Guy F. Atkinson Co.

National Labor Relations Board - Board Decisions

Nov 6, 1972

199 N.L.R.B. 1280 (N.L.R.B. 1972)

1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bingham-Williamette Company, a Division of Guy F.
Atkinson Company I and International Association
of Machinists & Aerospace Workers, AFL-CIO.
Case 15-CA-4402
November 6, 1972
DECISION AND ORDER DENYING MOTION
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
Upon a charge filed on March 20, 1972, by Inter-
national Association of Machinists & Aerospace
Workers, AFL-CIO, herein called the Union, and
duly served on Bingham-Williamette Company, a Di-
vision of Guy F. Atkinson Company, herein called the
Respondent, the General Counsel of the National La-
bor Relations Board, by the Regional Director for
Region 15, issued a complaint on July 27, 1972,
against Respondent, alleging that Respondent had
engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the National Labor
Relations Act, as amended. Copies of the charge,
complaint, and notice of hearing before an Adminis-
trative Law Judge were duly served on the parties to
this proceeding.
With respect to the unfair labor practices, the
complaint alleges, in substance, that on or about Feb-
ruary 8, 1972, the Respondent orally threatened an
employee with discharge for displaying a union insig-
nia upon his lunchbox and thereby compelled the
employee to remove the union insignia from his
lunchbox. Subsequently, the Respondent filed its an-
swer to the complaint admitting in part, and denying
in part, the allegations of the complaint. The Respon-
dent contends, in substance, that it entered into an
informal settlement agreement with the Charging Par-
ty and the Regional Director which disposed of the
allegations contained in the instant complaint, and
requests that the Board find that the Regional Direc-
tor acted improperly in withdrawing his approval of
the settlement agreement.
On August 14, 1972, the Respondent filed with
the Board a motion for summary judgment, with
memorandum in support thereof. The Respondent
submits that, in its answer to the complaint, it asserted
the affirmative defense that the settlement agreement
had been improperly set aside; that the issues raised
by the Respondent's affirmative defense have already
been ruled on by the courts; and that there is no need
1 Correct name of Respondent as reflected in its answer to complaint
to relitigate them in the instant case. The Respondent
requests that the settlement agreement be reinstated
and the complaint be dismissed, urging that summary
judgment be granted and that the complaint be dis-
missed in its entirety. On August 22, 1972, counsel for
the General Counsel filed a motion in opposition to
the Respondent's motion for summary judgment, sub-
mitting that, based on the pleadings, it cannot be said
that there are no issues to be litigated and, in view
thereof, the matter cannot be disposed of by summary
judgment, and that the Respondent's motion for sum-
maryjudgment should be denied. On August 25, 1972,
the Board issued an order transferring the proceeding
to the Board and a notice to show cause why the
Respondent's motion for summary judgment should
not be granted. Thereafter, counsel for the General
Counsel filed, as a response to notice to show cause,
a motion in opposition to the Respondent's motion
for summary judgment, and the Respondent filed its
opposition thereto.
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.
On the basis of the entire record,, the Board
makes the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE BUSINESS OF THE RESPONDENT
Respondent, a Division of Guy F. Atkinson
Company, is engaged at its Shreveport, Louisiana,
plant, in the manufacture of centrifugal pumps. Dur-
ing the past 12 months, which is a representative peri-
od, Respondent, in the course and conduct of its
business operations, sold and shipped manufactured
goods valued in excess of $50,000, from its Shreve-
port, Louisiana, operation directly to points outside
the State of Louisiana. During the same period, Re-
spondent received goods and materials valued in ex-
cess of $50,000, which were shipped to it in Louisiana
directly from points outside the State of Louisiana.
We find, on the basis of the foregoing, that Re-
spondent is, and has been at all times material herein,
an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that
it will effectuate the policies of the Act to assert juris-
diction herein.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists & Aero-
space Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
199 NLRB No. 188
BINGHAM-WILLIAMETTE COMPANY 1281
III. RULING ON THE MOTION FOR SUMMARY JUDGMENT
After the charge had been investigated by the
Regional Director, the parties entered into an infor-
mal settlement agreement , approved by the Regional
Director on May 8, 1972, whereby it agreed to post a
remedial notice to employees and to comply with its
terms and conditions. The notice the Respondent was
required to post recited the following assurances:
WE WILL NOT require our employees to re-
move, or prohibit them from displaying union
insignia on their lunch boxes and their personal
property.
WE WILL NOT threaten any of our employees
with discharge to compel them to remove, or to
prevent them from displaying union insignia on
their lunch boxes and personal property.
WE WILL NOT, in any like or similar manner,
interfere with, restrain, or coerce employees in
the exercise of their rights to self-organization, to
join or assist the International Association of
Machinists and Aerospace Workers, AFL-CIO,
or any other labor organization, to bargain col-
lectively through representatives of their own
choosing, or to engage in other concerted activi-
ties for the purpose of collective bargaining and
other mutual aid or protection, or to refrain from
any and all such activities.
In accordance with the settlement agreement, the
Respondent posted the notice to employees on May
19, 1972. However, alongside of this notice, it simulta-
neously posted the settlement agreement, although
not required to do so, in which it circled the words,
"Settlement Agreement" and the "nonadmission"
clause, and also posted its own notice addressed "NO-
TICE TO ALL EMPLOYEES" which read, as fol-
lows:
May 19, 1972
NOTICE TO ALL EMPLOYEES
Several weeks ago the union filed an unfair labor
practice charge against the company. We re-
viewed the matter with our attorney and we de-
cided to end the issue rather than take it to court.
We did-not feel it was worth it to drag the compa-
ny and many of you into court over this issue. It
would have cost a lot of money and a number of
you would have been required to testify.
We do not feel that we have done anything wrong
and the Settlement Agreement provides that the
company does not admit that it has committed
any unfair labor practice or violated the law in
any way.
We simply felt that it was not worth it to drag this
out, so we concluded the matter.
Dale F. Patty
Manager
Shreveport Plant
Both notices and the settlement agreement re-
mained posted for the required 60-day period.
On July 26, 1972, the Regional Director notified
the Respondent that he was withdrawing his approval
of the informal settlement agreement on the ground
that the Respondent had failed to perform its obliga-
tions under the settlement agreement by posting a side
notice tending to minimize the effect of the official
notice to employees which the Respondent was re-
quired to post. On the following day, the complaint in
this proceeding issued alleging presettlement unfair
labor practices.
The Respondent challenges the Regional
Director's action in setting aside the settlement agree-
ment and the litigability of its presettlement conduct.
It contends that it fully complied with the terms and
conditions of the settlement agreement; denies that it
engaged in any unfair labor practices subsequent to
its execution or otherwise violated its provision; and
contends that what the Respondent's notice does is to
simply explain to the employees that the Company
entered into the settlement agreement in order to
avoid a trial and litigation expenses, but that by enter-
ing into the agreement the Company was not admit-
ting to any wrongdoing on its part. The General
Counsel, on the other hand, supports the Regional
Director's action, urging that the posting of the above-
quoted side notice, justified the revocation of the set-
tlement agreement and the issuance of the complaint
herein. We find no merit in the Respondent's conten-
tions.
There is no question that a Regional Director
may not set aside a settlement agreement and issue a
formal complaint unless the charged party has failed
to comply with its terms or committed further unfair
labor practices. Specifically, the Board has found
noncompliance where the charged party posted
alongside of the settlement notice his own notice
which tended to detract from the effectiveness of the
settlement notice, thereby defeating its-very purpose
to assure employees that their statutory rights shall be
respected? In the present case, the Respondent's pri-
vate notice advised the employees that it had settled
the charge only because it would have cost the Com-
pany a lot of money and would require a number, of
employees to testify. Moreover, the Respondent's no-
2 Bangor Plastics, Inc., 156 NLRB 1165, enforcement denied 392 F.2d 772
(C.A. 6); The Paymaster Corporation, 162 NLRB 123; Montgomery Ward &
Company, Inc, 162 NLRB 369; Arrow Specialties, Inc., 177 NLRB 306.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tice advised the employees that it did not feel that it
had done anything wrong and that the settlement
agreement provides that the Company "does not ad-
mit that it has committed any unfair labor practice or
violated the law in any way." Thus, instead of assur-
ing employees that it intended to abide by its commit-
ments in the settlement notice, the Respondent
implied that the conduct it had agreed not to engage
in was permissible.
All these being considered, we find that the
Respondent's notice accompanied by the settlement
agreement which emphasized the nonadmission
clause was the type of notice that, tends "to minimize
the effect of the Board's notice ... [and] suggests to
employees that the Board's notice is being posted as
3 Bangor Plastics, Inc., supra, 1167.
4 See, for example , News-Texan, Inc v. N.L.R B, 422 F 2d 381 (C.A 5).
a mere formality and that Respondent's true senti-
ments are to be found in his own notice, not the
Board's."3 Clearly, such a notice defeats the very in-
tent and purpose of the settlement agreement 4 to as-
sure employees that the Respondent shall not intrude
upon their self-organizational rights. Accordingly, we
find that the Regional Director was fully warranted in
vacating the settlement agreement and in proceeding
to litigate the alleged unfair labor practices. We shall,
accordingly, deny the Respondent's motion for sum-
mary judgment.
ORDER
It is hereby ordered that the motion of the Re-
spondent for summary judgment be, and it hereby is,
denied.
* U S GOVERNMENT PRINTING OFFICE 1974 0-504-846