Auto Bus, Inc

National Labor Relations Board - Board Decisions

Apr 26, 1989

293 N.L.R.B. 855 (N.L.R.B. 1989)

AUTO BUS INC 855
Auto Bus, Inc and United Steelworkers of America,
AFL-CIO, CLC Case 1-CA-24202(3)
April 26, 1989
ORDER
BY MEMBERS JOHANSEN , CRACRAFT, AND
HIGGINSG
On March 17 , 1986,1 an unfair labor practice
charge in Case 1 -CA-23651 was filed by the
United Steelworkers of America , AFL-CIO, CLC,
alleging that the Respondent violated Section
8(a)(1) of the Act This charge was amended on
April 28 to allege further violations of Section
8(a)(1) and (3) of the Act More specifically, the
amended charge alleged that the Respondent
threatened an employee because of his union activi-
ties, threatened to close the doors if the Union got
in, and to have an employee who was passing out
union literature arrested for trespassing if he came
on company property The charge further alleged
that the Respondent attempted to discourage union
activity by "insinuating an offer of benefit to en-
courage employees to quit" and withheld a benefit
from an employee because of his union activities A
complaint issued on June 12 In early August, the
Respondent and the Union entered into an informal
agreement in Case 1 -CA-23651, and on August 20,
the Union requested withdrawal of its amended
charge on which the complaint was based This
withdrawal request was approved by the Regional
Director on August 27 On September 11, the Re
gional Director issued an order withdrawing the
notice of hearing and dismissing the complaint
On May 14, the Union filed another charge in
Case 1-CA-23853 alleging that the discharge of
employee Donald Constantino violated Section
8(a)(3) The Union withdrew this charge , without
prejudice, on June 12 The substance of this
charge , the discharge of employee Constantino,
was timely refiled by the Union on September 11
as the instant case , 1-CA-24202(3) On October 16,
an amended charge was filed in this case , which in-
cluded the 8(a)(1) threats and promises that formed
the basis for Case 1-CA-23651, and which had pre-
viously been withdrawn The complaint alleged
that the Respondent had violated Section 8(a)(1) by
various threats and promises of benefit and Section
8(a)(1) and (3) of the Act by issuing two written
warnings to Donald Constantino and subsequently
discharging him It is also alleged that the Re-
spondent instituted a written warning system in
violation of Section 8(a)(1), (3), and (5)
A hearing on this complaint had been scheduled
for March 18, 1987, but on November 26, 1986, the
Respondent filed with the Regional Director its
motion to dismiss the complaint The Respondent
asserted three grounds for dismissal (1) The Board
lacks jurisdiction under National Transportation
Service, 240 NLRB 565 (1979), and Res-Care Inc,
280 NLRB 670 (1986), (2) certain allegations are
barred by Section 10(b) of the Act, and (3) certain
allegations were part of a previous charge and
complaint that was settled between the Respondent
and the Charging Party, with the Regional Direc-
tor approving withdrawal of the charge and com-
plaint On February 13, 1987, the General Counsel
filed a response in opposition to the motion 2 On
March 2, 1987, Associate Chief Administrative
Law Judge John M Dyer issued an order denying
grounds (1) and (2) but striking from the complaint
in this case the allegations that had been contained
in the complaint in Case 1-CA-23651
In granting the Respondent's motion, the judge
found that there had been a settlement agreement
sanctioned by the Region, compliance by the Re
spondent, and no subsequent alleged unfair labor
practices The judge rejected the General Counsel's
contention that Hollywood Roosevelt Hotel, 235
NLRB 1397 (1978), does not apply to non-Board
settlements and held that the Regional Director
had to be aware of the nature of the non-Board set-
tlement, so that, in effect, "the Regional Director
was a party to the withdrawal of the charge and
the `settlement' of this case" and is therefore es
topped from litigating the allegations that were
contained in the complaint in Case 1-CA-23651
On April 9, 1987, the General Counsel filed a re-
quest for special permission to appeal the order of
the Associate Chief Administrative Law Judge
granting the Respondent's motion to dismiss certain
allegations of the complaint On April 15, 1987, the
Respondent filed its opposition to the request
Having duly considered this matter in light of
the arguments raised by the Respondent and the
General Counsel, we grant the General Counsel's
request for special permission to appeal the judge's
order
We conclude that the judge erred in dismissing
certain allegations from the complaint as this case
is squarely controlled by Quinn Co, 273 NLRB
795 (1984) In Quinn, the union filed a petition for
a representation election as well as an unfair labor
practice charge alleging that the employer had so-
licited employee petitions to oust the union as the
bargaining representative An employee also filed a
' All dates are 1986 unless otherwise stated
2 The Regional Director forwarded the Respondents motion and the
response to the Division of Judges for decision
293 NLRB No 106
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
petition to decertify the union The parties settled
the issues raised by the representation petitions and
the unfair labor practice charge and the union
agreed to withdraw the charge The Regional Di-
rector approved the union's withdrawal of the
charge and approved a Stipulation for Consent
Election Immediately before the scheduled elec-
tion, the union filed another charge alleging viola-
tions of the Act covered by the withdrawn charge
and other violations occurring after the charge was
withdrawn The employer there alleged that its set-
tlement of the first charge, allegedly "approved"
by the Regional Director, barred litigation of the
subsequently filed charge The judge in Quinn
noted that (id at 799)
In the absence of a Regional Director signing
or approving a settlement agreement, any such
agreement between a charging party and a re-
spondent which resulted in the withdrawal of
the charge is viewed by the Board as a private
arrangement which does not estop the Region-
al Director from proceeding on any new
charges alleging the same conduct as the with-
drawn charges
The judge there found, with Board approval, that
while the Regional Director approved the union's
withdrawal request, he did not enter into or ap-
prove the private agreement between the parties
Moreover, the Regional Director had made no at-
tempt to resolve the unfair labor practices, unlike
the situation in Hollywood Roosevelt Hotel Co, 235
NLRB 1397 (1978), in which the settlement agree
ment, which was a Board settlement, provided that
the employer take certain remedial action Accord-
ingly, based on the nature of the settlement agree-
ment, the judge in Quinn found, and the Board
agreed, that the Regional Director was not es
topped from issuing a complaint 3
8 Contrary to the judge s statement Quinn did not turn on the fact that
the employer subsequent to the non Board settlement allegedly commit
ted other violations of the Act The alleged additional violations would
Here, as in Quinn, the Regional Director did not
sign or approve the non-Board settlement agree-
ment Thus, this was a private arrangement be-
tween the parties Although the General Counsel
does not dispute the Respondent's assertions that a
Board agent was involved in the settlement negoti-
ations that led to the withdrawal of the charge, we
find that such Board agent involvement is immate-
nal The Charging Party initiated the request that
the charge be withdrawn and the Regional Direc-
tor merely approved the request Also, as the Gen-
eral Counsel points out, the non-Board settlement
merely provided for the payment of a sum of
money to employee Constantino and did not
remedy the independent 8(a)(1) allegations Ac-
cordingly, we find that the non-Board adjustment
did not estop the Regional Director from proceed
ing on any new charges alleging the same conduct
as the withdrawn charges,4 whether or not a com-
plaint had issued in the case involving the with-
drawn charge The fact remains that the Regional
Director was not an official party to the non-Board
adjustment
The practical effect of any ruling to the contrary
would likely be either that Regional Directors
would have to thoroughly investigate proposed
non-Board adjustments or simply refuse to honor
them Neither alternative seems conducive to fos-
tering labor peace or a wise husbanding of this
Agency's scarce resources Accordingly,
IT IS ORDERED that the Associate Chief Adminis-
trative Law Judge's order to strike paragraphs 7
and 8 from the instant complaint is reversed and
the Respondent's motion to dismiss is denied in
full
be immaterial to a finding that a non Board adjustment was not a Board
settlement
* See the dissenting opinion of Judge Vance joined by Judge Rubin in
Gulf States Mfrs. v NLRB 598 F 2d 896 909 (5th Cir 1979) ( No au
thonty is cited for the suggestion that the unapproved [settlement] stipu
lation control [s] the power of the Board to go behind the agreement
This conclusion is comparable to a contention that a settlement agree
ment between private litigants restricts the power of a prosecutor to
prosecute (fn omitted) Member Johansen does not rely on this dissent