Carpenters 46 Conference Board (Arntz Contracting)

National Labor Relations Board - Board Decisions

Mar 22, 1985

274 N.L.R.B. 1105 (N.L.R.B. 1985)

CARPENTERS 46 CONFERENCE BOARD (ARNTZ CONTRACTING)
Carpenters 46 Northern California Counties Confer-
ence Board , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, et al. and
Arntz Contracting Co., et at . Case 32-CC-699,
et al.
22 March 1985
ORDER DENYING MOTION FOR
RECONSIDERATION
By CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
The National Labor Relations Board previously
rejected a proposed unilateral settlement stipulation
(proposed stipulation) and accompanying memo-
randum of understanding in the above-captioned
cases. Thereafter, the Respondents filed a motion
for reconsideration addressed to that decision. The
motion for reconsideration asserts that: (1) many of
the Charging Parties who are involved in these
cases do not protest acceptance of the proposed
stipulation; (2) several Charging Parties either join
in this motion for reconsideration or do not object
to the granting of this motion; (3) the Board should
state what modifications would be required to
secure Board acceptance of the proposed stipula-
tion; and (4) the approval of the proposed stipula-
tion will save the parties the expense and effort
that would otherwise have to be undertaken to go
through a hearing.
In its initial decision, the Board considered the
number of Charging Parties consenting to, object-
ing to, or remaining silent regarding the proposed
stipulation. The Board also considered the time and
expense to the parties should the proposed stipula-
tion be rejected and the parties proceed to full
hearing. In addition, the Board considered the
effect of the memorandum of understanding upon
the overall settlement.
Thus, in rendering its initial decision to reject the
proposed stipulation and memorandum of under-
standing the Board considered most of the matters
the Respondents now raise in their motion for re-
consideration. No new matter has been added
which warrants reversal of the original decision.
Upon reconsideration of the stipulation and the
record, we are satisfied that it will not effectuate
the policies of the Act to approve the stipulation.
We do not necessarily disagree with the standards
for determining the adequacy of a proposed settle-
ment set forth in Member Dennis' dissent. Howev-
er, we also consider relevant the nature and history
of a respondent's violations and breaches of previ-
ous settlement agreements and the alleged unfair
labor practices encompased by the proposed settle-
ment. Here we note the recidivist history of certain
1105
of the Respondents and the alleged continuation of
similar misconduct. Additionally, we note that the
Respondents have insisted that settlements be en-
tered into in all cases involving the related labor
disputes including those cases now pending before
the Board on exceptions to judges' findings of vio-
lations and pending before the court of appeals on
the Board's petitions for enforcement and in which
certain Charging Parties have refused to enter into
settlement agreements In the particular circum-
stances here, we find that it will not effectuate the
purposes of the Act to accept the settlement as
proposed. Finally, because of the particular circum-
stances here, contrary to our dissenting colleague
we do not find it appropriate in the posture of this
proceeding' to reexamine and to pass on Board
precedent concerning proposed settlements, includ-
ing Clear Haven Nursing Home, 236 NLRB 853
(1978).
It is ordered that the motion for reconsideration
of the Respondents is denied.
MEMBER DENNIS, dissenting.
Contrary to the majority, I would approve the
formal settlement stipulation the General Counsel
recommended in this proceeding, and would thus
cancel the pending trial, because I strongly believe
in encouraging the voluntary settlement of dis-
putes. I would approve private settlement agree-
ments absent evidence of illegal acts, fraud, or
duress, even over the objections of the General
Counsel.' The same principle should apply here,
where the General Counsel has recommended that
we accept the settlement because it substantially
remedies all of the unfair labor practice allegations.
The cases consolidated in this proceeding arose
out of a strike following the 1983 expiration of the
Carpenters Union and Laborers Union master labor
agreements in the northern California construction
industry and involved alleged illegal picketing and
related acts at dozens of construction sites Two
Regional Offices issued complaints in 178 cases,
which were consolidated for hearing Before the
hearing, the Regions and the Respondent Unions
negotiated a comprehensive settlement agreement
resolving all 178 cases.2 The settlement agreement
before us now is a formal settlement stipulation
providing for judicially enforced Board Orders re-
solving 90 of these cases against 10 of the Respond-
ents who were alleged to have committed the most
' We reserve judgment on whether a party other than the General
Counsel has standing to move for reconsideration of the General Coun-
sel's proposed partially unilateral settlement
' Cf Texaco, Inc, 273 NLRB 1335 (1985)
2 The parties agreed to resolve 88 of these cases through informal set-
tlement agreements which do not require Board approval and thus are
not before us
274 NLRB No. 181
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
serious and numerous violations, as well as resolv-
ing 10 other Board cases pending at various stages
that involved common Respondents and similar al-,
legations. In November 1984, the Board refused to
approve this settlement for want of, a majority; I
voted to approve the settlement then, however,
and I adhere to that vote now because the factors
favoring approval of this massive settlement are
overwhelming.
First, the General Counsel, all 10 Respondents,
and all but 1 of the Charging Parties favor approv-
al of this settlement. Out of 40 Charging. Parties, 32
have indicated in writing that they have no objec-
tions to the settlement. Only one law firm, which
represented eight Charging Parties, initially object-
ed to the proposed settlement; however, one of
these eight Charging Parties has since asked to
withdraw its charge. Further, the law firm has now
stated that all but one of its clients are prepared to
enter into this settlement agreement and plan to ex-
plore a non-Board settlement directly with the Re-
spondents if the Board does not approve this
formal stipulation. Clearly, this is not in any practi-
cal sense a unilateral settlement.
Second, the settlement substantially remedies all
of the unfair labor practice allegations. The settle-
ment provides for the entry of Board Orders cov-
ering all of the allegations and specifically author-
izes court enforcement of the Board Orders. Fur-
ther, the proposed cease-and-desist language of the
Orders is very broad. Thus, as to the secondary
boycott allegations, all 10 Respondents have agreed
to Orders prohibiting them from engaging in con-
duct violative of Section 8(b)(4)(B) directed at
forcing or requiring any person to cease doing
business with any of the named Employers in-
volved in the complaints issued against these Re-
spondents. This is the standard language that
would be contained in any Board Order resulting
from an actual Board decision finding such viola-
tions, and these Orders run indefinitely. In addi-
tion, five of the Respondents have agreed to even
broader language prohibiting them from engaging
in conduct violative of Section 8(b)(4)(B) directed
at forcing or requiring any person to cease doing
business with any other person, for a fixed period of
time ranging from 3 to 5 years depending on the
particular Respondent. This is the broadest remedi-
al language, which the Board uses only in egre-
gious cases. Similarly, the Respondents involved in
the recognitional picketing allegations have agreed
to Orders prohibiting them from engaging in con-
duct violative of Section 8(b)(7)(C) directed at any
of the named Employers involved in these com-
plaints. Again, this is the standard language used in
Board decisions, and the Orders run indefinitely.
Two of the four Respondents involved have also
agreed to the broadest remedial language prohibit
ing them from picketing any employer in violation
of Section 8(b)(7)(C) for 3 years. Finally, the settle-
ment requires affirmative remedies for all of the
other alleged violations.
Third, this settlement allows for quick and effec-
tive enforcement of the Act through immediate
court action. The value of a speedy resolution of
this disruptive labor dispute is readily apparent, es-
pecially when compared to the 4 or 5 years that
would otherwise be necessary to litigate these cases
through court enforcement.3 Equally important,
the court orders will provide indefinite protection
for the many Employers who were targets of the
alleged unlawful picketing and will allow the
Board to begin immediate contempt proceedings if
one of the Respondents should engage in future
picketing that violates the court orders. The broad
orders will provide additional protection for the
public during the next 3 to 5 years and will allow
for immediate contempt action if these Respond-
ents engage in any unlawful picketing during this
period. Furthermore, any such repetition of the il-
legal conduct would provide a basis for the Board
or the court to issue a permanent broad order
against the recidivist Respondent Union, thus pro-
tecting the public beyond the 3 to 5 years specified
in the settlement.
Fourth, approving this settlement would provide
a period of labor peace extending past the expira-
tion date of the current construction industry labor
agreements in northern California, the time when a
repetition of this illegal picketing is most likely to
occur. The parties are currently enjoying the fruits
of this settlement, but a trial in the instant proceed-
ing would undoubtedly exacerbate the parties' rela-
tionship and promote industrial strife contrary to
the express policy of the Act.4
In rejecting the settlement, the majority cites
"the recidivist history of certain of the Respond-
ents." A comprehensive settlement, however, may
be the best means of breaking a longstanding pat-
tern of recidivism. My colleagues joined me in ap-
proving just such a settlement in cases involving an
employer that had been called "the `most notorious
recidivist' in the field of labor law." J. P. Stevens &
Co., 244 NLRB 407, 413 (1979), quoting NLRB v.
J. P. Stevens & Co., 563 F.2d 8 (2d Cir. 1977). See
3 The parties have estimated that a trial of this consolidated case
would last well over 200 days
4 I note that one of the Charging Parties has asked the Board to recon-
sider its decision not to approve this settlement, stating, "We are very
upset and dismayed that the NLRB has rejected the settlement agreement
that provided jobsite security from illegal picketing to ourselves and
other contractors "
CARPENTERS 46 CONFERENCE BOARD (ARNTZ CONTRACTING)
the settlement-related decisions in J. P. Stevens' &
Co., 268 NLRB 8, 11, 33, 58, 60, 63, 89 (1983).
The majority also notes that administrative law
judges and/or the Board have already found viola-
tions in some of the proceedings settled here, but
the same was true of all but 1 of the 11 cases in-
volved in the J. P. Stevens settlement. Furthermore,
in three of these J. P. Stevens cases, courts had
found the employer in contempt of previous court
orders.
I agree with the view several courts of appeals
have expressed that the law should encourage pri-
vate settlements of disputes. In Hotel Holiday Inn
De Isla Verde v. NLRB, 723 F.2d 169, 173 fn. 1 (1st
Cir. 1983), the court stated the principle that
"[s]ettlement agreements are highly favored in the
law and will be upheld whenever possible because
they are a means of amicably resolving doubts and
preventing lawsuits." Similarly, in Airport Parking
Management v. NLRB, 720 F.2d 610, 614-615 (9th
Cir. 1983), the court stated as follows:
The general policies of the Act and of labor
law favor the private, amicable resolution of
labor disputes whenever possible. We encour-
age voluntary settlements. They often mini-
mize economic dislocations that may result
from a more prolonged dispute. Settled dis-
putes do not add to an already overcrowded
docket made up of parties who cannot or will
not agree on a resolution.
In the past, the Board has all too frequently re-
jected settlements for failing to provide employees
with the full relief available under the Act. See
Clear Haven Nursing Home, 236 NLRB 853 (1978).
As the courts have pointed out, the Board's prior
practice failed to consider the very basic risk inher-
ent in litigation, i.e., that a party's claims may not
prevail on the merits. As the First Circuit stated,
1107
"All of the uncertainties of an adversary hearing,
i.e., the competence of counsel, the thoroughness
of preparation, the memories of witnesses, the atti-
tudes of the hearing officer, and the availability of
witnesses, stood between [the employees] and [a
full remedy]." Hotel Holiday Inn, supra, 723 F.2d at
172-173. Accord: NLRB v. A. Duie Pyle, Inc., 730
F.2d 119, 124 (3d Cir. 1984). Therefore, I would
overrule Clear Haven to the extent it is inconsistent
with my views expressed here.
The outcome of any litigation is uncertain, and
there is always the possibility that the General
Counsel would not prevail in this proceeding. My
colleagues have not stated what they think the
General Counsel could gain by trying this case.
Surely, litigating this massive and complex case
through judicial enforcement would be a shameful
waste of the Board's resources, especially when
there is no guarantee that the General Counsel
would even win all of the remedy it has already
obtained here. No exceptional circumstances war-
rant disapproval of this settlement under the princi-
ples I have articulated above, and I find my col-
leagues ' failure to approve this settlement inexplica-
ble. Moreover, I note that the potential effect of
disapproving such formal settlements providing for
judicially enforced Board Orders may well be to
pressure the General Counsel into accepting infor-
mal settlement agreements providing a much
weaker enforcement mechanism, because such set-
tlements would not require Board approval.
In sum , the Respondent Unions have settled this
consolidated case to the satisfaction of the General
Counsel and all but 1 of the 40 Charging Party
Employers. Believing as I do that the Board should
administer the Act to promote, rather than inter-
fere with, voluntary solutions to labor-management
problems, I would approve the settlement.