Universal Blanchers, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1544 (N.L.R.B. 1985)

1544 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
Universal Blanchers , Inc. and Lucille Jordan and
Joe Cook .'Cases 10-CA-20113-1 and 10-CA-
20113-2' -
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 November 19841 the Regional Director for
Region. 10 of the National Labor Relations. Board
issued an order consolidating cases and complaint
and notice of hearing in the above-entitled :pro-
ceeding,-alleging -that the Respondent has engaged
in and is engaging in certain. unfair labor practices
affecting commerce within the meaning of Section'
8(a)(1) and (3) and Section 2(6) and (7) of the Na-
tional Labor Relations Act. Subsequently, the Re-
spondent filed an answer admitting in part and de-
nying in part the allegations of the complaint, sub-
mitting defenses, and requesting that the complaint
be dismissed in its entirety.
On 21 November the Respondent filed a Motion
for Summary Judgment and a memorandum in sup-
port of the motion. On 28 November the Board
issued an order transferring the proceeding to the
Board and a Notice to Show Cause why the Re-
spondent's motion should not be granted. On 11
December the General Counsel filed a response op-
posing the Motion for Summary Judgment.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-'
member panel. -
Ruling on the Motion for Summary Judgment
The facts with respect to the motion are as fol-
lows. On 5 April Charging Parties Jordan and
Cook filed the original charges in this proceeding
alleging that the Respondent discriminated against
them because of their union activities in violation
of Section 8(a)(1) and (3) of the National. Labor
Relations Act. Following an investigation, the Re-
gional Director, by letters of 15 May, dismissed the
8(a)(3) allegations, but noted that his "decision in
no way affects the remaining allegation .that the .
Employer violated Section 8(a)(1) of the Act." It is
not disputed that the Regional Director further.
stated that he was enclosing Form NLRB-4938,.
Procedures for Filing an Appeal, which explained
that the Charging Parties could' appeal their dismis-
sals to the General Counsel's Office of Appeals.
The letter also informed the Charging Parties that
the appeal period expired 29 May and Form
i All dates are 1984 unless otherwise indicated '
NLRB-4938 stated that a copy of any appeal
should be filed with the Regional Director.
Although' the Regional Director dismissed the
8(a)(3) allegations, he found evidence that the Re-
spondent had committed independent violations of
Section 8(a)(1) by interrogating employees about
their union activities, threatening employees with a
return to minimum wages, and refusing to make'
personal loans to' its employees because of their
union activities. On.16 May the Respondent signed
a settlement agreement to remedy the 8(a)(1) alle-
gations. Jordan and Cook signed the same settle-
ment agreement on 21 May., Thereafter, Cook and
Jordan-appealed the Regional Director's refusal to
issue a complaint on the 8(a)(3) allegations. The
General Counsel's Office of Appeals received
Cook's appeal -on 25' May and Jordan's appeal on
29 May: Neither Cook nor Jordan filed a copy of
his or her appeal'with the Regional Director.2
On 30 May the Regional Director approved the
settlement agreement. Thereafter, he received
copies of letters dated 29 and 31 May from the
Office of- Appeals acknowledging receipt of the
Charging Parties' appeals. On 25 June the Re-
spondent, complying with the settlement agree-
ment, posted a "Notice to Employees." On 26 June
the Acting Regional Director retracted the approv-
al of the settlement agreement, noting that through
administrative inadvertence the settlement of the
8(a)(1) allegations was approved while appeals on
the 8(a)(3) allegations were pending before the
Acting General Counsel. The Acting Regional Di-
rector also informed the parties that the case would
be held in abeyance pending the Acting General
Counsel's decision on the appeals. On 28 Septem-
ber the General Counsel's Office of Appeals sus-
tained the Charging Parties' appeals and directed
the Regional Director to issue the appropriate
complaint. On 9 November, as mentioned before,
the Regional Director issued a complaint alleging
that the Respondent violated Section 8(a)(1) and
(3) of the Act.
Based' on the above facts, the Respondent asserts
that the 'approval of the settlement agreement bars
the litigation of the complaint allegations because
the conduct alleged in the complaint predates the
settlement agreement and because the Regional Di-
rector knew of the alleged conduct at the time he
approved the agreement. The Respondent also as-
Sec 102 19 of the Board's Rules and Regulations provides that per-
sons seeking review of the Regional Director's refusal to issue a com-
plaint may do so "by filing an appeal with the general counsel in Wash-
ington D C , and filing a copy of the appeal with the regional director
If an appeal is taken the person doing so should notify all other
parties of his action, but any failure to give such notice shall not affect
the validity of the appeal "
275 NLRB No. 218
UNIVERSAL BLANCHERS'
serts that the retraction of the -Regional Director's"
approval of the- settlement agreement was improper
as the Respondent neither breached the agreement
nor engaged in unfair labor practices after the ap-
proval of the agreement. Accordingly, the Re-
spondent asserts that no issues of fact or law exist
requiring a hearing and that it is entitled to judg-
ment as a matter of law. -
The General Counsel contends that the Acting
Regional Director properly retracted the approval
of the settlement agreement because through ad-
ministrative inadvertence he approved the agree-
ment while the dismissed 8(a)(3) allegations were
pending before the General Counsel. Moreover,
the General Counsel notes that while Section
102.19 of the Board's Rules and Regulations pro-
vides that copies of appeals should be filed with
the Regional Director and notification given to all
parties, the section also provides that "failure to
give such notice shall not affect the validity of the
appeal." The General Counsel also contends that
the retraction was valid because at the time the Re-
gional Director approved the settlement agreement
he did not have knowledge of the pending appeals,
and thus the General Counsel should not be pre-
cluded from litigating the complaint allegations.
Moreover, the General Counsel contends that
every tribunal, judicial or administrative, has some
power to correct its own errors.
We agree with the Respondent that the Acting
Regional Director improperly withdrew the ap-
proval of the 8(a)(1) settlement agreement. The
Board will not set aside a settlement agreement
unless the charged party breaches the agreement or
commits postsettlement violations of the Act.3
Here, the General Counsel neither contends that
the Respondent breached the settlement agreement
nor that the Respondent engaged in postsettlement
violations. Rather, the General Counsel contends
that the retraction of the 8(a)(1) settlement agree-
ment and the issuance of the 8(a)(1) and (3) com-
plaint were proper, for when the Regional Direc-
tor approved the settlement agreement he did not
know that 8(a)(3) appeals were pending before the
General Counsel. We disagree.
The Board has consistently held that a settlement
agreement disposes of all presettlement conduct
unless the presettlement conduct was not known to
the General Counsel, or was not readily discover-
able through investigation, or was specifically re-
served from the settlement agreement by the
mutual understanding of the parties.4 We find that
' Henry I Siegel Co, 143 NLRB 386 (1963)
4 Steves Sash & Door Co, 164 NLRB 468, 473 (1967), Hollywood Roose-
velt Hotel Co, 235 NLRB 1397 (1978), Laminite Plastics Mfg Corp, 238
NLRB 1234 (1978), ESI Meats, Inc, 270 NLRB 1430 (1984)
1545
none of the above-'exceptions' is applicable to the
instant case.5 Thus, the General Counsel, through
its Office of Appeals, was aware of the -8(a)(3) ap-
peals when ..the Regional Director-. approved the
settlement agreement 30 May. We attach no-signifi-
cance to the fact--that the Regional Director was
personally unaware of the pending -8(a)(3) appeals,
when he approved the 8(a)(1) settlement. What is
critical here is that the General Counsel, through
its Office of Appeals, had knowledge of the pend-
ing appeals, and the Office of the Regional Direc-
tor, in investigating the charges, signing the settle-
ment agreement, and reinstating the complaint, was
acting as- an agent of the General Counsel. In our
view, knowledge of the pending 8(a)(3) appeals by
the General Counsel-whether it was through the
Office of Appeals or the Regional Director-is suf-
ficient to bar the litigation of the alleged presettle-
ment conduct for it is the General Counsel who
has final authority and responsibility for the investi-
gation of unfair labor practice charges and the issu-
ance of complaints.6
Moreover, all parties to a settlement agreement
are charged with the knowledge that the settlement
agreement bars subsequent litigation of all presett-
lement conduct unless specific exceptions are met.
Thus, the Charging Parties' signing the settlement
agreement and the Regional Director's approving
the agreement preclude the General Counsel and
the Charging Parties from subsequent litigation of
the alleged presettlement conduct. Here, alleged
unfamiliarity with Board procedure and administra-
tive inadvertence are insufficient to warrant a de-
parture from the settlement bar doctrine.7 The par-
ties to a settlement agreement should be able to
expect the fulfillment of the terms of an approved
settlement agreement. A charged party will be re-
luctant to enter into a settlement agreement if the
National Labor Relations Act is administered in
such a manner as to permit the setting aside of a
settlement agreement and the litigation of presettle-
ment conduct simply because of alleged unfamiliar-
ity with Board procedures or administrative inad-
8 Specific reservation of issues from a settlement agreement must be
established by;afftrmative evidence Cambridge Taxi Co, 260 NLRB 931
(1982) Here, the General Counsel has not presented any evidence to
show that the' 8(a)(3) allegations were specifically reserved from the set-
tlement agreement The General Counsel, however, argues that the
8(a)(3) allegations could not have been encompassed within the settle-
ment agreement , for the Regional Director had already dismissed those
allegations when he approved the settlement agreement The notion that
a settlement agreement disposes of only those matters encompassed by
the settlement agreement was rejected in Hollywood Roosevelt Hotel Co,
supra, when the Board held that a settlement agreement disposes of all
presettlement conduct unless one of the specific exceptions exists We
adhere to this view -
8 See, e g , Sec 3(d) of the National Labor Relations Act and Sec
102 15 of the Board's Rules and Regulations
' See Laminite Plastics Mfg Corp, 238 NLRB 1234, 1235 (1978)
1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vertence . s Accordingly , we find that the Acting
8 While the General Counsel argues that the Charging Parties were un-
familiar with Board procedure , we note that when the Charging Parties
did not file a copy of their appeals with the Regional Director, they
failed to follow the plain instructions in Form - NLRB-4938 which was
attached to the Regional Director's dismissal letters, as well as the re-
quirements 'of Sec 102 19 of the Board 's Rules and Regulations More-
over, neither the • General Counsel , nor the Respondent claims that the
Charging Parties at any time gave notice of their appeal
,r;
Regional Director erred in withdrawing approval
of the 30 May settlement and that the - General
Counsel is precluded from litigating the complaint
allegations. We therefore grant the Respondent's
Motion for Summary Judgment.
ORDER
' i' - -
The complaint is dismissed.
, " ,