Longshoremen ILA Local 1814 (Amstar Sugar)

National Labor Relations Board - Board Decisions

Feb 19, 1991

301 N.L.R.B. 764 (N.L.R.B. 1991)

764
301 NLRB No. 113
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Alvin Blyer & Amstar Sugar v. Union Local 1814 (ILA), Case 89 CV 3565
(E.D.N.Y., Nov. 13, 1989).
2 Twenty days for the Federal Mediation and Conciliation Service (FMCS)
and 26 days for the New York State Mediation Service.
3 Independent Stave at 742, citing Clear Haven Nursing Home, 236 NLRB
853, 854 (1978).
Union Local 1814, International Longshoremen’s
Association and Amstar Sugar Corporation.
Case 29–CB–7395
February 19, 1991
ORDER GRANTING REQUEST TO
WITHDRAW
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 22, 1989, Administrative Law Judge
Howard Edelman issued the attached decision finding
that the Respondent refused to bargain in good faith
and thus violated Section 8(b)(3) of the Act by com-
mencing a strike on September 30, 1989, without hav-
ing provided the notices to the Federal and state medi-
ation services in the timely manner required by Section
8(d)(3) and (4) of the Act. The Respondent filed ex-
ceptions and a supporting brief. The Charging Party,
by letter of February 9, 1990, filed a request with the
Board for withdrawal of the charge based on a settle-
ment agreement reached by the Charging Party and the
Respondent on December 1, 1989. The General Coun-
sel, by letter of February 28, 1990, opposed the re-
quest. The Respondent, by letter of March 5, 1990,
filed a response to the General Counsel’s opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, brief, the settlement,
the Charging Party’s request, and the General Coun-
sel’s opposition to the request. For the reasons stated
below, we have decided to grant the request and give
effect to the settlement agreement by dismissing the
complaint allegations.
We first briefly set forth the history of this pro-
ceeding. Charging Party Amstar and the Respondent
Union have had a bargaining relationship for more
than 20 years. Their most recent collective-bargaining
agreement expired on September 30, 1989. On July 17,
the Union timely served on Amstar the notice of termi-
nation of the agreement required by Section 8(d)(1) of
the Act. On August 30, 1989, the Union mailed notices
to the Federal Mediation and Conciliation Service and
New York Mediation Service which were received on
September 11 and 5, respectively. The Union began a
strike against Amstar on September 30. On October 2,
Amstar filed a charge alleging a violation of Sections
8(b)(3) and 8(d) and requested the Region to institute
10(j) proceedings to enjoin the Union from further vio-
lation of the Act. The complaint issued on October 6
and 7 and a hearing was held on October 24. Also on
that latter date the Board authorized the General Coun-
sel to seek 10(j) relief. On November 13, the district
court found that the Union had failed to bargain collec-
tively under Section 8(b)(3) by failing to provide the
Federal and state mediation services 30 strike-free days
as required by Section 8(d).1 The court, however, de-
nied the requested injunctive relief on the ground that
the time periods actually available to the services to
mediate the dispute, though less than the prescribed 30
days,2 were ‘‘not insignificant.’’
On November 22, the administrative law judge
issued his decision, based on a stipulated record, find-
ing that the Union had violated Section 8(b)(3) by first
serving its 8(d)(3) notices late, i.e., more than 30 days
after the 8(d)(1) notice of July 17, and then striking
within 30 days of the mediation services’ receipt of the
8(d)(3) notices.
On or about December 1, 1989, Amstar and the
Union executed a ‘‘Memorandum of Settlement’’ in
which they agreed that Amstar would rescind suspen-
sions and provide backpay for certain employees and
reinstate another employee in return for the Union’s
withdrawal of the underlying contractual grievances
then pending arbitration. Additionally, Amstar agreed
to seek withdrawal of the instant unfair labor practice
charge. Finally, the Union ended its strike and prom-
ised that in the future ‘‘the Union and its members will
conduct their activities so as not to interfere with the
paramount interest of maintaining refinery operations.’’
In Independent Stave Co., 287 NLRB 740, 743
(1987), the Board outlined factors to be considered in
evaluating non-Board settlements. The factors were as
follows:
. . . all the surrounding circumstances including,
but not limited to, (1) whether the charging
party[ies], the respondent[s] and any of the indi-
vidual discriminatee[s] have agreed to be bound,
and the position taken by the General Counsel re-
garding the settlement; (2) whether the settlement
is reasonable in light of the nature of the viola-
tions alleged, the risks inherent in litigation, and
the stage of the litigation; (3) whether there has
been any fraud, coercion, or duress by any of the
parties in reaching the settlement; and (4) whether
the respondent has engaged in a history of viola-
tions of the Act or has breached previous settle-
ment agreements resolving unfair labor practice
disputes.
Examining the private settlement agreement before
us in light of this test, we find that it sufficiently
assures adequate protection of the policies underlying
the Act. For while there is a ‘‘public interest in the
vindication of statutory rights’’3 there is an ‘‘equally
765LONGSHOREMEN ILA LOCAL 1814 (AMSTAR SUGAR)
4 Ibid.
5 We note, however, that the General Counsel opposes the settlement, essen-
tially on the theory that it was the strike itself that coercively influenced the
Charging Party to agree to withdraw the charge as part of the settlement. The
General Counsel also claims that allowing withdrawal of a charge after a judge
has found the alleged violation will remove the incentive from other parties
to settle cases before complaint. For reasons indicated above, we reject these
contentions.
6 The FMCS received notice on September 11, 1989, and assigned a medi-
ator 2 days later. The judge found that Amstar apparently did not speak to
the mediator and did not return his telephone calls.
7 Contrary to our colleague, we are unwilling to conclude that the fact that
the settlement was reached while the strike was ongoing is sufficient in and
of itself to warrant a finding that the settlement was the result of coercion.
Although the issues in this case may appear to be relatively straightforward,
that is not to say that the Respondent’s defenses are totally frivolous. Thus,
further litigation and appeals may well follow the Board’s decision in this
case. Our colleague would disallow this settlement and require the parties to
suffer the consequences of the strike until the matter is fully litigated through
the Board and possibly through the courts. This litigation could take months
to years. We are unwilling to speculate that the settlement was the result of
coercion when the parties themselves are fully satisfied with the settlement
reached, the settlement substantially remedies the allegations, and there is no
evidence of coercion.
1 I note that the district court did not disagree with the General Counsel’s
submission that the strike was unlawful; it simply found that under all the cir-
cumstances injunctive relief under Sec. 10(j) of the Act was not warranted.
important public interest in encouraging the parties’
achievement of a mutually agreeable settlement with-
out litigation.’’4
First, the Charging Party and the Union are fully
satisfied by the settlement that provides essentially the
same remedy for the Union’s unfair labor practice that
the Board would have ordered upon adopting the ad-
ministrative law judge’s decision—cessation by the
Union of the unlawful strike and a promise on behalf
of itself and the employees to refrain from interference
with refinery operations.5
As to the second criterion of Independent Stave, we
find the settlement reasonable. Although the settlement
was reached after the administrative law judge’s deci-
sion issued, and thus very late in the decisional proc-
ess, we nevertheless find that the particular facts un-
derlying this alleged violation of the 8(d) notification
requirements militate in favor of accepting the settle-
ment.
The congressional policy underlying the 8(d) re-
quirement that a party provide 30 days’ notice to the
Federal and state mediation services before striking is
that the mediators have sufficient time to help resolve
the dispute. Here, as the judge found, the Union did
provide the 8(d)(3) notices but failed to coordinate
their filings adequately with the actual date on which
the strike began. As a result, the mediation services ac-
tually had only between 20 and 26 days rather than the
required 30 days to aid negotiations between the par-
ties. We agree with the district court judge in the in-
junction proceeding that these are ‘‘not insignificant
periods.’’ We further note his finding that even within
the almost 3 weeks actually available before contract
expiration Amstar never tried to enlist the help of the
Federal mediator assigned to the dispute.6 Thus, we
find the December 1, 1989 settlement ending the strike
to be reasonable in light of what the district court
judge characterized as a ‘‘technical violation’’ against
‘‘a party little interested in mediation.’’
Finally, we find that nothing in this record reveals
evidence of fraud, coercion, or duress by any party7 or
that the Respondent has any history of violating the
Act or of breaching previous settlement agreements.
Accordingly, we conclude that since the parties’ own
settlement has served to restore industrial harmony, the
purposes of the Act are best served by permitting the
Charging Party to withdraw the charge even at the cost
of public vindication of the unfair labor practice.
ORDER
The Charging Party’s request to withdraw the charge
is granted and the complaint is dismissed.
CHAIRMAN STEPHENS, dissenting.
I disagree with my colleagues’ acceptance of this
settlement agreement. I find, after evaluating the settle-
ment in light of the circumstances under which it was
reached, that it provides too little in terms of a remedy
for the alleged unfair labor practice and, as settlement
for that alleged unlawful conduct, has been proffered
too late. Accordingly, I would deny the Charging Par-
ty’s request to withdraw its charge and would adopt
the administrative law judge’s decision finding that the
Union violated Section 8(b)(3) by failing to adhere to
the 8(d)(3) requirements that the Federal and state me-
diation services have 30 days’ notice before the com-
mencement of a strike.
In terms of factors specified in Independent Stave
Co., 287 NLRB 740 (1987), I rely on the General
Counsel’s opposition to the settlement, the absence of
significant litigation risk for the General Counsel as
proponent of the complaint, my judgment that the rem-
edy is inadequate in light of the late stage of the litiga-
tion at which the Respondent offered to settle, and
what I see as the coercion of an unlawful strike impel-
ling the Charging Party’s agreement to the settlement.
As to coercion, I note that the settlement was
reached 2 months into a strike that, pursuant to the
findings of the judge, was an unlawful strike; and I
further note that it was reached after the Federal dis-
trict court’s denial of the Board’s request for tem-
porary injunctive relief.1 At that point, the Respondent
possessed the leverage of a strike that could not be
subject to another injunction in the immediate future.
The Charging Party’s withdrawal of the unfair labor
practice charge, then, was an apparent quid pro quo for
the cessation of the strike, notwithstanding the receipt
of a favorable decision based on that charge and the
likelihood that that decision would be sustained on re-
view. In this latter regard, I note that the case was de-
cided on a stipulated record, and the legal issues are
766 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The majority overlooks the context of my finding of coercion by asserting
that it rests simply on the fact that the settlement was reached after 2 months
of an ongoing strike. As I have indicated above, at that point the strike, though
already found illegal by the judge, could not be then enjoined. The Charging
Party thus had little choice but to settle by withdrawing its charge and thereby
escape the immediate economic strictures of the strike rather than continue to
endure until, in all likelihood, it achieved vindication before the Board.
3 Because the parties did not see fit to put into the record all the terms of
the settlement agreement, we cannot know whether the other matters referred
to in the settlement memorandum—e.g., the Charging Party’s rescission of cer-
tain disciplinary actions and its payment of backpay to some employees and
the Respondent’s withdrawal of certain contractual grievances—turn on the
legal question in the instant case. If they did, then the Respondent has surren-
dered nothing of substance in the settlement—only the right to pursue claims
that had the same likelihood of success as its position in this case.
1 This decision is based on a stipulated record. No witnesses were called to
testify.
neither novel nor complex. The Respondent plainly
failed to adhere to a clear statutory mandate that it pro-
vide the mediation services 30 days to attempt to re-
solve the labor dispute before launching a strike.2
With respect to the terms of the settlement memo-
randum itself, I note that it does not, as a Board order
would require, provide that the Respondent will post
an appropriate cease-and-desist notice. Moreover, be-
cause the withdrawal of the charge effectively vacates
the judge’s decision, this incident will not be available
for consideration in assessing a remedy in any future
case if the Respondent commits another violation like
that found by the judge in this case.3
The settlement provisions here might represent a
reasonable tradeoff if the Respondent had offered to
settle at a relatively earlier stage of the litigation, be-
fore the judge issued his decision finding the strike un-
lawful. As the General Counsel points out, however,
the Board’s acceptance of this settlement at this time,
after a substantial expenditure of the Board’s limited
resources including the efforts to obtain 10(j) relief,
would run contrary to our policy of encouraging par-
ties to settle prior to complaint or at least early in the
litigation process.
Accordingly, I agree with the General Counsel that
the Charging Party’s request to withdraw the charge
should be denied and that, under the circumstances de-
scribed above, the public interest in remedying this un-
fair labor practice overrides the parties’ desire that the
proceeding be concluded prior to a Board decision on
the merits.
Kevin Kitchen, Esq., for the General Counsel.
Anthony T. Scotto, Esq. (Boquki & Scotto), for the Respond-
ent.
Michael P. Devlin, Esq. (Berchem & Moses, P.C.), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on October 24, 1989, in Brooklyn, New
York.
On October 2, 1989, Amstar Sugar Corporation (Amstar),
filed a charge against Union Local 1814, International Long-
shoremen’s Association (Respondent), alleging violations of
Sections 8(b)(3) and 8(d) of the Act. On October 6 and 7,
a complaint and order amending complaint issued alleging
that Respondent engaged in a strike without properly filing
the notices required by Section 8(d) of the Act, thereby vio-
lating Sections 8(b)(3) and 8(d) of the Act.
Briefs were filed by counsel for the General Counsel,
counsel for the Charging Party, and counsel for Respondent.
On consideration of the entire record and the briefs, I make
the following1
FINDINGS OF FACT
Amstar is a New York corporation with its principal office
in New York, New York, and a facility located in Brooklyn,
New York, where it is engaged in the operation of refining
sugar. During the course of its business, Amstar annually
sold and shipped sugar products from its Brooklyn, New
York facility valued in excess of $50,000, directly to points
located in States other than the State of New York. I find
Amstar to be an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent admits, and I find, that it is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Since 1978 Respondent represented a unit of Amstar’s em-
ployees embodied in a series of collective-bargaining agree-
ments, the last agreement expiring on September 30, 1989.
The unit covered by these collective-bargaining agreements
is:
(a) All of the employees employed in the Charging
Party’s refinery in Brooklyn, New York, excluding all
office and plant clerical employees (other than time-
keepers, engineering field clerk, record clerk and assist-
ant record clerk), longshoremen, power house and boil-
er house employees, electricians and electrician helpers,
technical and quality control employees including
chemists and other laboratory employees, Research and
Development Division personnel, motor truck chauf-
feurs and helpers, motor truck mechanics and helpers,
professional and administrative employees, watchmen,
guards and supervisors as defined in the National Labor
Relations Act, as amended.
(b) All technical and quality control laboratory em-
ployees employed in the Charging Party’s refinery in
Brooklyn, New York, excluding all other employees at
said refinery, guards and supervisors as defined in the
National Labor Relations Act, as amended.
On July 17, 1989, Amstar received a written notice from
Respondent notifying Amstar of a proposed termination or
modification of the current collective-bargaining agreement
which, as set forth above, expired on September 30, 1989.
This notice is required by Section 8(d)(1) of the Act, which
provides such notice must be served by the party desiring to
terminate or modify an agreement 60 days prior to the expi-
ration date of the agreement.
It was stipulated that a Respondent representative would
testify, if called, that notices dated August 30, 1989, and ad-
767LONGSHOREMEN ILA LOCAL 1814 (AMSTAR SUGAR)
dressed to the Federal Mediation and Conciliation Service
and New York State Mediation Service were mailed on that
date to the respective agencies. It was further stipulated that
the New York State Mediation Service received such notice
on September 5 and the Federal Mediation and Conciliation
Service received such notice on September 11. It was further
stipulated that Respondent engaged in a strike on September
30, which strike has continued to date.
Analysis and Conclusion
Section 8(d)(3) of the Act requires that the party desiring
termination or modification notify the Federal Mediation and
Conciliation Service and the appropriate state or territorial
agency simultaneously within 30 days after the notice of the
desire to terminate or modify the contract has been sent to
the other contracting party (the 8(d)(1) notice).
Section 8(d)(4) of the Act requires that the present agree-
ment continues in full force and effect, without resorting to
a strike or lockout for a period of 60 days after such notice
(the 8(d)(1) notice) is given, or until the expiration date of
such contract, whichever occurs later.
The Board, with court approval, has construed the 60-day
waiting period specified in Section 8(d)(4) of the Act to in-
clude a waiting period of 30 days from the time notices are
given to Federal and state mediation and conciliation services
under Section 8(d)(3) of the Act. Retail Clerks Assn. Local
1179, 109 NLRB 754 (1954). Retail Clerks Assn. Local 219
(Carroll House) v. NLRB, 265 F.2d 814, 818–819 (D.C. Cir.
1959); Fort Smith Chair Co., 143 NLRB 514, 519 (1963),
affd. 336 F.2d 738 (D.C. Cir. 1964), cert. denied 379 U.S.
838 (1964).
The Board has emphasized that the mediation services
(Federal and state) must have at least 30 days to apply their
efforts to avert a strike. Hooker Chemicals & Plastics Corp.,
224 NLRB 1535, 1538 (1976); Retail Clerks Assn. (Carroll
House) v. NLRB, supra; International Engine Service, 177
NLRB 516, 517 fn. 4 (1969). Such 8(d)(3) notices must be
received by the appropriate agencies at least 30 days before
any strike action can take place. Teamsters Local 572 (Dar
San Commissary), 223 NLRB 1003 (1976); Hooker Chemi-
cals, supra. As set forth in Dar San, page 1008, notice is not
effective until received by the appropriate governmental
agencies.
A second requirement of Section 8(d) is that the notices
to the mediation services (8(d)(3) notices) must be received
by such agencies within 30 days of the service of the notice
to the contracting party of its desire to terminate or modify
the collective-bargaining agreement (the 8(d)(1) notice).
Hooker Chemicals; Retail Clerks; International Engine Serv-
ice, supra.
In the instant case, it is beyond dispute that Respondent
failed to meet both notice requirements. Thus, the 8(d)(1) no-
tice was sent to Amstar on July 17. The 8(d)(3) notices to
the mediation services were not sent out by Respondent until
at least August 30, more than 30 days from the 8(d)(1) no-
tice.
Similarly the 8(d)(3) notices were not received by the New
York State Mediation Service until September 5 and by the
Federal Mediation and Conciliation Service until September
11, less than the 30-day period required.
Counsel for Respondent contends that when a notice is de-
layed for reasons not attributable to the sender it is not equi-
table to penalize the sender for the delay. Counsel cites Gen-
eral Maintenance Service Co., 182 NLRB 819, 822 (1970),
and Bio-Medical Applications of New Orleans, 240 NLRB
432, 434 (1979), in support of its contention.
In the first place there can be no excuse for Respondent’s
failure to meet the requirement that the 8(d)(3) notices must
be received by the mediation agencies within 30 days of the
8(d)(1) notice of an intention to terminate or modify an
agreement. Under this requirement the 8(d)(3) notices would
have had to be sent on or before August 17. If one credits
Respondent’s offer of proof, the earliest such notices were
sent was on August 30.
The situation in the instant case is unlike that in Bio-Med-
ical cited by Respondent. Bio-Medical was an 8(g) case. In
Bio-Medical, the union mailed the 8(g) notice to the em-
ployer at a time calculated so the employer would receive it
in a timely manner and proved this. In the instant case there
was no reliable proof as to when such notices were actually
sent but even if sent as the Union contends, they would not
have been received in the normal course of mail delivery on
time. Moreover, in Bio-Medical, the hospital had actual 10-
day notice and was able to take the patient care precautions
that are the purpose of Section 8(g). Here the mediation serv-
ices had far less time than the required 30-day period. Fur-
ther, in Bio-Medical, unlike in the instant case, the union ex-
tended the time set forth in the 10-day strike notice.
In General Maintenance also cited by Respondent, the
Board refused to find that a technically untimely union re-
quest for negotiations should relieve the employer of its bar-
gaining obligation and have the drastic effect of renewing
three agreements for another full term. There, the contractual
provision in question did not equate the serving of notice
with receipt. Here, Board law as to Section 8(d) is clear that
service occurs only upon receipt. Also, in General Mainte-
nance, it was undisputed that the notice was mailed at a time
calculated to reach the employer on time. In the instant case,
as set forth above, it is highly improbable at best that the no-
tice would have been timely received by the appropriate
agencies. Moreover, Respondent did not prove the notices
were even sent out on August 30. Further, in General Main-
tenance unlike the instant case, the employer received actual
notice in a timely fashion. Moreover, the Board found that
the employer waived its timeliness argument in General
Maintenance by raising it only at the hearing itself, ‘‘as an
afterthought.’’ Finally, the Board stressed in footnote 9 that
General Maintenance was not an 8(d) case, where different
considerations apply.
Accordingly, I conclude that Respondent violated Sections
8(b)(3) and 8(d) of the Act by its failure as set forth and de-
scribed above to send the 8(d) notices to the appropriate me-
diation services in the timely manner required by Section
8(d) of the Act.
THE REMEDY
Having found that Respondent refused to bargain in good
faith in violation of Section 8(b)(3) of the Act by engaging
in a strike in violation of the notice requirements as set forth
in Section 8(d)(3) and (4) of the Act, I shall recommend that
Respondent must file new 8(d) notices both to the Employer
and to the appropriate mediation and conciliation services
and cease and desist from engaging in a strike or inducing
employees of the Employer, Amstar, from engaging in a
768 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
strike for the purpose of modifying or terminating its collec-
tive-bargaining agreement without first having complied fully
with the requirements of Section 8(d) of the Act. Machinists
Airline District 46, 177 NLRB 516, 519 (1969); Broward
County Carpenters’ District Council, 122 NLRB 1008, 1009
fn. 4 (1959).
CONCLUSIONS OF LAW
1. Amstar is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following unit is an appropriate unit for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act:
(a) All of the employees employed in Amstar’s refin-
ery in Brooklyn, New York, excluding all office and
plant clerical employees (other than timekeepers, engi-
neering field clerk, record clerk and assistant record
clerk), longshoremen, power house and boiler house
employees, electricians and electrician helpers, technical
and quality control employees including chemists and
other laboratory employees, Research and Development
Division personnel, motor truck chauffeurs and helpers,
motor truck mechanics and helpers, professional and
administrative employees, watchmen, guards and super-
visors as defined in the National Labor Relations Act,
as amended.
(b) All technical and quality control laboratory em-
ployees employed in Amstar’s refinery in Brooklyn,
New York, excluding all other employees at said refin-
ery, guards and supervisors as defined in the National
Labor Relations Act, as amended.
4. Respondent has refused to bargain in good faith with
Amstar in violation of Section 8(b)(3) by failing to comply
with Section 8(d)(3) and (4) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the Act.
[Recommended Order omitted from publication.]