that it was not tied to any specific grievance; that APL has not
offered a good defense to its failure to timely respond to the Union's request regarding APL's
sexual harassment policy and the application thereof; that surface or bad faith bargaining by
APL is evidenced by APL's failure to not only provide the Union this sexual harassment
information but to undermine the Union by how it responded on this matter by providing this
information to employees and thereby directly dealing with the employees; that Respondent's
defense that unstated matters alleged in the complaint should be deferred to arbitration appears
to have been made in bad faith and was frivolous in that on September 11, 2007 Respondent
withdrew recognition from the Union and Respondent took the position that nothing in the
expired collective-bargaining agreement survived the recognition withdrawal; that Respondent
raised the frivolous defense in its answer that the alleged unfair labor practices were untimely
and that it had been denied due process and equal protection; and that whether the Union
would be granted such remedies is not relevant as to whether the Union should be granted the
right to pursue such remedies, 675 West End Owners, Corp., supra.
Fifth, the Charging Party argues that the Union may seek, as part of the remedy for the
alleged violations, its expenses in bargaining; that the Board has held that when an employer
has made negotiations a 'fruitless waste of time' the employer may be ordered to reimburse
employee-members of the Union negotiation committee for wages lost because of attendance at
past negotiating meetings, M.F.A. Milling Co., 170 NLRB 1079 (1968) enf'd, 463 F.2d 322 (D.C.
Cir. 1972) as well as requiring an employer to reimburse the union itself for bargaining expenses
where the 'economic resources wasted by the union in the futile pursuit of a collective-
bargaining agreement are a direct and proximate result of [the employer's] willful defiance of its
statutory obligation,' Wellman Industries, Inc., 248 NLRB 325 (1980); and that whether the
Union would be granted such remedies is not relevant as to whether the Union should be
granted the right to pursue such remedies.
Sixth, the Charging Party argues that the proposed settlement does not adequately
remedy APL's withdrawal of recognition and failure to bargain in that it does not address how
long APL should be required to bargain in good faith before APL, again, may seek to withdraw
recognition, or before the pending RD-Petition could be 'unblocked'; that the pending RD-
Petition should be dismissed and not just blocked because it was 'tainted' by APL's prior unfair
labor practices, including the failure to produce any temporary employee-related information, as
well as APL's delay in providing the information in response to the May 29, 2007 letter - all of
which occurred prior to the June 2007 signatures on the petition; and that once APL defended
its withdrawal of recognition based on its review of this Petition as part of its affirmative defense
to the related complaint allegations, the Union had a right to challenge that affirmative defense
based on any appropriate theory regardless of whether the General Counsel was pursuing that
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theory, Cf., Mine Workers Local 1329 (Alpine Construction), 276 NLRB 415, n.1 (1985).
Seventh, the Charging Party argues that since the proposed formal settlement does not
contain relevant factual findings about, address, or remedy the Section 8(a)(3) allegations, it
should not be approved; that while the proposed formal settlement addresses the unilateral
increases in wages as being a violation of Section 8(a)(5) of the Act, it does not remedy the
8(a)(3) discrimination aspect of these changes; that the formal settlement does not provide for
an appropriate cease and desist order that would prevent future discriminatory wage decisions;
that APL was discriminating against employees on across-the-board wage increases, as well as
merit-based wage increases, depending upon whether sufficient employees were supporting or
opposing the Union and on whether the increases would occur before or after recognition
withdrawal; and that by approving the formal settlement, the Board will be precluded from
providing any, let alone any novel, remedy for these discriminatory 8(a)(3) violations like
ordering that all employees be granted the highest merit-based performance wage increase on
his/her anniversary date, or that all employees should be immediately granted that merit or
'cost-of-living increase as APL had proposed to Dow.
Eighth, the Charging Party argues that since the proposed formal settlement contains
either insufficient or inaccurate facts necessary to support enforcement of that settlement, it
should not be approved. More specifically, the Charging Party submits that there are no facts
set forth to establish either a 'tainting' of the RD Petition and, in turn, a tainting of the withdrawal
of recognition; that there are no facts that undermine the legality of the withdrawal of recognition
so as to support the necessary 'insulation period' or to support broader remedies, or 8(a)(3)
remedies; that such facts should be set forth in the proposed settlement; that the Formal
Settlement refers to the 'Maysville' facility in II,2 when it should refer to the 'Shepherdsville'
Kentucky facility; that the Stipulation throughout erroneously refers to Local 692C as the
certified bargaining agent when the certified bargaining agent is ICWUC, while Local 692 C and
ICWUC, jointly, are the recognized exclusive bargaining agent; that Section IV(2)(e) should
more clearly state that the Judge granted the motion to amend the Third Consolidated
Complaint; that Section IV(2) should more clearly set forth which 'certain other allegations' of the
Third Consolidated Complaint are being withdrawn, if any, in addition to those set forth in
subsections (i) and (ii); and that Section IV(5) constitutes a non-admission clause but if the
Stipulation is to take the place of an adjudicated record it should set forth not only that the
Respondent's actions are 'alleged' to have violated the Act, but that the actions, in fact, violate
the Act and/or that APL, by not filing a timely Answer, or by withdrawing its Answers, effectively
has admitted to these violations.
Finally, under the topic heading "Other objections to the proposed formal settlement" the
Charging Party submits that inexplicably in Section V(4)(b) the Stipulation has dropped
references to Paragraph A(2) of the December 18, 2006 letter as well as in the related portion of
Section VI(2)(iii); that in Section V(7)(h) and in related Section VI the proposed settlement
inexplicably and without explanation by the General Counsel eliminated language alleging
discrimination contained in the corresponding provision of the complaint and, thereby, fails, as
required, to remedy or adequately resolve all violations; that Section VI(2)(a)(ii) does not require
all of the information to be produced that was required in the January 23, 2007 letter as
provided for in the complaint as amended; that any Notice should be sent to all former APL
employees who were employed at any time during the period of APL's violations since former
employees might be interested in returning to APL at the higher wages if APL's unlawful activity
is remedied; that given APL's history, any remedial order should direct APL not to violate the
Act 'in any manner,' not just in a like or related manner; that the signature on behalf of APL on
the proposed settlement is illegible and the person's name and title should be typed in below
their signature so that the employees and the Union know who is signing the Notice and
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settlement for APL; and that the Union is concerned that, given its newly-filed charges, some of
which involve evidence adduced in this hearing, such as the unilateral pension termination,
approval of the settlement could risk prosecutorial problems under Jefferson Chemical
Company, Inc., 200 NLRB 992 (1972) and similar Board law.
The Charging Party filed a Notice of Correction, dated April 15, 2008, to its Memorandum in
Opposition pointing out that contrary to the impression it may have left in its Memorandum in
Opposition, the Respondent did provide the names of purported temporary employees.
D. Counsel for General Counsel's Reply to the Charging Party's Memorandum in Opposition
Counsel for General Counsel, in her response to the Charging Party's Memorandum in
Opposition, acknowledges that she inadvertently failed to include any reference to the
information requested in paragraph A(2) of the Union's December 18, 2006 request in the
settlement, and Counsel for General Counsel indicates that she does not oppose other specified
additional corrections proposed by the Charging Party.10
With respect to the Charging Party's claimed omission of certain complaint allegations
from the Settlement, Counsel for General Counsel contends that the Charging Party's apparent
claim that Counsel for General Counsel amended the complaint to allege that Respondent was
legally obligated to provide all of the items requested in the January 23, 2007 letter regarding
temporary employees is patently false, and the involved complaint allegations are fully
addressed in the settlement Fact stipulation, and in the proposed Order and Notice; that
contrary to the Charging Party's argument, the Settlement fully remedies the alleged
discriminatory wage increases in that the parties stipulate that Respondent implemented the
across-the-board wage increases and merit increase system to discourage employees from
engaging in union and other concerted activities and the proposed Order requires Respondent
to cease and desist from such conduct11; that with respect to the withdrawal of the allegation
regarding Respondent's alleged delay in providing the information requested on May 29, 2007,
Counsel for General Counsel agreed to seek, and sought, withdrawal of this allegation as a
concession to reaching settlement; and that

10 The additional corrections Counsel for General Counsel agrees to are (1) the Charging
Party's Motion to Correct the Case Caption to reflect Charging Party's correct name, (2) a
correction reflecting that the International Chemical Workers Union Council, and not UFCW
Local 692-C, was certified by the Board as the collective-bargaining agent of unit employees,
and (3) deleting from Section II (Jurisdiction), paragraph 2 the word "Maysville" and replacing it
with "Shepherdsville" to reflect the correct location of Respondent's facility. Counsel for General
Counsel's inadvertent failure to include any reference to the sexual harassment policy
information requested in paragraph A(2) of the Union's December 18, 2006 request in the
settlement is corrected in the attachment to her reply. Counsel for General Counsel points out
that Respondent advised her that it consents to the revisions regarding paragraph A(2) of the
Union's December 18, 2006 request, and Respondent will execute a new Settlement
incorporating the changes if necessary. Additionally, Counsel for General Counsel points out
that at the underlying trial herein evidence was presented that Respondent had not amended
the sexual harassment policy since January 7, 2004; and that Respondent had previously
provided a copy of the sexual harassment policy to the Charging Party.
11 Counsel for General Counsel points out that while the language in the Settlement does
not exactly mirror the language in the complaint, it proscribes the alleged Section 8(a)(3)
misconduct with the same efficacy.
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Approval of the request to withdraw this allegation is entirely appropriate given the
overarching policy of resolving unfair labor practices through settlement. In the context of
the overall remedy that is being attained through the Settlement, this is a relatively minor
concession. The Charging Party argues that withdrawal of this allegation is inappropriate
because Respondent previously entered into an informal settlement agreement wherein
it agreed to furnish information to it in a 'timely manner.' However, Respondent's alleged
violation of this term is addressed by the fact that the current Settlement - which requires
Respondent to cease and desist from refusing to provide necessary and relevant
information to the Charging Party - is a formal stipulation, and provides for a Board
Order enforceable by the United States Courts of Appeals. Consequently, it represents a
stronger deterrent to any future failures or unlawful delays in providing information to
which the Charging Party is legally entitled. [Counsel for General Counsel's Reply, page
6]
Counsel for General Counsel further replies that the question of whether the involved
decertification petition was tainted by Respondent's delay in providing the information requested
on May 29, 2007 is moot for the purpose of establishing an unlawful withdrawal of recognition
because that allegation is being remedied by the Settlement12; that contrary to the argument of
the Charging Party, Section 10166.1 of the Board's Casehandling Manual, Part I does not
prohibit the Judge from approving the Settlement in that Counsel for General Counsel has taken
appropriate procedural steps in seeking withdrawal of the complaint allegations that are not
covered by the Settlement; and that the Charging Party is equally wrong in asserting that
Section 9-420 of the Board's Bench Book prohibits the Judge from approving the Settlement
over its objections in that (a) Section 9-420 sets forth the standards for approval of settlements
by consent order, i.e., a settlement offered by the respondent and opposed by both the General
Counsel and the charging party, and (b) the proposed Settlement is not a consent order.
With respect to the Charging Party's claimed right to seek broader remedies, Counsel for
General Counsel replies that such claim does not outweigh the greater interests served by the
Settlement; that the Charging Party's chances of obtaining reimbursement of litigation and
collective-bargaining expenses are remote at best, and rejecting the Settlement and returning to
trial for this purpose would constitute an irresponsible waste of time and resources given the
fact that Respondent has executed a settlement agreeing to fully remedy the complaint
allegations; that there is no allegation in the complaint that Respondent engaged in bad faith or
surface contract negotiations, and, therefore, there are no grounds for granting such a
remedy13; that in Wellman Industries, Inc., 248 NLRB 325 (1980) it was indicated that the Board
refrains from assessing litigation expenses against a respondent, notwithstanding that the
respondent may be found to have engaged in clearly aggravated misconduct or in the flagrant
repetition of conduct previously found unlawful or where the defenses raised by the respondent
are debatable rather than frivolous; that while Respondent's defenses herein are debatable, and
insufficient as argued by the General Counsel at trial, they are clearly not frivolous14; and that in

12 Counsel for General Counsel points out that, contrary to the assertion of the Charging
Party, the complaint does not allege that Respondent failed to fully comply with the May 29,
2007 request. Rather, according to Counsel for General Counsel, the complaint alleges and it is
her position that Respondent complied with the May 29 request about August 6, 2007.
13 Counsel for General Counsel acknowledges that the Charging Party has filed a charge
alleging bad faith and surface bargaining during the 2007 negotiations in Case 9-CA-44210,
which charge was being investigated by the Region at the time the Reply was filed.
14 According to Counsel for General Counsel, Respondent generally claimed that it complied
with the information requests, except information related to temporary employees, or that the
Continued
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M.F.A. Milling Co., 170 NLRB 1079 (1968) the Board denied litigation expenses even though
the employer persistently acted in bad faith throughout contract negotiations, refused to supply
information to the union and eventually refused to meet with the union.
Regarding the Charging Party's argument that the Settlement should be rejected
because it insufficiently remedies the withdrawal of recognition in that it (a) does not set forth a
clearly-defined insulation period, and (b) it precludes the Charging Party from establishing that
the anti-union petition was tainted, Counsel for General Counsel replies that the question of
whether the anit-union petition was tainted and thus illegally relied upon by Respondent in
withdrawing recognition is moot now that Respondent has executed a Settlement remedying the
withdrawal; that the question of whether the petition should be dismissed based on a tainted
showing of interest is not an issue to be decided in this proceeding, and if the Charging Party
wished to have a ruling regarding whether the showing of interest is tainted, it may request that
the Regional Director hold a hearing on this issue in processing the RD petition, Saint Gobain
Abrasives, Inc. 342 NLRB 434 (2004); that with respect to the Charging Party's concern about
an insulation period, it is well established that a Board Order remedying a refusal to recognize
an incumbent union requires that the employer bargain in good faith, and that such obligation is
understood to bar any challenge to the Union's majority status for a reasonable period, Lee
Lumber & Building Material Corp., 334 NLRB 399 (2001); that the Board has defined a
reasonable period as at least 6 months measured from the time that the employer commences
bargaining in good faith, but no more than 1 year, Id., fn.6; and that the Board does not typically
include this definition in the body of its order, it is inherent to the remedy and will be applied to
any subsequent challenge to the Union's majority status, and the lack of a clearly defined
insulation period in the Settlement is not fatal to its approval.
With respect to the Charging Party's objections based on the inclusion in the Settlement
of (a) a non-admissions clause, and (b) a standard cease and desist order and not a broad
cease and desist order, Counsel for General Counsel replies that inclusion of a non-admissions
clause is not a valid basis for objection when the settlement otherwise effectuates the policies of
the Act, United Mine Workers of America, 191 NLRB 209, 210 (1971); that the Charging Party
has failed to substantiate its need for a broad cease and desist order as such orders are
normally reserved for more egregious and widespread conduct or for a respondent who has
been adjudicated as a repeat offender; and that while Respondent previously entered into an
informal settlement agreement remedying prior alleged unfair labor practices, the prior matter
was not the subject of adjudication, and any argument that Respondent somehow violated the
prior informal settlement through the alleged misconduct herein is addressed by the fact that the
General Counsel now seeks a formal settlement.
Regarding the Charging Party's argument that the unfair labor practice charges that it
filed during the underlying trial in this matter raise issues under Jefferson Chemical Co, Inc., 200
NLRB 992 (1972) and preclude approval of the proposed Settlement, Counsel for General
Counsel replies that now faced with a Settlement to which it objects, the Charging Party is
attempting to bootstrap its newly-filed unfair labor practice charges to the current complaint in
order to block approval of the Settlement; that a cursory review of the new charges reveals that,
with the exception of the alleged unilateral pension termination, most of the allegations involve
conduct about which the Charging Party knew or reasonably should have known well before the
trial commenced in this matter; and that if the Charging Party is now precluded from attaining a
_________________________
information did not exist; and that regarding withdrawal of recognition, Respondent claimed to
have relied on a decertification petition that Respondent claims was signed by a majority of unit
employees.
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remedy for these allegations under Jefferson Chemical Co., supra, it is due to its own failure to
file charges.
E. Respondent's Reply to the Charging Party's Memorandum in Opposition
In its reply to the Charging Party's Memorandum in Opposition Respondent contends
that the proposed settlement meets all of the required criteria of Independent Stave Co., 287
NLRB 740 (1987)15 and should be approved; and that the Charging Party's primary objections
are meritless in that (1) the Proposed Settlement remedies all of the allegations contained in the
complaint, as amended,16 (2) the Charging Party is not entitled to broader remedies than those
provided for in the Proposed Settlement,17 (3) Respondent has not been involved in a history of

15 Namely (1) whether the parties have agreed to be bound and what position the General
Counsel has taken in regard to the settlement, (2) whether the settlement is reasonable in light
of the allegations of the complaint against the risks inherent in litigation, (3) whether there has
been any fraud, coercion or duress by any party in reaching the settlement, and (4) whether
respondent has a history of violations or has breached past settlement agreements. Regarding
the last criteria, Respondent argues that it does not have a history of violations and it did not
breach the only prior settlement it has signed, which settlement also contains a non-admission
clause.
16 With respect to the allegation that Respondent unreasonably delayed in providing the
Union with the information it requested in its May 29, 2007 letter, Respondent contends that the
evidence of record shows that (a) Respondent had previously provided the Union with the vast
majority of the information that it requested prior to the onset of negotiations, (b) a substantial
portion of the requested information was also provided directly to business representative
Michael Elick in the form of a "blue book" months before negotiations began, (c) Elick admitted
that he had access to certain of the information but he did not bother to check the Charging
Party's own files before requesting the information again, and (d) in view of the Charging Party's
admissions, Counsel for General Counsel has moved to withdraw this allegation. Respondent
points out that General Counsel, and not the Charging Party, has control over the allegations
contained in the complaint, Fineberg Packing Co., 349 NLRB No. 29 (2007).
17 Respondent contends that litigation costs are only awarded in cases involving frivolous
defenses and/or flagrant, aggravated, persistent and pervasive unfair labor practices; that in
Sunshine Piping, Inc., 351 NLRB No. 89 (2007) it is indicated that where an employer's
defenses are debatable and/or are based on a credibility determination, fees and costs are not
appropriate; and that in the instant proceeding Respondent's defenses are debatable and/or are
based on a credibility determinations.
Respondent further contends that the Proposed Settlement should not be rejected
because it does not include the dismissal of the pending decertification petition; that the
decertification petition at issue was not filed by Respondent, it was filed independently by one of
Respondent's employees and, therefore, it is an "RD" and not an "RM" petition; that the
processing or dismissal of the petition is a function of the Regional Director and not a part of this
proceeding, see NLRB Statements of Procedure, §101.18(c) and NLRB Casehandling Manual,
¶¶ 11100-11104.3; that General Counsel has not asserted that the decertification petition is
tainted; that, as noted above, General Counsel controls the allegations brought in the complaint;
that the Charging Party's request for a novel, extended "insulation period" for negotiations is
utterly without support in the law; and that the Charging Party's argument that its bargaining
expenses should be part of the remedy is meritless in that the complaint does not allege surface
bargaining, the bad faith allegations in the complaint are limited to the withdrawal of recognition
and unilateral changes to certain terms and conditions of employment, and again General
Counsel controls the complaint.
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violations of the Act,18 (4) the dismissal of the Decertification Petition is not an issue in this case
(which subject is treated supra), and (5) the Charging Party's objections to the structure of the
Proposed Settlement are meritless in that it consists of two documents, namely the Formal
Settlement Stipulation and the Notice which require Respondent to remedy the allegations in the
complaint in a manner consistent with Board law.
On the one hand, with respect to what Respondent describes as the Charging Party's
secondary objections, Respondent submits that it and the General Counsel will correct clerical
errors, namely (a) "Maysville" will be changed to "Shepherdsville", (b) the allegations regarding
paragraph A-2 of the December 18, 2006 letter will be included in the Proposed Settlement, and
(c) the Proposed Settlement will reflect that the certified bargaining agent for the involved
bargaining unit employees is ICWUC. Also, Respondent agrees that the representative of the
Respondent who signs the agreement will print his name under his signature. On the other
hand, the Respondent contends that certain other of the Charging Party's objections are
meritless. Respondent includes in this latter category (a) the lack of a finding that the
decertification petition is tainted, (b) the inclusion of a non-admission clause, and (c) the fact
that the remedial Order does not direct Respondent not to violate the Act "in any manner."
F. Discussion and Conclusions
Three matters must be resolved at this juncture. First, on April 22, 2008 the Respondent
filed a Motion and Memorandum in Support to Strike Portions of the Affidavit of Michael Elick
which was attached to the Charging Party's Memorandum in Opposition. More specifically,
Respondent contends that paragraph 4 of the affidavit should be stricken because it improperly
references unauthenticated documents and paragraph 7 is undisputedly a false statement. On
May 2, 2008, the Charging Party filed a pleading opposing Respondent's motion to strike.
Essentially, the Charging Party argues that the unauthenticated documents are like a proffer of
evidence to support the Charging Party's position that the trial should be resumed so that the
Charging Party can explore the possibility of obtaining litigation and/or bargaining costs, and
paragraph 7, to the extent that a portion thereof might be considered misleading, has been, in
effect, corrected.
Paragraph 7 of the April 4, 2008 affidavit of Elick reads as follows:
On March 10, 2008, the Union, following issuance of the 10(j) injunction, again
requested temporary-employee information from Respondent APL, expanding upon
previously-requested information. As of this date, Respondent has not provided to the
Union any information that is already at issue in this case, or any expanded-upon
information request, regarding temporary employees, to my knowledge. [Emphasis
added]
As noted above, by notice dated April 15, 2008, the Charging Party itself corrected its

18 Respondent points out that, as noted above, its prior settlement agreement contains a
non-admission clause, and, therefore, as a matter of law that settlement cannot be used in an
attempt to show that the Respondent has been involved in a history of violations of the Act,
Sheet Metal Workers Local 28 (Astoria Mechanical), 323 NLRB 204 (1997).
Further, Respondent contends that it has fully and completely complied with the court's
10(j) injunction and Order, and if the Charging Party believes to the contrary, it is free to pursue
enforcement of that order before the United States District Court with General Counsel; and that
General Counsel has initiated no such enforcement action.
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Memorandum in Opposition, indicating that in the Union's previous memorandum, the
impression may have been left that Representative Elick and/or the Union had not received any
information from APL regarding the Union's information requests; and that while APL still has
not provided all of the information requested in the Union's January 23, 2007 letter, it did
provide names of purported temporary employees. In view of the Charging Party's correction,
which in effect changes the word "any" in paragraph 7 of the Elick's April 4, 2007 affidavit to "all
the," and inasmuch as Respondent has not provided "all the," there is no reason to grant
Respondent's motion regarding paragraph 7, and it is hereby denied.
Paragraph 4 of Elick's April 4, 2008 affidavit reads as follows:
Attached hereto as Attachment 1 are Bates-numbered pages 11-29 and 46 and 47 from
the documents that Dow Corning produced in response to the Charging Party's
subpoena duces tecum in this case.
It appears that the Charging Party attached these documents in the hope that they would be
considered in support of the Charging Party's argument that the trial should be resumed so that
it can show that Respondent engaged in bad faith and surface bargaining regarding contract
negotiations, which in turn would assertedly support the Charging Party's request for
extraordinary remedies. But as pointed out by Counsel for General Counsel, the complaint
involved herein does not allege bad faith and surface bargaining regarding contract
negotiations. What we have before us is a Memorandum in Opposition with attachments. It is a
pleading; it is not part of the record in this case as would be a document received in evidence in
this proceeding. That being the case, there is no need to strike paragraph 4 of Elick's April 4,
2008 affidavit and the attached documents that paragraph 4 references. Accordingly,
Respondent's motion to strike paragraph 4 and its referenced documents is hereby denied.
Second, on April 23, 2008 the Charging Party filed a request for leave to file a reply brief.
Such pleading was not provided for in the filing schedule described above. And the Charging
Party has not shown that there is a need for a reply brief. Additionally, in its May 2, 2008
Memorandum in Opposition to Respondent's Motion to Strike parts of Elick's affidavit, the
Charging Party has already taken advantage of the opportunity presented to make arguments
directed at the responses of Counsel for General Counsel and Respondent to the Charging
Party's Memorandum in Opposition to the proposed settlement agreement (i.e. see notes 1 and
3 of the Charging Party's Opposition to Respondent's Motion to Strike). The Charging Party's
request is hereby denied.
Third, on May 5, 2008 the Charging Party filed a Notice of Additional Objection to
Counsel for the General Counsel's Motion for Approval of Settlement Agreement. The Charging
Party argues that while it cannot yet state for sure that any employee has been financially
harmed by Respondent's unilateral PTO change, the settlement Order should require that any
employee who has been harmed should be made whole; and that given that there may be other
unilateral changes, the proposed settlement should have a general provision that the
Respondent, at the Union's request, rescind all unilateral changes that occurred during the
period of non-recognition, involving mandatory bargaining subjects, and that any unit employee
harmed by any such change be made whole. This pleading was not timely filed. In it the
Charging Party refers to matters which may have transpired after it filed its Memorandum in
Opposition. Nonetheless, in view of the speculative nature of the pleading, the Charging Party
has not demonstrated a justification for my considering the matters referred to therein. It is
noted that the proposed settlement agreement does require that Respondent, upon written
request of the Charging Party, rescind those unilateral changes specified in the complaint, as
amended. No justification has been shown for going beyond the allegations in the complaint, as
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amended. These assertions of the Charging Party are not only untimely but they have not been
shown to have any merit.
In determining whether to approve a proposed settlement, the position of the General
Counsel is an important consideration. Independent Stave Company, Inc., 287 NLRB 740, 741
(1987).
With respect to the Charging Party's Memorandum in Opposition, contrary to its
assertions, (a) § 9-420 of the Judges' Bench Book is not relevant in that it refers to a situation
where the settlement offered by the respondent is opposed by both the Charging Party and the
General Counsel which obviously is not the case here, (b) Section 10166.1 of the General
Counsel's NLRB Casehandling Manuel (Part One) Settlements allows a Judge to approve a
settlement when "the formal settlement itself … provide[s] for withdrawal of appropriate
allegations from the complaint" and all remaining allegations are covered by the settlement, and
(c) the newly-added allegations regarding the January 23, 2007 letter which broadened the
information being requested about temporary employees is fully addressed and remedied in that
as pointed out by General Counsel, not all of the information requested in the January 23, 2007
letter was included in the complaint, as amended.
The proposed settlement is a formal stipulation which is enforceable by a United States
Court of Appeals. There does not appear to be a dispute as to whether the information covered
by the May 29, 2007 Union request was provided. Rather, the complaint allegation speaks to a
delay in providing this information. As pointed out by General Counsel, a formal stipulation is a
stronger deterrent to any future failures or unlawful delays in providing information to which the
Charging Party is entitled. I agree with Counsel for General Counsel that the withdrawal of the
delay allegation to achieve a formal stipulation is a minor concession.
The Charging Party's wants to have (1) a factual finding that the RD-Petition was tainted
by the fact that APL (a) failed to provide the Union with the temporary employee-related
information and this was discussed by the employees who signed the petition, and (b) APL
delayed in providing information in response to the Union's May 29, 2007 letter, and (2) the
pending RD petition not just blocked but dismissed. Whether the involved pending RD petition
should be blocked or dismissed is not an issue to be resolved in this proceeding. As correctly
pointed out by General Counsel, the question of whether the involved decertification petition
was tainted by Respondent's conduct is moot for the purpose of establishing an unlawful
withdrawal of recognition because that allegation is being remedied by the Settlement. Also, as
correctly pointed out by General Counsel, if the Charging Party wished to have a ruling
regarding whether the showing of interest in the employee-filed decertification petition is tainted,
it may request that the Regional Director hold a hearing on this issue in processing the RD
petition, Saint Gobain Abrasives, Inc. 342 NLRB 434 (2004).
With respect to the Charging Party's argument about an insulation period, in Lee Lumber
& Building Material Corp., 334 NLRB 399 (2001) the Board indicated as follows:
It is well established that an incumbent union's representative status cannot
lawfully be challenged in an atmosphere of unremedied unfair labor practices that
undermine employees' support for the union. [Footnote omitted.]
….
… when an employer has unlawfully refused to recognize or bargain with an incumbent
union, a reasonable time for bargaining before the union's majority status can be
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challenged will be no less than 6 months but no more than 1 year. 6 Whether a
"reasonable period of time" is only 6 months or some longer period up to 1 year, will
depend on a multifactor analysis.
_______________________
6 The "reasonable period" begins when the offending employer commences bargaining
in good faith.
As correctly pointed out by General Counsel, the Board does not typically include this definition
in the body of its order, it is inherent to the remedy and will be applied to any subsequent
challenge to the Union's majority status, and the lack of a specified insulation period in the
proposed Settlement is not fatal to its approval.
The Charging Party argues that it intends to seek broader or different remedies; that it
has a right and a basis to seek fees and expenses for litigating these matters for six (6) days;
that it may seek as part of the remedy for the alleged violations, its expenses in bargaining; that
the approval of the proposed formal settlement would preclude a novel remedy like ordering that
all employees be granted the highest merit-based performance wage increase on his/her
anniversary date, or that all employees should be immediately granted that merit or 'cost-of-
living increase as APL had proposed to Dow; and that whether the Union would be granted such
remedies is not relevant as to whether the Union should be granted the right to pursue such
remedies. The response of General Counsel to these arguments is summarized above. No
purpose would be served in reiterating it here. Suffice it to conclude that for the reasons given
by General Counsel, the Charging Party has not shown that its desire to possibly seek broader
or different remedies, either alone or in conjunction with the other reasons given by the
Charging Party, justifies the rejection of the proposed settlement agreement.
With respect to the Charging Party's objections based on the inclusion in the Settlement
of a non-admissions clause, as noted above, Counsel for General Counsel correctly replies that
inclusion of a non-admissions clause is not a valid basis for objection when the settlement
otherwise effectuates the policies of the Act, United Mine Workers of America, 191 NLRB 209,
210 (1971). As pointed out in Section 10164.5 of the General Counsel's NLRB Casehandling
Manuel (Part One) Settlements, "[i]f respondent consents to the entry of a court judgment, it is
possible to include a nonadmission clause in the stipulation." Here, APL has consented to the
entry of a United States Court of Appeals judgment. Consequently, a nonadmission clause is
permissible.
Regarding the Charging Party's objections based on the inclusion in the Settlement of a
standard cease and desist order and not a broad cease and desist order, as correctly pointed
out by General Counsel, (a) the Charging Party has failed to substantiate its need for a broad
cease and desist order as such orders are normally reserved for more egregious and
widespread conduct or for a respondent who has been adjudicated as a repeat offender, and (b)
while Respondent previously entered into an informal settlement agreement remedying prior
alleged unfair labor practices, the prior matter was not the subject of adjudication, and any
argument that Respondent somehow violated the prior informal settlement through the alleged
misconduct herein is addressed by the fact that the General Counsel now seeks a formal
settlement.
With respect to the Charging Party's argument about Jefferson Chemical Co, Inc., 200
NLRB 992 (1972), as noted above, General Counsel takes the position that the Charging Party,
now faced with a Settlement to which it objects, is attempting to preclude approval of the
proposed Settlement by bootstrapping its newly-filed unfair labor practice charges to the current
complaint in order to block approval of the Settlement. General Counsel contends that a cursory
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review of the new charges reveals that, with the exception of the alleged unilateral pension
termination, most of the allegations involve conduct about which the Charging Party knew or
reasonably should have known well before the trial commenced in this matter; and that if the
Charging Party is now precluded from attaining a remedy for these allegations under Jefferson
Chemical Co., supra, it is due to its own failure to file charges.
On February 28, 2008 the Charging Party filed three new charges against Respondent.
The charges are set forth in Exhibit A, attachments 2-4 to the Charging Party's Memorandum in
Opposition. The charge in Case No. 9-CA-44210, as here pertinent, alleges that "[s]ince on or
about August 6, 2007 (with certain facts not known, or reasonably discoverable, by the charging
party until within the 10(b) period), and continuing at various and/or all times since then, the
respondent has violated the Act by the following and other acts: …." It is not clear just what
"until within the 10(b) period" means in terms of the statute of limitations.
The charge in Case No. 9-CA-44211, as here pertinent, alleges that "[s]ince on or about
August 28, 2008 (and/or since September 11, 2006), and at all and/or various times since then,
the respondent, by and through its agent(s) and representative(s), has violated the Act by the
following and other reasonably related acts: …." August 28, 2008 is a day in the future and not
in the past. The last paragraph of this charge in the "Basis of the Charge" box reads "[b]y
bargaining in bad faith with a strategy and intention to lead to decertification since September,
2006, a fact not known until this week."
The charge in Case No. 9-CA-44212, as here pertinent, alleges that "[s]ince on or about
September 11, 2007, the respondent has violated the Act by the following and other acts: …." It
is noted that - notwithstanding the fact that the charge was filed within the the applicable 6-
month period - regarding the conduct the Charging Party goes on to describe in the following
four numbered paragraphs, the Charging Party does not allege that these facts were not known
or reasonably discoverable well before the trial in this matter began.
By the aforementioned Motion filed on May 9, 2008, Respondnet proffers three April 29,
2008 letters from Region 9 of the Board dismissing all of the Union’s charges filed on February
28, 2008. The Union can appeal. The matter at hand should be resolved expeditiously since
the involved Region of the Board successfully filed a 10(j) petition for an injunction involving this
case. Also, it is noted that the Board has held that Jefferson Chemical Co, Inc., supra, does not
give rise to a blanket rule that requires consolidation into one proceeding of all charges filed
against the same respondent during the pendency of a proceeding. Maremont Corp.World Parts
Division, 249 NLRB 216 (1980). I do not believe that this argument of the Charging Party
warrants rejecting the proposed settlement agreement.
The Charging Party argues that in Section V(7)(h) and in related Section VI the
proposed settlement inexplicably and without explanation by the General Counsel eliminated
language alleging discrimination contained in the corresponding provision of the complaint and,
thereby, fails, as required, to remedy or adequately resolve all violations. General Counsel
contends that contrary to the Charging Party's argument, the Settlement fully remedies the
alleged discriminatory wage increases in that the parties stipulate that Respondent implemented
the across-the-board wage increases and merit increase system to discourage employees from
engaging in union and other concerted activities and the proposed Order requires Respondent
to cease and desist from such conduct. The allegation in the complaint reads "Respondent
engaged in the [involved] conduct … because the employees of Respondent formed, joined or
assisted the Union and engaged in concerted activities and to discourage employees from
engaging in these activities." Counsel for General Counsel points out that while the language in
the Settlement does not exactly mirror the language in the complaint, it proscribes the alleged
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Section 8(a)(3) misconduct with the same efficacy. I agree. The Charging Party's argument
does not warrant rejecting the proposed settlement agreement.
As noted above, General Counsel and Respondent both concede that certain
corrections should be made in the proposed settlement. They are as follows:
1. Include paragraph A(2) of the Union's December 18, 2006 information request in the
settlement proposal. (As noted above, this matter is corrected in the attachment to
General Counsel's reply.)
2. Reflect that the International Chemical Workers Union Council and not UFCW Local
692C was certified by the Board as the collective-bargaining agent of the involved unit
employees.
3. Delete from Section II (Jurisdiction) paragraph 2 the word "Maysville" and replace it
with "Shepherdsville".
4. Print the names of those who execute the Formal Settlement Agreement under their
signature and give their title.
No persuasive reasons have been advanced by the Charging Party why the proposed
Formal Settlement Stipulation and Notice, as corrected, should not be approved.
Therefore, I issue the following recommended:19
ORDER
IT IS ORDERED that upon the Motion of General Counsel, the Proposed Settlement
Agreement, which includes the Formal Settlement Stipulation and the Notice, be, and it is
hereby approved with the understanding that (a) the Stipulation and Notice shall be corrected in
accordance with the third preceding paragraph herein, and (b) the corrected Stipulation shall be
executed.
Dated, Washington, D.C., May 16, 2008.
_____________________
John H. West
Administrative Law Judge

19 Any aggrieved party may ask for leave to appeal to the Board, as set forth in Section
101.9(d)(2), Statements of Procedure and Section 102,26, Rules and Regulations.