Candler Coffee Corp.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Candler Coffee Corporation and Local 810, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America Local 810, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Candler Coffee Corporation. Cases 2-CA-19305 and 2-CB-9698 8 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 26 August 1983 Administrative Law Judge James F. Morton issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondents filed answering briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, i and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. i In his decision the judge inadvertently referred to "Section 102 38(g)" and "Section 102 36(h)" of the Board's Rules and Regulations, whereas it is clear that he intended to refer to Sec 102 35 (g) and (h) 2 In affirming the judge's decision , we find it unnecessary to rely on his citation of Winer Motors, 265 NLRB 1457 (1982), to support his asser- tion that either Respondent's repudiation of the settlement agreement by future unlawful conduct would be a fraud warranting reinstatement of the charges Winer has been overruled to the extent it is inconsistent with Ducane Heating Corp, 273 NLRB 1389 (1985) Moreover, the discussion of fraud in both Winer and Ducane pertains only to the fraudulent con- cealment of operative facts surrounding an alleged violation of the Act, it does not pertain to possible noncompliance with a settlement agreement Thus, neither Winer nor Ducane is germane to the instant case Stephen Appell, Esq., Mary Ann Mills, Esq., and Valerie E. Brathwaite, Esq., for the General Counsel. Jeffrey P. Englander, Esq. (Friedlander Gaines, Cohen, Rosenthal & Rosenberg), of New York, New York, for Candler. Sidney Meyer, Esq., of New York, New York, for Team- sters Local 810. DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The General Counsel opposes the motions filed by the respec- tive Respondents in these cases for approval of their re- quests to withdraw the unfair labor practice charges they filed against each other. The motions are granted for the following reasons: Candler Coffee Corporation (Candler) is the Respond- ent in Case 2-CA-19305 and the Charging Party in Case 2-CB-9698. Local 810, International Brotherhood of Teamsters Chauffeurs, Warehousemen and Helpers of America (Union) is the Charging Party in Case 2-CA- 19305 and the Respondent in Case 2-CB-9698. Com- plaints issued in both cases and were consolidated for hearing. In Case 2-CA-19305, the General Counsel alleged that Candler has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, by having unlawfully (a) interrogated its employees; (b) threatened them with dis- charge, with physical harm, and otherwise; (c) promised them wage increases and medical and dental insurance benefits; (d) assaulted employees; (e) denied wage in- creases; (f) discharged two employees; (g) engaged in conduct preventing a fair election; and (h) refused to rec- ognize the Union as the exclusive bargaining agent of its employees. The complaint further alleged that a strike by Candler's employees was caused by Candler's unfair labor practices. In the complaint against the Union, Case 2-CB-9698, the General Counsel has alleged that the Union has vio- lated Section 8(b)(1)(A) of the Act by having engaged in various acts of picket line misconduct, including (a) slashing truck tires; (b) threatening strike replacements with bodily harm; (c) physically blocking employees from entering and leaving Candler's facility; and (d) fol- lowing and assaulting employees. In the complaint against Candler, various employees are identified as either having been unlawfully dis- charged or as unfair labor practice strikers. In the com- plaint against the Union, the complaint alleges that those same individuals, as agents of the Union, physically as- saulted and otherwise coerced employees At the hear- ing, the General Counsel took the position, notwithstand- ing the alleged acts of violence by these individuals, they were entitled to reinstatement with backpay, where ap- plicable. At the trial before me, the General Counsel had com- pleted the case-in-chief against Candler in Case 2-CA- 19305, and had called several witnesses during its case-in- chief against the Union in Case 2-CB-9698, when the hearing was recessed in order to afford the parties an op- portunity to discuss settlement of the issues. During the recess, Candler and the Union, with the General Counsel's aid, resolved their dispute. Thus, Can- dler has agreed (a) to reinstate one of the alleged discri- minatees and to honor the Union's request to reinstate practically all the strikers; the ones not reinstated having waived reinstatement; (b) to pay backpay amounts which are satisfactory to all; and (c) to sign a 3-year collective- bargaining agreement with the Union. Candler has to date complied with its agreement and neither the Gener- al Counsel nor the Union has suggested that it may renege on its agreement. Presumably, the settlement worked out by Candler and the Union, and which the employees involved have approved of, took into account alleged acts of misconduct by some of the strikers, at 279 NLRB No. 32 CANDLER COFFEE CORP. 199 least insofar as those alleged acts may have affected their reinstatement rights or the backpay provided for them. The agreement called for the Union to end its strike and it has done so. Candler and the Union thereupon agreed to request withdrawal of their respective unfair labor charges. The General Counsel initially opposed those requests partly because the employees who would be affected by the al- leged unfair labor practices had not been given any as- surances by either Respondent that the alleged unlawful acts would not recur. The General Counsel has asserted that Respondents should be required to sign informal set- tlement agreements on the usual forms, (Form NLRB- 4775(12-82), with a nonadmission clause in each case." Candler and the Union then agreed to write a letter to each employee informing each that they had settled the case between themselves without admitting liability and assuring each employee that both Respondents would not engage in the acts alleged as violative in the respec- tive complaints.2 In particular that letter will inform the Candler employees of the steps Respondents will take (or have taken) to settle the issues. In essence, those letters will track almost verbatim the language of the proposed "Notices to Employees" that the General Counsel had drafted as appendices to the standard informal settlement agreements offered Respondents in the respective cases.3 Both Respondents now assert that the matters that had been in dispute between them are buried and should not be disinterred. At the hearing before me, the General Counsel urged that the case be continued on various grounds. The hearing was adjourned without date to afford the parties an opportunity to submit memoran- dums of law in support of their respective positions. Thereafter, the General Counsel and both Respondents filed memorandums. At the hearing and in the memorandum submitted, the General Counsel has stressed the argument that approval of the withdrawal requests would open the door to a re- sumption of the unlawful conduct without affording the General Counsel the authority to reactivate the com- plaints. The General Counsel argues that only an infor- mal settlement agreement on the usual Board forms will enable the General Counsel "to police enforcement" of its terms. I have made it clear on the record that if either Respondent does not honor the representation made in open court regarding the commitments set out in the let- ters to the employees and in fact repudiates them by its future conduct, it will have effectively worked a fraud ' The General Counsel advised that serious consideration had been given to demanding that the Union agree to a formal settlement of the issues in Case 2-CB-9698 in view of the Union's history of unfair labor practices Apparently such a demand was not made because of the char- acter of the dispute in the instant case in which the issues in Case 2-CA- 19305 were so intertwined with those in Case 2-CB-9698 2 The General Counsel does not oppose withdrawal of the Sec 8(a)(5) portion of the charge in Case 2-CA-19305 inasmuch as Candler has signed a 3-year contract with the Union ' The only language change is that the phrase "or any other employ- er" was deleted from the paragraph reading, "WE WILL NOT in any other manner restrain or coerce the employees of [Candler] or any other employer in the exercise of their right to self-organization , to form labor organizations .." The General Counsel has not objected to that dele- tion as the settlement language relates to a dispute at Candler 's facility and not to a dispute involving any other company and that would be clear grounds to have the withdrawal set aside.4 The General Counsel asserts that, if there is no real difference, the Respondents should sign the infor- mal agreement with a nonadmission clause . The differ- ence is one of form, not substance, and from what I have heard and seen so far in this case, it is in the best inter- ests of all to put form aside. Of greater practical significance, in my view, is that there is no reasonable possibility that the Union will resume its dispute with Candler or vice versa as they now are parties to a 3-year contract with a no-strike, no- lockout clause and with grievance-arbitration procedures. The General Counsel relies on the Board's holding in Clear Haven Nursing Home, 236 NLRB 853 (1978), to support the argument that the respective withdrawal re- quests should be rejected. If anything, that case supports Respondents' requests. There, the Board rejected a with- drawal request because the employees involved had re- ceived no notice of their statutory rights and because no backpay was provided for, although over $600,000 was alleged to be owed. In the instant case, the Candler em- ployees will have received mailed notices incorporating the very language drafted by the General Counsel to inform them of their statutory rights and everyone, in- cluding the General Counsel, is satisfied with the back- pay arrangements. Candler and the Union note that the strike is over, that some of the striking employees have returned to work, and the remainder soon will return, and that these former strikers are and will be working harmoniously alongside nonstrikers-all under a 3-year collective-bar- gaining agreement. Respondents urge that this litigation end now and that those employees be spared the ordeal of having to testify against each other on matters that have been resolved. The General Counsel poses other objections respecting the withdrawal requests. Thus, it is urged that approval of the requests would "permit the Union to profit from its own unfair labor practices" as it is noted that the "Union obtained recognition and a contract." That con- tention lacks merit as the General Counsel has stated that there is no objection to the request for approval of the 8(a)(1) and (5) charge in view of the fact that the parties have reached a 3-year agreement. Further, the complaint against Candler alleged in essence that the Union's strike was lawfully aimed at obtaining recognition of the Union and there is no contention that the Union's conduct in any way was violative of Section 8(b)(7) of the Act. Another objection posed by the General Counsel is that the settlement does not definitely dispose of the rights of one of the alleged unfair labor practice strikers, Juan Alcaide. The settlement provided for his reinstate- ment in September 1983 along with several other strik- * The General Counsel has cited Winer Motors, 265 NLRB 1457 (1982), in support of its contention , but fn 12 of that decision clearly indicates that a respondent cannot rely on its fraudulent conduct and hope to pre- vail on a contention that Sec 10(b) bars litigation of the underlying mat- ters. Obviously, the General Counsel would have to first prove new vio- lations of the types involved in this case before it would be appropriate to reopen this case That procedure is essentially consistent with the usual cases involving alleged new violations constituting breaches of settlement agreements 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers. All those strikers agreed to that arrangement except Alcaide, who could not be located . The Union ultimately located him in Puerto Rico. He informed the Union that the reinstatement arrangement was agreeable to him; later, he informed the General Counsel that he wanted to return to work as soon as possible. Candler 's attorney stated on the record that if Alcaide applied for reinstate- ment, his requests would be treated nondiscriminatonly. Respondent Union has since notified the General Coun- sel that Alcaide is now back to work for Candler. The General Counsel advises that that information has not been confirmed and that "in any event" the settlement as to Alcaide is "facially insufficient." If anything, the fore- going recital indicates that Respondents are sincere in honoring the commitments they have made before me re- specting the employees' statutory rights. The General Counsel objects also on the ground that NLRB Rules and Regulations , Section 102.38(g), bars me from accepting any effort of "Respondents" to "adjust" cases. The language of that section seems aimed at inhib- iting administrative law judges from impinging on the functions of the Federal Mediation and Conciliation Service. The provisions of Section 102.36(h) are more to the point here.5 The General Counsel further objects on the ground that there has been to date a substantial investment of governmental resources in this case . That very reason is a material consideration in my decision to approve the respective withdrawal requests . I see no reason to con- tinue incurring expenses in this case solely to pressure Respondents into signing an informal settlement agree- ment with a nonadmission clause and even less reason to continue the case, on the merits, in the light of the reso- lution of all underlying matters that had been in dispute. The General Counsel has objected, too, on the ground that the letters Respondents will send to Candler em- 5 Cf Broadcast Employees Local 31 (CBS Inc), 237 NLRB 1370 (1978), in which the Board affirmed the denial of a motion to withdraw the unfair labor practice charge Unlike the instant case, the General Counsel had not participated in the settlement discussions in that case In any event, it is clear that Board cases can be "adjusted" without the need for further formalities, even though a hearing has been held In that regard, see Efcor Die Casting Corp, 231 NLRB 263 (1977) ployees will state that Respondents have settled the cases without admitting that they engaged in any unlawful conduct. As the General Counsel points out, the Board discourages "the inclusion of a non-admission clause in the prefatory paragraph of the official Board notice" par- ticularly where the notice would issue pursuant to a Board decision based on a respondent's withdrawing its answer. 6 It would not be appropriate to expand that principle automatically to this case when withdrawal of the charges is contemplated and, on that basis , no good reason exists for not making a full disclosure of the events to the employees involved . There can be no deni- gration of any official Board notice where none is used. I view the differences between the General Counsel and Respondent vis a vis the settlement to be one of form only. In light of that, as the prospects of a recur- rence of any alleged unlawful acts at the Candler facility are remote, as it is in the interests of the Board to con- serve litigation costs, and as no useful purpose will be served by resurrecting the underlying dispute by having employees testify against each other in the circumstances of this case, I find that it will effectuate the policies of the Act to approve the withdrawal requests.? Accordingly, I make the following recommended8 ORDER 1. The request by Local 810, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) to withdraw the unfair labor practice charge filed against Candler Coffee Cor- poration (Candler) in Case 2-CA-19305 is approved. 2. Candler's request to withdraw the unfair labor prac- tice charge it filed against the Union in Case 2-CB-9698 is approved. 3. The hearing in this case is closed and the respective complaints are dismissed. 6 Independent Shoe Workers of Cincinnati, Ohio, 203 NLRB 783 (1973) 7 Cf Coca-Cola Bottling Co ofLos Angeles, 243 NLRB 501 (1979) 8 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "