E.S.I. Meats

National Labor Relations Board - Board Decisions

Jun 27, 1984

270 N.L.R.B. 1430 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E.S.I. Meats, Inc. and Local 280, United Food and
Commercial Workers International Union,
AFL-CIO and Marlin Eugene West. Cases 25-
CA-15273, 25-CA-15319, and 25-CA-15592
27 June 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 29 April 1983, on charges filed by the Union,
the Regional Director for Region 25 issued an
order consolidating cases, complaint, and notice of
hearing in Cases 25-CA-15273 and 25-CA-15319
alleging that the Respondent had engaged in and
was engaging in certain unfair labor practices af-
fecting commerce within the meaning of Section
8(a)(1) and (3) of the National Labor Relations
Act.
On 13 June 1983 Marlin Eugene West filed the
charge in Case 25-CA-15592 alleging that the Re-
spondent had discharged him 26 May 1983 because
of his union activities. On 29 June 1983, during the
course of the investigation of the charge in Case
25-CA-15592, the Regional Director approved a
settlement agreement executed by the parties in
Cases 25-CA-15273 and 25-CA-15319. The Re-
spondent began compliance with the terms of the
settlement agreement 1 July 1983 by posting the re-
quired notice and sending the Regional Office a
check for the amount of backpay to be given to al-
leged discriminatee Billy Martin.
On 5 July 1983 the Regional Director notified
the parties that he was vacating his approval of the
settlement agreement in Cases 25-CA-15273 and
25-CA-15319 because the settlement agreement
might affect the rights of Charging Party West in
Case 25-CA-15592 and because West was not ad-
vised of the proposed settlement agreement or
given an opportunity to object to it.
On 27 July 1983 the Regional Director issued a
complaint and notice of hearing in Case 25-CA-
15592 alleging violations of Section 8(a)(l) and (3),
including the unlawful discharge of West. The Re-
spondent filed a Motion for Summary Judgment in
Case 25-CA-15592 16 August 1983. On 8 Septem-
ber 1983 the Regional Director issued a consolidat-
ed complaint and notice of hearing in Cases 25-
CA-15273 and 25-CA-15319 and ordered those
cases to be consolidated with Case 25-CA-15592.
On 3 October 1983 the Respondent filed a
Motion for Summary Judgment, a Motion to Dis-
miss, and a memorandum in support of each
motion. On 17 November 1983 the General Coun-
sel filed a response in opposition to the Respond-
ent's Motion for Summary Judgment, requesting
270 NLRB No. 212
that the Board deny the motion. On 7 December
1983 the Board issued an order transferring the
proceeding to the Board and a Notice to Show
Cause why the Respondent's motions should not be
granted. The General Counsel filed a response to
the Notice to Show Cause.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
Ruling on the Motion for Summary Judgment
and to Dismiss
The Respondent asserts that under well-settled
Board law its compliance with the settlement
agreement in Cases 25-CA-15273 and 25-CA-
15319 bars the complaint in Case 25-CA-15592 be-
cause the conduct alleged in that complaint pre-
dates the settlement agreement and was readily dis-
coverable by the Regional Director. Accordingly,
the Respondent contends that there are no issues of
fact or law requiring a hearing and that it is enti-
tled to judgment as a matter of law.
The General Counsel contends that the Regional
Director never intended that the settlement agree-
ment would dispose of the charge in Case 25-CA-
15592 inasmuch as he was not personally aware of
its pendency until after he had approved the settle-
ment. Further, the General Counsel argues that the
Motion for Summary Judgment should be denied
because the Regional Director vacated the settle-
ment agreement prior to any significant compliance
by the Respondent. In this regard, the General
Counsel points out that, although the Respondent
had mailed the Region a check for the backpay
amount called for by the settlement, this check
never was surrendered to Charging Party Martin
and no payment was ever made on the check.
We agree with the Respondent and shall grant
its Motion for Summary Judgment. The Board
consistently has held that a settlement agreement
disposes of all issues involving presettlement con-
duct of a charged party unless prior violations of
the Act were either unknown to the General Coun-
sel and not readily discoverable by investigation, or
specifically reserved from the settlement agreement
by the mutual understanding of the parties.' Here,
the presettlement discharge of Marlin Eugene West
not only was readily discoverable by investigation,
it in fact was the subject of the charge in Case 25-
CA-15592 filed more than 2 weeks before the Re-
gional Director's approval of the settlement agree-
ment. We attach no significance to the alleged fact
I See, e.g., Cambridge Taxi Co., 260 NLRB 931 (1982); Laminite Plas-
tics Mfg. Corp., 238 NLRB 1234 (1978); Hollywood Roosevelt Hotel, 235
NLRB 1397 (1978); Steves Sash & Door Co., 164 NLRB 468, 473 (1967).
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E.S.I. MEATS
that the Regional Director was not personally
aware of the charge in Case 25-CA-15592 when
he approved the settlement 29 June 1983. The Re-
gional Director signed a letter dated 13 June 1983
which informed the Respondent that a charge had
been filed against it in Case 25-CA-15592 and
which requested the Respondent's participation in
the investigation of the charge. In addition, a field
examiner-acting as the Regional Director's
agent-had begun an investigation of that charge
prior to approval of the settlement. Because there
is no basis for finding that the charge in Case 25-
CA-15592 was unknown to the Regional Director
at the time of the settlement agreement, he acted
improperly in vacating his approval of the settle-
ment on the ground that he had learned of the
pendency of Case 25-CA-15592 only after such ap-
proval. Further, there is no evidence that the Re-
spondent has failed to fulfill its obligations under
the settlement agreement.
That the charges in issue were filed by different
charging parties-United Food & Commercial
Workers Local 280 in Cases 25-CA-15273 and 25-
CA-15319 and Marlin Eugene West in Case 25-
CA-15592-is insufficient to change the rules bar-
ring litigation of discoverable presettlement con-
duct. If, after settlement of one charge, a related
charge regarding presettlement conduct is filed,
litigation of the new charge is barred whether the
same or a different party filed the new charge.2
The issue is not whether the new charge was filed
by a different charging party, but whether the mat-
ters raised by the new charge were readily discov-
erable through investigation. The issue here is the
same, and Charging Party West stands in the same
position as a postsettlement charging party.
The Board's previous decisions also hold that
proof that a charge has been specifically reserved
from a settlement agreement must be established by
affirmative evidence. The General Counsel has pre-
sented no evidence that the charge in Case 25-CA-
15592 was specifically reserved for future resolu-
tion.3 Accordingly, we find that the settlement
agreement approved by the Regional Director 29
June 1983 encompassed the charge in Case 25-CA-
15592 and that the Regional Director erred in at-
tempting to vacate his approval of the settlement.
We therefore grant the Respondent's Motion for
Summary Judgment and Motion to Dismiss.
ORDER
The complaint is dismissed.
2 See, e.g., Laminite Plastics Mfg. Corp., above, involving a postsettle-
ment charge by the same charging party, and Hatfield Trucking Service,
270 NLRB 136 (1984), involving a postsettlement charge by a different
charging party. See also Cambridge Taxi Co., above, involving a presett-
lement charge by the same charging party.
3 The General Counsel asks us to infer from the fact that the charge
was not listed in the settlement agreement that it was specifically re-
served for future resolution. The Board consistently has rejected the
notion that an act of omission may constitute specific reservation. Cam-
bridge Taxi Co., 260 NLRB 931; Hollywood Roosevelt Hotel, 235 NLRB
1397.
1431