Park-Ohio Industries, Inc.

PARK-OHIO INDUSTRIES Tocco Division of Park-Ohio Industries, Inc. and ]International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, Local 91, UAW Park-Ohio Industries, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) and its Local No. 91. Cases 8-CA-12702, 8-CA- 17148, and 8-CA-17394 7 April 1987 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 30 July 1981 the Board issued a Decision and Order in Case 8-CA-12702, in which it found that Respondent Tocco Division (Tocco) of Park-Ohio Industries, Inc. (Park-Ohio) had violated Section 8(a)(1) and (5) of the Act by transferring certain work- formerly performed by employees represent- ed by the Union from its plant in Cleveland, Ohio, to its plant in Boaz, Alabama, without affording the Union an opportunity to bargain over the deci- sion to transfer. Park-Ohio Industries, 257 NLRB 413 (1981). The Board ordered Tocco to cease and desist from unilaterally transferring unit work, to reinstitute the transferred , work at' its Cleveland plant, to bargain over the 'decision to transfer, and to reinstate with backpay the unit employees who had lost their jobs because of the unlawful transfer. The Sixth Circuit enforced the Board's Decision and Order. Park-Ohio Industries v. NLRB, 702 F.2d 624 (1983). A controversy having arisen over the amount of backpay due, the Regional Director for Region 8 issued a backpay specification and notice of hearing on 19 August 1985. The backpay pro- ceeding is still pending. On 4 November 1983 the Union filed a charge in Case 8-CA-17148. As amended on 15 March 1984, the charge alleges that Respondents Tocco and Ohio Crankshaft and Camshaft Division of Park- Ohio Industries; Inc. (Ohio Crankshaft)" violated Section 8(a)(5) by refusing to provide relevant in- formation and refusing to bargain over Park-Ohio's decision to relocate the Tocco Division. On 27 February 1984 the Union filed a charge in Case 8--CA-17394 against Ohio Crankshaft. As amended- on 15 March and 25' April 1984, the charge alleges that Ohio Crankshaft discriminatori- ly discharged nine named employees in violation of Y Although Tocco and Ohio Crankshaft are separate facilities, the Union represents a combined unit of production employees at both facili- ties 571 Section 8(a)(3),2 and violated Section 8(a)(5) by re- fusing to provide relevant information to the Union concerning the discharges in question. On 30 April 1984 the Acting Regional Director issued an order consolidating cases and a consolidated complaint in Cases 8-CA-17148 and 8-CA-17394, alleging vio-• lations of Section 8(a)(1), (3), and (5) of the Act. The complaint was amended on 9 May .1984. No hearing has been held on the consolidated com- plaint in those two cases, and the matter is still pending before the Region. On 4 November 1983 the Union filed a charge in Case 8-CA-17148-2, alleging that Ohio Crankshaft had acted in concert with the Village of Newburgh Heights, Ohio, to enforce a local ordinance against union members in such a way as to interfere with their Section 7 rights.3 The Union and other plain- tiffs also filed an action in Federal district court seeking, among other things, to have the ordinance declared unconstitutional. The Regional Director deferred processing of the charge pending the court's decision. On 27 February 1986 the district court issued a written opinion declaring the ordi- nance unconstitutional. Davis v. Village of Newburgh Heights, 642 F.Supp. 413 (N.D. Ohio 1986). Following the entry of the court's decision, Ohio Crankshaft entered into 'an informal settlement agreement, executed by the Union and the Region- al Director as well as Ohio Crankshaft, in which Ohio Crankshaft agreed to post and comply with a notice promising not to engage in the acts that were the subject of the charge in Case 8-CA- 17148-2. The settlement agreement was on a stand- ard Board form. The only additions, apart from the name of Ohio Crankshaft and the case number, were a nonadmission clause and the statement that "It is understood and agreed by and between the parties to this Agreement that the General Counsel reserves the right to introduce any and all evidence concerning the instant charge in other, matters hereafter litigated." The Regional Director ap- proved the settlement on 17 April 1986. On 21 October 1986 Park-Ohio moved for sum- mary judgment in Cases 8-CA-12702, 8-CA- 17148, and 8-CA-17394, alleging that under the Board's settlement bar'rule, those cases may not be litigated because they, were pending .when the Re- gional Director approved the settlement agreement in Case 8-CA-17148-2. On 30 October 1986 the Board issued, an order transferring proceeding to the Board and Notice to Show Cause in the three 2 The General Counsel asserts that the employees were discharged for alleged picket line misconduct during a strike allegedly caused by other unfair labor practices. 3 The ordinance contained several provisions regulating picketing in labor disputes. 283 NLRB No. 82 572 DECISIONS OF TIKE `NATIONAL LABOR RELATIONS BOARD pending cases, directing the General Counsel and the Union to show cause why the motion should not be granted. Both the General Counsel and the Union filed memoranda opposing the motion. Park- Ohio filed a- reply, and the General Counsel filed a response. 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 Under the "settlement bar rule" enunciated in Hollywood Roosevelt Hotel Co.,4 and followed con- sistently thereafter, 5 a settlement agreement dis- poses of all issues involving presettlement conduct unless earlier violations of the Act ' were unknown to the General Counsel and not readily discover- able by investigation, or specifically reserved ,from the settlement by the mutual understanding of the parties.6 Park-Ohio contends that neither of the ex- ceptions set forth above is applicable in this pro- ceeding, and therefore that Cases 8-CA-12702, 8- CA-17148, and 8-CA-17394 should be dismissed because they were pending before Region 8 when the Regional Director approved the settlement agreement in Case 8-CA-17148-2. The General Counsel and the Union oppose the Motion for Summary Judgment in Case 8-CA- 12702- (the backpay proceeding), contending that Park-Ohio's proposed extension of the settlement bar rule to compliance cases is unprecedented.? They argue that the rule never was intended to cover 'situations in which unfair labor practices have been found, and where the only questions re- maining concern compliance with a Board order. The General Counsel and the Union also oppose granting` summary judgment, in the two pending unfair labor practice cases. They contend that the clause in the settlement agreement reserving the right to introduce evidence concerning the charge in Case 8-CA-17148 2 in future litigation is a clear reservation of the right to litigate the pending cases. They also argue that it is plain from the cir- cumstances 'of the 'settlement that ' the agreement was intended to encompass only Case 8-CA- 17148-2, and not the other - pending cases. In sup- port of their position they point out -that only Case 8-CA-17148-2, and only Ohio Crankshaft, are mentioned anywhere in the agreement,-and that the notice posted pursuant to the settlement agreement refers only to matters contained in the charge in 4 235 NLRB 1397 (1978). 5 See, e.g., Universal Blanchers, 275 NLRB 1544 ( 1985); B.SL Meats, 270 NLRB 1430 (1984), Ventura Coastal Corp., 264 NLRB 291, 298-301 (1982), Cambridge Taxi Co., 260 NLRB 931 (1982). 6-Hollywood Roosevelt Hotel Co., 235 NLRB 1397, supra. 7 Park-Ohio does not contest this point Case 8-CA-1-7148-2. - They also urge that it, is simply unbelievable that the Regional Director or the Union would have agreed to dismiss- pending cases involving potential restoration of transferred work and significant amounts of backpay, in which the- Regional Director had found merit and- issued a consolidated complaint, in return for Ohio - Crank- shaft's posting a notice in settlement of a complete- ly unrelated charge. Accordingly, the General Counsel and the Union contend that the foregoing circumstances, combined with the clause in the set- tlement agreement reserving litigation rights, estab- lish that the parties mutually understood that they were specifically reserving the other pending cases from the settlement. We shall deny the Motion for Summary Judg- ment. Concerning the backpay proceeding in Case 8- CA-12702, we agree with the General Counsel and the Union that the settlement bar rule was not in- tended to encompass' such actions. Indeed, as set forth in Hollywood Roosevelt Hotel, the rule "bars subsequent litigation of presettlement conduct al- leged to constitute unfair labor practices."8 It was not meant to preclude compliance litigation where unfair labor practices already have been found by the Board, and we so hold. Accordingly, the por- tion of the motion addressed to the backpay pro- ceeding is dismissed with prejudice. We also deny, but without prejudice, the portion of the motion addressed to the pending unfair labor practice- cases. We reach this result because, on the limited record before us, we are unable to deter- mine whether the parties to the settlement agree- ment in Case 8-CA-17148-2 mutually intended to reserve from that agreement the issues in the other pending cases. If such was their intent, the litiga- tion of those cases would not be precluded.9 At this point, however, the intent of the parties is un- clear. For example, we disagree with the conten- tion of the General Counsel and the Union that the language in the settlement agreement reserving liti- gation rights is, unambiguous evidence that the, par- ties intended to reserve the right to litigate those cases. The language refers instead to "other matters hereafter litigated." We find the quoted language- which could be interpreted either as referring only to the litigation of charges that may be, filed in the future, or, also to, the litigation of pending charges-inherently ambiguous. Additional ambiguity as to the parties' intentions arises from the fact that the charges in the various cases involve two separate divisions and facilities e 235 NLRB 1397 (emphasis added). 9 Id. PARK-OHIO INDUSTRIES of Park-Ohio. Thus, whereas Cases 8-CA- 17148-2 and 8-CA-17394 involve only Ohio Crankshaft, Case 8-CA-17148 apparently is concerned chiefly with events at the Tocco Division . Moreover, as the General Counsel and the Union point out, only Ohio Crankshaft (and not Tocca) is named as a charged party in the settlement agreement . It is un- clear, then, whether the settlement agreement was intended to cover only Ohio Crankshaft, or to in- clude Tocca as well. Ambiguities such as those discussed above raise substantial and material questions of fact concern- 5 73 ing the intended scope of the settlement agreement that should be `determined at a hearing. We there- fore deny the portion of the motion addressed to Cases 8-CA-17148 and 8-CA-17394, without prej- udice to the introduction at the hearing of evidence tending to establish the intent of the parties in ar- riving at the settlement agreement. ORDER The Motion for Summary Judgment is denied as set forth above.