Woodworkers Local 3-433 (Kimtruss Corp.)

National Labor Relations Board - Board Decisions

Aug 12, 1991

304 N.L.R.B. 1 (N.L.R.B. 1991)

1
304 NLRB No. 1
WOODWORKERS LOCAL 3-433 (KIMTRUSS CORP.)
1 We note that at par. 16 of the judge’s decision, the first sentence should
refer to ‘‘the Employer’’ not ‘‘the Union.’’
1 All dates refer to 1990 unless otherwise indicated.
2 The settlement agreement was originally approved on January 14, 1990,
when due to administrative error, the objections of the Employer were not
timely transmitted to me.
3 I have taken the liberty of changing the Employer’s sequence of the three
reasons to one that seems more convenient for my discussion.
International Woodworkers of America, Local 3-
433, AFL–CIO and Kimtruss Corporation.
Case 32–CB–3470
August 12, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On February 1, 1991, Administrative Law Judge Mi-
chael D. Stevenson issued the attached decision. The
Charging Party Employer filed exceptions and a sup-
porting brief and Respondent International Wood-
workers of America, Local 3-433, AFL–CIO filed an
answering brief.
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 approve the settlement.
ORDER
It is ordered that the settlement is approved.
DECISION OF ADMINISTRATIVE LAW JUDGE APPROVING
SETTLEMENT, SEVERING CASE, AND SETTING BRIEFING
SCHEDULE ON REMAINING CASES
MICHAEL D. STEVENSON, Administrative Law Judge. On
November 28, 1990,1 the instant case was heard before me
in Fresno, California. At the close of the case, I ordered
briefs to be filed on or before January 3, 1991. On December
14, the General Counsel and Respondent Union (Union)
reached agreement in Case 32–CB–3470, and on December
17, the General Counsel filed a motion to the administrative
law judge to approve supplemental partial settlement agree-
ment (settlement agreement). The settlement agreement is
characterized as ‘‘supplemental’’ because during the hearing,
I approved certain all-party partial settlements of issues in-
volving both Respondent Union and Respondent Employer.
The settlement agreement is characterized as ‘‘partial,’’ be-
cause if approved, there would remain for decision only
those allegations pending against Respondent Employer (the
Employer) Cases (32–CA–11176, 32–CA–11363).2
On December 20, I issued a Rule to Show Cause why the
settlement agreement should not be approved. On January
10, 1991, the Employer filed its ‘‘Opposition to Motion to
Approve Supplemental Partial Settlement Agreement.’’
Thereafter, both the General Counsel and Union have filed
their responses to the Employer’s opposition. I turn to decide
the issue.
Once the hearing has opened and, even after it has closed,
as in this case, the administrative law judge to whom the
case is assigned, has discretion to approve or disapprove the
settlement agreement. If the administrative law judge be-
lieves the settlement agreement does not effectuate the poli-
cies of the Act, the administrative law judge may refuse the
General Counsel’s motions to approve the settlement agree-
ment and to dismiss the complaint. The administrative law
judge retains discretion to approve the settlement agreement
even though it may be opposed by the General Counsel or
as here, by the Charging Party. Oshkosh Truck Corp. v.
NLRB, 530 F.2d 744 (7th Cir. 1976); Electrical Workers IUE
Local 201 (General Electric Co.), 188 NLRB 855 (1971).
There being no apparent disagreement among the parties
with the foregoing, I turn next to recite some brief back-
ground surrounding the proposed settlement agreement.
Case 32–CB–3470 alleges that the Union violated the Act
by failing to bargain in good faith by first promising the Em-
ployer that it would recommend to the membership that the
tentative agreement be approved, but then acting contrary to
the promise. At page 2, paragraph 4 of motion to approve
the settlement agreement, the General Counsel represents
Pursuant to the supplemental partial settlement, on De-
cember 9, 1990, Counsel for the General Counsel was
informed that Respondent Union met with its members,
recommended the contract, and the contract was rati-
fied. This action by Respondent, coupled with the post-
ing of the appropriate Notice would fully remedy the
unfair labor practices alleged in the Complaint in Case
32–CB–3470. In any event, any issues relating to the
contract ratification vote would appropriately be a com-
pliance matter.
The Employer asserts that for three reasons the settlement
agreement should be disapproved:3
(1) Dismissal of the complaint against the Union is
improper because the Judge must consider those
charges in order to determine whether the strike was an
economic one or an unfair labor practice strike.
Of the three reasons presented, this one is so lacking in
merit that little discussion is required to dispose of it. The
Employer argues that by approving the settlement agreement,
I will be precluded from determining whether the Union’s
conduct caused or contributed to the strike, thereby constitut-
ing a defense to the charges against the Employer. The Em-
ployer is charged with violating the Act by announcing a
bonus for those employees who did not participate in the
strike and by causing an unfair labor practice strike.
I find that approval of the settlement agreement will not
affect disposition of the charges against the Employer. Thus,
if I determine that the Employer caused an unfair labor prac-
tice strike, the Board would not recognize the ‘‘unclean
hands’’ defense that the Union may have also acted improp-
erly. Roofers Local 81 (Beck Roofing Co.), 294 NLRB 285
(1989), enfd. 915 F.2d 508 (9th Cir. 1990). I agree com-
pletely with the Union, brief at 4–5, that the Board does not
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Copper State Rubber, 301 NLRB 138 (1991).
5 I can assume without finding that if the Employer finds an appropriate
forum, it would need to establish that, but for the recommendation of the
union business agent, the contract would have been approved. No such show-
ing has been made in the instant case.
recognize a union’s unfair labor practice strike which the
Employer appears to be suggesting.
Finally, to the extent that the Union’s conduct plays a role
in the case remaining after the settlement agreement is ap-
proved, the Union continues as a party by virtue of its charg-
ing party status, and the Employer will be free to renew its
arguments which I here dismiss. In deciding the charges
against the Employer, I reserve every right to make findings
with respect to the Union’s conduct, if appropriate, both in
terms of general background,4 and in terms of the legal
issues presented.
(2) The settlement does not meet the Board’s standards
for approval of settlements
In National Telephone Services, 301 NLRB 1 (1991), the
Board adopted the judge’s recommendation to accept the set-
tlement agreement presented unilaterally by the respondent.
The objection of the charging party was found to be without
merit. At footnote 1 of its decision, the Board noted the Gen-
eral Counsel’s lack of objection to the settlement, a position
taken apparently after the case reached the Board. At page
4, the judge noted the case of Independent Stave Co., 287
NLRB 740 (1987), a case relied on by the Employer here,
and stated, ‘‘Although purporting to deal with private, non-
Board settlements, the case set forth some principles which
are applicable here. It said that before approving a purported
settlement, it would examine four factors: (1) whether the
parties have agreed to be bound and what position the Gen-
eral Counsel has taken in regard to the settlement; (2) wheth-
er the settlement is reasonable in light of the allegations of
the complaint against the risks inherent in litigation; (3)
whether there has been any fraud, coercion or duress by any
party in reaching the settlement; and (4) whether the re-
spondent has a history of violations or has breached past set-
tlement agreements.’’
In measuring the facts and circumstances of the present
case against the four factors listed above, I note as the Board
did in National Telephone Services, supra at footnote 2, that
the settlement agreement settles all the allegations of the
complaint by providing for the appropriate remedies, includ-
ing notice posting, and that Respondent has not been shown
to be a recidivist violator of the Act. Moreover, in this case,
the General Counsel is a party to the settlement agreement,
which makes for an even stronger case for approval than the
National Telephone Services, case where the General Coun-
sel merely indicated a lack of objection. Compare Copper
State Rubber, supra, 301 NLRB 138 at 139. No claim is
made by any party in the present case of fraud, coercion, or
duress in reaching settlement and I find that the settlement
is reasonable in light of the allegations of the complaint
against the risks inherent in litigation. See Farmers Coopera-
tive Gin Assn., 168 NLRB 367 (1967).
With respect to specific contentions of the Employer (Br.
at 8), it claims that the settlement agreement is not reason-
able on its face because it fails to make the parties whole
for the Union’s unfair labor practice. I will dispose of this
argument below. At page 9, the Employer merely renews its
argument already covered in the first section of this decision,
that the strike allegedly resulted from the Union’s conduct,
not the Employer’s.
The Employer also argues that since the case has already
been tried, the element of judicial economy is absent and
thus the settlement agreement should be disapproved. Putting
aside the fact that the Board did not list in Independent Stave
Co., supra, a reason to reject settlement agreements if settle-
ment is reached after trial, I note that under the Employer’s
contention, no posthearing settlement agreements could ever
be approved, an absurd result. Moreover, the Employer ig-
nores in its interpretation of ‘‘judicial economy,’’ the
Board’s time and that of a reviewing court.
Finally, the Employer cites the cases of Teamsters Local
115 (Gross Metal Products), 275 NLRB 1547 (1985), a case
which I find may be distinguished on its facts. In that case,
the Board upheld the judge’s refusal to accept a settlement
agreement containing a nonadmission clause. That case in-
volved long-term violations of the Act and serious acts of vi-
olence. In other contexts, the Board has approved the inclu-
sion of nonadmission language. Mine Workers (Decker
Coal), 294 NLRB 162 (1989); Concrete Materials of Geor-
gia v. NLRB, 440 F.2d 61 (5th Cir. 1971).
(3) The proposed remedy would not make the
Employer or the employees whole for the Union’s
unfair labor practice
Here the Employer, assuming that the Union was respon-
sible for the strike, argues that the Employer should be enti-
tled to compensatory damages which the settlement agree-
ment does not provide. I find that the Employer has received
all that it is entitled to at this stage of the proceeding. Thus
the Union has held a second ratification vote in which it rec-
ommended ratification. As the Employer concedes with Ex-
hibit A to its brief, the membership then voted to ratify ‘‘the
last contract proposal and unconditionally offered to return to
work.’’
In a sense, by receiving an affirmative ratification vote the
Union received more than it was entitled to. However, to the
extent it is entitled to even more, as the General Counsel has
stated in its motion to approve the settlement agreement,
‘‘any issues relating to the contract ratification vote would
appropriately be a compliance matter.’’ The Employer has
failed to show how it would be prejudiced by presenting its
claims during a compliance proceeding rather than insisting
that the entire settlement agreement be rejected. Nor has it
shown how the Employer could expect more from me if,
after adjudication, I found that the Union had committed the
unfair labor practice alleged.
Finally, if the Employer is entitled to further remedy and
assuming it is dissatisfied with the results of compliance, it
may be entitled to present its claims in a different forum, an
issue about which I make no finding.5
Rather, I find that the Employer has failed to persuade me
that the settlement agreement should not be approved. Ac-
cordingly, I approve it, I sever this case from the remaining
cases and set the date for briefs in this case on the remaining
issues in this case to be received in this office not later than
February 15, 1991. In conclusion, under separate cover, I
will transmit the approved settlement agreement to the Re-
3WOODWORKERS LOCAL 3-433 (KIMTRUSS CORP.)
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
gional Director for Region 32 for distribution to the parties
in the normal course and for supervision of compliance.6