INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 181, AFL-CIO (Marathon Refinery and Maxim Crane Wor

National Labor Relations Board - Board Decisions

Apr 14, 2017

09-CB-155016 (N.L.R.B. Apr. 14, 2017)

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 181, AFL-CIO
(Marathon Petroleum Company)
and Case 09-CB-155016

WILLIAM DUKE HAYWOOD
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 181, AFL-CIO
(Maxim Crane Works LLP)
and Case 09-CB-159411
MITCHELL LUKE HAYWOOD
ORDER
On November 27, 2015, the Regional Director for Region 9 issued a complaint
alleging, among other things, that the Respondent Union violated Section 8(b)(1)(A) of
the Act when its business agent refused to allow the Charging Parties to review its out-
of-work list pursuant to their requests to show them the list in order to determine their
positions for job referral. Before the opening of the hearing, the Respondent proposed
an informal Board settlement. The Respondent had previously rejected an informal
Board settlement proposed by the General Counsel. On February 22, 2016,
Administrative Law Judge Geoffrey Carter telephonically opened the hearing and issued
a ruling approving the Respondent’s proposed informal settlement agreement/consent
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order (consent order)1 over the objections of the General Counsel and the Charging
Parties. The consent order approved by the judge includes a notice provision stating
“[w]e will honor the request of any job referral applicant to review the out-of-work list to
determine their positions for referral on the out-of-work list.” In contrast, the informal
settlement agreement the General Counsel had proposed includes a notice provision
stating “[w]e will honor the requests of William Duke Haywood and Mitchell Luke
Haywood to review the out-of-work list to determine their positions for referral on the
out-of-work list.”
On March 9, 2016, the General Counsel filed a Request for Permission to
Appeal Ruling of Administrative Law Judge and Memorandum in Support of Appeal. On
March 25, 2016, the Respondent filed a statement in opposition to the General
Counsel’s appeal.
In his appeal, the General Counsel argues, among other things, that the consent
order as approved by the judge does not satisfy the test of Independent Stave Co., 287
NLRB 740 (1987), and that it does not provide a complete affirmative remedy as it is
currently worded because it does not name the alleged discriminatees whose rights
were violated. In its opposition, the Respondent argues, among other things, that Judge
Carter’s ruling complies with the requirements of Independent Stave, supra, and that the
consent order’s remedy is actually broader than the remedy proposed by the General
Counsel because it allows any registrant on the out-of-work list, including the Charging

1 The Board has found that the resolution of an unfair labor practice by a unilateral
agreement proffered by a respondent and approved by a judge is in the nature of a
consent order, and is not a true “settlement” between parties to the dispute. See Local
201, Electrical Workers (General Electric Co.), 188 NLRB 855, 857 (1971).
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Parties, to seek review of the list, which the Respondent contends the Charging Parties
have not done.
After the judge issued his ruling, the Board held in United States Postal Service,
364 NLRB No. 116 (2016), that Independent Stave is not the appropriate standard for
evaluating a judge’s order approving and incorporating the settlement terms proposed
by a respondent, over the objections of the General Counsel and the charging party.
The Board clarified that the appropriate standard for evaluating such orders is “whether
the order provides a full remedy for all of the violations alleged in the complaint.”2
Having duly considered the matter, we grant the request for permission to appeal
the administrative law judge’s ruling, and deny the appeal on its merits. Applying the
standard in United States Postal Service here, we find that the judge’s order approving
the Respondent’s proffered terms over the objections of the General Counsel and
Charging Parties provides a full remedy for the violations alleged in the complaint. As
described, the settlement requires the Respondent to “honor the request of any job
referral applicant to review the out-of-work list to determine their positions for referral on
the out-of-work list.” We interpret that requirement to encompass the specific remedy
sought by the General Counsel. Thus, the Respondent must grant each of the two
Charging Parties the right to review the applicable out-of-work list that was in place
when each made his request. On that basis, we approve the consent order.3

2 Id., slip op. at 1.
3 Acting Chairman Miscimarra agrees with his colleagues’ interpretation of this consent
settlement agreement. Specifically, he finds that the agreement requires Respondent to
allow the Charging Parties to review the out-of-work lists in place at the time their
original requests were made. He therefore joins his colleagues in both granting the
permission to appeal and denying the appeal on the merits.
Acting Chairman Miscimarra writes separately to state his disagreement with his
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Accordingly,
IT IS ORDERED that the General Counsel’s request for permission to appeal is
granted, the appeal is denied, and the consent order is approved.
Dated, Washington, D.C., April 14, 2017
PHILIP A. MISCIMARRA, ACTING CHAIRMAN
MARK GASTON PEARCE, MEMBER
LAUREN McFERRAN, MEMBER

colleagues’ evaluation of this agreement under United States Postal Service. He finds
that the Board acted incorrectly in overruling 25 years of precedent when it determined
that it would no longer evaluate consent settlement agreements under Independent
Stave. As stated more fully in his dissent in United States Postal Service, 364 NLRB
No. 116, slip op. at 4-8 (Member Miscimarra, dissenting), he would continue to apply
Independent Stave in evaluating consent settlement agreements, because he trusts the
Board to adequately evaluate whether a proposed settlement agreement is reasonable.
Respondents will be understandably less amenable to settlement if settlements, by rule,
involve no concessions from the opposing party. As a result, charging parties will be
more frequently required to undertake the lengthy, often burdensome process of
litigating charges with no guarantee that the litigation will result in a remedy. Acting
Chairman Miscimarra believe it serves the purposes of the Act to entrust the Board with
the task of determining when a settlement agreement will provide a reasonable remedy
to the charging parties while also allowing the parties to avoid the risks inherent in
litigation.