Gladstone'S 4 Fish

National Labor Relations Board - Board Decisions

Feb 18, 1987

282 N.L.R.B. 1285 (N.L.R.B. 1987)

GLADSTONE'S 4 FISH 1285
Mor Food N' Fun , a Division of Jojos Restaurants,
Inc. d/b/a Gladstone 's 4 Fish and Richard
Foglia and Joyce Emerson -and Leticia Chavoya
and Casey Sander and Ronald Hernandez and
Susan Noble . Cases 31-CA-15224, 31-CA-
i15322,1 31-CA-15229, 31-CA-15387, 31-CA-
15233, 31-CA-15334, 31-CA-15287, 31-CA-
15346, and 31-CA-15383
18 February 1987
DECISION AND ORDER REJECTING
STIPULATION AND REMANDING
PROCEEDING TO REGIONAL
DIRECTOR
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 9 September 1986 Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and' has
decided to reject the Respondent's and the General
Counsel's stipulation, and remand the proceeding
to the Regional Director for further appropriate
proceedings.2
We have'ameiided the caption by changing "31-CA-15332" to read
"31-CA-15322" to reflect the correct case number
2 We also correct some of the judge's factual assertions -and inferences
which are not supported by the record.
In sec. I,C, par. 2, the judge stated, "[Respondent Counsel Kevin]
Smith interlineated the changes on his draft [settlement agreement], had
the agreement typed, and without reading the final 'version to ensure that
it accurately reflected the [changes counsel for the General Counsel re-
quested], sent the document to the Charging Parties." In par. 5 under the
heading "Analysis and Conclusions," the judge stated, "In fact, Smith did
not even check the copies sent the Charging Parties to ensure they accu-
iately reflected what he understood to be any agreements between Re-
spondent and [counsel for the General Counsel Ann Reid] Cronin " The
'judge is correct that Smith did not personally proofread the draft settle-
ment agreement before sending copies to the Charging Parties. Smith tes-
tified, however, that he incorporated Cronin's suggestions on a draft
agreement and that his secretary retyped it and proofread the final ver-
sion The General Counsel does not contend the final version is incom-
plete or inaccurate Accordingly, we reject the judge's suggestion that
the agreement's accuracy is somehow suspect because Smith did, not
proofread it himself.
In fn 5 of the judge's decision, the second sentence of the quoted letter
should read, "Based'on our understanding, I will now advise Respondent
that after the agreements [with the Charging Parties] are executed and a
notice is posted, the settled charges will no longer be litigated or at issue
and no remedy will be pursued by the Board on behalf of the individuals
that elected to settle"
Contrary to the judge's conclusion in fn 6 of her decision, we do not
find that Smith in the quoted testimony stated that he did not understand
that the charges would have to be withdrawn in order for the Regional
Director to dismiss the complaint Rather, he stated he did not under-
stand that the Regional Director needed a specific "withdrawal form "
Contrary to the judge's conclusion in sec. I,C, par 9, we do not find
"Smith indicate[d] a lack of familiarity with the provisions of 'stand-
ard Board notices' and exhibited a lack of recognition that most if not all
I.
This case concerns allegations of unfair labor
practices which arose in connection with an unsuc-
cessful union organizing campaign at the Respond-
ent's facility at an unspecified time in 1985.
Charges filed by individual charging parties result-
ed in the issuance of a complaint which, as amend-
ed, alleged violations of Section 8(a)(1), (3), and/or
(4), including allegations that the Respondent either
unlawfully discharged, suspended or refused to re-
instate each of the Charging Parties, or discrimina-
torily altered their work shifts or assignments.
In late November or early December 1985,
shortly before the complaint issued, the Respond-
ent obtained the General Counsel's permission to'
contact the Charging Parties directly in an effort to
reach private settlements. By early January 1986,
the Respondent concluded that four of the six
Charging Parties were likely to agree to private
settlements.
On 9 January 1986' the Respondent's counsel,
Kevin Smith, ' contacted Counsel for the General
Counsel ' Ann Reid Cronin and read to Cronin a
draft 'settlement agreement. Cronin suggested
changes to the draft herself and then, after discuss-
ing it with the Regional attorney, suggested addi-
tional changes. According' to Smith's uncontradict-
ed testimony, he incorporated Cronin's changes.3
Smith did not, however, provide a copy of the
draft to Cronin.
During their 9 January discussions, Cronin told
Smith that, if all the Charging Parties; did not
settle, the General Counsel might need testimony
from some of the Charging Parties who did settle.
Smith agreed, but did not incorporate this under-
standing into the draft settlement agreement. Ac-
cording to' Smith's uncontradicted testimony,
Cronin also said 'that the General Counsel would
require that the Respondent post a notice. Cronin
agreed that "the notice would not contain anything
inconsistent with the terms of the settlement
such notices contain the names of the discriminatees and require a 'make
whole' order including backpay and restoration of other benefits " Smith
actually testified that he did not understand the discriminatees' names
were "necessarily" or "always" included in Board notices He did not
testify as to his understanding whether "standard Board notices" include
"a 'make whole' order including backpay and restoration of other bene-
fits"
We also reject the judge's statement in par 7 under the beading "Anal-
ysis and Conclusions," that Smith "thought there would be no require-
ment for the posting of a notice " In fact, Smith testified that counsel for
the General Counsel Cronin told him on 9 January 1986 that the General
Counsel would insist that the Respondent post a notice.
3 Cronin did not testify and did not otherwise contend that Smith
failed accurately to incorporate Cronin's suggestions, except as Smith
conceded at the hearing Thus, we find irrelevant that Smith, as the
judge observed, could not recall specifically what Cronin suggested.
282 NLRB No. 176
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement[s]." Smith did not incorporate anything
into the draft settlement agreement about a notice.
Between 10 January and 27 January 1986 the Re-
spondent and all of the Charging Parties agreed to
private settlements and all of them executed an
agreement identical to the draft Smith read to
Cronin over the telephone. The agreements, how-
ever, were never presented to the General Counsel
for approval and no settlement was entered into be-
tween the Respondent and the Regional Director.
When Charging Party Casey Sander met with
Smith to sign the agreement on 27 January 1986,
he asked Smith, "[I]f I settle[] out of court, . . .
would [we] have a listing at Gladstone's of our
names on a settlement . . . the names of the people
who were settled out of court . . . listed and
posted [?]" Smith said, "[T]hat would be taken care
of."
The settlement agreements provide that the Re-
spondent "denies any improper or unlawful
action." Each Charging Party "agrees to advise the
NLRB that he is satisfied with [the] Settlement
Agreement and its resolution of his unfair labor
practice charges . . . and requests that the NLRB
take no further action." "Upon notification by the
NLRB" that it will not pursue the charges, the Re-
spondent agreed to provide to each Charging Party
"a check in the amount of [?] as full back-pay."4
The Respondent also agreed to remove references
to the Charging Parties' terminations from their
files and to provide a recommendation letter.
The agreements also provide:
SIXTH: [The Charging Party] represents and
agrees that, except for confidential communi-
cations with the NLRB and his attorney, he
will keep each and every term of this Settle-
ment Agreement and General Release com-
pletely confidential and will not hereafter dis-
close the substance or contents thereof to any
person, including but not limited to any past,
present or prospective employee or applicant
for employment of the Company. [The Charg-
ing Party] understands that this representation
and commitment is essential and material to
the Company, and that the foregoing sum
would not have been paid except for this rep-
resentation.
SEVENTH: This Agreement contains all
agreements, representations, obligations and
commitments between the parties hereto re-
garding the settlement of the unfair labor prac-
tice charges filed by [the Charging Party] and
supersedes any prior representations, commit-
4 The document the Respondent proffered at the hearing does not con-
tain the amount
ments, or agreements not expressly set forth
herein.
EIGHTH: [The Charging Party] does hereby,
and for his successors and assigns , release,
acquit , and forever discharge the Company of
and from any and all claims, actions, charges,
complaints, causes of action , rights, demands,
debts , damages or accountings of whatever
nature, known or unknown , which he may
have against the Company based on any ac-
tions or events which arose out of his employ-
ment and its termination to the date hereof.
Despite the agreements , 'none of the Charging
Parties requested that their charges be withdrawn.
The Respondent paid them nonetheless.
II.
On the morning of the hearing in this case, the
Respondent and the General Counsel entered into a
stipulation and presented the stipulation to the
judge. They agreed that the General Counsel
"would have produced probative and credible evi-
dence" in support of certain of the complaint alle-
gations. The stipulation further provides that the
Respondent "denies" the allegations but "does not
contest" them and that the judge "may treat the al-
legations . . . as denied but unrebutted." The stipu-
lation does not provide that the Respondent con-
sents to entry of either a Board order or a court of
appeals judgment enforcing a Board order. The
stipulation also does not set out the facts support-
ing the allegations, and the General Counsel pre-
sented no evidence at the hearing.
The Respondent and the General Counsel fur-
ther stipulated that the Charging Parties entered
into settlement agreements with the Respondent
under which they were paid certain sums and
waived their rights to reinstatement. The stipula-
tion did not set out the amounts the Charging Par-
ties were paid, however, and neither the General
Counsel nor the Respondent otherwise advised the
judge. There is, in fact, no evidence that even the
General Counsel knew or reviewed the amounts
paid.
Based on the settlement agreements, the General
Counsel stipulated that she would not pursue back-
pay or reinstatement offers for those Charging Par-
ties the Respondent allegedly unlawfully dis-
charged, suspended, or refused to reinstate, nor for
those whose work shifts or assignments the Re-
spondent allegedly discriminatorily altered. Rather,
the General Counsel sought only a provision re-
quiring the Respondent to post a notice.
The Respondent did not contend at the hearing
that it should not be required to post a notice. In-
GLADSTONE'S 4 FISH 1287
stead, it resisted only the General-Counsel's insist-
ence that the notice include the Charging Parties'
names and the amounts they received pursuant to
their settlement agreements. The Respondent con-
tended that the General Counsel was estopped
from insisting on, those notice provisions based on
Counsel for the General Counsel Cronin' s assur-
ance that "the notice will not contain anything in-
consistent with the terms of the settlement
agreement[s]."
III.
The judge accepted the Respondent's and the
General Counsel's stipulation and issued a decision
on the merits. Although the General Counsel pre-
sented no evidence to support the complaint allega-
tions, and despite the fact that the Respondent nei-
ther admitted the allegations nor consented to an
order, the judge found the violations that were
"denied but unrebutted." The judge included the
Charging Parties' names in her recommended
notice, finding it necessary to inform the Respond-
ent's current employees how their rights will be
upheld. The judge rejected, however, the General
Counsel's contention that the notice should also in-
clude the amounts the Charging Parties received.
The judge's recommended notice provides that the
Charging Parties received monetary payments pur-
suant to settlement agreements.
The Respondent excepts in substance only to the,
judge's decision to include the names in the notice.
The General Counsel does not except.
IV.
At the outset, we emphasize that this is not a
case in which we have been asked to defer to pri-
vate agreements between the Respondent and the
Charging Parties that settle charges alleging viola-
tions that may or may not have occurred.5 The
Respondent has not insisted that the Charging Par-
ties comply with their agreements, nor does it re-
quest that the charges be withdrawn. With all the
parties' consent, this case has instead been submit-
ted to us for decision on the merits.
The Respondent contends that the only remain-
ing issue-the content of the notice-was settled
when Cronin agreed "the notice would not contain
S Contrast Clear Haven Nursing Home, 236 NLRB 853 (1978), Texaco,
Inc, 273 NLRB 1335 (1985), Hotel Holiday Inn de Isla Verde, 278 NLRB
1027 (1986), Schaefer v. NLRB, 697 F 2d 558 (3d Cir 1983), cert. denied
464 US 945 (1983)
Notwithstanding the integration clause set out in paragraph seven of
the settlement agreements, it is clear that the agreements do not com-
pletely settle the Charging Parties' charges The Respondent assured the
General Counsel, and represented to Charging Party Sander, that it
would post a notice, although the agreements do not by their terms re-
quire a notice The Respondent does not now contend that it should be
relieved of that obligation
a'tiythirlg inconsistent with the terms of the settle-
ment agreement[s]." To include the Charging Par-
ties' names, as the General Counsel demands,
would, according to the Respondent, be inconsist-
ent with paragraph six of the agreements, which
requires that the Charging Parties keep the agree-
ments secret. Thus, the Respondent concludes, the
General Counsel is bound, by Cronin's agreement
or is otherwise estopped from demanding that the
names be included.
We disagree. Cronin's agreement is, at best, am-
biguous and does not support a finding that she
agreed to omit the Charging Parties' names. In any
event, the Board has long held that the General
Counsel is not bound by such assurances. The
Board requires that the Regional Director express-
ly approve offered settlements in writing.6 Any-
thing short of an express agreement in writing is
likely, as in this case, to cause confusion.?
Accordingly, the General Counsel was, not es-
topped by Cronin's agreement from insisting at the
hearing that Charging Parties' names be included in
the notice, nor otherwise' bound to refrain from in-
sisting on "anything inconsistent with the terms of
the settlement agreement[s]."
V.
Although the only issue the, parties have asked
us to resolve is whether to include the Charging
Parties' names in the notice, the Board has consist-
ently reserved for itself the discretion to review
any part of a recommended remedy sua sponte.8
We have exercised that discretion in this case, and
are unwilling to adopt the recommended remedy.
A.
The General Counsel, relying on the settlement
agreements, stipulated that she would not pursue
backpay for the Charging Parties , but failed to
advise the judge what the Respondent paid them
6 Campbell Soup Co, 152 NLRB 1645, 1648 (1965), enfd. 378 F.2d 259
(9th Cir. 1967), cert denied 389 U S 900 (1967); American Stores Packing
Co., 277 NLRB 1656, 1678 (1986)
7 Campbell Soup, supra, 152 NLRB at 1648
The Respondent relies on Central States Mining Co, 224 NLRB 474
(1976), to support its contention that the Regional Director is bound by
Cronin's assurances The Respondent's reliance, however, is misplaced
In Central States Mining the Board found that the Regional Director,
after approving a settlement agreement calling for reinstatement, was pre-
cluded from demanding reinstatement, by a waiver the discrimmatee con-
currently signed A Board agent in that case had suggested the waiver in
order to induce the employer to enter into an agreement that the Region-
al Director would approve Here, by contrast, the Respondent never sub-
mitted its proposed settlement agreements for Regional Director approv-
al. Thus, even if Cronin assured the Respondent that "the notice would
not contain anything inconsistent with the settlement agreement" in order
to induce the Respondent to enter into an agreement the Regional Direc-
tor would approve, that deal was never consummated
8 See, e g., R.J E Leasing Corp, 262 NLRB 373 fn 1 (1982) (modified
decision).
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
under the agreements. The General Counsel did
not even explicitly represent to the judge that she
reviewed the settlement amounts and found them
satisfactory. The judge nonetheless accepted the
stipulation and withheld from the Order a remedial
provision requiring the Respondent to pay back-
pay.
Again, we emphasize that this is not a case in
which we have been asked to approve the Charg-
ing Parties' request to withdraw their charges al-
leging violations that may or may not have oc-
curred. Rather, we have been asked to assume that
the violations "would have" been proved, to deem
them as "denied but unrebutted," and to issue an
appropriate' order. Our duty in cases in which we
have been asked to attach our seal to a remedial
order is to ensure that the order provides an appro-
priate remedy.9 We decline to defer in this case to
a hope and a prayer that the Charging Parties have
been properly compensated.
B.
We also find that the parties' stipulation was so
seriously flawed when presented to the judge that
a remedial order based on the stipulation might
well have been deemed unenforceable in a court of
appeals.
Board-ordered remedies are not self-enforcing;
they require court of appeals enforcement before
they become binding on the parties against whom
they are directed. To be enforced, a Board order
must generally be founded on factual record,' ° an
admission, or consenter to the Board's order and
court of appeals enforcement. Thus, section
10168(12) of the Board's Casehandling Manual
(Part One), Unfair Labor Practice Proceedings, di-
rects regional attorneys to secure either a respond-
ent's consent to enforcement of a Board order, or
an admission, to support a stipulation.' 2 The stipu-
lation here does not expressly contain either.
The Respondent did agree that the General
Counsel "would have produced probative and
credible evidence" to support the complaint allega-
tions. The Respondent also agreed to regard the al-
legations as "denied but unrebutted." We find,
however, that these statements are too ambiguous
9 Checker Cab Co, 175 NLRB 20 (1969), see generally Giddings &
Lewis, Inc, 240 NLRB 441 (1979)
10 See Sec 10(e) of the Act ("The findings of the Board with respect
to questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive "), Universal Camera Corp. v
NLRB, 340 US 474 (1951) Sec 10(c) of the Act requires that Board
orders be based on "the preponderance of the testimony taken "
i l See N L R B v Ochoa F e r t i l i z e r C o r p, 368 U S 318, 323 (1961) (con-
sent "relieves the Board of the very necessity of making a supporting
record A decree rendered by consent `is always affirmed, without con-
sidering the merits of the cause "' (citation omitted))
12 See also sec 10166 6 The Casehandling Manual , of course, is not
legal authority binding on either the General Counsel or the Board
to comfortably support a claim that the Respond-
ent either admitted the allegations or consented to
a Board order. Accordingly, the General Counsel
should have gone forward with her proof.
Because we are rejecting the parties' stipulation
and remanding this proceeding to the Regional Di-
rector, the parties will have the opportunity to
enter into a second stipulation, should they so
desire. In the event they do so, we expect that the
judge will either require that the parties agree to
provisions that will permit court enforcement with-
out factual findings, or require that the General
Counsel prove her case.
ORDER
The stipulation is rejected and the case remanded
to the Regional Director for further proceedings
not inconsistent with this Decision and Order.
Ann Reid Cronin, Esq., for the General Counsel.
Howard C. Hay and Kevin M. Smith, Esqs. (Paul, Hast-
ings, Janofsky & Walker), of Costa Mesa, California,
for the Respondent.
DECISION
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. This case
was heard by me in Los Angeles, California, on 20 May
1986.1 Timely charges were filed by the following indi-
viduals: Richard Foglia, Joyce Emerson, Leticia Cha-
voya, Casey Sander, Ronald Hernandez, and Susan
Noble. Investigation of the charges resulted in the issu-
ance, as here pertinent, of a second order consolidating
cases, consolidated amended complaint, and notice of
hearing on 20 December. This complaint alleged that
Mor Food N' Fun, a division of Jojos Restaurants, Inc.
d/b/a Gladstone's 4 Fish (the Company or Respondent),
committed- various violations of Section 8(a)(1), (3), and
(4) of the National Labor Relations Act. Respondent
filed a reply denying the commission of the alleged
unfair labor practices.2
On the entire record, from my observation of the de-
meanor of the witnesses, and after considering the parties
briefs,3 I make the following
1 All dates are in 1985 unless otherwise indicated
2 Respondent admits in its answer that it meets one or more of the
Board's discretionary jurisdictional standards and is an employer within
the meaning of Sec 2(6) and (7) of the Act Respondent also admits in its
answer that the Cult nary Workers & Bartenders Union Local 814, affili-
ated with Hotel Employees and Restaurant Employees International
Union , AFL-CIO (the Union) is a labor organization within the meaning
of Sec 2(5) of the Act
2 Counsel for General Counsel submitted a late-filed supplemental brief
which requests the inclusion of a visitatorial provision in any remedial
order issued in this proceeding Respondent replied and ojected to the
imposition of a visitatorial clause There was no provision made during
the course of this proceeding for the filing of supplemental briefs and no
special circumstances were shown to warrant its consideration Assuming
arguendo that the brief should be considered on its merits, the circum-
Continued
GLADSTONE'S 4 FISH 1289
FINDINGS OF FACT
1. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent operates restaurants with an office and
principal place of ' business in Pacific Palisades, Califor-
nia. During an unspecified time in 1985, the Union con-
ducted an organizing campaign. The campaign was un-
successful and the results of the election were certified
by the Board. About 1 month after the election, the indi-
vidual Charging Parties, filed unfair labor practice
charges. The complaint, as amended; alleged that various
supervisors of the Company committed numerous inde-
pendent violations of Section 8(a)(1) of the Act, includ-
ing:
1. Threats of discharge of union supporters, unspeci-
fied adverse action including closer scrutiny; informing
an employee she needed to look for a new job because of
her union activities; closure of the restaurant before Re-
spondent would allow the Union to represent its employ-
ees; more onerous working conditions because of em-
ployees union activities; discharge' or other adverse con-
sequences if the employee filed unfair labor practice
charges; discharge if employees filed or pursued unfair
labor practice charges.
2. Telling an employee he could not talk to that em-
ployee because he was a liberal union man. .
3. Creating the impression among employees that their
union activities were under surveillance.
4. A supervisor told an employee that if she wanted to
keep her job she should vote against the Union.
5. A supervisor told one or more employees that those
who supported the Union were being assigned disadvan-
tageous work schedules.
6. A supervisor' impliedly informed an employee that
four employees hard been discharged because of the com-
mencement of the union organizing campaign.
7. Verbally promulgating a rule prohibiting solicitation
on Respondent's premises.
8. Interrogating and employee about why she filed an
unfair labor practice charge with the Board.
9. Soliciting an, employee to drop the unfair labor
practice charges to induce other employees to act simi-
larly.
10. Informing employees that a supervisor did not like
union people.
The complaint also alleges the Respondent discriminat-
ed against the charging parties in violation of Section
8(a)(3) and/or (4) and (1) of the Act by various actions
including:
1. Assigning Foglia, Chavoya, Emerson, and Hernan-
dez to disadvantageous shifts and work stations.
2. Assigning Emerson to more onerous work schedules
and less desirable work assignments.
stances of this case do not warrant the inclusion of a visitatorial provi-
sion. Also, counsel for General Counsel in her brief requests that the
transcript be corrected by changing the word "all" to the word "are" on
p 8, L 18. The correction accurately reflects the statement of counsel
and the transcript will be, amended
3. Discharging Foglia about 28 September 1985 and
failing and refusing to reinstate him to his former posi-
tion.
4. Discharging Hernandez, Chavoya, and Sander about
1 October and, since that date, failing and refusing to re-
instate them to their former positions.
5.- About 27 September failing and refusing to grant
Noble's request to return to work after a vacation which
was taken pursuant to an authorized leave of absence.
Respondent allegedly engaged in these various dis-
criminatory actions to discourage membership in a labor
organization and/or because the named employees filed
charges or gave testimony "under the Act,"
B. The Stipulation
Prior to the commencement of the trial, the parties en-
tered into a stipulation. As here pertinent, the stipulation
provides:
B. In a hearing before an Administrative Law
Judge in connection with the above-captioned cases,
Counsel for the General Counsel would have pro-
duced probative and credible evidence in support of
the Complaint that Respondent violated Sections
[sic] 8(a)(1), (3), and (4) of the Act in that Respond-
ent:
(1) discharged, suspended, refused to reinstate,
and assigned disadvantageous work shifts and work
assignments to employees because of their union or
other protected concerted activities or because they
had filed or pursued charges with the NLRB;
(2) threatened to discharge employees and to
assign employees disadvantageous work shifts and
work assignments because of their union or' other
protected concerted activities or because they had
filed or pursued charges with the NLRB;
(3) interrogated employees concerning their
union sympathies, or about why he/she filed a
charge with the NLRB;
(4) threatened to and engaged in surveillance of
employees and created the impression among em-
ployees that they were under surveillance because
of their union and/or protected concerted activities;
(5) orally promulgated rule prohibiting employees
from soliciting on company property, or talking
with pro-union employees, that was inconsistent
with the Respondent's posted lawful no solicitation
rule establishing qualifications as to time and loca-
tion; and
(6) asked employees to withdraw charges filed
with the NLRB.
C. Respondent denies each and every allegation
described in paragraph B above and believes that it
could have produced probative and credible evi-
dence rebutting the allegations in paragraph B
above. However, solely for purposes of resolving
this matter, Respondent does not contest the allega-
tions described in paragraph B, and the General
Counsel and Respondent stipulate that the Adminis-
trative Law Judge may treat the allegations de-
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed in paragraph B as denied but unrebutted for
purposes of issuing a decision in this case.
D. The Charging Parties who Respondent termi-
nated and refused to reinstate are Casey Sander,
Richard Fogha, Ronald Hernandez, and Leticia
Chavoya. In addition, Respondent refused to-rein-
state Susan Noble after a vacation and altered the
work shifts and assignments of, inter alia, Joyce
Emerson who subsequently resigned. All of these
Charging Parties have entered into Settlement
Agreements wherein he/she received a monetary
payment and waived reinstatement. The General
Counsel does not seek any Order for further mone-
tary payments or reinstatement for these individuals
in this case, and the parties stipulate that the Ad-
ministrative Law Judge should not make any such
order.
E. Based on the foregoing and any other evi-
dence adduced at the hearing, Respondent and
Counsel for the General Counsel stipulate that the
issues for resolution by the Administrative Law
Judge are (1) whether any posting is required in
these circumstances, and (2) if so, the language to
be contained in such Notice, including but not limit-
ed to whether said Notice must contain the names
of the charging parties. Respondent and Counsel for
the General Counsel further stipulate that if an
Order or Notice is issued by the Administrative
Law Judge or the Board, it shall include'a provision
that Respondent will not "in any like or related
manner interfere with, restrain, or coerce employees
in the exercise of their rights under the National
Labor Relations Board.
After reviewing the stipulation, I noted to the parties
that it did not include all the alleged violations of the
Act. The General Counsel stated the stipulation "covers
the matters that we want to proceed on and . . . should
be used as the basis for finding by [the judge]." The stip-
ulation was clarified at the commencment of trial by the
explanation that the parties named in paragraph D are
the parties referred to in paragraph B(1).
C. Settlement Negotiations
Counsel for Respondent, Kevin Smith, was the only
witness testifying about the settlement negotiations. The
General Counsel rested without testifying about the
matter. Smith testified that shortly after the complaint
issued in these proceedings, he commenced settlement
negotiations with counsel for the General Counsel, Ann
Cronin. At the end of November or early December,
Smith received from Cronin permission to talk to the
Charging Parties in an effort to reach private settlements.
In early January it appeared that these discussions would
be at least partially successful and at least four of the six
Charging, Parties would enter into private settlement
agreements with Respondent. Smith volunteered that to
ensure these settlements were agreeable to the Board he
called Cronin, about 9 January, to discuss the terms of
the private settlement agreement.
The agreement had both numbered and "whereas"
clauses. Smith paraphrased the "whereas" clauses and
read the numbered paragraphs of the draft to Cronin. To
the best of Smith's recollection, Cronin suggested some
changes to paragraph 4 of his draft proposal, but he
could not recall any details of her request. Smith further
testified that paragraph 5 of the draft proposal was modi-
fied because Cronin said the Regional attorney desired
the,change, Smith could not recall the nature or details
of this change either. Smith interlineated the changes on
his draft, had the agreement typed, and without reading
the final version to ensure that it accurately reflected the
modified version, sent the document to the Charging
Parties. Respondent did not have available the draft
Smith read to Cronin, with or without the interlinea-
tions. Respondent did not send Cronin or any other
Board representative a copy of the agreement. At some
unspecified time after 9 January, Cronin requested from
Howard Hay (of the same law firm as Smith) copies of
the agreement. This request was never met. Smith admits
that no agent of the Board saw the agreement.
The agreement sent to the Charging Parties provides,
as here pertinent:
FIRST: This Settlement Agreement and General
Release shall not be construed as an admission by
the Company of any improper or unlawful action
regarding or any other person and the
Company specifically denies any improper or un-
lawful action.
SECOND: agrees to advise the NLRB
that he is satisfied with this Settlement Agreement
and its resolution of his unfair labor practice
charges and Cases and and re-
quests that the NLRB take no further action in
those matters.
.THIRD: agrees that he will not hereafter
file any charge against the Company with respect to
his termination or the terms and conditions of his
employment prior to the date of this Agreement, or
in any other manner seek to contest such termina-
tion or such terms and conditions of his employ-
ment with the Company.
FOURTH: Upon notification by the NLRB to the
Company that it will not pursue the charges and
cases referenced above, the Company agrees to pro-
vide to a check in the amount of
as full back-pay, less legally required deductions,
made payable to , within five business days who
hereby fully releases the Company once said check
is provided to him.
FIFTH: The Company agrees that the personnel
records regarding the prior termination will be re-
moved from personnel file.
hereby acknowledges that he voluntarily waives his
right to reinstatement. The Company agrees that
personnel records will be marked to show a volun-
tary resignation effective the date of the execution
of this Agreement by the Company fur-
ther agrees to provide with a letter of rec-
ommendation dated the date of the execution of this
GLADSTONE'S 4 FISH
Agreement by in substantially the same
form as "Exhibit A" attached hereto.
SIXTH: represents and agrees that, except
for confidential communications with the NLRB
and his attorney, he will keep each and every term
of this Settlement Agreement and General Release
completely confidential and will not hereafter dis-
close the substance or contents thereof to any
person, including but not limited to any past,
present or prospective employee or applicant for
employment of the Company. understands
that this representation and commitment is essential
and material to the Company, and that the forego-
ing sum would not have been paid except for this
representation.
SEVENTH: This Agreement contains all agree-
ments, representations, obligations and commitments
between the parties hereto regarding the settlement
of the unfair labor practice charges filed by
and supersedes any prior representations,
commitments, or agreements not expressly set forth
herein.
EIGHTH: does hereby, and for his succes-
sors and assigns, release, acquit , and forever dis-
charge the Company of and from any and all
claims, actions , charges, complaints , causes of
action, rights, demands, debts, damages or account-
ings of whatever nature, known or unknown, which
he may have against the Company based on any ac-
tions or events which arose out of his employment
and its termination to the date hereto.
Cronin and Smith had two or more telephone conver-
sations on 9 January. During one of these conversations
Cronin expressed concern that if not all the Charging
]Parties settled with Respondent, the General Counsel
may need the testimony of one or more of the Charging
Parties that did settle with Respondent. Smith admitted
that an attachment to a subsequent communication from
Cronin embodiestheir understanding.4
Smith also recalled discussing the need for Respondent
to post a notice. Smith's testimony did not clearly indi-
cate whether he understood Cronin to agree that Re-
spondent did not have to post a notice. However, Smith
said he understood that the agreement he and Cronin
reached on 9 January covered all alleged violations in-
cluding the independent violations of Section 8(a)(1) of
the Act. He did not explicate the basis for this under-
standing.
A letter written by Smith to Cronin on 13 January
does clearly indicate that Smith understood a notice
4 The attachment provides
Notwithstanding the execution and approval of this Settlement
Agreement , all parties agree that at any hearing regarding any unset-
tled cases against Respondent , the General Counsel may introduce
evidence regarding any of the allegations of the Consolidated
Amended Complaint herein dated December 20, 1985, including, but
not limited to, testimony by the Charging Party °named above and
any testimony or other evidence regarding- the alleged violations of
the Act remedied by this Settlement Agreement and Notice
This understanding clearly pertained to all the Charging Parties.
1291
would have to be posted.5 The letter also clearly indi-
cates that there was a understanding that the appropriate
charges would have to be withdrawn in order for the
Board to dismiss the related portions of the complaints
Emerson, in unrefuted testimony, stated that when she
signed the agreement she asked what would happen next
with the Board. Smith told her, "It would take at least
one year to solve the complaints and the files against
them. At least a year." Emerson was concerned and
asked Smith whether she should contact Cronin and
Smith indicated no, that he would contact Cronin. Emer-
son signed the agreement on 10 January 1986.7,
Sander testified when he signed the agreement he did
so with the understanding that the Charging Parties
names would be listed in a posting at Respondent's, "the
names of the people who were settled out of court."
Sander also understood the listing would include a state-
ment the he was a good worker and was dismissed in
good standing. Sander-claims he entered the settlement
with this understanding. Smith indicated he would
"[take] care of [it]." Smith emphatically refuted Sander's
testimony. There is no evidence that any Charging Party
requested withdrawal or withdrew their charges.
Although Smith, as reflected in his 13 January letter,
understood "no remedy would be ;pursued by the Board
on behalf of the individual that elected to settled" it was
clear he understood a notice would have to be posted.
What is not clear on the record was what the Board un-
derstood the terms of the settlement to be and what was
agreed to regarding the contents of the notice. Apparent-
ly prior to the receipt of Smith's 13 January 1986 letter,
Cronin wrote Smith a letter dated 14 January 1986 and
attached the Region's proposed informal settlement
agreements for each of the Charging Parties. Cronin ad-
vised Respondent, "If you wish to settle, please sign one
copy of each of the agreements. Please also sign or initial
5 As here pertinent, the letter dated 13 January 1986 states.
This letter will also confirm our conversations regarding the accept-
ability of the language contained in the proposed agreements and the
Board's position regarding withdrawal of the charges Based on our
understanding, I will not advise Respondent that after the agree-
ments [with the Charging Parties ] are executed and a notice is
posted , the settled charges will no longer be litigated or at issue and
no remedy will be pursued by the Board on behalf of the individuals
that elected to settle
6 This letter contradicts Smith's testimony . Smith testified-
Q. You're aware that the Regional Director, m ,a case like this,
where a settlement is about to occur, a private settlement between
Respondent and the charging parties, the Regional Director can't get
rid of the case until he receives a withdrawal form from the individ-
ual charging party Are you aware of that?
A. My understanding is that in this agreement, the charging par-
ties agree to advise the Board and implicitly take the steps necessary
at any request of the Board
Judge . . The question was, were you aware the the Regional Director
.. [needs to receive] a withdrawal form from the charging parties
A. My answer would be no
Smith attempted to testify in a manner which clearly bespoke an
attempt to present evidence most favorable to Respondent 's cause
This tendency cojoined with close scrutiny of his demeanor leads me
to credit his testimony only where it is uncontradicted or corrobo-
rated
7 The other Charging Parties signed the agreement as follows Cha-
voya-14 January; Foglia-15 January; Hernandez-15 January, Nobel-
27 January; and Sander-27 January
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Notice attached to each agreement and write in the
backpay amounts agreed 'upon . If you have any ques-
tions, please contact me." Respondent never signed
and/or initialed any of the documents attached to Cron-
in's 14 January letter. Smith was unclear when he re-
ceived and read the missive .8 The notices to employees
attached to Cronin 's letter contained the standard make
whole and expungement provisions that included the
names of the Charging Parties. These notices also con-
tained a provision, stating that most of the Charging Par-
ties were not offered reinstatment because they did not
wish to be reinstated . In addition to Respondent 's failure
to execute these agreements , the apparent inconsistency
between the Board 's understanding of their agreement
and Respondent 's was not shown to be the subject of
any communications . The only communications of
record after Respondent received Cronin 's 14 January
letter on 17 January relates to postponing the hearing in
this proceeding to afford Respondent the opportunity to
settle with Nobel and Sander because the other Charging
Parties had settled prior to 17 January.
Smith was not sure when he saw Cronin 's letter of 14
January 1986 , but claims that it was after all the Charg-
ing Parties signed settlement agreements . Smith gave no
basis or explanation of why he did not see or read the
material between 17 and 24 January 1986 when Noble
and Sander signed the agreement . Smith did indicate a
lack of familiarity with the provisions of "standard
Board notices" and exhibited a lack of recognition that
most if not all such notices contain the names of the dis-
criminatees and require a "make whole" order including
backpay and restoration of other benefits.
Positions of the Parties
Respondent argues that Smith and Cronin reached an
agreement ' that, at the very least, excused the Company
from having to post a notice that contained the names of
the Charging Parties or indicates the fact that they re-
ceived money. Respondent also seeks relief from having
to post any notice , but its basis for this request is not
clearly and convincingly stated . Respondent admits on
brief at page 12 that there was an express understanding
that they would post a notice but argues that they
agreed the' notice "would not contain anything inconsist-
ent with the terms of the Agreement approved by Ms.
Cronin." Respondent makes great moment of the fact
that Cronin did not testify to refute Smith . Respondent
argues that the General Counsel should be estopped from
imposing a remedy that requires the posting of notice
containing the names of discriminatees and stating the
sums of money they received. Such a remedy, it argues,
is diametrically opposed to the confidentiality clause in
the agreement the Company reached with the Charging
Parties. In support of its position , Respondent cites Cen-
tral States Mining Co ., 224 NLRB 474 (1976), for the
proposition that when a Board agent expressly agreed to
8 As noted above , attached to this settlement agreement was the provi-
sion permitting the Board to call any Charging Party to testify at any
hearing regarding any unsettled case against Respondent that Smith ad-
mitted was an accurate reflection of the agreement he reached with
Cronin
the confidentiality provision , the General Counsel is es-
topped from insisting on an inconsistent remedy.
Respondent also claims that, after extensive research, it
could not locate one case that mandates the inclusion of
the identity of the discriminatees in the notice the Re-
spondent must post . Cronin referred Respondent to the
unpublished decision in Electrical Workers IBEW Local
11, Case 31 -CB-5477 (Apr. 29, 1985), which the Compa-
ny argues should not be given any weight because it is
unpublished and is distinguishable on the facts. This case
merely reiterates established case law as discussed fully
below.
Respondent claims there was a meeting of the minds
between Cronin and Smith that the notice would not
contain the names of the alleged discriminatees and the
General Counsel should not be permitted to change its
mind after Respondent acted.
The General Counsel argues it is not required to defer
to a private settlement and should only do so when the
unfair labor practices had been "substantially remedied"
and dismissal of the charges "would effectuate the poli-
cies of the Act." Panoramic Industries , 267 NLRB 32, 39
(1983). In this case , the General Counsel claims, such de-
ferral is not appropriate for the Regional Director had
not taken part in the drafting of the private agreement
and had done nothing that led Respondent to act to its
detriment . The General Counsel asks that I take judicial
notice of the unpublished decision in Electrical Workers
IBEW Local 11, supra.
Analysis and Conclusions
In this case in which there was no request to with-
draw the charges , the legal principles that are usually ap-
plied ` in determining whether approval of the settlement
should be given was clearly stated in Jack C. Robinson
Freight Lines , 117 NLRB 1483 at 1485 ( 1967) as follows:
The Board's power to prevent unfair labor practices
is exclusive , and . . . its function is to be performed
in the public interest and not in vindication of pri-
vate rights. Thus, the Board alone is vested with
lawful discretion to determine whether a proceed-
ing, when once instituted , may be abandoned. Such
discretion to dismiss the charges will be exercised
only when the unfair labor practice charges are sub-
stantially remedied and when, in the Board 's consid-
ered judgment, such dismissal would effectuate the
policies of the Act.
Further, the willingness of charging parties to with-
draw charges is not necessarily a ground for dismissal of
a complaint "for once a charge is filed, the General
Counsel proceeds, not in vindication of private rights,
but as the representative of an agency entrusted with the
power and the duty of enforcing the Act in which the
public has an interest." Ingalls Steel Construction Co., 126
NLRB 584 fn . 1 (1960).
The record in this case clearly indicates that dismissal
was not contemplated , at least not without Respondent
and a Board representative agreeing to the posting of a
notice. Smith's letter of 13 January 1986 unmistakenly
demonstrates Respondent understood that a notice would
GLADSTONE'S 4 FISH 1293
have to be posted. Smith also admitted discussing the
matter with Cronin on the telephone. There is no dem-
onstration that the General Counsel agreed to dismissal
of the charges. Campbell Soup Co., 152 NLRB 1645
(1965). I also note the requirements of paragraph 4 of the
agreement have not met and yet Respondent proceeded
with the settlement. Respondent's failure ,to require ad-
herence with paragraph 4 of the agreement was unex-
plained. Considering the circumstances of this case, in-
cluding the serious violations of the Act, I find a notice
is required to meet the Board's obligations to the public,
including Respondent's employees. The question remains
what agreement, if any, did the General Counsel and Re-
spondent reach. In analyzing the evidence, the general
principles adopted by the Board in approving settlements
will be considered. These principles, as found in State
County Employees AFSCME District Council 47, 274
NLRB 1434 (1985), are:
A settlement should substantially remedy the unfair
labor practices allegedly committed. Generally, no-
tices to employees should reassure them of their
Section 7 rights, refer to how those rights may have
been violated and advise them how their rights will
be upheld in simple language. Bilyeu Motor Corp.,
16-1 NLRB 982, 983 (1966).
As the Board noted in the Bilyeu decision, even though it
is ever mindful of the salutary effects of voluntary settle-
ments, "care must be taken to assure that other important
statutory policies and objectives are not subsumed by the
legitimate desire to achieve `settlement."' One policy
consideration is the adequacy of the notice. The notice
should bear a relationship to the complaint; although it
does not have to "track" the, complaint verbatim, it
should have a meaningful relationship to the employer's
alleged misconduct.
In the milieu of a private or informal settlement, the
Board's rules and regulations still require adherence to
the statutory policies.9 The sine qua non for the agree-
ment between the General Counsel and Respondent was
the reaching of agreements with the discriminatees and
the posting of an adequate notice as found above. State
County Employees AFSCME, supra.
The gravamen of Respondent's position is that the
confidentiality clause in the private agreement estopped
the Board from including in any notice to employees the
names of the alleged discriminatees and the amount of
the monetary payments they received. Respondent does
not have cause to claim it has been euchred by the Gen-
eral Counsel in this case. Respondent's actions were
9 See for example 5 U S C § 554(c)(1), and 29 C.F R §§ 102 51 and
101.7. More specifically, Sec 101 7'of the Board's Rules and Regulations
provides
The Regional Office provides Board-prepared forms for such settle-
ment agreements, as well as printed notices for posting by the re-
spondent These agreements, which are subject to the approval of
the Regional Director, provide for an appeal to the General Counsel
by a complainant who will not join in a settlement or adjust-
ment deemed adequate by the Regional Director proof of compli-
ance is obtained by the Regional Director before the case is closed.
If the respondent fails to perform the obligations under the informal
agreement, the-Regional Director may determine to institute formal
proceedings.
slopp'itt best. Portions of the settlement agreement were
read to Cronin. There is no evidence that the Regional
Director was consulted no less gave his imprimatur to
the proposed setlement. Smith did not specifically claim
he understood Cronin to speak for the Regional Direc-
tor. The requirements of Section 101.7 of the Board's
Rules and Regulations were not met. There was no exist-
ence of a writing evidencing the Regional Director's ap-
proval of the agreement. Respondent never sent a copy
of the agreement to Cronin. Campbell Soup Co., supra at
1648, In fact, requests for a copy were not met. There
were no documents preserved by Respondent that dem-
onstrate that Cronin modified any of thee provisions of
the settlement agreement and Smith could not recall
with,specificity any of the. asserted modifications Cronin
made to the agreement. In fact, Smith did not even
check the copies sent the Charging Parties to ensure they
accurately reflected what he understood to be any agree-
ments between Respondent and Cronin. No other repre-
sentative of Respondent testified they assumed that re-
sponsibility and the agreements entered into by the
Charging Parties were similar to Smith's final draft.
There was no written agreement entered into between
the Regional Director and Respondent. Cronin sent Re-
spondent such agreements but they were never executed.
Respondent received these agreements before all the
Charging Parties settled with Respondent. Therefore,
Respondent knew or should have known that there was
still the possibility the matter would proceed to trial.
The General Counsel's proposed agreement clearly dem-
onstrated the Regional Director understood any settle-
ment would include the posting of a notice that con-
tained the names of the Charging Parties mentioned, that
they will be made whole, and explain why they were not
reinstated. Commodore Watch Case Co., 114 NLRB 1590
(1955), and cases cited therein. See generally Iron Work-
ers Local 455 (Simpson Metal), 237 NLRB 147 (1978);
Lectromelt Casting Co., 269 NLRB 933 (1984); and Ma-
chinists Local 743 v. United Aircraft Corp., 337 F.2d 5 (2d
Cir. 1964).
Smith was not clear about the terms of, any agreement
reached with Cronin. For example, he thought there
would be no requirement for the posting of a notice yet
he recalled discussing the posting of a notice and his
letter of 13 January 1986 clearly demonstrated he under-
stood such a posting would be required. The evidence is
not clear what, if anything, Cronin and Smith agreed
would be contained in the notice. I find there was no
agreement that the names of the Charging Parties would
not be included in the notice.
Respondent argues that such agreement should be in-
ferred from the provisions of paragraph 6 of the agree-
ment. This argument is not persuasive for there is no in-
dication that the Board also agreed not to disclose the
contents of the terms of the agreement. In fact the evi-
dence is to the contrary. Respondent agreed to permit
the Board to call any Charging Party to testify at a hear-
ing on any of the allegations in the complaint. Thus, if
there were any discussions of the terms of paragraph 6,
they included provisions for the Board and the Charging
Parties to be excused from its application in certain cir-
1294 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cumstances . Those circumstances appear to have contem-
plated the Board's pursuance of its obligation to protect
public rights. The private agreement does not mention a
notice. This absence is not claimed to be an oversight.
The absence of any reference to a notice is further indi-
cation that the parties never contemplated the Board
being bound by the explicit terms of the private agree-
ment. US. Contractors v. NLRB, 697 F.2d 692 (5th Cir.
1983); Airport Parking Management v. NLRB, 720 F.2d
610 (9th Cir . 1983).
I conclude that Respondent has not shown that it was
misled by the General Counsel. The evidence clearly
demonstrates at best there was a misunderstanding that
was not caused by any Board agent. Rather, there ap-
pears to have been a lack of clear communication. There
is no basis to find the Board is estopped from requiring
the posting of a notice, naming the Charging Parties in
the notice, or stating the discriminatees received money
as part of the settlement. The private settlement only
partially resolved the allegations in the complaint, the in-
dependent violations of Section 8(a)(1) of the Act were
not addressed. The private settlement only partially re-
solved the allegations in the complaint and this fact was
clearly recognized by Cronin's insistence that a notice be
posted. Respondent's claim that the Board should be
bound by the private settlement further loses persuasion
when it readily admits without explanation that it waived
the requirements of paragraph 4 by paying the Charging
Parties even though they did not comply with its provi-
sions.
I find that there is lack of clarity in the record regard-
ing the terms of any agreement or understanding reached
between Smith and Cronin and that their letters clearly
indicate that there was a lack of understanding on points
key to the resolution of this case . I find there was no
clear understanding that the Regional Director or his
agent agreed to be bound by the terms of paragraph 6 of
the agreement. Campbell Soup Co., supra. If Respondent
understood otherwise, it had the opportunity to object to
the caveat that the Board could utilize all Charging Par-
ties as witnesses in further proceedings on the complaint.
Respondent also failed to reply with a counter to the
proposed settlement sent them by the General Counsel
on 14 January, a time when it knew the complaint was
still pending, for not all Charging Parties had settled on
17 January 1986, the day it was received.
In the circumstances of this case, adherence to techni-
calities would not further the public interest. The record
does indicate that all parties were interested in avoiding
the ardours of a trial and thus consideration will be limit-
ed to the requirements of meeting the public interest con-
siderations raised by the circumstances peculiar to this
case. I therefore will direct remedies that honor the clear
understandings as nearly as practicable and still dissipate
the adverse effects of the unfair labor practices among
other employees. APD Transport Corp., 253 NLRB 468
(1980), enf. denied on other grounds 672 F.2d 323 (3d
Cir. 1982). To effect that goal, a notice will be required
that addresses those allegations in the complaint the par-
ties have stipulated would have been proven had the
General Counsel presented evidence on those issues.
In order for Respondent's current employees to be in-
formed , the notice will include a statement of their
rights, a recitation of the unlawful conduct as contained
in the stipulation , and an indication that named Charging
Parties did receive remedies for the unlawful discrimina-
tion visited on them by the Company. Inclusion of the
names of the discriminatees and their receipt of a sum of
money in settlement is deemed necessary to inform cur-
rent employees of how their rights will be upheld. The
allegations in the complaint , which the stipulation states
would have been proved by a preponderance of the evi-
dence, were numerous and extremely serious. To gloss
over or delete any reference to the violations of Section
8(a)(3) and (4) of the Act would improperly attenuate
those allegations and render the notice inadequate. How-
ever, there is no clear showing by the General Counsel
why the dollar amounts received by the Charging Parties
should be included. I find no reason to require the inclu-
sion of the dollar amounts negotiated in the private set-
tlements in the notice. I find such action is not in further-
ance or vindication of statutory rights.
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
spondent to cease and desist therefrom and taken certain
affirmative actions designed to effectuate the policies of
the Act.
REMEDY
Having found that Respondent violated Section
8(a)(1), (3), and (4) of the Act, Respondent would usual-
ly be ordered to offer each of the discriminatees immedi-
ate and full reinstatement to their former jobs or, if those
jobs no longer existed, to substantially equivalent posi-
tions of employment without prejudice to their seniority
or their rights and privileges, and pay them for loss of
earnings suffered by reason of their legal layoff. Having
found that all Charging Parties agreed to and entered
into a settlement agreement with Respondent wherein
each employee received a monetary payment and waived
reinstatement, no further monetary payments or rein-
statements for these individuals will be required.
CONCLUSIONS OF LAW
1. The Respondent, Mor Food N' Fun, a Division of
Jojos Restaurants, Inc. d/b/a Gladstone's 4 Fish, is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Culinary Workers & Bartenders Union Local 814,
affiliated with Hotel Employees and Restaurant Employ-
ees International Union, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging, suspending, refusing to reinstate,
and assigning disadvantageous work shifts and work as-
signments to employees because of their union or other
protected concerted activities, Respondent violated Sec-
tion 8(a)(3) and (1) of the Act.
4. By discharging, suspending, refusing to reinstate,
and assigning disadvantageous work shifts and work as-
signments to employees because they had filed or pur-
sued charges with the NLRB, Respondent violated Sec-
tion 8(a)(1) and (4) of the Act.
GLADSTONE'S 4 FISH 1295
5. By threatening to discharge employees and to assign
employees disadvantageous work shifts and work assign-
ments because of their union or other protected concert-
ed activities, or because they had filed or pursued
charges with the NLRB , Respondent violated Section
8(a)(l) of the Act.
6. By interrogating employees concerning their union
sympathies or why they filed 'a charge with the National
Labor Relations Board , Respondent violated Section
8(a)(1) of the Act.
7. By threatening to and engaging in surveillance of
employees in creating the impression among employees
that they were under surveillance because of their union
and7or`©ther protected concerned activities , Respondent
violated Section 8(a)(1) of the Act.
8. By promulgating a rule prohibiting employees from
soliciting on company property or talking with prounion
employees that was inconsistent with its lawfully posted
no-solicitation rule, Respondent violated Section 8(a)(1)
of the Act.
9. By asking employees to withdraw charges filed with
the National Labor Relations Board , Respondent violat-
ed Section 8(a)(1) of the Act.
10. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
[Recommended Order omitted from publication.]