Pipefitters Local 290 (Kinetic Systems)

National Labor Relations Board - Board Decisions

Oct 24, 2006

348 N.L.R.B. 998 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
348 NLRB No. 61
998
Local Union 290 of the United Association of Jour-
neymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and
Canada, AFL–CIO and James R. Coleman and
David L. Collinsworth and Paul Sanders and
Kinetic Systems, Inc., Party in Interest and
Harder Mechanical Contractors, Inc., Party in
Interest.
Plumbing and Piping Industry Council, Inc. d/b/a
Plumbing and Mechanical Contractors Associa-
tion and Paul Sanders. Cases 36–CB–2456–1,
36–CB–2463–1, 36–CB–2530–1, 36–CB–2538–1,
36–CB–2553–1, and 32–CA–9572–1
October 24, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On May 25, 2005, Local Union 290 of the United As-
sociation of Journeymen and Apprentices of the Plumb-
ing and Pipefitting Industry of the United States and
Canada, AFL–CIO (Respondent Local 290); Plumbing
and Piping Industry Council, Inc. d/b/a Plumbing and
Mechanical Contractors Association (Respondent Coun-
cil); James R. Coleman (Charging Party Coleman);
David L. Collinsworth (Charging Party Collinsworth);
Paul Sanders (Charging Party Sanders); and the General
Counsel of the National Labor Relations Board entered
into a formal settlement stipulation, subject to the
Board’s approval, providing for the entry of a consent
order by the Board. The parties waived all further and
other proceedings before the Board to which they may be
entitled under the National Labor Relations Act, as
amended, and the Board’s Rules and Regulations, except
compliance proceedings, and the Respondents waived
their right under Section 10(e) and (f) of the Act to con-
test either the propriety of the Board’s Order issued pur-
suant to the formal settlement stipulation or the findings
of fact and conclusions of law underlying that Order.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
After careful consideration, we find that it would not
effectuate the purposes and policies of the Act to approve
the stipulation.
The consolidated complaint alleges that Respondent
Local 290 violated Section 8(b)(1)(A) and (2) by, among
other things, operating an exclusive hiring hall in an arbi-
trary and discriminatory manner and imposing unlawful
conditions upon the right of registrants to inspect and/or
copy records relating to the operation of the hiring hall.
The consolidated complaint also alleges that Respondent
Council violated Section 8(a)(1) and (3) by implement-
ing and maintaining arbitrary and discriminatory rules
pertaining to the operation of the hiring hall.
The stipulation would require the Respondents to cease
and desist their unlawful conduct and to jointly and sev-
erally make whole unnamed discriminatees. The stipula-
tion would also require Respondent Local 290 to post a
notice at the hiring hall involved in these proceedings
and to mail a notice to all registrants currently on the out-
of-work lists maintained by Respondent Local 290 as
well as all employees currently working under the collec-
tive-bargaining agreement between Respondent Local
290 and Respondent Council. The stipulation would fur-
ther require Respondent Council to post a notice at Re-
spondent Local 290’s hiring hall as well as at the places
of business of all Respondent Council’s members and
those entities that have assigned their collective-
bargaining rights to Respondent Council. The stipulation
does not provide for the automatic entry of a consent
court judgment enforcing the Board’s Order, and it con-
tains a nonadmission clause providing that the signing of
the stipulation by the Respondents does not constitute an
admission that they have violated the Act.
We find that the stipulation is deficient in two respects.
First, the Regional Director’s transmittal memo indicates
that the parties have agreed that the Board “would only
seek enforcement if Respondents fail to comply with the
Order.” However, there are no provisions in the stipula-
tion memorializing the parties’ agreement on this issue.
Second, it is unclear what happens if the Respondents
deny an allegation of noncompliance and maintain that a
petition for enforcement should not be filed. There does
not appear to be any mechanism to permit the Respon-
dents to contest the claimed noncompliance. While it
may well be that the parties have agreed to non-
enforcement absent noncompliance and/or that the Re-
spondents have agreed to accept a unilateral finding by
the General Counsel of noncompliance, we would re-
quire these matters to be spelled out, in writing, in the
stipulation itself.
Our dissenting colleague treats these problems as if
they did not exist. She notes that the stipulation provides
that it is the entire agreement, and thus the agreements
discussed above have no effect. However, the Regional
Office has told the parties that these agreements are a
part of the stipulation. At the very least, there are issues
of propriety when the Regional Office, under whose ae-
gis the stipulation was entered into, tells the parties
something that is contrary to the written agreement itself.
That is, the stipulation says that it is the entire agreement,
and the Regional Office says that it is not.
Our dissenting colleague also notes that, in general, the
Board can seek enforcement of its order even without an
PIPEFITTERS LOCAL 290 (KINETIC SYSTEMS) 999
agreement. Although that may be so, the Regional Of-
fice told the parties that it would not do so unless there
was noncompliance. Again, there would seem to be
questions of propriety if the Office promised one thing
and did another.
Finally, our colleague relies upon Independent Stave,
287 NLRB 740 (1987). However, that case simply spells
out the factors that the Board will consider in deciding
whether to accept or reject a settlement agreement. The
problem in the instant case is the threshold issue of ascer-
taining what the stipulation entails, and spelling that out
in the stipulation itself.
We are also concerned that the stipulation’s notice
provisions may be inadequate. Notwithstanding that
some of the alleged violations date back to 2002, there is
no provision for notification to registrants who were on
the out-of-work lists maintained by Respondent Local
290 at the time of the alleged violations, but who are not
currently on the list or currently working under the col-
lective-bargaining agreement between Respondent Local
290 and Respondent Council. In our view, the parties
should at least consider inclusion of this group in the
notice provisions.1
Accordingly, we reject the instant stipulation and re-
mand the proceeding to the Regional Director for further
processing without prejudice to further settlement nego-
tiations consistent with this Order.
MEMBER LIEBMAN, dissenting.
Today, the Board takes the unusual step of rejecting a
formal settlement stipulation all parties have signed and
submitted to the Board for approval. Because the stipu-
lation plainly effectuates the policies of the Act, I must
dissent from the majority’s refusal to approve it.
I.
The facts are set forth in the majority opinion. In brief,
the Respondent Union and the Respondent Council were
parties to a collective-bargaining agreement providing
for an exclusive hiring hall. In December 2004, the Re-
gional Director issued a complaint alleging that the Re-
spondents violated the Act in numerous respects, includ-
ing by maintaining certain hiring hall rules. The com-
plaint also alleges that the Respondent Union violated the
Act by operating the hiring hall in a discriminatory and
arbitrary manner, and by refusing to provide dispatch
records to a registrant.
In May 2005, the two Respondents, the three individ-
ual Charging Parties, and the General Counsel entered
into a formal settlement stipulation. The formal settle-

1 We do not suggest, however, that broader notification is necessar-
ily a sine qua non for acceptance of any future settlement if reasons for
the more limited notice are provided.
ment stipulation requires the Respondents to cease and
desist from the conduct alleged to be unlawful, to jointly
and severally make discriminatees whole, and to post and
mail notices to employees. In agreeing to the stipulation,
the Respondents waived “their right under Section 10(e)
and (f) . . . to contest either the propriety of the Board
Order that will issue pursuant to the Formal Settlement
Stipulation or the Findings of Fact and Conclusions of
Law underlying that Order.”
II.
The leading case on whether to approve a settlement
agreement is Independent Stave Co., 287 NLRB 740, 743
(1987).1 The Independent Stave criteria clearly militate
in favor of approving the formal settlement stipulation.
First, all the parties have agreed to be bound. Second,
the stipulation appears to remedy all the unfair labor
practices alleged in the complaint. Third, there is no
evidence of fraud, coercion, or duress. Finally, there is
no contention that the Respondents have a history of vio-
lating the Act.2 Under these circumstances, “honoring
the parties’ agreement advances the Act’s purpose of
encouraging voluntary dispute resolution, promoting
industrial peace, conserving the resources of the Board,
and serving the public interest.” Id.
The majority does not seriously contend that the for-
mal settlement stipulation is deficient under Independent
Stave. The majority expresses “concern” over the ade-
quacy of the stipulation’s notice provisions, but does not
reject the stipulation on that ground.
The majority cites two other reasons for disapproving
the stipulation. First, the majority states that there is no
provision in the formal settlement stipulation memorial-
izing the “parties’ agreement” that the Board would only
seek court enforcement if the Respondents failed to com-
ply with the Order. This part of the majority opinion is
based on the following two sentences in the Regional
Director’s May 26, 2005 memorandum transmitting the
formal settlement stipulation to the Board for its ap-
proval:
Procedurally, the proposed Order differs slightly from a
standard Order in that the Board would not automati-
cally seek court enforcement of the Order, but rather

1 Although Independent Stave involved a non-Board settlement, in
subsequent cases the Board has applied its criteria in determining
whether to approve a Board settlement. E.g., K & W Electric, 327
NLRB 70 (1998).
2 Although the Respondents violated an informal settlement they en-
tered into in July 2004, this factor should be given little weight in de-
termining whether to approve the May 2005 formal settlement stipula-
tion. Unlike the informal settlement, the formal settlement stipulation
is subject to court enforcement. If enforced by a court of appeals, any
violation of the formal settlement stipulation would subject the Re-
spondents to contempt proceedings.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
would only seek enforcement if Respondents fail to
comply with the Order. In exchange for the Board not
automatically seeking court enforcement, Respondents
agree to waive all rights to court review of the underly-
ing merits of the Complaints.3
The answer to the majority’s first objection is found in
the formal settlement stipulation itself, which contains an
“Entire Agreement” clause stating as follows: “This
stipulation constitutes the entire agreement between the
parties and there is no agreement of any kind, verbal or
otherwise, that alters or adds to it.” (Emphasis added.)
As set forth above, the formal settlement stipulation ex-
pressly incorporates the Respondents’ agreement to
“waive their right . . . to contest either the propriety of
the Board Order that will issue pursuant to the Formal
Settlement Stipulation or the Findings of Fact and Con-
clusions of Law underlying that Order.” However, there
is no mention whatsoever in the formal settlement stipu-
lation of any “agreement” to seek court enforcement only
if the Respondents fail to comply with the Order. Be-
cause there is no reference to the latter “agreement” in
the formal settlement stipulation and because the “Entire
Agreement” clause prohibits “add[ing]” it, the conclu-
sion is inescapable that the “agreement” relied on by the
majority is not part of the formal settlement stipulation.
If the Respondents believed that the “agreement” in
question was a necessary part of the stipulation, they
could have reduced it to writing. Obviously, they did not
do so. It is not the Board’s role to second guess their
judgment and insist now that it be included in the formal
settlement stipulation.
In any event, the Region’s oral representation to the
parties that court enforcement would be sought in the
event of noncompliance is hardly a novel proposition that
needed to be memorialized in writing. Section 10164.5
of the Casehandling Manual (Part One) states that in

3 At first blush, the Regional Director’s memorandum would appear
to be an improper ex parte communication. However, Sec. 102.130(d)
of the Board’s Rules specifically exempts “written communications
proposing settlement or an agreement for disposition of any or all is-
sues in the proceeding.”
cases like this one, in which the formal settlement does
not provide for an automatic court judgment, “entry of
such a judgment may be sought in appropriate circum-
stances.” Certainly, the failure to comply with the stipu-
lated Order would be an “appropriate circumstance” for
seeking court enforcement. The Region’s commitment
to follow Agency practice hardly seems an appropriate
basis for rejecting an all-party formal settlement stipula-
tion.
The majority’s second reason for rejecting the formal
settlement stipulation fares no better. The majority states
that “it is unclear what happens if the Respondents deny
an allegation of noncompliance and maintain that a peti-
tion for enforcement should not be filed. There does not
appear to be any mechanism to permit the Respondents
to contest the claimed noncompliance.”
However, compliance is not relevant to an enforce-
ment proceeding. As the Seventh Circuit has explained,
“‘[B]ecause the Board’s orders impose a continuing ob-
ligation and because compliance today may evaporate
tomorrow, compliance is not a defense to an enforcement
action, nor does compliance moot enforcement proceed-
ings. [Citation omitted.] Therefore, even if a respondent
voluntarily complied with a Board order after a formal
finding that it was not complying, the Board could still
institute proceedings to insure future compliance.”
NLRB v. Howard Immel, Inc., 102 F.3d 948, 952 (7th
Cir. 1996). In short, the majority has directed the parties
to pursue an inquiry that serves no useful purpose.
III.
In conclusion, in issuing today’s decision, the Board
has lost sight of its mission. The Board’s role is not to
reject a formal settlement stipulation based on an “agree-
ment” the parties chose not to include or on the absence
of a “mechanism” to resolve an irrelevant issue. Rather,
the Board’s goal is to promote the peaceful resolution of
labor controversies. Believing that this all-party settle-
ment plainly accomplishes that end, I must dissent from
the majority’s refusal to approve it.