Auto Bus, Inc

AUTO BUS INC 855 Auto Bus, Inc and United Steelworkers of America, AFL-CIO, CLC Case 1-CA-24202(3) April 26, 1989 ORDER BY MEMBERS JOHANSEN , CRACRAFT, AND HIGGINSG On March 17 , 1986,1 an unfair labor practice charge in Case 1-CA-23651 was filed by the United Steelworkers of America , AFL-CIO, CLC, alleging that the Respondent violated Section 8(a)(1) of the Act This charge was amended on April 28 to allege further violations of Section 8(a)(1) and (3) of the Act More specifically, the amended charge alleged that the Respondent threatened an employee because of his union activi- ties, threatened to close the doors if the Union got in, and to have an employee who was passing out union literature arrested for trespassing if he came on company property The charge further alleged that the Respondent attempted to discourage union activity by "insinuating an offer of benefit to en- courage employees to quit" and withheld a benefit from an employee because of his union activities A complaint issued on June 12 In early August, the Respondent and the Union entered into an informal agreement in Case 1 -CA-23651, and on August 20, the Union requested withdrawal of its amended charge on which the complaint was based This withdrawal request was approved by the Regional Director on August 27 On September 11, the Re gional Director issued an order withdrawing the notice of hearing and dismissing the complaint On May 14, the Union filed another charge in Case 1-CA-23853 alleging that the discharge of employee Donald Constantino violated Section 8(a)(3) The Union withdrew this charge , without prejudice, on June 12 The substance of this charge, the discharge of employee Constantino, was timely refiled by the Union on September 11 as the instant case , 1-CA-24202(3) On October 16, an amended charge was filed in this case , which in- cluded the 8(a)(1) threats and promises that formed the basis for Case 1-CA-23651, and which had pre- viously been withdrawn The complaint alleged that the Respondent had violated Section 8(a)(1) by various threats and promises of benefit and Section 8(a)(1) and (3) of the Act by issuing two written warnings to Donald Constantino and subsequently discharging him It is also alleged that the Re- spondent instituted a written warning system in violation of Section 8(a)(1), (3), and (5) A hearing on this complaint had been scheduled for March 18, 1987, but on November 26, 1986, the Respondent filed with the Regional Director its motion to dismiss the complaint The Respondent asserted three grounds for dismissal (1) The Board lacks jurisdiction under National Transportation Service, 240 NLRB 565 (1979), and Res-Care Inc, 280 NLRB 670 (1986), (2) certain allegations are barred by Section 10(b) of the Act, and (3) certain allegations were part of a previous charge and complaint that was settled between the Respondent and the Charging Party, with the Regional Direc- tor approving withdrawal of the charge and com- plaint On February 13, 1987, the General Counsel filed a response in opposition to the motion 2 On March 2, 1987, Associate Chief Administrative Law Judge John M Dyer issued an order denying grounds (1) and (2) but striking from the complaint in this case the allegations that had been contained in the complaint in Case 1-CA-23651 In granting the Respondent's motion, the judge found that there had been a settlement agreement sanctioned by the Region, compliance by the Re spondent, and no subsequent alleged unfair labor practices The judge rejected the General Counsel's contention that Hollywood Roosevelt Hotel, 235 NLRB 1397 (1978), does not apply to non-Board settlements and held that the Regional Director had to be aware of the nature of the non-Board set- tlement, so that, in effect, "the Regional Director was a party to the withdrawal of the charge and the `settlement' of this case" and is therefore es topped from litigating the allegations that were contained in the complaint in Case 1-CA-23651 On April 9, 1987, the General Counsel filed a re- quest for special permission to appeal the order of the Associate Chief Administrative Law Judge granting the Respondent's motion to dismiss certain allegations of the complaint On April 15, 1987, the Respondent filed its opposition to the request Having duly considered this matter in light of the arguments raised by the Respondent and the General Counsel, we grant the General Counsel's request for special permission to appeal the judge's order We conclude that the judge erred in dismissing certain allegations from the complaint as this case is squarely controlled by Quinn Co, 273 NLRB 795 (1984) In Quinn, the union filed a petition for a representation election as well as an unfair labor practice charge alleging that the employer had so- licited employee petitions to oust the union as the bargaining representative An employee also filed a ' All dates are 1986 unless otherwise stated 2 The Regional Director forwarded the Respondents motion and the response to the Division of Judges for decision 293 NLRB No 106 856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD petition to decertify the union The parties settled the issues raised by the representation petitions and the unfair labor practice charge and the union agreed to withdraw the charge The Regional Di- rector approved the union's withdrawal of the charge and approved a Stipulation for Consent Election Immediately before the scheduled elec- tion, the union filed another charge alleging viola- tions of the Act covered by the withdrawn charge and other violations occurring after the charge was withdrawn The employer there alleged that its set- tlement of the first charge, allegedly "approved" by the Regional Director, barred litigation of the subsequently filed charge The judge in Quinn noted that (id at 799) In the absence of a Regional Director signing or approving a settlement agreement, any such agreement between a charging party and a re- spondent which resulted in the withdrawal of the charge is viewed by the Board as a private arrangement which does not estop the Region- al Director from proceeding on any new charges alleging the same conduct as the with- drawn charges The judge there found, with Board approval, that while the Regional Director approved the union's withdrawal request, he did not enter into or ap- prove the private agreement between the parties Moreover, the Regional Director had made no at- tempt to resolve the unfair labor practices, unlike the situation in Hollywood Roosevelt Hotel Co, 235 NLRB 1397 (1978), in which the settlement agree ment, which was a Board settlement, provided that the employer take certain remedial action Accord- ingly, based on the nature of the settlement agree- ment, the judge in Quinn found, and the Board agreed, that the Regional Director was not es topped from issuing a complaint 3 8 Contrary to the judge s statement Quinn did not turn on the fact that the employer subsequent to the non Board settlement allegedly commit ted other violations of the Act The alleged additional violations would Here, as in Quinn, the Regional Director did not sign or approve the non-Board settlement agree- ment Thus, this was a private arrangement be- tween the parties Although the General Counsel does not dispute the Respondent's assertions that a Board agent was involved in the settlement negoti- ations that led to the withdrawal of the charge, we find that such Board agent involvement is immate- nal The Charging Party initiated the request that the charge be withdrawn and the Regional Direc- tor merely approved the request Also, as the Gen- eral Counsel points out, the non-Board settlement merely provided for the payment of a sum of money to employee Constantino and did not remedy the independent 8(a)(1) allegations Ac- cordingly, we find that the non-Board adjustment did not estop the Regional Director from proceed ing on any new charges alleging the same conduct as the withdrawn charges,4 whether or not a com- plaint had issued in the case involving the with- drawn charge The fact remains that the Regional Director was not an official party to the non-Board adjustment The practical effect of any ruling to the contrary would likely be either that Regional Directors would have to thoroughly investigate proposed non-Board adjustments or simply refuse to honor them Neither alternative seems conducive to fos- tering labor peace or a wise husbanding of this Agency's scarce resources Accordingly, IT IS ORDERED that the Associate Chief Adminis- trative Law Judge's order to strike paragraphs 7 and 8 from the instant complaint is reversed and the Respondent's motion to dismiss is denied in full be immaterial to a finding that a non Board adjustment was not a Board settlement * See the dissenting opinion of Judge Vance joined by Judge Rubin in Gulf States Mfrs. v NLRB 598 F 2d 896 909 (5th Cir 1979) ( No au thonty is cited for the suggestion that the unapproved [settlement] stipu lation control[s] the power of the Board to go behind the agreement This conclusion is comparable to a contention that a settlement agree ment between private litigants restricts the power of a prosecutor to prosecute (fn omitted) Member Johansen does not rely on this dissent