Nu-Aimco, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 978 (N.L.R.B. 1992)

978
306 NLRB No. 197
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Members Cracraft and Oviatt; Member Devaney would have de-
nied the request for review.
2 The notice provided, inter alia, that the Employer agreed to re-
frain from bargaining with the employee committee and from by-
passing the Union and bargaining directly with the employees.
3 We take administrative notice that the General Counsel denied
the Union’s request for reconsideration on March 6, 1991, finding
that the Regional Director’s approval of the unilateral settlement was
not an abuse of discretion.
4 The Union also argues that it should have been afforded a rea-
sonable time to bargain for a new contract. We note, however, that
the Union declined to give notice of an intention to modify or termi-
nate the parties’ collective-bargaining agreement; consequently, the
parties already had a new contract as the collective-bargaining agree-
ment renewed for 1 year.
American International Manufacturing Corpora-
tion, d/b/a Nu-Aimco, Inc., Aimco Foundry
Corporation, Aimco Defense Corporation and
Gary Jenkins, Petitioner and International
Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths, Forgers & Helpers Local
96, AFL–CIO. Case 16–RD–1226
March 31, 1992
DECISION ON REVIEW AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY, OVIATT, AND RAUDABAUGH
On February 13, 1991, the Regional Director for Re-
gion 16 issued a Decision and Direction of Election,
in a unit consisting of all the production and mainte-
nance employees, office porters, plant clerical employ-
ees, storekeepers, shipping and receiving clerks, and
inspectors employed at the Employer’s plant in Fort
Worth, Texas. Thereafter, in accordance with Section
102.67 of the National Labor Relations Board’s Rules
and Regulations, the Union filed a timely request for
review of the Regional Director’s decision. By Order
dated March 25, 1991, the Board granted the Union’s
request for review.1 The Employer filed a brief on re-
view.
The Board has carefully considered the entire record
in this case, including the brief on review, and in ac-
cord with our decisions in City Markets, 273 NLRB
469 (1984), Passavant Health Center, 278 NLRB 483
(1986), and Island Spring, 278 NLRB 913 (1986), we
affirm the Regional Director’s decision to process the
petition after the Employer’s compliance with a settle-
ment agreement remedying an unfair labor practice
charge.
I.
The facts are essentially undisputed. The Employer
manufactures ordnances and oil field equipment. The
Employer and the Union were parties to a collective-
bargaining agreement which, by its terms, was effec-
tive from September 15, 1987, through September 15,
1990. The collective-bargaining agreement provided
for automatic renewal on a year-to-year basis absent
timely notice by either party to modify or terminate the
agreement. No such notice was given by either party;
consequently, the collective-bargaining agreement auto-
matically renewed for 1 year. The decertification peti-
tion was timely filed during the window period of the
contract on July 11, 1990. On that same date, the
Union filed an unfair labor practice charge in Case 16–
CA–14658, alleging that the Employer had bypassed
the Union, bargained directly with employees through
an employee committee, and advised employees of the
benefits available to them if they would ‘‘rid them-
selves of the Union,’’ in violation of Section 8(a)(1),
(2), and (5) of the Act. The Regional Director held the
decertification petition in abeyance pursuant to the
Board’s blocking charge policy pending resolution of
the unfair labor practice charges.
On September 19, 1990, the Regional Director ap-
proved an informal settlement agreement, containing a
nonadmissions clause, in which the Employer agreed
to post a notice to the employees.2 The Union objected
to the settlement agreement because it did not require
dismissal of the decertification petition and appealed
the Regional Director’s approval of the settlement
agreement to the General Counsel. The General Coun-
sel denied the appeal on October 24, 1990.3 The Em-
ployer thereafter fully complied with the terms and
conditions set forth in the settlement agreement and,
despite the Union’s request to have the decertification
petition dismissed, the Regional Director conducted an
election on March 21, 1991, and impounded the bal-
lots.
II.
In processing the decertification petition, the Re-
gional Director relied on the Board’s decision in City
Markets, above, in which the Board held that a con-
tract entered into during the hiatus in processing a peti-
tion blocked by unfair labor practice charges will not
bar an otherwise timely filed petition when the charges
are withdrawn and the complaint dismissed. The Union
contends, inter alia, that the Employer’s conduct un-
dermined its status as the employees’ bargaining rep-
resentative and, therefore, the petition must be dis-
missed. The Union argues that the Employer cannot
cleanse its ‘‘taint’’ by merely posting a notice. The
Union also notes that it did not agree to the settlement
agreement, but sought as part of the remedy to have
the decertification petition dismissed. Finally, the
Union contends that the instant case is distinguishable
from Passavant Health Center, above, in which the
Board reinstated a decertification petition following
compliance with a settlement agreement, as the settle-
ment agreement here was unilateral rather than bilat-
eral, and the alleged unfair labor practices were not, as
in Passavant, confined to Section 8(a)(1) statements.4
979NU-AIMCO, INC.
5 Sec. 11730 et seq., of the Board’s Representation Casehandling
Manual; Big Three Industries, 201 NLRB 197 (1973).
6 In Island Spring, the Board found that the absence of a non-
admissions clause from a settlement agreement did not warrant a re-
sult contrary to Passavant as the employer had neither admitted the
charges nor had been found in violation of the Act. Thus, there was
no finding that the decertification petition had been tainted by unfair
labor practices committed by the respondent. Cf. Alexander Linn
Hospital Assn., 288 NLRB 103 (1988), enfd. 866 F.2d 632 (3d Cir.
1989); Hearst Corp., 281 NLRB 764 (1986).
7 273 NLRB at 470 fn. 3 (former Member Zimmerman, concur-
ring). In Passavant, the Board noted that a settlement agreement did
not constitute an admission by the employer that it committed any
unfair labor practices. 278 NLRB at fn. 3. Cf. Mine Workers (Island
Creek Coal), 302 NLRB 949 (1991) (inclusion of nonadmissions
clause merely reflects that the settlement was the result of a com-
promise prior to a final litigation on the merits rather than a success-
fully litigated prosecution of unfair labor practices culminating in a
finding of a violation based on evidence introduced at a hearing and
subjected to cross-examination).
Pursuant to its blocking charge policy, the Board
will sustain dismissal of a decertification petition, sub-
ject to reinstatement, where a complaint has issued al-
leging that the employer has refused to bargain in vio-
lation of Section 8(a)(5) of the Act, and the remedy,
if such an allegation were proven, would be an affirm-
ative bargaining order.5 Additionally, the Board will
sustain a Regional Director’s decision to hold a peti-
tion in abeyance pending resolution of unfair labor
practice charges alleging that the employer has vio-
lated Section 8(a)(1) and/or (3) of the Act. The Board
has explicitly stated, however, that the policy of dis-
missing a petition or holding it in abeyance because of
pending unresolved unfair labor practice charges does
not operate as a determination that the petition itself is
defective or tainted, i.e., that it does not raise a ques-
tion concerning representation because, for example, it
lacks a sufficient showing of interest or is tainted by
employer support. Rather, it merely postpones proc-
essing the petition until the unfair labor practice
charges are resolved, at which time the petitioner is
entitled to request reinstatement of the petition. City
Markets, above at 470. Once an employer has fully
complied with a settlement agreement remedying un-
fair labor practice charges, or once unfair labor prac-
tice charges have been withdrawn, then the question of
whether a decertification petition is ‘‘tainted’’ is lim-
ited to the sufficiency of the showing of interest or the
existence of supervisory or employer assistance in ob-
taining or circulating the petition. Thus, under the
Board’s decisions in City Markets, Passavant Health
Center, above, and Island Spring, above, assuming that
a decertification petition has been circulated and
signed by employees, met all of the Board’s technical
showing of interest requirements, and was otherwise
timely filed, the petition would, on request, normally
be reinstated or processed after compliance with a set-
tlement agreement or withdrawal of the unfair labor
charges and would not be barred by a contract entered
into during the hiatus in processing the petition.
In City Markets, timely filed decertification petitions
had been dismissed because alleged unremedied
8(a)(5) violations precluded the raising of a question
concerning representation. The parties subsequently ex-
ecuted new collective-bargaining agreements and the
charges were withdrawn. The petitioners then re-
quested reinstatement of the decertification petitions,
which the union argued were barred by the contracts
executed during the hiatus in processing the petitions
prior to the request for reinstatement. The Board rein-
stated the petitions despite the execution of the new
collective-bargaining agreements, holding that the
original filing date of the petition applied for purposes
of the contract bar rule. Id. at 470.
In Passavant Health Center, above, the decertifica-
tion petition, timely filed after the parties’ existing
contract had expired, was dismissed because of unre-
solved 8(a)(5) charges. The parties subsequently en-
tered into an informal settlement agreement containing
a nonadmissions clause, the parties executed a new
collective-bargaining agreement, and the charges were
withdrawn. The Regional Director, however, denied
the motions to reinstate the petition, finding that it was
barred by the new collective-bargaining agreement be-
tween the parties. The Board, following City Markets,
reversed the Regional Director’s decision, concluding
that because the charges had been withdrawn and the
terms of the settlement agreement were satisfied, the
petition should be reinstated. Under similar cir-
cumstances, the Board reinstated the decertification pe-
tition in Island Spring, although the informal settle-
ment agreement did not contain a nonadmissions
clause. 278 NLRB at 913.
The Board’s conclusions in Passavant Health Cen-
ter, City Markets, and Island Spring were based on the
fact that neither withdrawal of the charge and com-
plaint, nor the execution of an informal settlement
agreement, constitutes an admission by the employer,
or an adjudication by the Board, that an unfair labor
practice has been committed in violation of the Act.6
In City Markets, the union, which argued that the with-
drawn complaint alleging a violation of Section 8(a)(5)
precluded reinstatement of the petitions, in effect was
urging the Board to find that refusal-to-bargain allega-
tions were meritorious solely based on the Regional
Director’s issuance of a complaint. However, the
charges subsequently were withdrawn, the complaint
was dismissed, and there was no evidence presented
indicating that the employer engaged in conduct which
would require finding that the petition should not be
processed. Thus, there was no basis for concluding that
the employer engaged in unfair labor practices that
precluded reinstating the petitions.7 The Board does
not wish to discourage settlements between the parties
because respondents often agree to settle for a variety
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 In Independent Stave Co., 287 NLRB 740 (1987), the Board re-
affirmed its longstanding policy of encouraging the peaceful nonliti-
gious resolution of disputes. The Board stated that ‘‘the purpose of
such attempted settlements has been to end labor disputes and so far
as possible to extinguish all elements giving rise to them.’’ Id. at
741 (citing Wallace Corp. v. NLRB, 323 U.S. 248 (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. See, e.g., Independent Stave Co.;
Combustion Engineering, 272 NLRB 215, 217 (1984); Texaco, Inc.,
273 NLRB 1335 (1985). See also NLRB v. Food & Commercial
Workers Local 23, 484 U.S. 112, 127–128 (1987) (‘‘Congress was
aware that settlements constitute the ‘lifeblood’ of the administrative
process, especially in labor relations’’).
9 See the Board’s discussion in Independent Stave Co., above, and
cases cited therein.
10 See, e.g., National Telephone Services, 301 NLRB 1 (1991)
(adopting the administrative law judge’s recommendation to accept
a unilateral settlement agreement).
11 Even if an employer has been found to have committed an un-
fair labor practice, this does not necessarily result in dismissal of the
decertification petition; the seriousness and effect of the unfair labor
practices would have to be considered.
12 As in Passavant, the settlement agreement here contains a non-
admissions clause. We note that even if this were not the case, it
would not affect the result. See Island Spring.
of economic and practical considerations despite their
disagreement with allegations that they have engaged
in unlawful conduct. Should we decline to permit proc-
essing of decertification petitions even where the Gen-
eral Counsel has determined that settlement is appro-
priate, the parties would be subjected to a substantial
expenditure of time and resources without any assur-
ance as to the ultimate outcome or the relief granted.
Such a course is contrary to the Board’s longstanding
policy of encouraging settlement of unfair labor prac-
tices,8 both to improve labor-management relations and
to reduce the delay and expense of time-consuming
litigation.9 We find also that the unilateral nature of a
settlement agreement does not require a different re-
sult. The Board consistently approves unilateral settle-
ments when it believes such a settlement would effec-
tuate the purposes of the Act.10
The Regional Director retains full discretion regard-
ing whether to settle an unfair labor practice charge
and, if so, to determine the appropriate remedies in any
particular case; nothing in the Act or the Board’s Reg-
ulations prohibits the Regional Director from including
the decertification petitioner in the settlement discus-
sions or from taking the position that the unfair labor
practices, if proven, are sufficient to ‘‘taint’’ the peti-
tion such that dismissal of the petition is warranted.11
In that event, the Regional Director should make it
clear in the course of settlement discussions that he or
she intends to seek a remedy that would preclude the
reinstatement of the petition. Moreover, the Regional
Director is charged with advising the parties that ab-
sent such a settlement the case will be fully litigated,
and that such litigation could result in a finding of an
unfair labor practice violation sufficient to ‘‘taint’’ the
petition and require dismissal. As we have noted, an
affirmative bargaining order would preclude an elec-
tion for a certain period of time in any event.
In the instant case, the Regional Director accepted
the settlement agreement without seeking any addi-
tional remedies, and the settlement agreement was ap-
proved by the General Counsel. The Employer then
fully satisfied the terms and conditions of the settle-
ment agreement. There has been no finding by the
Board, or admission by the Employer, that the Em-
ployer has committed any unfair labor practices.12 Fur-
ther, there is no evidence that the showing of interest
supporting the decertification petition is insufficient or
that the Employer or its supervisors assisted in gath-
ering signatures or circulating the petition. Under the
circumstances, as the instant petition was timely filed
during the window period of the contract, in accord
with our decision in Passavant Health Center, we af-
firm the Regional Director’s decision to process the
petition and direct an election.
ORDER
The Regional Director’s Decision and Direction of
Election is affirmed, and the case remanded to the Re-
gional Director to open and count the ballots and for
further appropriate action.