Jefferson Hotel

National Labor Relations Board - Board Decisions

Nov 30, 1992

309 N.L.R.B. 705 (N.L.R.B. 1992)

705
309 NLRB No. 103
JEFFERSON HOTEL
1 The petition in Case 5–RD–1080 was subsequently dismissed on
January 24, 1991, by the Regional Director subject to reinstatement,
if appropriate, on the disposition of the unfair labor practice charges
in Cases 5–CA–22336 and 5–CA–22352. No request for review was
filed to that dismissal.
2 The settlement agreement required the Employer to no longer un-
lawfully urge its employees to reject the Union, to recognize the
Union, to not make any unilateral changes, and to meet and bargain
with the Union. The agreement further provides for the resolution of
remedy disputes arising from the alleged illegal changes by a meth-
od agreed on by the parties to the unfair labor practice cases, and
recognizes the fact that at the time of the signing of the settlement
the parties had already met and executed a new collective-bargaining
agreement. Although the settlement agreement does not contain a
nonadmission clause, neither does it contain an admission by the
Employer that it violated the Act. See, e.g., Island Spring, 278
NLRB 913 (1986).
Lancaster HM of Washington, D.C., Inc., t/a The
Jefferson Hotel and Richard Curtis, Petitioner
and Hotel Employees and Restaurant Employ-
ees International Union, Local 25, AFL–CIO.
Case 5–RD–1086
November 30, 1992
DECISION ON REVIEW AND ORDER
REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
The Board has delegated its authority in this pro-
ceeding to a three-member panel, which has considered
the Petitioner’s request for review of the Regional Di-
rector’s administrative dismissal of the instant petition.
The request for review is granted as it raises a substan-
tial issue with respect to the Regional Director’s au-
thority under Nu-Aimco, Inc., 306 NLRB 978 (1992),
to dismiss an RD petition because a settlement agree-
ment of outstanding unfair labor practices, signed by
the Employer and the Union but not the Petitioner,
precludes the processing of that petition as a condition
of the agreement. The Board has carefully considered,
on review, the issue presented, and has decided to re-
verse the Regional Director’s decision.
The facts are essentially undisputed. Four separate
unfair labor practice charges were filed by the Union
in October and December 1991 in Cases 5–CA–22336,
5–CA–22352, 5–CA–22443, and 5–CA–22444, and
complaints were subsequently issued. The complaint in
Case 5–CA–22336 alleged that the Employer facili-
tated and participated in the circulation among its em-
ployees of a decertification petition filed in Case 5–
RD–1080 and urged the employees to reject the Union
as their bargaining agent.1 The complaint in Case 5–
CA–22352 alleged that the Employer unlawfully with-
drew recognition of the Union on or about October 25,
1991. In Cases 5–CA–22443 and 5–CA–22444 the
complaints alleged that before and after the activities
listed in the earlier complaints, the Employer in Sep-
tember and December 1991 made unilateral changes in
the working conditions of the employees, including
changes in the method of compensation and the sched-
uling of employees. On January 14, 1992, the Peti-
tioner filed the instant petition seeking to decertify the
Union. The Regional Director held the decertification
petition in abeyance pursuant to the Board’s blocking
charge policy pending resolution of the unfair labor
practice charges.
On July 13, 1992, the Regional Director approved
an informal settlement agreement of the four unfair
labor practice cases which required the Employer to
take certain actions to remedy the alleged violations.2
The settlement agreement, signed by the Employer and
Union but not the Petitioner, included a provision
which provided that ‘‘[the] approval of this agreement
precludes the processing of any RD petition filed prior
to the fulfillment of all terms of this agreement by Re-
spondent, including Cases 5–RD–1080 and 5–RD–
1086.’’
Prior to the parties entering into the settlement
agreement, the Regional Director had advised them
and the Petitioner by letter dated April 17, 1992, that
in his opinion the unfair labor practice violations as al-
leged were sufficient to taint the instant petition and
would require dismissal of the petition. Moreover, they
were advised that the Regional Director would fully
litigate these cases if the settlement agreement did not
include the provision described above. The Regional
Director stated in this letter that ‘‘[the] Board has very
recently made clear that such a position should be
made known to all parties in the cases involved, and
made part of any settlement agreement,’’ citing Nu-
Aimco, Inc., supra. The Petitioner’s counsel, by letter
dated April 25, 1992, objected to requiring the dismis-
sal of the instant petition as a condition of the settle-
ment agreement. The Regional Director dismissed the
petition by letter dated July 27, 1992, also citing Nu-
Aimco, Inc.
It is well established that a timely filed RD petition
which has been circulated and signed by employees,
and has met all the Board’s technical showing of inter-
est requirements, will be processed following compli-
ance with a Board-approved settlement agreement of
unfair labor practice charges that blocked the process-
ing of the petition where the settlement agreement con-
tains a nonadmission clause. See Nu-Aimco, Inc.,
supra, reaffirming Passavant Health Center, 278
NLRB 483 (1986), and Island Spring, 278 NLRB 913
(1986). The Board in Nu-Aimco further noted that
‘‘nothing in the Act or the Board’s Regulations pro-
hibits the Regional Director from including the decerti-
fication Petitioner in the settlement discussions or from
taking the position that the unfair labor practices, if
proven, are sufficient to ‘taint’ the petition such that
706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dismissal of the petition is warranted.’’ 306 NLRB at
978. The Board also indicated that the Regional Direc-
tor should make it clear to the parties during settlement
discussions that he or she intends to seek a remedy
that would preclude the reinstatement of the petition,
and advise them that absent such a settlement the case
will be fully litigated. Id.
In the instant case, the Regional Director misinter-
preted the Board’s requirements as set forth in Nu-
Aimco regarding how to ensure the dismissal of a de-
certification petition as part of a settlement agreement
to remedy unfair labor practices. We did not intend in
Nu-Aimco that the decertification petition could be dis-
missed absent the consent of the decertification peti-
tioner (or, of course, the finding of a violation in a liti-
gated case, or an admission by the respondent). Rather,
it was our aim to include the petitioner in the settle-
ment discussions to allow for the possibility that the
petitioner could agree to a settlement agreement which
provides for the dismissal of the petition as a condition
of the settlement. Without the petitioner’s agreement,
however, we did not intend that the petitioner be
bound to a settlement by others that has the effect of
waiving the petitioner’s right under the Act to have the
decertification petition processed. In the alternative, as
noted in Nu-Aimco, in the absence of an admission by
the employer, the Regional Director must choose be-
tween litigating the unfair labor practice cases, which
could result in a finding of an unfair labor practice
violation sufficient to ‘‘taint’’ the petition and require
dismissal, or accepting a settlement agreement between
the union and the employer, and processing the decer-
tification petition upon compliance with the settlement
agreement.
Here, since the settlement agreement was entered
into over the objection of the Petitioner and without
his signature, it is insufficient to preclude the process-
ing of the Petitioner’s decertification petition. Thus,
the Regional Director having accepted the settlement
agreement, the decertification petition should be rein-
stated on compliance with that agreement. Accord-
ingly, we reverse the Regional Director’s dismissal of
the decertification petition, reinstate the petition, and
remand this case for further action consistent with this
decision.
ORDER
The Regional Director’s Decision and Order dis-
missing the instant decertification petition is reversed,
the petition is reinstated, and the case is remanded to
the Regional Director for processing of the petition
upon compliance with the settlement agreement.