Hotel Holiday Inn De Isla Verde

National Labor Relations Board - Board Decisions

Mar 19, 1986

278 N.L.R.B. 1027 (N.L.R.B. 1986)

HOTEL HOLIDAY INN DE ISLA VERDE 1027
Hotel Holiday Inn de Isla Verde and Gloria Ester
Andrades and Juan Rivera Malave and Miguel
Montalvo . Cases 24-CA-4535, 24-CA-4536,
and 24-CA-4540
19 March 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 16 December 1982 the National Labor Rela-
tions Board issued a Decision and Order in the
above proceeding' finding that the Respondent
violated Section 8(a)(3) and ( 1) of the National
Labor Relations Act by discharging and refusing to
reinstate two strikers for alleged strike misconduct.
Thereafter, the Respondent filed a petition for
review of the Board's Order and the Board cross-
applied for enforcement of its Order with the
United States Court of Appeals for the First Cir-
cuit. On 20 December 1983 the court issued its de-
cision2 remanding the case to the Board.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
In the original decision , the judge found that to
settle a strike begun on 2 February 1981,3 the
Union and the Respondent negotiated an agree-
ment on 25 February which provided, in part, for
the conditional reinstatement of all discharged
strikers. The Board adopted the judge's finding
that because the picket line conduct of discharged
strikers Gloria Ester Andrades and Miguel Mon-
talvo was not serious enough to justify their dis-
charges,4 the Respondent had acted unlawfully in
dismissing them. The Board agreed with the judge
that Andrades and Montalvo were therefore enti-
tled to unconditional reinstatement notwithstanding
the terms of the strike settlement restricting the
conditions of their reemployment. In so finding, the
Board adopted the judge's holding that "[a] union
and an employer may not restrict an individual's
right to reinstatement by negotiating more stringent
terms of reinstatement for them than those avail-
able under existing law."5
While agreeing that strikers who are unlawfully
discharged during a strike are entitled to uncondi-
' 265 NLRB 1513 (1982).
2 Hotel Holiday Inn de Isla Verde v. NLRB, 723 F.2d 169 (1st Cir.
1983).
All dates refer to 1981 unless otherwise indicated.
The Board also adopted the judge 's finding that the picket line con-
duct of a third discharged striker, Juan Rivera Malave , was sufficiently
flagrant to warrant his discharge . No party challenged the Board 's find-
ing respecting Malave on appeal.
S 265 NLRB at 1518.
tional reinstatement , the First Circuit questioned
whether the strike settlement agreement between
the Respondent and the Union altered that right.
• The court therefore directed the Board to reex-
amine its decision not to defer to the strike settle-
ment in light of the facts existing at the time of the
agreement. 6
On 17 February 1984 the Board advised the par-
ties that it had decided to accept the remand and
that they might submit statements of position with
respect to the issues raised by the remand. Thereaf-
ter, the General Counsel and the Respondent filed
statements of position.
The Board has considered the record as a whole,
the decision of the United States Court of Appeals
for the First Circuit remanding the proceeding, and
the parties ' respective statements of position. For
the reasons set forth below, the Board has decided
to reverse its initial decision and find that the Re-
spondent did not violate Section 8 (a)(1) and (3) of
the Act.
I.
The Union and the Respondent were parties to a
collective-bargaining agreement which expired on.
31 December 1980. After a period of unsuccessful
negotiations on a new contract , the Union called a
strike on 2 February. During the course of the
strike, the Respondent discharged 13 of the striking
employees for alleged strike misconduct . The strike
ended on 23 February and the nondischarged strik-
ers returned to work. On 25 February the Union
and the Respondent reached an agreement settling
the strike and providing for the reinstatement of
the 13 discharged strikers. According to the agree-
ment, the discharged strikers were to report to
work at specified times between 26 and 28 Febru-
ary. At that time they would be required to sign a
document entitled "Stipulation" which provided
for a 3-, 4-, or 5-day suspension beyond the end of
the strike on 23 February. The "Stipulation" was
also an agreement by the Respondent to drop any
civil or criminal charges , and by the employee to
waive any criminal or civil action against the Em-
ployer for "any actions, arrests, or charges filed or
presented against him/her." The strike settlement
agreement also indicated that no excuses for late
reporting would be accepted. Although the Re-
spondent could , in its discretion , allow employees
to report later than the assigned dates, no employ-
ees would be accepted for reinstatement after 9
The court also directed the Board to decide whether the picket line
conduct of Gloria Andrades had an effect on guests of the Respondent
sufficient to warrant her discharge if the strike settlement was rejected.
Because we defer to the strike settlement agreement , we need not reach
this issue.
278 NLRB No. 147
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a.m. on 28 February. Twelve of the thirteen dis-
charged strikers including Andrades and Montalvo
were told of the terms of the agreement. Andrades
and Montalvo did not report on their assigned
dates. When they did report to work on 2 March,
the Respondent refused to reinstate them.
II.
We have reexamined our ruling in light of the
facts which existed at the time of the strike settle-
ment and conclude that the voluntary settlement
entered into by the Union and the Respondent
should be honored.
In deciding to accept the strike settlement agree-
ment, we adhere to the principle that in performing
its duty of preventing unfair labor practices, the
Board acts in the public interest to enforce public,
not private rights. National Licorice Co. v. NLRB,
309 U.S._ 350 (1940). However, as we held in our
recent decision, Texaco, Inc., 273 NLRB 1335
(1985), we must also analyze how a lawful and vol-
untary strike settlement such as the one at issue
here may have an adverse or favorable impact on
such public rights.
This analysis begins with the recognition that
strikes as well as less severe manifestations of in-
dustrial strife directly interfere with commerce.
The flow of commerce is promoted by encourag-
ing practices fundamental to the friendly adjust-
ment of industrial disputes and by protecting the
rights of employees to bargain collectively. Texaco,
Inc., supra, at 1336. In recognition of our duty to
alleviate industrial strife and consistent with the
general policies of the Act, we favor the private,
amicable 'resolution of labor disputes whenever
possible.7 Under the circumstances of this case, we
believe that upholding this strike settlement agree-
ment serves the public interest as well as that of
the private parties.
As directed by the court, we examine the condi-
tions which existed when the settlement agreement
was negotiated. In negotiating the settlement, the
Union and the Respondent chose voluntarily to
settle their differences. The Union agreed that the
employees it represents would return to work and
the Respondent agreed to reinstate the 13 strikers
who had been discharged. All the affected dis-
charged strikers were aware of the terms of the
settlement negotiated on their behalf by their bar-
gaining representative. There is no evidence that
the discharged strikers, including Andrades and
Montalvo, objected to the conditions of reinstate-
ment. All but three of these strikers complied with
the terms of the agreement and returned to work
when assigned. The fact that Andrades and Mon-
talvo attempted to return to work and sign the
"Stipulation" is further evidence that they had no
objections to the terms of the agreement. The
8(a)(3) charges were filed only after the Respond-
ent refused, subsequent to the agreed-upon dead-
line, to rehire them.
As noted above, in finding that the Respondent
violated Section 8(a)(3), the judge held that "[a]
union and an employer may not restrict an individ-
ual's right to reinstatement by negotiating more
stringent terms of reinstatement for them than
those available under existing law." This presup-
poses that Andrades and Montalvo would have
prevailed in their arguments regarding their alleged
unlawful discharges and that the remedy of uncon-
ditional reinstatement would have been accorded
them. However, as noted by the court, at the time
the settlement was entered into, neither Andrades
nor Montalvo had any established right to rein-
statement, inasmuch as the right to unconditional
reinstatement was contingent upon the Board 's ulti-
mately finding Andrades and Motalvo were unlaw-
fully discharged. "All of the uncertainties of an ad-
versary hearing, i.e., the competence of counsel,
the thoroughness of preparation, the memories of
witnesses, the, attitudes of the hearing officer, and
the availability of witnesses, stood between An-
drades and Montalvo and an unconditional reili-
statement."$ As litigation entails no guarantees, the
Charging Party may not have prevailed on the al-
leged violation . Further, the Union probably per-
ceived a settlement agreement which provided for
some remedy as more desirous than the gamble of
a more enhanced remedy at the end of the poten-
tially long and costly litigation.
At the time of the settlement, there was no find-
ing that Andrades and Montalvo had been unlaw-
fully discharged. Thus, at that point they did not
have a legal right to any remedy, nor did the Re-
spondent have a legal obligation to provide a
remedy. Before ,it was legally obligated to provide
a remedy for any alleged wrongdoing, the Re-
spondent offered voluntarily to reinstate all dis-
charged strikers and forgo any rights it might have
had in adjudication on the merits in return for
meeting the Charging Parties and the Union on
some middle ground. By the same token, before be-
coming legally entitled to a remedy, the Union as
bargaining representative also offered voluntarily
to forgo rights it might have had in an unfair labor
practice adjudication in return for meeting the Re-
spondent on some middle ground. For the reasons
stated above, and because we see no evidence or
7 See also Airport Parking Management v. NLRB, 720 F 2d 610, 614-
615 (9th Cir 1983) 8 723 F 2d at 172-173.
HOTEL HOLIDAY INN DE ISLA VERDE 1029
allegation that the settlement was entered into
fraudulently or under duress, we defer to the
agreement.
Accordingly, we reverse our earlier decision and
shall dismiss the complaint.
ORDER
Based on the foregoing, and the entire record in
this proceeding , the National Labor Relations
Board vacates its Order issued in this proceeding
on 16 December 1982 reported at 265 NLRB 1513
and dismisses the complaint.