The Massillon Publishing Co.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Massillon Publishing Company andThe Cleveland Newspaper Guild, Local No. 1, of the Newspaper Guild, AFL-CIO. Case 8-CA-7920 December 6, 1974 ORDER DENYING MOTION By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On August 14, 1974, the National Labor Relations Board issued a Decision and Order in the above-enti- tled proceeding` in which the Board adopted, with certain modifications, the findings, conclusions, and recommendations of the Administrative Law Judge as contained in his Decision of March 29, 1974, and or- dered that the Respondent take the action set forth in the recommended Order of the Administrative Law Judge as modified. Thereafter, on September 13, 1974, the Respondent filed Motions to Reopen the Record and for Reconsid- eration with a brief in support of said motions. The Respondent requests that the Board reopen the record for the purpose of taking newly available evidence (i.e., its new collective-bargaining agreement) which, it con- tends, renders moot the issue of its obligation to process the Schuster grievance. Specifically, Respondent con- tends that, while this matter was pending before the Board, the parties, on April 30, 1974, executed a new collective-bargaining agreement retroactive to Febru- ary 25, 1973, a date preceding Schuster's discharge. This contract, unlike its predecessor, specifically ex- cluded the discharge of probationary employees, like Schuster, from the contract's grievance procedures. Respondent further asserts that, as part of its contract settlement with the Union, the latter agreed to drop the Schuster matter. In the alternative, Respondent moved that the Board reconsider its Order and notice and conform it more accurately to the limited violation found. On September 25, 1974, the General Counsel filed a response and memorandum in opposition to Respondent's motions, contending, inter alia that Re- spondent raises issues which are best left to the compli- ance stage of this proceeding. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional, Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board, having fully considered Respondent's motions and General Counsel's opposition thereto, agrees with the General Counsel's contention that the matters raised by Respondent's motions are best left to the compliance stage of this proceeding. ' 212 NLRB No 137 Contrary to our dissenting colleague, it is well settled that an employer's execution of a contract with a union with which it previously refused to bargain in violation of the Act does not render the issue of such violation moot.2 This principle is premised on the theory that the Board does not oversee the settlement of private disputes but, rather, is entrusted with the responsibility of protecting public rights under the Act. These rights are not protected, and the effects of the unfair labor practices found are not expunged, merely because of a private settlement of the dispute by the parties, which may or may not serve to remedy the adverse effect on the Section 7 rights of the employees. It is hereby ordered that Respondent's Motions to Reopen the Record and for Reconsideration be, and they hereby are, denied as lacking in merit. CHAIRMAN MILLER, dissenting: I disagree with my colleagues' disposition of Respon- dent's motions and, instead, would request the parties to show cause why the complaint should not be dis- missed as moot by virtue of the parties' new collective- bargaining agreement. In its Decision herein the Board found that Respond- ent violated Section 8(a)(5) of the Act by refusing to process the Union's grievance over the discharge, on July 9, 1973, of employee Schuster. The Board ordered, inter alia, that Respondent, upon request, process the grievance under the terms of its then existing contract with the Union. While the case was pending before the Board, Respondent and the Union, on April 30, 1974, executed a new collective-bargaining agreement, ret- roactive to February 25, 1973, a date preceding Schus- ter's discharge. This agreement, unlike its predecessor, specifically provides that probationary employees, like Schuster, are not entitled to 2 weeks' notice prior to discharge and may not grieve their discharges under the established grievance-arbitration provisions. The Union apparently has not requested Respondent to process the Schuster grievance under the old con- tract. Indeed, according to Respondent's motion, the Union agreed as part of the new contract settlement to drop the Schuster matter. If this assertion is correct, no useful purpose would be achieved by protracting this litigation further,' and in order to provide due process to both General Counsel and the Charging Party I would first issue a notice to the parties to show cause why, under the circumstances here, the complaint should not be dismissed. This is not a matter for compliance, as my colleagues assert, since Respondent does not allege it has complied with our Order to process either the grievance in issue 2 Southern Tours, Inc., 167 NLRB 363, 364 (1967) 3 See NL.R.B v First National Bank of New Smyrna Beach, 498 F 2d 1400 (CA 5, 1974) 215 NLRB No. 74 THE MASSILLON PUBLISHING CO 381 or future grievances . Quite to the contrary , it instead bona fide reasons, nevertheless renders our Order has agreed not to do so. But the agreement, if made for moot.