Tyee Construction Co.

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tyee Construction Co. and Harold J. Honeycutt and James Ingraham. Case 19-CA-5386 June 14, 1974 SUPPLEMENTAL DECISION AND ORDER On the basis of unfair labor practice charges filed by Harold J. Honeycutt and James Ingraham (hereafter Charging Parties) on July 27, 1971, a complaint herein was issued on February 2, 1972, alleging, in substance, that Tyee Construction Co. (hereafter Respondent) had engaged in certain unfair labor practices proscribed by Section 8(a)(1) of the Act by: (1) laying off or discharging on July 21, 1971, eight named employees because of their participation in a concerted refusal to work, and (2) thereafter failing and refusing to employ the Charging Parties because of their participation in said concerted work stoppage and an earlier concerted work stoppage. Following a hearing conducted on March 7 and 8, 1972, Administrative Law Judge 1 Robert L. Piper issued his Decision on June 1, 1972, finding that Respondent had violated the Act essentially as alleged . He recommended that Respondent be ordered to: (1) cease and desist from engaging in said unlawful conduct, (2) offer reinstatement to the Charging Parties, and (3) make each of the eight named individuals whole for any loss of pay he may have suffered by virtue of Respondent's unlawful conduct. Thereafter, Respondent filed timely excep- tions to the Administrative Law Judge's Decision. On March 9, 1973, the Board issued a Decision and Order2 declining either to exercise its remedial powers or render a decision on the merits in this case. Instead, the Board chose to defer to the parties' contractual grievance-arbitration procedures in ac- cordance with the policies enunciated in Collyer Insulated Wire, A Gulf and Western Systems Co.,3 and National Radio Company, Inc.4 As in other deferral cases, the Board retained jurisdiction "[f ]or the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after issuance of [the] Deci- sion, either been resolved by amicable settlement in the grievance procedure or submitted promptly to arbitration, or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act." Thereafter, on April 23, 1973, the General Counsel and the Charging Parties each filed Alternative Motions for Reconsideration or Reopening of the Record. On May 23, 1973, the motions to reopen the record were granted and the case was remanded to the Regional Director for Region 19 with instruc- tions to arrange for a further hearing before an Administrative Law Judge "[t]o receive testimony with respect to the Board's Decision and Order in light of its prior Decision in Kansas Meat Packers, a Division of Aristo Foods, Inc. "5 Prior to the date scheduled for the reopened hearing, attorneys for the Charging Parties, Respon- dent, and General Counsel entered into a stipulation in settlement of the case, subject to Board approval, insofar as it relates to the Charging Parties. The stipulation was approved by the Office of the General Counsel on August 7, 1973. The aforesaid stipulation is hereby approved and made a part of the record herein, and the proceeding is hereby transferred to and continued before the Board in Washington, D.C., for entry of a Supple- mental Decision and Order pursuant to the provi- sions of said Stipulation. SUPPLEMENTAL ORDER Upon the basis of the stipulation and the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. This Supplemental Order shall take effect when the Regional Director for Region 19 has determined, and notified the Board and the parties in writing, that Respondent has, promptly after is- suance of this Supplemental Order, complied with paragraph 6 of the stipulation, and with paragraphs 1 and 3 of the settlement document attached thereto and marked Appendix "A." B. The Board's order reopening the record dated May 23, 1973, be dismissed, and any outstanding orders of the Regional Director pertaining to scheduling of a hearing pursuant to the Board's Order be quashed. C. The complaint herein, insofar as it pertains to the Charging Parties, Honeycutt and Ingraham, be dismissed in its entirety pursuant to the "amicable settlement" provisions of the Board's original Order at 202 NLRB 307. D. The Board retain jurisdiction of this proceed- ing, consistent with its Order at 202 NLRB 307, last paragraph, as regards the right of the other six employees named in paragraph 3 of the stipulation to file timely grievances following receipt of the notification letter referred to in paragraph 6 thereof The title of "Trial Examiner" was changed to "Administrative Law 3 192 NLRB 837. Judge" effective August 19, 1972. 4 198 NLRB No. 1. 2 202 NLRB 307. 5 198 NLRB No. 2 211 NLRB No. 90 TYEE CONSTRUCTION CO. 601 and attached thereto in sample form as Appendix "B," and to move for further consideration by the Board in the event "that either (a) their grievances have not been resolved by amicable settlement or submitted promptly to arbitration, or (b) the griev- ance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act." MEMBERS FANNING and JENKINS, dissenting: We are unable to agree that the Supplemental Decision and Order approving the settlement stipula- tion in the subject case would effectuate the policies of the Act. In our dissent in the Decision and Order (202 NLRB 307), in which the majority refused to consider the allegations in the complaint involved herein on their merits and deferred the issues to an arbitral tribunal under the collective-bargaining contract, we cautioned that such deferral would not only undermine the Act's protection of the eight individuals involved, but would result in making the statutory rights of such individuals "a plaything of private treaty and interpretation." The subsequent history of this case and the settlement agreement which the parties have worked out, and which our colleagues would accept without reservation, have affirmed our prediction. Now more than 1 year after the Board's original Decision and Order, and almost 3 years after the commission of the Respondent's alleged unfair labor practices, the settlement presented for Board approv- al only partially remedies the alleged violations involving the two Charging Parties, Honeycutt and Ingraham. The fate of the six other employees named in the complaint, and who the Administrative Law Judge in his Decision found were similarly situated, is still left dangling and unresolved. We continue to be convinced that the basic issue in this case, involving the condonation of an illegal strike and the subsequent discriminatory discharge of the employees involved, is clearly not an area within the confines of the contract or the expertise of an arbitrator, and involves statutory, not private, rights. This is an approach uniformly accepted by the Board and the courts for many years. Assuming arguendo that the reinstatement and backpay provisions, as applied to Honeycutt and Ingraham in the settlement, are in accord with the compliance the Regional Director would have initially insisted upon, the provisions as set forth in the settlement provide a private, not a public, remedy. We are concerned that the settlement worked out after issuance of the Board's Decision and Order does not contain the elements which would be expected and required in a meaningful Board remedy intended to protect the Section 7 rights of employees: the posting of a notice, "cease and desist provisions," and provisions for court enforcement. Additionally, in view of the work stoppages which go back to 1968, and the strained relations between the Respondent and its employees, as shown by facts fully described in the Administrative Law Judge's Decision, the acceptance of the "non-admission" provision of wrongdoing or violation as an integral part of the settlement agreement by the majority fortifies our view that we do not have here a proper or effective settlement. It is clear on its face that such settlement is not concerned with protecting the statutory rights of the two employees involved and other employees of the Respondent. As for the six employees to whom the settlement gives the right to file timely grievances following the receipt of a notification letter, this appears to be the same empty right which the employees in question were alerted to more than a year ago in the Board's Decision and Order. In our opinion this merely gives the Respondent license to continue "footdragging" in reaching a solution to the issues involved herein. We raised objections to the contract deferral approach in our prior dissent in light of the teachings of Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2. Subsequently, the Charging Parties and the General Counsel raised the same objections in motions for reconsideration of the Board's Decision and Order. Indeed, upon second thoughts, the majority also became concerned with the issue involved in the objections, and the motions were granted by the Board on May 23, 1973, and the case was remanded to the Regional Director to arrange for further hearing. In the motions for reconsideration, as well as in our prior dissent, serious questions were raised whether the employees would or could be properly represent- ed under the contract's complicated grievance procedures. The Union took no part in the unfair labor practice proceeding and has filed no briefs, or otherwise expressed an interest in their welfare. The employees involved must depend upon the Union's hiring hall for job referrals, and they are not in a position to take an independent or forthright stand to force the Union to pursue their interests. We feel that there is a deep inconsistency in the majority's now accepting a settlement which leaves such doubts unresolved and which appears to express such unconcern for the six employees involved. For the above reasons, we would not accept the settlement agreement.