Ratliff Trucking Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1993

310 N.L.R.B. 1224 (N.L.R.B. 1993)

1224
310 NLRB No. 210
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We therefore find it unnecessary to pass on the judge’s alter-
native finding that the union-security clause at issue did not exceed
the ‘‘financial core’’ relationship permitted by the Act, nor do we
find it necessary to pass on the impact of the recently published No-
tice of Proposed Rulemaking (57 Fed.Reg. 43635 (1992)) concerning
the Union’s obligations under Communications Workers of America
v. Beck, 487 U.S. 735 (1988). Finally, we note that our decision here
does not necessarily preclude a complaint on the union-security
clause in a subsequent collective-bargaining agreement.
2 Although the discharge of employee Covington pursuant to the
clause might superficially seem like a separate event, it is inex-
tricably bound up with the status of the clause itself. The sole basis
for alleging that Covington’s discharge for refusal to pay dues was
unlawful was the assertedly unlawful language in the clause under
which his discharge was sought.
Ratliff Trucking Corporation, Inc. and William
Covington
The Ratliff Employees’ Organization and William
Covington. Cases 7–CA–32181 and 7–CB–8841
April 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On April 28, 1992, Administrative Law Judge Leon-
ard M. Wagman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondents each filed briefs in opposi-
tion to the General Counsel’s exceptions.
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 and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
We agree with the judge that the consolidated com-
plaint must be dismissed. The same union-security
clause language, the maintenance and enforcement of
which is alleged to be unlawful in the instant case,
also was contained in the clause at the time of the set-
tlement of a prior unfair labor practice case in which
the lawfulness of the union-security clause also was
challenged—but only on the basis of other language.
The language alleged to be unlawful in the instant case
was not alleged to be unlawful in the prior case, nor
was it reserved from the scope of the settlement agree-
ment by the parties. In light of the intervening settle-
ment, therefore, the maintenance and enforcement of
the preexisting language cannot properly be alleged as
being unlawful in the instant case.
As our dissenting colleague agrees, the issue before
us is the application of Hollywood Roosevelt Hotel,
235 NLRB 1397 (1978), to the complaint in this case,
in light of a previous settlement agreement disposing
of unfair labor practice charges pertaining to the union-
security clause contained in article 1, section 2 of the
Respondents’ 1990–1993 collective-bargaining agree-
ment. We agree with our colleague that, if the unfair
labor practices alleged here were ‘‘specifically reserved
from the settlement,’’ then the Hollywood Roosevelt
rule would not operate to bar the complaint. Contrary
to our colleague, we find no merit in the General
Counsel’s argument that the settlement agreement con-
tains a sufficiently specific reservation, and we there-
fore affirm the judge’s dismissal of the complaint.
The reservation language on which our colleague re-
lies is as follows:
This Settlement Agreement settles only the unfair
labor practices alleged in the above-captioned
case, and does not constitute a settlement of any
other case. It does not preclude persons from fil-
ing, or the National Labor Relations Board from
prosecuting, unfair labor practice charges against
the Charged Party based on events which precede
the date of the approval of this Settlement Agree-
ment.
To be sure, this is broad language that would permit
the General Counsel to proceed in any case that can
properly be defined as an ‘‘other’’ case or that con-
cerns any distinct ‘‘event’’ preceding the date of the
settlement. This clearly afforded the General Counsel
broad latitude to proceed on other charges. We dis-
agree, however, that the unfair labor practices alleged
in this case can be properly described as constituting
either an ‘‘other’’ case or one involving different
presettlement ‘‘events.’’
The entire union-security clause of the 1990–1993
contract was before the General Counsel in the cases
disposed of by the settlement, and the language that
the General Counsel now alleges is unlawful—‘‘re-
main members in good standing’’—even appeared in
the same sentence as the language previously singled
out as the fatal flaw in the clause. In our view, the Re-
spondents could therefore reasonably believe that the
settlement disposed of the legality vel non of the entire
clause, at least during the term of the contract in which
it was contained. In other words, in order for the Gen-
eral Counsel to relitigate this clause and call it a new,
or ‘‘other’’ case, we believe that what was required
was, as the judge described it, a specific reservation of
the right to proceed on ‘‘the union-security clause’s
unaltered provisions.’’2
We find too clever by half our dissenting col-
league’s contention that there is a ‘‘new’’ clause re-
sulting from a distinct presettlement ‘‘event’’ by virtue
of the Respondents’ having taken the trouble, prior to
signing the settlement agreement, of amending article
1, section 2 to correct what the General Counsel was
then alleging as its illegality. Although, as the General
Counsel points out, he did not require the parties to
1225RATLIFF TRUCKING CORP.
1 My reference to different charging parties is simply part of my
showing that the instant case is not the same as the settled case.
Thus, the instant case was reserved from the settlement of the prior
one. I recognize that, absent a reservation, there is a settlement bar
as to presettlement conduct, even if charging parties are different.
Thus, I have no quarrel with E.S.I. Meats, 270 NLRB 1430 (1984),
cited by my colleagues. I simply consider that case irrelevant to a
settlement agreement containing a reservation clause like the one in
the instant case.
2 Since the instant charges were not filed until August 1991, the
alleged violation concerning the clause began in February 1991. See
Sec. 10(b) of the Act. In this sense, the alleged violation occurred
after the settlement and would not be immune under Hollywood
Roosevelt, even apart from the reservation clause. Similarly, the dis-
charge of Covington occurred in March 1991 and was based on the
union-security clause that was being maintained at that time. How-
ever, inasmuch as the General Counsel relies solely on the reserva-
tion clause, I do not rely on the arguments set forth in this footnote.
amend the clause and retain the ‘‘member in good
standing’’ language, the parties could nevertheless rea-
sonably have believed that this was a sensible and
practical way of complying with the requirements of
the settlement. Treating such good-faith compliance
with the settlement as grounds for a new complaint—
at least in the absence of specific notice that other
parts of the clause under scrutiny might soon come
under attack—seems to us out of keeping with the
spirit of Hollywood Roosevelt.
Finally, contrary to our colleague, we find no sup-
port for the General Counsel’s position in the fact that
the Charging Party in the present proceeding is dif-
ferent from the charging party in the cases disposed of
by the settlement. As the Board held in E.S.I. Meats,
270 NLRB 1430, 1431 (1984), the fact that the charges
which initiated the settled cases and those underlying
subsequent cases ‘‘were filed by different charging
parties . . . is insufficient to change the rules barring
litigation of discoverable presettlement conduct.’’
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
MEMBER RAUDABAUGH, dissenting.
My colleagues have dismissed the complaint on the
procedural ground that a settlement agreement in an
earlier case bars the complaint in the instant case. I
disagree.
In the earlier case, employee Lewis alleged that the
union-security clause failed to accord employees the
required statutory grace period of 30 days. In order to
rectify that problem, the Respondents negotiated and
agreed on a new union-security clause which modified
the grace period language. The case was settled on that
basis.
The charge in the instant case, filed by a different
employee, alleges that the new union-security clause is
unlawful for a wholly different reason. It alleges that
the clause unlawfully requires that employees be
‘‘members in good standing.’’
In sum, the settled case dealt with the issue of
whether the clause provided for an adequate grace pe-
riod. The complaint in the instant case alleges that,
quite apart from the grace period, the clause is unlaw-
ful because it requires ‘‘membership in good stand-
ing.’’ Thus, a new and different charging party has
filed a new and different charge alleging a new and
different violation.
Concededly, the new union-security clause was
agreed to prior to the settlement agreement in the prior
case. And, under Hollywood Roosevelt Hotel, 235
NLRB 1397 (1978), a settlement agreement disposes
of all issues involving presettlement conduct. However,
Hollywood Roosevelt also teaches that presettlement
conduct remains vulnerable to attack if such conduct is
specifically reserved from the settlement. In the instant
case, the parties did precisely that. The settlement pro-
vided as follows:
This Settlement Agreement settles only the unfair
labor practices alleged in the above-captioned
case, and does not constitute a settlement of any
other case. It does not preclude persons from fil-
ing, or the National Labor Relations Board from
prosecuting, unfair labor practice charges against
the Charged Party based on events which precede
the date of the approval of this Settlement Agree-
ment. The General Counsel shall have the right to
use the evidence obtained in the investigation of
the above captioned case in the litigation of any
other unfair labor practice case; and any Judge,
the National Labor Relations Board, or any other
tribunal may rely on such evidence in making
findings of fact or conclusions of law.
Thus, the settlement agreement specifically reserved
out ‘‘any other case.’’ My colleagues seek to avoid
this plain language by arguing that the instant case and
the settled case are one and the same. I disagree. The
instant case is 7–CA–32181, 7–CB–8841, filed by em-
ployee Covington, and alleging that the words ‘‘mem-
bership in good standing’’ are unlawful. The settled
case was 7–CA–30942, 7–CB–8429, filed by employee
Lewis, and alleging that there was an insufficient statu-
tory grace period. Based on the above, I submit that
the instant case and the settled case are not one and
the same.1
Moreover, the settlement agreement permits the
prosecution of charges based on ‘‘events’’ which pre-
cede the settlement agreement. The settlement agree-
ment was entered into in December 1990. The events
which form the basis for the instant case are the origi-
nal agreement on the union-security clause in June
1990 and the agreement on a new union-security
clause on November 7, 1990. Thus, these events pre-
ceded the settlement and were reserved from it.2
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1991, unless otherwise indicated.
2 Counsel for the General Counsel’s unopposed motion to correct
the official record, dated February 20, 1992, is granted, as amended
to reflect the proper title of the Union’s counsel. The corrections are
set out in the appendix below. [The appendix has been omitted from
publication.]
3 The record in the instant cases did not show that the Regional
Director had approved a settlement between the Charging Party and
the Company in Case 7–CA–32181. However, I have taken judicial
notice of the Board’s records reflecting the settlement and the Re-
gional Director’s approval.
My colleagues contend that the union-security clause
that was entered into on November 7 was not an
‘‘event’’ because it was part of the settlement of the
prior case. However, the only part of the November 7
clause that was tied to the settlement was the ‘‘grace
period’’ aspect of the clause. The ‘‘membership in
good standing’’ aspect of the clause was reaffirmed on
November 7, and the reaffirmation had nothing what-
ever to do with the settlement. Moreover, even if that
reaffirmation is not an event, the original agreement on
the clause (in June 1990) was clearly an event, and it
clearly predated the settlement.
In view of the above, I think it plain that the settle-
ment agreement, by its reservation language, preserved
the General Counsel’s right to litigate other cases
based on presettlement events.
Dennis Boren, Esq., for the General Counsel.
Paul H. Bibeau, Esq., of Farmington, Michigan, for the Re-
spondent Company.
Gayle S. Boesky, Esq., of Southfield, Michigan, for the Re-
spondent Union.
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge. This
case was tried in Detroit, Michigan, on January 30, 1992.
The original charge in Case 7–CA–32181 was filed by Wil-
liam Covington, an individual (Covington), on August 7,
1991.1 Covington filed the original charge in Case 7–CB–
8841 on September 7, an amended charge in Case 7–CA–
32181 on September 9, and an amended charge in Case 7–
CB–8841 on September 9. On these charges, the Regional
Director for Region 7 issued the consolidated complaint in
these cases on September 19, alleging that the Respondents,
Ratliff Trucking Corporation, Inc. (Ratliff) and Ratliff Em-
ployees’ Organization (the Union), had violated, respectively,
Section 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the
National Labor Relations Act, 29 U.S.C. § 151 et seq. (the
Act), by maintaining an unlawful union-security provision,
and by terminating Covington’s employment because he
failed to pay dues to the Union, as required by that provi-
sion.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs2
filed by the General Counsel, Ratliff, and the Union, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Ratliff, a corporation, is a motor carrier
engaged in the local and interstate transportation of freight
and commodities at its terminal in Canton, Michigan, where
it annually realizes revenues exceeding $50,000 from its
transportation of goods originating in the State of Michigan
directly to points located outside the State of Michigan.
Ratliff admits, the Union concedes, and I find that Ratliff is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Ratliff and the Union
admit that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Since June 1, 1990, Ratliff and the Union have been par-
ties to and have maintained a 3-year collective-bargaining
agreement covering Ratliff’s employees. Article 1, section 2
of this contract, as originally drawn and executed, included
the following union-security clause:
Section 2. Union Shop.
a. All present employees who are members of the
Union on the effective date of this agreement shall re-
main members of this Union in good standing as part
of their condition of employment. All present employ-
ees who are hired hereafter shall become and remain
members in good standing of the Union as a condition
of their employment on/or before the 30th day fol-
lowing the effective date of this agreement.
b. Upon request by the Union the Employer shall be
required to terminate any employee covered by the
terms of this contract who is not in compliance with
paragraph 2.a. above.
On charges filed by employee Robert Matthew Lewis
against Ratliff and the Union, the Regional Director for Re-
gion 7 issued a complaint on September 25, 1990, alleging,
inter alia, that the clause, quoted above, ‘‘requires as a con-
dition of employment that employees join Respondent Union
earlier than the statutory grace period accorded them under
Section 8(a)(3) of the Act.’’ The complaint also alleged that
by maintaining that security clause, Ratliff was violating Sec-
tion 8(a)(1) of the Act, and the Union was violating Section
8(b)(1)(A) and (2) of the Act.
Thereafter, on December 14, 1990, the Regional Director
approved informal settlement agreements between employee
Lewis and the Company, in Case 7–CA–32181,3 and be-
tween employee Lewis and the Union, in Case 7–CB–8429.
The latter agreement, received in evidence, included the fol-
lowing clause:
This Settlement Agreement settles only the unfair labor
practices alleged in the above-captioned case, and does
not constitute a settlement of any other case. It does not
preclude persons from filing, or the National Labor Re-
lations Board from prosecuting, unfair labor practice
charges against the Charged Party based on events
which precede the date of the approval of this Settle-
1227RATLIFF TRUCKING CORP.
ment Agreement. The General Counsel shall have the
right to use the evidence obtained in the investigation
of the above captioned case in the litigation of any
other unfair labor practice case; and any Judge, the Na-
tional Labor Relations Board, or any other tribunal may
rely on such evidence in making findings of fact or
conclusions of law.
Pursuant to the approved settlement agreement, the Union
posted a notice to employees in which it declared:
WE WILL cease giving effect to the Union Security
Clause pursuant to Article 1, Section 2 of the collec-
tive-bargaining agreement, which requires as a condi-
tion of employment that employees join our member-
ship earlier than the 30-day statutory grace period ac-
corded them under Section 8(a)(3) of the Act.
On November 7, l990, Ratliff and the Union amended the
union-security clause in their collective-bargaining agreement
to conform to the settlement agreement, as follows:
All present employees who are members of the Union
on the effective date of this agreement shall remain
members of this Union in good standing as part of their
condition of employment. All employees who are not
members of this Union in good standing and all em-
ployees hired on or after the effective date of this
agreement shall become members of Union within ten
(10) days after the thirtieth (30th) day following the
date of employment or the effective date of this agree-
ment whichever is later and shall remain a member of
Union for the duration of this agreement.
William Covington, a truckdriver, began working for
Ratliff on January 2, 1985. Ratliff terminated Covington on
April 2, 1990, and reinstated him approximately 3 months
later. Covington went on medical leave of absence on or
about September 21, 1990. Covington was current in his pay-
ment of dues to the Union in August. However, he paid no
dues to the Union for September and the ensuing months
until his discharge on March 28.
The Union’s initial written notice announcing Covington’s
arrears in dues reached him on February 2. Attached to the
letter to Covington was a second letter to the Union’s mem-
bers, regarding dues arrears and the Union’s intent to enforce
the union-security clause. On March 7, Covington received
written warning that if he failed to pay his back dues, total-
ing $40, by March 14, the Union would consider him to be
‘‘a member not in good standing of this Union.’’ On March
25, the Union notified Covington that he was ‘‘a member not
in good standing of this Union,’’ because he had not com-
plied with the union-security clause. By letter of the same
date, the Union notified Ratliff that Covington was ‘‘a mem-
ber not in good standing of this Union as defined in our By-
Laws.’’ Continuing, the letter stated:
Per our contract with your Company, Article 1 Sec-
tion 2a, that states, all employees shall remain members
in good standing of this Union. [Covington] has failed
to do so.
We are requesting that William Covington be termi-
nated as per our contract, Article 1, section 2b.
Ratliff complied with the Union’s request by discharging
Covington on March 2. In its letter to Covington, Ratliff as-
serted, in substance, that it was discharging him for failure
to pay dues to the Union as required by the collective-bar-
gaining agreement’s union-security clause. Covington re-
ceived the discharge letter on April 1. On August 7, Cov-
ington filed the initial unfair labor practice charges in the
above cases.
B. Analysis and Conclusions
The Union and Ratliff contend that under Board law, the
informal settlements in Cases 7–CA–30942 and 7–CB–8429
require dismissal of the allegations before me that the
amended security clause and the implementation of that
clause by discharging Covington for nonpayment of union
dues violated the Act. The General Counsel argues that the
reservation language in the settlement agreement, the con-
tinuing nature of the union-security clause violation, and the
allegation that Covington was terminated unlawfully pursuant
to that clause remove the settlements as bars to the consoli-
dated complaint before me.
The Board has long held that ‘‘a settlement agreement dis-
poses of all issues involving presettlement conduct unless
prior violations of the Act were unknown to the General
Counsel, not readily discoverable by investigation, or specifi-
cally reserved from the settlement by the mutual under-
standing of the parties. [Citation omitted.]’’ Hollywood Roo-
sevelt Hotel, 235 NLRB 1397 (1978). In December 1990, at
the time of the settlement in Cases 7–CA–30942 and 7–CB–
8429, the General Counsel’s agent, the Regional Director,
had before him the union-security clause language which had
been embodied in the contract between Ratliff and the Union
since June 1990. That provision required all ‘‘present em-
ployees’’ of Ratliff to remain members of this Union in good
standing.’’ However, the settlement in those cases dealt with
provision of the same clause which did not give Ratliff em-
ployees, who were not members of the Union, or new Ratliff
employees, hired after the effective date of the collective-bar-
gaining agreement, the 30-day grace period required by Sec-
tion 8(a)(3) of the Act. The General Counsel permitted the
‘‘good standing’’ language to go unchallenged.
The Union and Ratliff cured the grace period violation to
the General Counsel’s satisfaction. The Union posted a no-
tice to employees, reciting the proposed amendment to the
union-security clause. Ratliff and the Union fully complied
with the settlement agreements. They then had good grounds
for believing that the amended union-security clause satisfied
the requirements of Section 8(a)(3) of the Act.
Under Board policy, such belief would have been unwar-
ranted, if the General Counsel had specifically reserved the
unaltered portions of the union-security clause from the set-
tlement by mutual understanding of the parties. Steves Sash
& Door Co., 164 NLRB 468, 473 (1967). However, the res-
ervation clause in the settlement agreement, set forth above,
at 3, does not specifically reserve the union-security clause’s
unaltered provisions.
Applying the policies found in Hollywood Roosevelt Hotel,
supra, and in Steves Sash & Door Co., supra, I find that the
consolidated complaint before me must be dismissed. The
amended union-security clause, on which the unfair labor
practices alleged in the complaint rests, is presettlement con-
duct, which may not be considered as evidence to support
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
the General Counsel’s case. Thus, I cannot find that the
union-security clause, and Covington’s discharge pursuant to
that clause, violated the Act, as alleged.
Assuming that the settlement in Cases 7–CA–30942 and
7–CB–8429 did not preclude litigation of the issues in the in-
stant cases, I find that neither the union-security clause nor
Covington’s discharge pursuant to that clause violated the
Act. Examining the amended union-security clause in the
current collective-bargaining agreement between Ratliff and
the Union, I find that it does not exceed the ‘‘financial core’’
relationship permitted by the Act. NLRB v. General Motors
Corp., 373 U.S. 734, 742 (1962); Hotel & Restaurant Em-
ployees Local 54 (Atlantis Casino), 291 NLRB 989, 99l, 993
(1988). The Union’s bylaws, the letters from the Union to
Covington, and the union-security clause show that the time-
ly payment of dues and an initiation fee were the only re-
quirements for membership in good standing for Covington
and the other members of the bargaining unit. Covington’s
refusal to pay dues to the Union after August 1990 subjected
him to lawful discharge under section 2b. of the collective-
bargaining agreement. I shall, therefore, recommend dis-
missal of the consolidated complaint.
CONCLUSIONS OF LAW
1. Ratliff Trucking Corporation, Inc. is an employer en-
gaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Ratliff Employees’ Organization is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Neither Ratliff Trucking Corporation, Inc. nor the
Ratliff Employees’ Organization has committed any of the
unfair labor practices alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The consolidated complaint is dismissed.