Universal Blanchers, Inc.

1544 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD Universal Blanchers, Inc. and Lucille Jordan and Joe Cook.'Cases 10-CA-20113-1 and 10-CA- 20113-2' - 27 August 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 9 November 19841 the Regional Director for Region. 10 of the National Labor Relations. Board issued an order consolidating cases and complaint and notice of hearing in the above-entitled :pro- ceeding,-alleging -that the Respondent has engaged in and is engaging in certain. unfair labor practices affecting commerce within the meaning of Section' 8(a)(1) and (3) and Section 2(6) and (7) of the Na- tional Labor Relations Act. Subsequently, the Re- spondent filed an answer admitting in part and de- nying in part the allegations of the complaint, sub- mitting defenses, and requesting that the complaint be dismissed in its entirety. On 21 November the Respondent filed a Motion for Summary Judgment and a memorandum in sup- port of the motion. On 28 November the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the Re- spondent's motion should not be granted. On 11 December the General Counsel filed a response op- posing the Motion for Summary Judgment. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three-' member panel. - Ruling on the Motion for Summary Judgment The facts with respect to the motion are as fol- lows. On 5 April Charging Parties Jordan and Cook filed the original charges in this proceeding alleging that the Respondent discriminated against them because of their union activities in violation of Section 8(a)(1) and (3) of the National. Labor Relations Act. Following an investigation, the Re- gional Director, by letters of 15 May, dismissed the 8(a)(3) allegations, but noted that his "decision in no way affects the remaining allegation .that the . Employer violated Section 8(a)(1) of the Act." It is not disputed that the Regional Director further. stated that he was enclosing Form NLRB-4938,. Procedures for Filing an Appeal, which explained that the Charging Parties could' appeal their dismis- sals to the General Counsel's Office of Appeals. The letter also informed the Charging Parties that the appeal period expired 29 May and Form i All dates are 1984 unless otherwise indicated ' NLRB-4938 stated that a copy of any appeal should be filed with the Regional Director. Although' the Regional Director dismissed the 8(a)(3) allegations, he found evidence that the Re- spondent had committed independent violations of Section 8(a)(1) by interrogating employees about their union activities, threatening employees with a return to minimum wages, and refusing to make' personal loans to' its employees because of their union activities. On.16 May the Respondent signed a settlement agreement to remedy the 8(a)(1) alle- gations. Jordan and Cook signed the same settle- ment agreement on 21 May., Thereafter, Cook and Jordan-appealed the Regional Director's refusal to issue a complaint on the 8(a)(3) allegations. The General Counsel's Office of Appeals received Cook's appeal -on 25' May and Jordan's appeal on 29 May: Neither Cook nor Jordan filed a copy of his or her appeal'with the Regional Director.2 On 30 May the Regional Director approved the settlement agreement. Thereafter, he received copies of letters dated 29 and 31 May from the Office of- Appeals acknowledging receipt of the Charging Parties' appeals. On 25 June the Re- spondent, complying with the settlement agree- ment, posted a "Notice to Employees." On 26 June the Acting Regional Director retracted the approv- al of the settlement agreement, noting that through administrative inadvertence the settlement of the 8(a)(1) allegations was approved while appeals on the 8(a)(3) allegations were pending before the Acting General Counsel. The Acting Regional Di- rector also informed the parties that the case would be held in abeyance pending the Acting General Counsel's decision on the appeals. On 28 Septem- ber the General Counsel's Office of Appeals sus- tained the Charging Parties' appeals and directed the Regional Director to issue the appropriate complaint. On 9 November, as mentioned before, the Regional Director issued a complaint alleging that the Respondent violated Section 8(a)(1) and (3) of the Act. Based' on the above facts, the Respondent asserts that the 'approval of the settlement agreement bars the litigation of the complaint allegations because the conduct alleged in the complaint predates the settlement agreement and because the Regional Di- rector knew of the alleged conduct at the time he approved the agreement. The Respondent also as- Sec 102 19 of the Board's Rules and Regulations provides that per- sons seeking review of the Regional Director's refusal to issue a com- plaint may do so "by filing an appeal with the general counsel in Wash- ington D C , and filing a copy of the appeal with the regional director If an appeal is taken the person doing so should notify all other parties of his action, but any failure to give such notice shall not affect the validity of the appeal " 275 NLRB No. 218 UNIVERSAL BLANCHERS' serts that the retraction of the -Regional Director's" approval of the- settlement agreement was improper as the Respondent neither breached the agreement nor engaged in unfair labor practices after the ap- proval of the agreement. Accordingly, the Re- spondent asserts that no issues of fact or law exist requiring a hearing and that it is entitled to judg- ment as a matter of law. - The General Counsel contends that the Acting Regional Director properly retracted the approval of the settlement agreement because through ad- ministrative inadvertence he approved the agree- ment while the dismissed 8(a)(3) allegations were pending before the General Counsel. Moreover, the General Counsel notes that while Section 102.19 of the Board's Rules and Regulations pro- vides that copies of appeals should be filed with the Regional Director and notification given to all parties, the section also provides that "failure to give such notice shall not affect the validity of the appeal." The General Counsel also contends that the retraction was valid because at the time the Re- gional Director approved the settlement agreement he did not have knowledge of the pending appeals, and thus the General Counsel should not be pre- cluded from litigating the complaint allegations. Moreover, the General Counsel contends that every tribunal, judicial or administrative, has some power to correct its own errors. We agree with the Respondent that the Acting Regional Director improperly withdrew the ap- proval of the 8(a)(1) settlement agreement. The Board will not set aside a settlement agreement unless the charged party breaches the agreement or commits postsettlement violations of the Act.3 Here, the General Counsel neither contends that the Respondent breached the settlement agreement nor that the Respondent engaged in postsettlement violations. Rather, the General Counsel contends that the retraction of the 8(a)(1) settlement agree- ment and the issuance of the 8(a)(1) and (3) com- plaint were proper, for when the Regional Direc- tor approved the settlement agreement he did not know that 8(a)(3) appeals were pending before the General Counsel. We disagree. The Board has consistently held that a settlement agreement disposes of all presettlement conduct unless the presettlement conduct was not known to the General Counsel, or was not readily discover- able through investigation, or was specifically re- served from the settlement agreement by the mutual understanding of the parties.4 We find that ' Henry I Siegel Co, 143 NLRB 386 (1963) 4 Steves Sash & Door Co, 164 NLRB 468, 473 (1967), Hollywood Roose- velt Hotel Co, 235 NLRB 1397 (1978), Laminite Plastics Mfg Corp, 238 NLRB 1234 (1978), ESI Meats, Inc, 270 NLRB 1430 (1984) 1545 none of the above-'exceptions' is applicable to the instant case.5 Thus, the General Counsel, through its Office of Appeals, was aware of the -8(a)(3) ap- peals when ..the Regional Director-. approved the settlement agreement 30 May. We attach no-signifi- cance to the fact--that the Regional Director was personally unaware of the pending -8(a)(3) appeals, when he approved the 8(a)(1) settlement. What is critical here is that the General Counsel, through its Office of Appeals, had knowledge of the pend- ing appeals, and the Office of the Regional Direc- tor, in investigating the charges, signing the settle- ment agreement, and reinstating the complaint, was acting as- an agent of the General Counsel. In our view, knowledge of the pending 8(a)(3) appeals by the General Counsel-whether it was through the Office of Appeals or the Regional Director-is suf- ficient to bar the litigation of the alleged presettle- ment conduct for it is the General Counsel who has final authority and responsibility for the investi- gation of unfair labor practice charges and the issu- ance of complaints.6 Moreover, all parties to a settlement agreement are charged with the knowledge that the settlement agreement bars subsequent litigation of all presett- lement conduct unless specific exceptions are met. Thus, the Charging Parties' signing the settlement agreement and the Regional Director's approving the agreement preclude the General Counsel and the Charging Parties from subsequent litigation of the alleged presettlement conduct. Here, alleged unfamiliarity with Board procedure and administra- tive inadvertence are insufficient to warrant a de- parture from the settlement bar doctrine.7 The par- ties to a settlement agreement should be able to expect the fulfillment of the terms of an approved settlement agreement. A charged party will be re- luctant to enter into a settlement agreement if the National Labor Relations Act is administered in such a manner as to permit the setting aside of a settlement agreement and the litigation of presettle- ment conduct simply because of alleged unfamiliar- ity with Board procedures or administrative inad- 8 Specific reservation of issues from a settlement agreement must be established by;afftrmative evidence Cambridge Taxi Co, 260 NLRB 931 (1982) Here, the General Counsel has not presented any evidence to show that the' 8(a)(3) allegations were specifically reserved from the set- tlement agreement The General Counsel, however, argues that the 8(a)(3) allegations could not have been encompassed within the settle- ment agreement , for the Regional Director had already dismissed those allegations when he approved the settlement agreement The notion that a settlement agreement disposes of only those matters encompassed by the settlement agreement was rejected in Hollywood Roosevelt Hotel Co, supra, when the Board held that a settlement agreement disposes of all presettlement conduct unless one of the specific exceptions exists We adhere to this view - 8 See, e g , Sec 3(d) of the National Labor Relations Act and Sec 102 15 of the Board's Rules and Regulations ' See Laminite Plastics Mfg Corp, 238 NLRB 1234, 1235 (1978) 1546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vertence. s Accordingly, we find that the Acting 8 While the General Counsel argues that the Charging Parties were un- familiar with Board procedure, we note that when the Charging Parties did not file a copy of their appeals with the Regional Director, they failed to follow the plain instructions in Form -NLRB-4938 which was attached to the Regional Director's dismissal letters, as well as the re- quirements 'of Sec 102 19 of the Board 's Rules and Regulations More- over, neither the • General Counsel , nor the Respondent claims that the Charging Parties at any time gave notice of their appeal ,r; Regional Director erred in withdrawing approval of the 30 May settlement and that the - General Counsel is precluded from litigating the complaint allegations. We therefore grant the Respondent's Motion for Summary Judgment. ORDER ' i' - - The complaint is dismissed. , " ,