ESB Incorporated

National Labor Relations Board - Board Decisions

Nov 1, 1979

246 N.L.R.B. 325 (N.L.R.B. 1979)

ESB INCORPORATED
ESB Incorporated and International Brotherhood of
Electrical Workers, Local No. 613. Case 10-CA-
14193
November 1, 1979
DECISION AND ORDER
BY MEMBERS JENKINS, MURPHY, AND TRUESDAILE
On July 27, 1979, Administrative Law Judge J.
Pargen Robertson issued his Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief, and the General Counsel filed a
cross-exception and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and has de-
cided to vacate the Administrative Law Judge's Deci-
sion and to approve the informal settlement agree-
ment submitted to the Administrative Law Judge
prior to the issuance of his Decision.
The complaint alleges that Respondent violated
Section 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union with respect to the Union's No-
vember 22, 1978, request for arbitration of a pending
grievance pursuant to the parties' collective-bargain-
ing agreement, which was effective from August 1,
1975, to August 1, 1978. The hearing was held on
April 18, 1979.' By letter dated June 6, Respondent
requested the permission of the Administrative Law
Judge "for an informal settlement of this case" in
which it offered not only to arbitrate pending griev-
ances, but also to give one grievant, Doyle E. Rhodes,
the maximum amount he could obtain in the event he
won the arbitration. The Charging Party did not join
in this request. By letter dated July 2, Respondent
asked the General Counsel to join in its settlement
request because the Administrative Law Judge in-
formed Respondent that he would not take any ac-
tion on the request unless a representative from the
General Counsel joined in it. By letter dated July 23,
counsel for the General Counsel submitted an infor-
mal settlement agreement and proposed notice to the
Administrative Law Judge for the latter's approval.
The settlement agreement was executed by Respon-
dent, recommended by counsel for the General Coun-
sel, but not signed by the Charging Party. Noting in
his letter that the Charging Party did not wish to en-
ter into the agreement, counsel for the General Coun-
sel stated that he had "no objection to such settlement
i All dates are in 1979 unless otherwise indicated.
as it will effectuate the purposes of the Act and aft-
fords a full remedy."2
The tendered unilateral settlement consisted of the
usual informal settlement agreement containing a
nonadmission clause and a proposed notice stating:
WE WILL NOT refuse to bargain with the Inter-
national Brotherhood of Electrical Workers, Lo-
cal No. 613, with respect to the arbitration of
any pending grievance.
WE Wi.L., upon request by the International
Brotherhood of Electrical Workers, Local No.
613, arbitrate pending grievances and will waive
for a reasonable period of time any issue with
respect to the timeliness of any such request for
arbitration.
WE WILL NOT in any like or related manner
threaten, restrain, or coerce our employees in the
exercise of their rights as guaranteed in Section 7
of the National Labor Relations Act.3
On July 27, the Administrative Law Judge issued
his Decision finding that Respondent violated the Act
as alleged. No mention whatsoever is made of the
tendered settlement agreement. Respondent contends
that it was abuse of discretion and error for the Ad-
ministrative Law Judge to issue his Decision after no-
tice of the settlement of the matter. We find that the
Administrative Law Judge erred by failing to pass
specifically upon the proffered settlement. Accord-
ingly, we have considered the settlement; and, having
determined, for the reasons set forth below, that it
effectuates the purposes of the Act and affords a full
remedy, we have decided to vacate the Administra-
tive Law Judge's Decision and to accept the informal
settlement agreement.
The Board has long had the policy of encouraging
settlements which tend to eliminate industrial strife,
encourage the collective-bargaining process. and pro-
tect the rights established by the Act.4 In determining
whether a settlement should be approved, the Board
must weigh such factors as the adequacy of the pro-
posed remedy for the alleged unfair labor practices,
the early restoration of industrial harmony by making
concessions, and the conversation of the Board's re-
sources.' We have carefully evaluated the tendered
2 Respondent's letters of June 6 (with attachments) and July 2 and the
General Counsel's letter of July 23 are hereby admitted into the record as
Board Exh. I(a). b), and (c), respectively.
] The informal settlement agreement submitted bh the General Counsel to
the Administrative Law Judge is hereby admitted into the record as Board
Exh. 2. Inasmuch as Board Exhs l(a) (c) and 2 were attached to Respon-
dent's exceptions and supporting brief which were served on the parties, we
deem the Board exhibits as having been served thereby.
The Wallace Corporation v. V.LR.B. 323 LI.S 248 (1944).
Farmers Co perative (;in Arsowucin, 168 NLRB 367 (1967): Jack C
Robinson dlhlb Rohin.on Freight ines. 117 NLRB 1483 (1957).
246 NLRB No. 51
325
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
settlement agreement in the instant case in light of
these factors and find that approval is warranted.6
The proposed notice parallels the language of the
complaint and affords a full remedy of the alleged
unfair labor practices by providing that Respondent
will not refuse to bargain with the Union concerning
the arbitration of pending grievances; that Respon-
dent will, upon request by the Union, arbitrate pend-
ing grievances; and that Respondent will not in any
like or related manner threaten, restrain, or coerce
employees in the exercise of their Section 7 rights.
Consequently, there can be no question concerning
the adequacy of the proposed remedy. Further, if the
settlement were not accepted, it would be necessary
to review fully the Administrative Law Judge's Deci-
6 We note that the Charging Party did not join the settlement request or
the settlement and was at no time afforded an opportunity by the Adminis-
trative Law Judge to state its reasons for opposing the settlement, as required
by the National Labor Relations Board Rules and Regulations and State-
ments of Procedure, Series 8, as amended, Sec. 101.9(dX). However. Re-
spondent excepted to the Administrative Law Judge's failure to accept the
settlement, and the Charging Party did not file cross-exceptions or a brief in
response to Respondent's exception in this regard. Accordingly. we find that
the Charging Party has had an opportunity to state its reasons for opposing
the settlement and has not availed itself of this opportunity, and that, there-
fore, the requirements of Sec. 101.9(dXI) of our Statements of Procedure
have been satisfied.
sion. Such consideration clearly would result in a
greater delay in the final resolution of the dispute be-
tween the parties. Thus, although an interim decision
on the merits has been rendered, we believe that ac-
ceptance of the tendered informal settlement at this
time effectuates the policies of the Act.7 Accordingly,
we shall approve the settlement,8 dismiss the com-
plaint, and vacate the Administrative Law Judge's
Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby accepts the informal settlement
agreement submitted by the General Counsel to the
Administrative Law Judge and orders that the com-
plaint be, and it hereby is, dismissed in its entirety.
IT IS FURTHER ORDERED that the Administrative
Law Judge's Decision be, and it hereby is, vacated.
7 See United Mine Workers ofAmerica and United Mine Workers of Amer-
ia, District 6 (The James Brothers Coal Company) 191 NLRB 209 (1971).
' In the event Respondent does not comply with the settlement agreement,
we shall entertain a motion to reinstate the complaint and the Administra-
tive Law Judge's Decision.
326