Jefferson Hotel

705 309 NLRB No. 103 JEFFERSON HOTEL 1 The petition in Case 5–RD–1080 was subsequently dismissed on January 24, 1991, by the Regional Director subject to reinstatement, if appropriate, on the disposition of the unfair labor practice charges in Cases 5–CA–22336 and 5–CA–22352. No request for review was filed to that dismissal. 2 The settlement agreement required the Employer to no longer un- lawfully urge its employees to reject the Union, to recognize the Union, to not make any unilateral changes, and to meet and bargain with the Union. The agreement further provides for the resolution of remedy disputes arising from the alleged illegal changes by a meth- od agreed on by the parties to the unfair labor practice cases, and recognizes the fact that at the time of the signing of the settlement the parties had already met and executed a new collective-bargaining agreement. Although the settlement agreement does not contain a nonadmission clause, neither does it contain an admission by the Employer that it violated the Act. See, e.g., Island Spring, 278 NLRB 913 (1986). Lancaster HM of Washington, D.C., Inc., t/a The Jefferson Hotel and Richard Curtis, Petitioner and Hotel Employees and Restaurant Employ- ees International Union, Local 25, AFL–CIO. Case 5–RD–1086 November 30, 1992 DECISION ON REVIEW AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT The Board has delegated its authority in this pro- ceeding to a three-member panel, which has considered the Petitioner’s request for review of the Regional Di- rector’s administrative dismissal of the instant petition. The request for review is granted as it raises a substan- tial issue with respect to the Regional Director’s au- thority under Nu-Aimco, Inc., 306 NLRB 978 (1992), to dismiss an RD petition because a settlement agree- ment of outstanding unfair labor practices, signed by the Employer and the Union but not the Petitioner, precludes the processing of that petition as a condition of the agreement. The Board has carefully considered, on review, the issue presented, and has decided to re- verse the Regional Director’s decision. The facts are essentially undisputed. Four separate unfair labor practice charges were filed by the Union in October and December 1991 in Cases 5–CA–22336, 5–CA–22352, 5–CA–22443, and 5–CA–22444, and complaints were subsequently issued. The complaint in Case 5–CA–22336 alleged that the Employer facili- tated and participated in the circulation among its em- ployees of a decertification petition filed in Case 5– RD–1080 and urged the employees to reject the Union as their bargaining agent.1 The complaint in Case 5– CA–22352 alleged that the Employer unlawfully with- drew recognition of the Union on or about October 25, 1991. In Cases 5–CA–22443 and 5–CA–22444 the complaints alleged that before and after the activities listed in the earlier complaints, the Employer in Sep- tember and December 1991 made unilateral changes in the working conditions of the employees, including changes in the method of compensation and the sched- uling of employees. On January 14, 1992, the Peti- tioner filed the instant petition seeking to decertify the Union. 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 July 13, 1992, the Regional Director approved an informal settlement agreement of the four unfair labor practice cases which required the Employer to take certain actions to remedy the alleged violations.2 The settlement agreement, signed by the Employer and Union but not the Petitioner, included a provision which provided that ‘‘[the] approval of this agreement precludes the processing of any RD petition filed prior to the fulfillment of all terms of this agreement by Re- spondent, including Cases 5–RD–1080 and 5–RD– 1086.’’ Prior to the parties entering into the settlement agreement, the Regional Director had advised them and the Petitioner by letter dated April 17, 1992, that in his opinion the unfair labor practice violations as al- leged were sufficient to taint the instant petition and would require dismissal of the petition. Moreover, they were advised that the Regional Director would fully litigate these cases if the settlement agreement did not include the provision described above. The Regional Director stated in this letter that ‘‘[the] Board has very recently made clear that such a position should be made known to all parties in the cases involved, and made part of any settlement agreement,’’ citing Nu- Aimco, Inc., supra. The Petitioner’s counsel, by letter dated April 25, 1992, objected to requiring the dismis- sal of the instant petition as a condition of the settle- ment agreement. The Regional Director dismissed the petition by letter dated July 27, 1992, also citing Nu- Aimco, Inc. It is well established that a timely filed RD petition which has been circulated and signed by employees, and has met all the Board’s technical showing of inter- est requirements, will be processed following compli- ance with a Board-approved settlement agreement of unfair labor practice charges that blocked the process- ing of the petition where the settlement agreement con- tains a nonadmission clause. See Nu-Aimco, Inc., supra, reaffirming Passavant Health Center, 278 NLRB 483 (1986), and Island Spring, 278 NLRB 913 (1986). The Board in Nu-Aimco further noted that ‘‘nothing in the Act or the Board’s Regulations pro- hibits the Regional Director from including the decerti- fication Petitioner in the settlement discussions or from taking the position that the unfair labor practices, if proven, are sufficient to ‘taint’ the petition such that 706 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dismissal of the petition is warranted.’’ 306 NLRB at 978. The Board also indicated that the Regional Direc- tor should make it clear to the parties during settlement discussions that he or she intends to seek a remedy that would preclude the reinstatement of the petition, and advise them that absent such a settlement the case will be fully litigated. Id. In the instant case, the Regional Director misinter- preted the Board’s requirements as set forth in Nu- Aimco regarding how to ensure the dismissal of a de- certification petition as part of a settlement agreement to remedy unfair labor practices. We did not intend in Nu-Aimco that the decertification petition could be dis- missed absent the consent of the decertification peti- tioner (or, of course, the finding of a violation in a liti- gated case, or an admission by the respondent). Rather, it was our aim to include the petitioner in the settle- ment discussions to allow for the possibility that the petitioner could agree to a settlement agreement which provides for the dismissal of the petition as a condition of the settlement. Without the petitioner’s agreement, however, we did not intend that the petitioner be bound to a settlement by others that has the effect of waiving the petitioner’s right under the Act to have the decertification petition processed. In the alternative, as noted in Nu-Aimco, in the absence of an admission by the employer, the Regional Director must choose be- tween litigating the unfair labor practice cases, which could result in a finding of an unfair labor practice violation sufficient to ‘‘taint’’ the petition and require dismissal, or accepting a settlement agreement between the union and the employer, and processing the decer- tification petition upon compliance with the settlement agreement. Here, since the settlement agreement was entered into over the objection of the Petitioner and without his signature, it is insufficient to preclude the process- ing of the Petitioner’s decertification petition. Thus, the Regional Director having accepted the settlement agreement, the decertification petition should be rein- stated on compliance with that agreement. Accord- ingly, we reverse the Regional Director’s dismissal of the decertification petition, reinstate the petition, and remand this case for further action consistent with this decision. ORDER The Regional Director’s Decision and Order dis- missing the instant decertification petition is reversed, the petition is reinstated, and the case is remanded to the Regional Director for processing of the petition upon compliance with the settlement agreement.