Gourmet Toast Corp

National Labor Relations Board - Administrative Judge Opinions

Jun 16, 2011

29-CA-030404 (N.L.R.B. Jun. 16, 2011)

JD(NY)–19–11
Brooklyn, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
GOURMET TOAST CORPORATION
and Case No. 29-CA-30404
LOCAL 1430, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO
Ashok Carlos Bodke, Esq., Brooklyn, NY, for the
General Counsel.
Jack Feld, Brooklyn, NY, for the Respondent.
Cesar Alarcon, White Plains, NY, for the Charging
Party.
DECISION
Statement of Facts
Steven Fish, Administrative Law Judge: Pursuant to charges filed and amended charges
filed by Local 1430, International Brotherhood of Electrical Workers, AFL-CIO, herein called
Charging Party or the Union, the Director for Region 29 issued a Complaint and Notice of
Hearing on January 11, 2011, alleging that Gourmet Toast Corporation, herein called
Respondent, violated Sections 8(a)(1) and (5) of the Act by reducing the hours of employee
Mario Beltre (a/k/a Mario Toribo) on various occasions in September 20101 and laid off Beltre
on October 10, 2010 without notice to or bargaining with the Union.
The trial opened on April 14, 2011. At that time, Respondent and Charging Party agreed
upon a non-Board settlement, which General Counsel opposed. The terms of the settlement
were discussed on the record, and Charging Party requested withdrawal of the charges based
upon the settlement agreement. General Counsel objected to the granting of the request to
withdraw. I reserved judgment on the request and asked the parties to submit briefs or position
papers on the propriety of my accepting the settlement over the objection of General Counsel.
Both the General Counsel and Respondent submitted letter briefs, which have been carefully
considered. Based upon the entire record, I make the following:
Finds of Fact
I. Jurisdiction and Labor Organization
Respondent is a corporation with its principal office and place of business at 345 Park
Avenue in Brooklyn, NY, where it is engaged in the non-retail production and distribution of food

1 All dates hereinafter referred to are in 2010, unless otherwise indicated.
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products.
During the past year, Respondent sold goods and materials valued in excess of $50,000
directly to customers located outside the state of New York. It is admitted, and I so find, that
Respondent has been an employer engaged in commerce within the meaning of Section 2(2),
(6) and (7) of the Act.
It is also admitted, and I so find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
II. The Charges
The Union’s original charge, filed on September 23, alleges that Respondent violated
Section 8(a)(1), (3) and (5) of the Act by reducing the hours of employees without notifying the
Union and because of the employees’ support for the Union. The charge also alleges that
Respondent has refused to meet with the Union for negotiations, despite a request by the
Union.
On November 30, the Union filed a first amended charge, which alleges that Respondent
violated Sections 8(a)(1) and (5) of the Act by reducing the regular hours of employees and
laying off employees without notifying the Union and without providing the Union an opportunity
to bargain.
III. The Complaint and Answer
As noted above, on January 11, 2011, the Director issued a Complaint and Notice of
Hearing. The Complaint alleged that the Union was certified by the Board as the collective
bargaining representative of Respondent’s employees on September 14, 2010 and since that
time the Union has been the exclusive representative of Respondent’s employees in the unit
certified.2
The Complaint further alleges that on various occasions in September 2010,
Respondent reduced the hours of its employee, Mario Beltre, and on October 10, laid Beltre off
without notifying the Union and without providing the Union an opportunity to bargain with
Respondent with respect to this conduct and the effects of this conduct in violation of Section
8(a)(1) and (5) of the Act.
Although the charges alleged that Respondent’s conduct also violated Section 8(a)(3) of
the Act and was motivated by employee support for the Union, the Complaint did not allege
such a violation.
On January 21, 2011, Respondent, through its president, Jack Feld,3 submitted a letter
to the Region detailing Respondent’s position. In this letter, Respondent essentially admitted
that it did not bargain with the Union prior to the reduction in hours of Beltre in September, but
asserts that it did bargain with the Union about the subject after the reduction. The letter further
denies that Respondent laid off Beltre at any time.

2 The unit consisted of all production, shipping, receiving and maintenance employees
employed by Respondent at its Brooklyn facility.
3 Respondent was not, and is not, represented by counsel in this proceeding.
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According to the letter, Beltre was the least senior employee of Respondent, having
been hired in June 2010. He had previously worked 40 hours a week, plus a few hours of
overtime. However, Respondent, which is in the business of collecting old and unwanted bread
from local bakers and processing it into bread crumbs, suffered a substantial reduction in its
supply of bread from one of its main suppliers in mid-September. Feld was told, at that time, that
the supplier, Anthony & Sons Bakery, had cut down dramatically in their waste since the price of
flour had risen substantially and that they could no longer afford to throw away so much bread.
After a week of such reduction in supply, Feld, on September 21, told Beltre not to come
in on Wednesday, September 22 because Respondent didn’t have enough work for him
because of the loss of bread. Feld asserts that he chose Beltre for the reduction in hours
because Beltre was the least senior employee and because he did not speak any English and
therefore could not perform certain jobs in the plant, which required communication with Feld or
other English-speaking employees. On Wednesday, September 22, Feld called Beltre and
informed him that there was no work for him on Thursday, September 23. Felt added that he
would be out of the office on Thursday and Friday, September 23 and 24 because of the Jewish
holidays, but that Beltre should call Warren Nurse, a supervisor, to see if there was work for him
on Friday, September 24. Indeed, according to Feld, Beltre did indeed work on that Friday.
On Tuesday, September 28, Feld received a call from Cesar Alarcon, business agent for
the Union. Alarcon asked Feld why he had reduced Beltre’s hours. Feld explained that
Respondent’s bread supply had been substantially reduced and Respondent did not have
enough work for Beltre. Alarcon asked what could be done to give Beltre more work. Feld
informed Alarcon that he would be very busy because there were Jewish holidays again on
Thursday and Friday of that week, but that when he returned from the holidays he (Feld) would
look into it and see what he could do. Beltre worked only two days during the week ending
October 1, 2010.
Beltre was called to work on Monday, October 4, although he normally did not work on
Monday, but there was no work for him on Tuesday, October 5. Alarcon called Feld on October
5 and asked why he had not increased Beltre’s hours. Feld responded that it appeared that the
reduction in Respondent’s supply was going to be permanent and there was no way he could
put Beltre back to full-time as before. Feld added that he could only provide Beltre with one or
two days a week of work until things changed. Alarcon again asked why Feld chose Beltre. Feld
replied that Beltre did not speak English and there are some jobs that require fluency in English.
Alarcon suggested that Feld asked other workers if they would be willing to give up a day so
that Beltre could have more days. Feld replied that as he had explained before, Beltre could not
perform some jobs because of his English, but that he would ask some employees, who Beltre
could replace, if they would be willing to give up a day so that Beltre could have more hours.
Fled asserts that he did ask some employees but nobody was willing, and they all said that they
needed all their days.
On Friday, October 8, Feld contends that Alarcon called again and asked what can be
done for Beltre. Beltre had been called into work for that day. Feld informed Alarcon that he had,
as Alarcon had suggested, asked some employees about giving up days and that all of them
had refused. Feld added that Respondent would only have one or two days a week of work for
Beltre. Alarcon informed Feld that Beltre had told Alarcon that this was not enough work for him
and he needed more hours. Feld replied that Beltre had also told Feld that he was not interested
in such a small amount of work, but that he (Feld) had told Beltre that there wasn’t anything that
Feld could do. According to Feld, Alarcon asked if Beltre could file for unemployment insurance.
Feld responded that Beltre should do so, adding “that is what it is for.” Alarcon then allegedly
responded that he would tell Beltre to file for unemployment insurance.
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Feld unequivocally denied that he told Beltre on that day or on any other day that he was
laid off.
On Wednesday, October 11, Feld received notice from unemployment insurance that
Beltre had filed for unemployment insurance effective October 11. Feld states that he assumed
from the above that Beltre was not interested in the one or two days a week of work that
Respondent had available for him and had instead chosen to file for unemployment as Alarcon
had suggested. Further, Beltre never returned to work after Friday, October 8. Feld also
submitted also with his letter, a letter from Anthony & Sons, one of Respondent’s suppliers,
which confirmed that in September 2010, it had made production changes, which resulted in a
reduction in the amount of truck loads that it had supplied to Respondent from six loads to three
or four per week.
IV. The Hearing
At the hearing, as I indicated above, the Union requested withdrawal of the charges
based on a non-Board settlement that had been negotiated by Alarcon and Feld, the terms of
which were agreeable to Beltre.
The settlement provided that Respondent would pay Beltre $1500 in installments of
$750 to be paid within a week of approval of the agreement and another $750 to be paid within
the next week after approval. Beltre would waive his right to reinstatement.
Beltre testified that he agreed to the terms of the agreement and agreed to waive his
right to reinstatement based on the payment to him of $1500 by Respondent as specified
above.
General Counsel objected to the withdrawal and the settlement principally because it
viewed the backpay inadequate and below the 80% figure that General Counsel believed to be
appropriate. General Counsel stated that its calculations for Beltre came to $4114. General
Counsel made the calculations based upon Beltre’s pay in August and September before his
hours were reduced. The gross figure was based on 40 hours, plus 4.5 hours of overtime.
Respondent vigorously contested the assumptions of General Counsel, contending that
there was simply insufficient work for Beltre based upon the admitted loss of supply and there
would not have been full weeks of work for Beltre, much less overtime for him had he continued
to work for Respondent.
General Counsel conceded that its calculations are somewhat questionable, but still
contends that the appropriate amounts should be based on Beltre’s pre-reduction hours and
earnings.
General Counsel also stated that it had cut off Beltre’s backpay on December 10 since
Beltre left the country on that date and did not return to the U.S. until late January 2011.
General Counsel also agreed that since Respondent laid off two more employees in early
January 2011 that Beltre would have been laid off at that point. Thus, General Counsel did not
seek backpay after December 10.
General Counsel also conceded that if Feld’s assertions made in its answer and
repeated at the hearing are accurate that would be no violation as to the alleged layoff.
However, General Counsel contends that Beltre was prepared to testify that contrary to Feld’s
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assertion, that Feld told Beltre not to come back to work and there was no more work for him.
Further, Beltre would testify that he called the Union three days later and said that he had gotten
laid off. Further, Alarcon would testify that is how he had learned about the layoff. General
Counsel also stated that the Union and Respondent were engaged in collective bargaining
negotiations during this period of time, including bargaining about layoffs and reduction of hours,
and that there are differences in the recollections of Feld and Alarcon as to the nature and
timing of their discussions. Finally, General Counsel also opposed the settlement since it did not
provide for Beltre’s reinstatement.
V. The Briefs
In its brief, General Counsel made some minor recalculations in the backpay due to
Beltre. He used updated production and payroll records submitted by Respondent. The brief
presented various alternative calculations based upon the positions taken at the hearing. As
noted above, General Counsel based its calculations on Beltre’s hours prior to the hours
reduction and 4.5 hours of overtime. That calculation amounts to $374 per week. Based on this
figure, full backpay according to General Counsel’s revised figures is $3910, $2992 for the layoff
(8 weeks at $374), plus $918 for the reduction of hours violation.
General Counsel also recognized that Feld asserted that Beltre would not have received
any overtime, even if he had not been laid off, due to the reduction of work available. Therefore,
General Counsel also calculated backpay without any overtime, which resulted in a figure of
$3478 ($2560 x 8 weeks at $320, plus $918 for the reduction of hours liability).
General Counsel also recognized Respondent’s argument that since production was
declining, there was less work available for Beltre during the backpay period. Records submitted
by Respondent and attached to General Counsel’s brief corroborate a substantial decrease in
production during the backpay period.
General Counsel, therefore, calculated backpay based on Feld’s assertion that even
absent the layoff, Beltre would have worked only two days a week. This calculation would
reduce Respondent’s liability to $2326 (22 hours a week at 11 hours a day; $126 per week for 8
weeks, yielding $1408) Adding $918 for the reduction in hours liability to $1408, results in the
$2326 figure.
Thus, General Counsel states that the backpay of $1500 agreed to represents from 38%
to 57% of total backpay depending on the calculations utilized.4
However, since any of these figures are below the 80% figure deemed essential by
General Counsel and reinstatement was not offered, General Counsel maintained its opposition
to my approving the withdrawal of the charges based on the agreement.
Respondent’s brief maintained Feld’s position as expressed in its answer and at the
hearing that Respondent did not at any time inform Beltre that there was no more work for him,
but only that Respondent did not have sufficient work to provide Beltre with the four days a
week that Beltre had received prior to the reduction in his hours.

4 However, General Counsel’s calculations are not accurate. The $1500 settlement,
assuming the $2326 figure to be correct, comes to 64% not $57%. Thus, the correct estimates
of the settlement range from 38% to 64%, which averages out to 50.1%.
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Feld further points out in his brief that he had been in constant discussions with Alarcon
about Beltre’s situation since the filing of the charge ad insists that in his conversation with
Alarcon on October 8, Alarcon asked Feld if Beltre could file for unemployment insurance and
Feld said, “Sure, that’s what it is for.” Apparently, Alarcon agreed that he had such a
conversation with Feld, but believes that it occurred after Beltre informed him that Feld told
Beltre that there was no work for him.
To support Feld’s version of the events, he submitted a copy of a document entitled,
“Gourmet Toast Contract Proposals and Language Changes to Make.” This document appears
to reflect agreements reached at a bargaining session on October 11 between Feld and
Alarcon. The document indicates that the parties agreed on October 11 to the following
language. “Seniority lay off. Delete last paragraph and change to ‘Prior to commencing any
general lay off or more than seven days, the Employer shall notify the Union.’”
Feld argues that this evidence supports his assertions as to the timing and substance of
his conversation with Alarcon since if he had in fact told Beltre that there was no more work for
him on October 8. “It is inconceivable that I would not have told Cesar about this at our
negotiation meeting on Monday, October 11 when my obligations regarding this topic were
being specifically discussed and negotiated, if I had not already notified him about this earlier.”
VI. Analysis
The Board has long had a policy of encouraging the peaceful, nonlitigious resolution of
disputes. The purpose of such attempted settlements has been to end labor disputes, and so far
as possible to extinguish all the elements giving rise to them. Independent Stave Co., 287 NLRB
740 (1987); Wallace Corp., 323 U.S. 248, 253-254 (1944). The Board has reiterated its
commitment to private negotiated settlement agreements and its policy of “encouraging parties
to resolve disputes without resort to Board processes.” Combustion Engineering, 272 NLRB 215
(1984); Independent Stave, supra.
However, the Board is not required to give effect to all settlements reached by the
parties with or without General Counsel’s approval. It is clear that the Board’s power to prevent
unfair labor practices is exclusive, and that its function is to be performed in the public interest
and not in vindication of private rights and the Board alone is vested with lawful discretion to
determine whether a proceeding, when once instituted, may be abandoned, Independent Stave,
supra, 287 NLRB 740, 741 (1987). The test enunciated by Independent Stave considers these
factors:
[I]n order to assess whether the purposes and policies underlying
the Act would be effectuated by our approving the agreement, the
Board will examine all the surrounding circumstances including,
but not limited to, (1) whether the charging party(ies), the
respondent(s), and any of the individual discriminatee(s) have
agreed to be bound, and the position taken by the General
Counsel regarding the settlement; (2) whether the settlement is
reasonable in light of the nature of the violations 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
had engaged in a history of violations of the Act or has breached
previous settlement agreements resolving unfair labor practice
disputes. Id at 743.
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In assessing the non-Board settlement agreed upon by Charging Party, Respondent and
Beltre, it is necessary to consider the Independent Stave criteria. In that regard, General
Counsel concedes, as it must, that factors one, two and four favor approving the settlement
reached. Thus, Charging Party, Respondent and the alleged discriminatee,5 Beltre, have all
agreed to the terms of the settlement. There is no allegation that there has been any fraud or
coercion in reaching the settlement, and Respondent does not have a history of violations of the
Act or breaching previous agreements.
That leaves factor 2, which considers whether the settlement is reasonable in light of the
violations alleged, the risks inherent in litigation and the stage of litigation. General Counsel also
concedes, and I agree, that since the settlement was offered prior to the commencement of
litigation, it also weighs in favor of approval.
However, General Counsel argues that the settlement should not be approved because
the backpay offered does not amount to 80% of estimated liability and that the agreement did
not include reinstatement of Beltre. Frontier Foundries, 312 NLRB 73, 74 (1993) (Board declines
to approve non-Board settlement providing for 6% of full backpay, concluding that this amount is
“so clearly unreasonable,” particularly since it involved “the serious nature of an 8(a)(3)
violation”).
General Counsel also contends that the risk inherent in this litigation is low since
Respondent admitted its lack of notice to the Union on the reduction of Beltre’s hours, and
General Counsel had multiple witnesses, who would testify that Beltre had been laid off,
contrary to Respondent’s position.
I disagree with General Counsel’s arguments in both respects. There is always a risk in
litigation, particularly where as here, there are significant credibility resolutions to be made.
Independent Stave, supra at 742. Indeed, although General Counsel is correct that Respondent
conceded that it did not notify the Union prior to initially reducing Beltre’s hours, it vigorously
denies that it laid off Beltre. Notably, the bulk of the backpay allegedly due to Beltre is based on
the allegation that Respondent failed to notify the Union before laying off Beltre. Since
Respondent denies that it laid off Beltre, but merely maintained its position that there was
insufficient work for Respondent to provide him with a full week of work, it is clear that there is a
significant credibility resolution to be made in order to resolve that issue. Indeed, General
Counsel conceded that if Feld’s version of the facts is credited, there is no violation as to the
alleged layoff.
While General Counsel asserts that it has “multiple witnesses” to establish that Beltre
was told that he was laid off, it is not clear who these witnesses are or that they will be credited.
While General Counsel argues that it makes little sense that Beltre, as claimed by Feld, would
of his own accord decide to apply for unemployment if Respondent had not indicated that there
was no more work for him, I do not necessary concur. It is conceivable that, as Feld asserts, he
told the Union and Beltre that Respondent could not promise Beltre a full week’s work and that
Beltre may have preferred to file for unemployment insurance rather than accept one or two
days a week of work. Furthermore, I find some plausibility to Feld’s position, since he was

5 Technically, Beltre probably should not be characterized as a discriminatee since there is
no allegation of a discriminatory discharge or layoff. However, since Beltre’s employment status
was adversely affected by the alleged refusal to notify the Union in violation of Section 8(a)(5) of
the Act, Beltre should be treated as a discriminatee for purposes of this discussion.
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engaged in bargaining with the Union over the continued reduction of Beltre’s hours as well as
the terms of a contract, including agreeing to a clause with regard to notifying the Union of
layoffs over seven days. In such circumstances, particularly where Feld was on notice by virtue
of the original charge that Respondent was obligated to bargain with the Union before reducing
the hours of Beltre, it is not likely that he would lay off Beltre without notifying the Union about
such an action.
Moreover, to the extent that General Counsel’s witnesses would testify otherwise, I note
that Beltre, who would obviously be the primary witness, does not speak English. Since the
record does not establish whether the alleged conversation between Beltre and Feld, wherein
Feld allegedly told him that he was laid off or there was no work for him, took place with the aid
of an interpreter, it is possible that Beltre may have misinterpreted Feld’s statements to him
about the availability of work. Feld may have told Beltre that there was no work for him on his
next scheduled day rather than, as Beltre asserts, that there would be no more work for him at
all.
I, of course, do not and cannot make any credibility resolutions on these issues without
the witnesses’ testimony and cross-examination. I make the above observations to conclude
that, contrary to General Counsel’s contentions, there is a significant credibility resolution to be
made, so I cannot and do not conclude that the “risk inherent in this litigation was low.”
As to General Counsel’s contentions that the settlement should not be approved
because the backpay offered does not equal 80% of backpay due and reinstatement was not
offered to Beltre, I, once again, do not agree.
While the General Counsel may have its own internal guidelines that prohibit the
acceptance of settlements below 80% of backpay due, these guidelines are not binding on the
Board. In fact, the Board and/or judges have frequently approved settlements, which did not
meet the 80% figure.6 Indeed, in Independent Stave, itself, the Board approved a settlement,
which included backpay of only 10% of the amount due, although the agreement did include
reinstatement for three discriminatees. See also American Pacific Concrete Pipe Co., 290 NLRB
623, 623-624 (1988) (in a backpay hearing, where unlike the instant case, liability had already
been determined, Board approves settlement over the objection of General Counsel of backpay
of slightly under 50%; payment of $20,000, where the backpay specification claimed that
discriminatee was owed $41,610); Service Merchandise Co., 299 NLRB 1132, 1134 (1990) (one
of the discriminatees waived reinstatement and accepted 50% of backpay); Combustion
Engineering, supra, 272 NLRB at 217 (Board approves settlement agreement reached between
union and employer settling grievances, which encompassed complaint violations, providing for
no backpay but with reinstatement); Central Cartage Co., 206 NLRB 337, 337-338 (1973)
(Board approves settlement negotiated between the union and employer, which provided for no
backpay for alleged discriminatee and included agreement as to what work alleged
discriminatee would perform); Roselle Shoe Corp., 135 NLRB 472, 475-478 (1962) (Board
approves settlement over objection of charging party, where backpay agreed upon was $12,000
for each discriminatee although if charging party’s computation is accepted there would be
$80,000 due for each discriminatee);7 Insulation Sales Inc., 1998 WL 1985159 (NLRB Division

6 Indeed, as detailed below, in some cases, settlements were approved without any backpay
being paid to the alleged discriminatees.
7 While Roselle Shoe, supra, Central Cartage, supra and Combustion Engineering, supra
were all pre-Independent Stave, all three cases were cited favorably in Independent Stave’s
analysis.
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of Judges 1998) (judge approved settlement between employer and charging
party/discriminatee, providing for backpay of approximately one-third of what would have be due
and waiver of reinstatement; General Counsel, although objecting to approval of withdrawal
request, did not appeal judge’s decision); Ribbon Sumyoo Corp., 1992 WL 1465636 (NLRB
Division of Judges 1992) (judge approves non-Board settlement providing for approximately
45% of backpay, plus waiver of reinstatement, over objection of General Counsel; again, no
appeal filed by General Counsel to judge’s approval of agreement and granting motion to
withdraw charges).8
Based upon the above cited precedent alone, I reject General Counsel’s objections to
the settlement and would grant the Union’s motion to withdraw the charges. However, here,
there are other facts present, which reinforce my decision that approving the withdrawal
effectuates the purposes of the Act.
First, the non-Board settlement was negotiated on behalf of Beltre by Alarcon, the Union
business agent. Further, the Union has recently been certified and the parties are in the process
of engaging in collective bargaining for a first contract, and the record reveals that some
progress has been made in this regard. Although these is no collective bargaining agreement in
existence between the parties and no formal grievance procedure, in fact, Feld had been
bargaining with the Union concerning Beltre’s hours and status, so the bargaining over the
terms of the settlement can be construed as akin to a grievance resolution. The Board seems to
be more prone to approve settlements reached in such contexts, even where General Counsel
objects. Combustion Engineering, supra, 272 NLRB at 217; Central Cartage Co., supra, 206
NLRB at 338. In both of these cases, as noted above, settlements were approved with no
backpay for the alleged discriminatees. I find here that the parties’ agreement to settle the issue
of Beltre’s alleged layoff “may be viewed as an ameliorative step in the parties’ relationship and
in their bargaining for a new contract.” Hospital Perea, 356 NLRB #150 slip op at 1-2 (April 29,
2011). I also conclude that approval of the agreement “fosters rather than undercuts the Act’s
key goal of encouraging parties to resolve labor disputes by reaching collective bargaining
agreements rather than resorting to the Board’s process.” Id at p.2.
Further, General Counsel’s reliance on the failure of Respondent to reinstate Beltre is
misplaced. Here, General Counsel has conceded that Beltre’s backpay would have been cut off
on December 10 since he left the country at that time and by the time he returned to the United
States in January 2011, there had been a layoff of two employees of Respondent. General
Counsel agrees that Beltre, even if he had not been laid off in October 2010, would have been
part of the January 2011 layoff, particularly since he was the least senior employee of
Respondent. Therefore, it is unlikely that reinstatement would have been an appropriate remedy
for Beltre, even if General Counsel was successful in establishing that Beltre had been laid off in
violation of the Act in October 2010.
Additionally, it is also significant that Respondent had been experiencing financial
difficulties, including a substantial loss of business, which resulted in the layoff of two more
employees in addition to the alleged layoff of Beltre. Thus, Respondent’s financial condition
could make a future award problematic. American Pacific Pipe, supra, 290 NLRB at 624 (Board

8 Also notable is BP Amoco Chemical, 351 NLRB 614, 615-616 (2007) (majority of Board
applied Independent Stave standards to termination agreements signed by 37 alleged
discriminatees, providing for enhanced severance benefits but no backpay and dismissed
complaint allegations concerning these discriminatees, even over the objection of both General
Counsel and charging party; Member Liebman dissented).
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relies on financial condition of employer in deciding to accept less than 50% of backpay alleged
in compliance specification; Board states that discriminatee in accepting lower amount “knew of
the potential risks posed by the respondent to actually obtaining a full backpay award”).
Finally, I also have considered as Independent Stave requires, the “nature of the
violations alleged.” Here, there is no 8(a)(3) violation alleged or any violation the Respondent
intentionally discriminated against employees based on protected conduct. Cf. Frontier
Foundries, supra, 312 NLRB at 74, where the Board in rejecting the settlement for 6% of the
backpay also noted the “serious nature of an 8(a)(3) violation.”
Here, Respondent, who was not represented by counsel, did not intentionally violate the
Act, but was clearly unaware that it was obligated to notify and bargain with the Union before
reducing employees’ hours. Immediately upon receipt of the charge, Respondent commenced
bargaining with the Union over the continued reduction of Beltre’s hours as well as the terms of
a contract. In such circumstances, I find that this evidence further supports approving the
approval of the settlement.
Accordingly, based on the foregoing analysis and authorities, I conclude that honoring
the agreement reached here by Respondent, the Union and Beltre “advances the Act’s purpose
of encouraging voluntary dispute resolution, promoting industrial peace, conserving the
resources of the Board and serving the public interest.” Independent Stave, supra, 287 NLRB at
743.
I shall therefore conditionally grant the Union’s request to withdraw the charges and to
dismiss the complaint. My approval is conditioned upon Respondent making the payments
agreed upon by the parties within seven days from the date that Respondent is notified that
General Counsel does not intend to appeal this decision or the Board’s approval of this
decision, whichever occurs first.
Based upon the foregoing findings of fact and conclusions and the entire record, I
hereby issue the following recommend:9
ORDER
The Union’s request to withdraw the charges is granted and the Complaint is dismissed
conditioned on Respondent’s compliance with the terms of the agreement reached by the
parties.
Dated, Washington, D.C., June 16, 2011
____________________
Steven Fish
Administrative Law Judge

9 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 objections to them shall be deemed
waived for all purposes.