Greensboro News & Record, Inc.

GREENSBORO NEWS & RECORD 1243 Greensboro News & Record, Inc. and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO Olsten Corporation, d/b/a Olsten Services and Chauffeurs, Teamsters and Helpers Local Union No. 391, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. Cases 11- CA-12633 and 11-CA-12688 May 22, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On October 28, 1988, Administrative Law Judge Karl H. Buschmann issued the attached Order Granting Motion to Dismiss. The General Counsel filed exceptions and a supporting brief, and the Re- spondent filed an answering brief. The National Labor Relations Board has delegat; ed its authority in this proceeding to a three- member panel. The Board has considered the Order and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the Order Granting Motion to Dismiss.' ORDER The Administrative Law Judge's Order Granting Motion to Dismiss is adopted and the complaint is dismissed. ' In view of our adoption of the judge's recommended Order, the Gen- eral Counsel's motion that the proceeding be remanded to the judge for a hearing is denied ORDER GRANTING MOTION TO DISMISS KARL H. BUSCHMANN, Administrative Law Judge. These cases arose on charges filed by Chauffeurs, Team- sters and Helpers Local Union No. 391 affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (the Union), that Greensboro News & Record, Inc. and Olsten Corporation (the Respondents) had engaged in unfair labor practices. Based on these charges, the Gen- eral Counsel of the National Labor Relations Board issued complaints in Cases 11-CA-12633 and 11-CA- 12688 and an order consolidating cases on May 31, 1988, charging the Respondent with violations of Section 8(a)(1), (3), and (4) of the National Labor Relations Act (the Act). The Respondent, Greensboro News, filed its answer on June 8, 1988, admitting the jurisdictional alle- gations of the complaint but denying the commission of any unfair labor practices. Greensboro News filed an amended answer on September 28, 1988, and on October 3, 1988, a second amended answer. The cases were scheduled for hearing on September 28, 1988, and the hearing was opened on that day. Fol- lowing introduction of the formal papers by the General Counsel as exhibits 1(a) through 1(ft) Respondent Greensboro News filed a motion to dismiss' and a sup- porting memorandum of law and facts. The Respondent subsequently filed a supplemental memorandum of law in support of its motion to dismiss and a motion for leave to file a second amended answer to the consolidated com- plaint, as well as a motion to supplement the record.2 In support of its motion to dismiss, the Respondent states that during the settlement negotiations with the General Counsel it "substantially, if not fully, remedied all al- leged violations of the Act" and that thereafter the "Charging Party withdrew the charges underlying the consolidated complaint." Relying on the Board's recent decision in Independent Stave Co., 287 NLRB 740 (1978), the Respondent argues that the case is moot, points to the withdrawal request, executed by the Union on Sep- tember 26, 1988 (R. Exh. 2), and relates in detail the manner in which it has remedied the alleged unfair labor practices pursuant to informal settlement negotiations be- tween all parties. (Supporting memorandum, pp. 3-5, Tr. 8-10.) In that regard, the record shows that Respondent Greensboro News had remedied the alleged unfair labor practices by removing from its personnel files the disci- plinary warning notices described in paragraph 13 of the complaint, paid the two employees, Cecil Summers and James Tonkins, full backpay, restored the working hours of James Tonkins, showed that employees Cecil Smmers waived reinstatement to his former job, and posted the notice as drafted by the General Counsel 3 i Respondent Olsten Corporation Joined in Greensboro News' motion to dismiss (Tr 45) 2 Motions to supplement the record and to file second amended answer are granted, as they are relevant to the issues and not opposed by the General Counsel or the Charging Party 3 In its supporting memorandum , p 4-5, the Respondent explained the remedial actions as follows the News & Record took all action required by Settlement Agree- ment To that end, it removed the March 3, 1988 discipinary warn- ing notices and any references thereto from the personnel files of James Tonkins, Kevin Webb, and Wallace Smith, and notified these employees in writing of this action (copy attached as Attachment 5), removed the January 15, 1988 warning notice and any references thereto from the personnel file of Cecil Summers and notified him in writing of this action (copy attached as Attachment 6), paid Cecil Summers the gross amount of five hundred fifty dollars ($550 00) which represented one hundred percent of the base pay allegedly owed him (copy of check attached as Attachment 7), paid James Tonkins eight hundred eight dollars and fifty cents ($808 50) which represented one hundred percent of the back pay allegedly owed him (copy of check attached as Attachment 8), and notified, in writ- ing, Tonkins, a part-time weekend driver, that he would be assigned extra work in the same manner as all other part-time weekend driv- ers (copy attached as Attachment 9) Additionally, on September 16, the News & Record posted a verbatim copy of the "Notice to Em- ployees" which the Regional Director had submitted as part of the Settlement Agreement on the bulletin in the Transportation Depart- ment This Notice gave specific assurances that similar action would not occur in the future (copy attached as Attachment 10) A copy of this notice, as well as copies of all other letters, was hand-delivered to the Union on the afternoon of September 16 293 NLRB No. 146 1244 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel opposes Respondents' motion to dismiss but has no objection to the withdrawal of the charge as to Olsten Services (Tr. 36-37).4 The General Counsel repeatedly admitted that Greensboro News has undertaken all remedial action indicated by the com- plaint (Tr. 13, 15, 42). However, during the settlement discussions regarding an informal settlement, the General Counsel changed its position as stated by counsel, Brown, as follows (Tr. 15): Your Honor, it is true that counsel for the Gener- al Counsel proffered an informal settlement to Com- pany and that the Company, in effect, did what they have claimed to do here by posting a notice which basically tracks the notice offered by Coun- sel for the General Counsel withdrawing the warn- ings, paying the alleged discriminatees, one of whom the dischargee did not want to return to work. However, after those things were done and before the Regional Director could approve it, it was decided that the General Counsel would re- quire a formal settlement in this matter. . . . The basis for the formal settlement, Your Honor is be- cause of the history of unfair labor practice cases. That history is illustrated by the General Counsel's list of prior charges (G.C. Exh. 2) and his reference to two litigated cases involving Greensboro News Company re- ported at 272 NLRB 135 and 290 NLRB 219. According to the General Counsel, the petition for enforcement was denied by the Fourth Circuit in the former case 5 and the more recent case is now pending on a petition for review filed by Greensboro News in the District of Columbia Circuit. "While the Company has affirmatively remedied this particular case," according to the General Counsel, a formal settlement is necessary "to affect any addition or any possible violations in the future" and "not to under- mine the cases that we have pending before the courts" (Tr. 17, 41). In short, the General Counsel would accept the terms of this settlement but only in the form of a formal settlement. The Charging Party joins the General Counsel in its opposition to Respondents' motion (Tr. 36-37). The Charging Party explained that it "was faced with [a] company who had done everything, virtually everything, except for the admission of liability that the Board had suggested. And so without any kind of agreement with the Company . . . the Union came forward and agreed to a withdrawal or filed a petition to withdraw the charges with the Board" (Tr. 13). Hoping to improve its bargaining position with the Company by its attempt to withdraw the charges, the Union further stated that "if the Board chooses to reject that and thinks that we were unwise in seeking to withdraw them and that instead, you should have a full, formal agreement finding that the Company has violated the Act, we will agree with the Board . . . [but if] . . . the Board were to determine that 4 See the General Counsel's letter, dated October 12, 1988, enclosing copy of agreement between parties 5 NLRB v Greensboro News & Record, 843 F 2d 795 (4th Or 1988) it's okay for us to withdraw it, that's fine with us" (Tr. 14-15, 26). With respect to the other Respondent, the Charging Party entered into a written agreement con- cerning the Olsten Corporation. Under that agreement Olsten withdrew as a joint employer and "Greensboro News would assume all liability if any arising out of the joint employer status. That agreement is attached to the Respondent's motion and, as already stated, is not op- posed by the General Counsel in view of a second amended answer filed on October 3, 1988. The Respondent refused to enter into a formal settle- ment stating that it has "no history here of past viola- tions" and that it had already "complied with that order notwithstanding our request for review" of the pending case in the District of Columbia Circuit (Tr. 19). Having considered this matter in the light of the Board's recent decision in Independent Stave Co., supra, it is my opinion that the complaints should be dismissed and that the hearing should be closed. According to the Board in Independent Stave, a determination whether a settlement effectuates the purpose and policy of the Act requires an examination of all surrounding circumstances. The first criterion is whether the Charging Party, the Respondents, and any of the discriminatees agreed to be bound and the position taken by the General Counsel. Here, short of the General Counsel's insistence on a formal settlement, all parties agree that the allegations of the complaint have been fully remedied by Respondent Greensboro News, including full backpay for the discri- minatees, removal of disiplinary warnings, restoration of working hours to one discriminatee (the other discrimin- atee waived reinstatement), and the posting of a notice promising not to violate the Act. All parties are in agree- ment that the changes against Respondent Olsten Serv- ices should be withdrawn in view of an executed written agreement. The General Counsel has refused to grant the Charging Party's withdrawal request concerning Greens- boro News and both parties are opposed to the dismissal of the complaint With respect to the second criterion whether the set- tlement is reasonable considering the violations, the risk of litigation and the stage of litigation, the disposition of the instant case, as remedied by Respondent Greensboro News and with the agreement to be responsible for the joint employer, Olsten Services, appears eminently rea- sonable. There is no evidence of fraud, coercion, or duress by any party. The final factor to be considered-whether the Re- spondent has a history of violations or breaches of settle- ment agreements-has prompted the General Counsel's insistence on a formal settlement and the argument that the Respondent has a history of unfair labor practice cases, as illustrated by a list of charges (G.C. Exh. 2) and the reference to two litigated cases (272 NLRB 135; 290 NLRB 219) (Tr. 15-16). The Respondent, however, dis- putes any suggestion that it has a proclivity to violate the Act and strongly argues that it has never breached any order or settlement agreement. To the contrary, the Respondent states that only two cases have resulted in cease-and-desist orders; the Fourth Circuit denied en- forcement in one of them. In the other case, pending on GREENSBORO NEWS & RECORD 1245 a petition for review in the District of Columbia Circuit, it has fully complied with the order (Tr. 19). I agree with the Respondent that the list of charges, although extensive, cannot be a basis for a finding of a proclivity to violate the Act, particularly as most of the charges are shown to have been withdrawn or dismissed. This leaves two litigated cases, one of which was not en- forced by the circuit court (843 F.2d 795) and the other which is now pending in the District of Columbia Cir- cuit. If that decision is upheld , the Board would have a court order involving similar violations. Of significance to the present consideration is the bar- gaining relationship between the Union and Greensboro News. As represented by counsel for the Respondent, the alleged unfair labor practices occurred during an or- ganizational campaign where the Union prevailed. The parties are now engaged in contract negotiations and it appears that a quick and informal resolution of the al- leged violations would best serve the restoration of in- dustrial harmony and the purpose of the Act. The Gen- eral Counsel has an obvious right to the public vindica- tion of the unfair labor practices , but he should have per- mitted the Union to withdraw the charges . I, according- ly, order the hearing closed and complaint dismissed.