Flint Iceland Arenas

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Al-Hilal Corporation, Inc. d/b/a Flint Iceland Arenas and Local 332, International Brotherhood of Teamsters, AFL-CIO. Case 7-CA-39032 January 23, 1998 ORDER BY CHAIRMAN GOULD AND MEMBERS Fox, LIEBMAN, HURTGEN, AND BRAME On February 13, 1997, after the hearing had opened in the above proceeding, Administrative Law Judge Earl Shamwell Jr. approved a settlement of the allegations in this case entered into between the Respondent and the Union. Counsel for the General Counsel objected to the settlement and, on March 6, 1996, filed a motion to grant special permission to appeal the ruling of the Administrative Law Judge approving the settlement agreement and a motion to revoke the settlement agreement. On March 24, 1997, the Respondent filed a statement in opposition to the General Counsel's motion. The complaint, as amended at the hearing, alleges that following a successful union organizational campaign, which resulted in the Union being certified on April 5, 1996, the Respondent violated Section 8(a)(1), (3), and (5) by threatening employees with physical harm and discharge; reducing hours; interrogating employees; informing employees that their hours were reduced and that a wage increase would not be granted because they selected the Union; assaulting an employee; promising benefits and raises if the employees would decertify the Union; assigning extra duties to unit employees; promulgating new work rules and implementing a new disciplinary system and new uniform wearing requirements; discharging two unit employees and issuing written warnings to one of them; refusing to grant a scheduled wage increase; refusing to provide relevant information to the Union; and generally bargaining in bad faith. In addition, the complaint alleges that in November 1995, prior to the election, the Respondent reduced hours because employees made a concerted, protected complaint. At the beginning of the unfair labor practice hearing, before any evidence was introduced, the Respondent and the Union reached a non-Board settlement, whereby the two employees alleged to have been unlawfully discharged would each receive $7500 and resign their employment, and another employee, who was the subject of much of the Respondent's alleged unlawful conduct, would also agree to a $7500 payment and resign. In addition, the Union agreed to file a disclaimer of interest in representing the Respondent's employees. As indicated, the General Counsel objected to the settlement. but the administrative law judge approved it on the record. The General Counsel's Appeal urges that the Board revoke the administrative law judge's approval because the settlement agreement does not meet the Independent Stave standards.¹ First, The General Counsel argues that the settlement addresses almost no employee interest other than the limited remedies afforded the three individuals. The General Counsel notes that in addition to the three employees involved in the settlement, other unit employees were affected by the Respondent's implementation of new rules and reduced work hours, and the settlement does not remedy any of the allegations as they affect the other employees who were not consulted concerning the settlement and received no compensation. Further, although the Respondent is alleged to have engaged in a number of serious 8(a)(1) violations of the Act, very few of the violations are remedied by the settlement and the settlement provides for no notice of any kind assuring employees that they have a right to engage in Section 7 protected activities. The General Counsel thus argues that not only does the settlement not address the majority of the complaint allegations, it does not provide for protection against future misconduct, citing Copper State Rubber of Arizona, 301 NLRB 138 (1991). Next, the General Counsel asserts that the Respondent's serious unfair labor practices resulted in the employees agreeing to the terms of the settlement out of fear, and that the certified Union disclaimed interest in large part because of the Respondent's blatant refusal to bargain. Finally, the General Counsel notes that while the Respondent does not have a history of committing unfair labor practices, it has engaged in a campaign of serious and sometimes violent unfair labor practices which display a callousness to the Act. In its statement of opposition, the Respondent argues that the settlement meets the criteria for approval of a non-Board settlement agreement listed in Independent Stave, supra, noting that no employee has objected to the settlement, the General Counsel's allegation of wage loss is not supported by the facts, and the settlement is reasonable in light of all the circumstances. The Respondent further notes that the terms of the settlement have been executed, i.e., the three employees have received their money and left the Respondent's 1 The Board in Independent Stave Co., 287 NLRB 740 (1987), stated that in deciding whether to accept a settlement agreement, the Board considers the following factors: (1) whether the charging party[ies], the respondent[s], and any of the individual discriminatee[s] have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of litigation; (3) whether there has been any fraud, co ercion or duress by any of the parties in reaching the settlement: and (4) whether the respondent has engaged in a history of vio lations of the Act or has breached previous settlement agree ments resolving unfair labor practice disputes. 325 NLRB No. 13 FLINT ICELAND ARENAS employ, and the Union has disclaimed interest in representing the employees. Having duly considered the matter. we grant the General Counsel's motion for special permission to appeal the administrative law judge's ruling, and we revoke his approval of the settlement agreement. We find, contrary to our dissenting colleagues, that the settlement does not sufficiently satisfy the standards of Independent Stave. Although there is no fraud or duress alleged and no evidence of previous misconduct by the Respondent (the third and fourth Independent Stave factors), there are serious problems with respect to the first two factors. With regard to the first, we note that, although the Charging Party and the Respondent have agreed to the settlement, the General Counsel vigorously opposes it.² With regard to the second, given the number and seriousness of the unremedied violations of Section 8(a)(1), (3), and (5) here, we cannot find that avoiding the risks of litigation is a reasonable trade-off.³ We agree with our dissenting colleagues that under Independent Stave, a settlement need not remedy all alleged violations in order to be acceptable. But here the alleged unlawful conduct was directed at the entire workforce which the Union was seeking to organize, and the settlement remedies virtually no injury to employee rights other than providing payments to three employees and a neutral letter of recommendation for one of them. Indeed, the settlement does not even provide for any notices or assurances to employees against similar retaliatory conduct if they should involve themselves in another organizing campaign in the future.4 In short, where, as 2 Frontier Foundries. 312 NLRB 73 (1993). 3 As Member Hurtgen correctly points out in his concurrence, the settlement does not "touch at all'' a substantial number of the alleged 8(a)(1) and 8(a)(3) violations. The allegations not addressed by the settlement include the following: accusing employees of disloyalty; threatening employees with reduction of hours, discharge, closure of the arena, serious bodily harm, and death; promising benefits: physically assaulting an employee; reducing employees' hours of work; promulgating new work rules; and assigning extra duties to employees. These alleged violations are serious in nature and unit wide in scope. While Chairman Gould in his dissent is correct in noting that there is no ongoing organizational effort, we cannot ignore the likely reasons for the absence of any such effort-the Respondent's alleged unfair labor practices which, under this settlement, would go substantially unremedied. Contrary to the Chairman's contention, the Board has found that, under Independent Stave, the absence of a notice to employees is a relevant (but not determinative) consideration. See Frontier Foundrics, supra, 312 NLRB at 74, in which the Board decided not to accept a settlement, stating. inter alia, that "the settlement does not provide for any notices.' Although the settlements at issue in Indcpendent Stave were approved notwithstanding the absence of a notice to employees, the Independent Stave settlements did provide for reinstatement, and the Board suggested that the presence of the alleged discriminatees in the workplace would tend to reassure other employees that their statutory rights will be protected. See 287 NLRB at 743. Here. the settlement does not provide for a notice or for reinstatement. In fact, under the terms of the settlement, the alhere, most of the alleged violations are unremedied and the General Counsel believes that the strength of his case warrants the seeking of more comprehensive relief, the second Independent Stave factor is not satisfied. While we recognize that the private parties who are the formal parties to this litigation wish to settle this matter, we find that in the circumstances of this case greater weight must be accorded the need to vindicate the public interest implicated in the many complaint allegations not addressed by the settlement. Therefore, we shall not accept the settlement. The Chairman errs in stating that our opinion represents a retreat from Independent Stave. On the contrary, we agree entirely with the sound principles set forth in Independent Stave, and, as set forth above, it is those very principles that we have applied in reaching our decision today. Therefore, we join the Chairman in wholeheartedly endorsing Independent Stave's reaffirmation of the Board's long-standing policy of "encouraging the peaceful, nonlitigious resolution of disputes." 287 NLRB at 741. This policy is particularly pertinent where the resolution enhances the constructive relations between the parties. That is not the case here. There is no factual basis for the Chairman's assertion that the settlement is an example of labor-management cooperation. As the Chairman himself acknowledges, "this settlement arose out of the union's abandonment of the collective bargaining process." Thus, this is not a settlement that establishes a new collective-bargaining relationship or advances an existing one. Although we certainly agree with the Chairman that a settlement that stabilizes or promotes relations between an employer and a union should be encouraged, we find that the instant settlement wholly fails to accomplish that laudable objective.⁵ Our other dissenting colleague suggests that we need not be concerned about the numerous complaint allegations not addressed in the settlement because employees against whom the Respondent allegedly committed or threatened to commit violent acts might have state law causes of action against the Respondent. Since the Board's settlement policy is intended to promote the peaceful, nonlitigious resolution of disputes, not the shifting of those disputes to other forums, we do not regard this as a particularly persuasive argument for approving the settlement. Moreover, as noted above. leged discriminatees are to resign their employment. Thus, there is nothing in the instant settlement that would communicate to unit employees the vital message that they are free to exercise their statutory rights without interference from their employer. The concept of labor-management cooperation is wholly incongruous in this casc. Not only has the Union disclaimed interest in representation, but the settlement provides that the alleged discriminatees will resign their employment and thus will have no further relationship with the Respondent. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the allegations not addressed by the settlement include threatening to reduce and reducing employees' hours of work, threatening employees with discharge, threatening closure of the arena, promulgating new work rules and assigning employees extra duties, in retaliation for employees' exercise of Section 7 rights. Any state law that purported to provide remedies to employees for such conduct would, in our view, clearly be preempted. See Wisconsin v. Gould, 475 U.S. 282, 286 (1986). Contrary to the Chairman, we do not regard the fact that the unremedied allegations affect employees who were not specifically named in the complaint to be particularly relevant to the question of whether the settlement should be approved. There is no requirement that employees adversely affected by a union's or an employer's unfair labor practices be specifically named in the complaint in order for those employees to be afforded a remedy when violations are found, so long as they are part of an easily identifiable class. Operating Engineers Local 12 (Reynolds Electrical), 298 NLRB 44 (1990). See also, e.g., NLRB V. Midwest Transfer Co.. 287 F.2d 443, 446 (3d Cir. 1961), and cases cited therein. Moreover, under the first factor set forth in Independent Stave, the Board considers not just whether named discriminatees have approved the settlement, but whether "any" of the individual discriminatees have agreed to be bound. 287 NLRB at 743. Here, there is no indication that any employees other than the named discriminatees are even aware that a settlement is being considered.⁶ Finally, we must express our disagreement with the Chairman's suggestion that, in the absence of a union as representative, there would be no monitor for the enforcement of any violations found to exist. This Agency, through its Regional Offices, will monitor compliance with any remedial Order the Board may issue (just as it has always done), irrespective of whether there is a union on the scene. Similarly, we disagree that a "collective mechanism" is necessary for the enforcement of statutory rights. The Board stands ready to enforce the statute in all employment settings over which it has jurisdiction, irrespective of whether there is a "collective mechanism" in such settings.⁷ Accordingly, the General Counsel's motion to grant special permission to appeal the Administrative Law We do not suggest that all discriminatees must be notified and agree to be bound in order for the Board to approve a settlement. We merely note that under Independent Stave, it is appropriate for the Board to take into account not just the views of the named discriminatees but also the views of other identifiable discriminatees as a factor in determining whether the settlement should be approved. We agree with the Chairman that a "collective interest" can be part of an enforcement mechanism. However, where there is no such assistance, the Board alone must act to vindicate employee rights. Judge's approval of the settlement agreement is granted, the Judge's approval is revoked, and the proceeding is remanded to the Judge for further processing without prejudice to further settlement negotiations consistent with this Order. MEMBER HURTGEN, concurring. I agree that the settlement, at present, should not be accepted. However, my view of the case is somewhat different from that of my colleagues. Thus, I write this concurring opinion. I note initially that substantial portions of the case are wholly untouched by the settlement. These untouched portions include the following alleged violations of 8(a)(1)-threatening employees with bodily harm; threatening employees with reduction of hours; threatening employees with discharge; interrogating employees; assaulting an employee; and threatening an employee that a wage increase would not be granted. The untouched 8(a)(3) allegations include: reduction of hours worked by employees; assigning extra duties to employees; promulgating new rules to employees; and failure to give a wage increase to an employee. On the other hand, the settlement does offer a remedy to two alleged 8(a)(3) discriminatees, and a remedy for one other employee. These three employees and the Union do not object to these remedies, and I see no basis for disapproving them. Similarly, since the Union has chosen to disclaim representation, and does not object to the settlement, I see no basis to quarrel with the lack of a remedy for the alleged badfaith bargaining or the alleged refusal to provide information. In sum, while there are a few matters that are adequately addressed, there are major parts of this case that are not touched at all. In these circumstances, I cannot accept the settlement as a resolution of the entire case. However, I do not insist that each and every alleged violation must be remedied. Nor do I insist that each violation must be given anything close to a 100-percent remedy. To the contrary, I recognize that settlements involve compromises, and each party must be aware of the risks of litigation. However where, as here, significant and important parts of the case are wholly untouched by the settlement, I cannot approve the settlement. I also note that the General Counsel, representing the public interest and all of the employees, objects to the settlement. In addition, while the General Counsel's allegations are not yet established, neither are they wholly untested. The General Counsel sought and obtained extraordinary relief. under Section 10(j), from a Federal district court. Finally, I wish to state that my decision is a reluctant one. By nature and through experience, I strongly believe in settlements. In general, they are good for the FLINT ICELAND ARENAS parties. the Agency. and the public. Thus, if Respondent could improve its offer to some extent, I would hope that all parties (including the General Counsel) would accept it. And even if someone objected. I would review the matter in light of my strong disposition toward accepting settlements. CHAIRMAN GOULD, dissenting. 1 dissent. The administrative law judge's approval of the settlement agreement entered into between the Respondent and Charging Party Union is appropriate and should be approved by the Board. My judgment is that the rejection of the administrative law judge's approval is inconsistent with the criteria¹ set forth in Independent Stave Co., 287 NLRB 740 (1987), and sub silentio a revival of the now discredited approach articulated in Clear Haven Nursing Home. 236 NLRB 853 (1978). which has been rejected by the Board. Following its certification on April 5. 1996. the Union filed charges alleging that the Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. At the start of the hearing, the Respondent and the Union presented a settlement that the parties had agreed to with respect to this case. The settlement provides for payment by the Respondent of $7500 to each of the named alleged discriminatees. Southern, Gould, and Yankopulos.² The Union agreed to file a disclaimer of interest with the Board of its certification in Case 7-RC-20791. At the hearing, Gould testified that he was in "full agreement`` with the settlement. Yankopulos and Southern each testified that they understood and agreed to the terms of the settlement. The General Counsel objects to the settlement primarily because it provides no relief for those unnamed employees who lost unspecified compensation due to an alleged reduction in hours and fails to provide any cease-and-desist or notice provisions. It is to be recalled that in Clear Haven,³ supra, the settlement was rejected by a majority of the Board be- I In deciding whether to accept a settlement agreement, the Board considers the following factors: (1) whether the charging party, the respondent, and any of the individual discriminatees have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation; (3) whether there has been any fraud, coercion or duress by any of the parties in reaching the settlement; and (4) whether the respondent has engaged in a history of violations of the Act or has breached previous settlement agreements resolving unfair labor practice disputes. 2 Southern, Gould. and Yankopulos agreed to resign upon receiving the backpay. Yankopulos also agreed that her resignation would be considered a layoff without any right of recall and that the Respondent would provide her with a neutral letter of recommendation Prior to Independent Stave, I criticized Clear Haven because of its tendency to "torpedo agreements that are acceptable 11 labor and management W. Gould, JAPAN'S RESHAPING OF AMER. ICAN LABOR LAW. p. 54 ( 1984). cause of the absence of backpay and notice to employees concerning alleged unfair labor practices. Employees had voted in favor of a settlement which provided for wage increases. It was this rejection by the Board which was repudiated in Independent Stave as reflecting "too narrow a focus" toward negotiated settlements. Here, however. backpay was provided and the essence of the disapproval appears to lie in the fact that not all of the allegations have been remedied and a notice has not been provided to the remaining employees. Yet, the fact of the matter is that not all allegations need to be remedied and notice provided under Independent Stave. Again, the absence of notice-a critical concern of the majority in Clear Haven-is not a basis for setting a settlement aside. Moreover, no employee has objected and the union has disclaimed interest in organizing the employees. This is hardly an appropriate case in which to disapprove a non-Board settlement. As we noted in Independent Stave, the Board "has long had a policy of encouraging the peaceful nonlitigious resolution of disputes." 287 NLRB at 741. This is a major consideration in the adoption of the new settlement judge procedure which has worked so effectively and diminished our caseload. We should be encouraging-not discouraging-the voluntary negotiation of settlements in lieu of protracted and frequently wasteful litigation. Here, where there is no showing that there is disagreement with the settlement or that it was entered into through fraud or coercion. we ought to take into account the fact that risks are frequently involved in protracted litigation, a point that we made in Independent Stave. Particularly where there is no ongoing organizational effort or dispute, we should heed what we said a decade ago, i.e., "witnesses may be unavailable or uncooperative; procedural delays may occur supporting documentation may have becn destroyed or lost; and credibility resolutions may have to be made by the administrative law judge." 287 NLRB at 742. The majority states that the first factor in Independcnt Stave weighs in favor of disapproval. But the opinion focuses exclusively upon "the position taken by the General Counsel regarding the settlement." However. the Charging Party, all the named discriminatees, and Respondent have agreed to be bound and thus the first part of the first factor is met. Although the majority concedes that not all discriminatees must be notified and agree to be bound in order for the Board to approve a settlement, they also suggest that I have failed to consider those unnamed employees who lost unspecified compensation due to an alleged reduction in hours as a factor in determining whether the settlement should be accepted. Yet even the majority also seems willing to ac- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cede to the proposition that not all unnamed individuals must be compensated under all circumstances. In fact, in evaluating the reasonableness of the settlement based on all of the factors present in this case to determine whether the acceptance of the settlement will effectuate the policies of the Act, I simply find that the public interest in encouraging the parties' achievement of a mutually agreeable settlement without litigation outweighs the settlements failure to provide a remedy for all the alleged violations. On this point, it is important to remember, as the Board noted in Independent Stave, that at this stage of the litigation we are presented with only alleged violations of the Act and that we cannot presume that the General Counsel will prevail on every alleged violation. 287 NLRB at 742 (emphasis in the original). Similarly, the majority states that the second factor weighs in favor of disapproval. Yet it entirely overlooks the "stage of the litigation" which is a part of the second factor. The union has now disclaimed interest in representing the employees. The departure of the union⁴ will impose additional burdens upon the General Counsel as he attempts to assemble proofs to establish a violation. Under the circumstances, backpay is an adequate settlement substitute for more comprehensive relief. Such relief mirrors the reality of workplace relations when the union is willing to represent employees or bargain for their employment relationship. But here the union has abandoned its certification under our Section 9 procedures. Surely such a remedy is consistent with Independent Stave in what is and will be a nonunion environment where reinstatement as a remedy is completely alien to the employment relationship.⁵ Additionally, the settlement of dis- 'Cf. Auto Workers V. Scofield, 382 U.S. 205 (1965) (discussing role of charging party in statutory scheme in holding that charging party has right to intervene in court of appeals proceeding on review or enforcement of Board order). 5 the remedy of reinstatement has not been available at common law, and employees do not seem to have been able to reverse this trend in the wave of litigation which has taken place over the past few years." Gould, Estes, Rudy, Wise, Hay, McClain, To Strike a New Balance, A Report of the Adhoc Committee on Termination at Will and Wrongful Discharge Appointed by the Labor and Employment Law Section of the State Bar of California, February 8, 1984 (on file at Stanford Law School) p. 14; "At common law, prior to the evolution of modern labor legislation, courts did not fashion reinstatement remedies in the case of wrongful dismissals, and this is a feature which appears to remain intact in contemporary wrongful discharge litigation. [I]t may well be that the scales have tipped too far in the direction of reinstatement as a remedy, and that institutions like the National Labor Relations Board and arbitrators fashion it with a near automaticity which is indiscriminate. This may well be unwise. But so is the antithesis under which we operate at present, i.e., no reinstatement as a remedy The unavailability of reinstatement is a major deficiency in the existing law." Id. at 5. Cf. Blades, Employment at Will: On Limiting the Abusive Exercise of Employer Power. 67 Col. L. Rev. 1404 (1967); Glendon and Lev. Changes in the Bonding of the Employment Relationship: An Essay on the New Property, 20 Boston College L. Rev. 457 (1979); Gould, charges in union environments involving disputes about just cause" under collective-bargaining agreements frequently provides for monetary awards rather than reinstatement. Thus, this non-Board settlement mirrors the practice of parties in both union and nonunion environments.⁶ Admittedly, this settlement between private parties arose out of the union's abandonment of the collectivebargaining process. The fact that there is no union presence or collective-bargaining process makes this case an unlikely prospect for the use of valuable and scarce Agency resources. There will be no monitor for the enforcement of violations, even if they are found to exist. The settlement, which leaves unremedied some alleged violations which the General Counsel must prove through a preponderance of evidence before an Administrative Law Judge, did not arise out of any collective mechanism, union or nonunion. Thus, no system of cooperation or any form of established relationship exists.⁷ But, labor and management come together all too infrequently. In this era of scarce Agency resources, we should be wary and cautious in the promotion of public rights not yet proven to have been violated where both sides seek a settlement. In the absence of substantial overriding considerations, the Board ought to foster such consensus when it exists and, in so doing, diminish the potential for wasteful litigation that is now present in this case. This is what we have done in employee participation where I have stated that we must attempt to facilitate voluntary relationships.⁸ This is what we have done in the Stemming the Wrongful Discharge Tide: A Case for Arbitration, 13 Employee Relations Law Journal 404 (Winter, 1987/88); Miller and Estes, Recent Judicial Limitations on the Right to Discharge: A California Trilogy, 16 U.C. Davis L. Rev. 65 (1982); Peck, Unjust Discharges from Employment: A Necessary Change in the Law. 40 Ohio St. L. J. 1 (1979); and Note, Implied Contract Rights to Job Security, 26 Stan. L. Rev. 335 (1974). Of course, I am of the view that the Board itself should be more careful and flexible in providing a remedy of reinstatement. Paper Mart, 319 NLRB 9, 12 (1995) (Chairman Gould, concurring). A unanimous Supreme Court in NLRB V. Transportation Management, 462 U.S. 393, 401-402 (1983), stated, albeit in dicta, that such an approach by the Board is compatible with the Act. My focus in Paper Mart is to tailor the remedy, e.g., reinstatement or backpay or posting, more carefully to the conduct of the employee or employees or employer involved. See also my Opinion and Award in Safeway Stores, Inc., 64 Lab. Arb. 563, 569 (1974) (backpay without reinstatement is an appropriate remedy under a collective-bargaining agreement under certain circumstances). FI recognize, of course, that the Agency monitors and enforces compliance with its orders. However, the Region may often rely on the charging party union to bring to its attention a respondent employer's failure to comply with the Board's order. This is particularly true in this period of austerity, where collective interest, for better or worse. is part of the enforcement mechanism. 8 Kecler Brass Automotive Group, 317 NLRB 1110, 1116-1119 (1995) (Gould, W., concurring). The majority states that labor-management cooperation is "fleeting inasmuch as no collective bargaining relationship has been formed." My opinion in Keeler Brass, FLINT ICELAND ARENAS established bargaining relationship between labor and management in union multi-employer bargaining relationships. Similarly, in recognitional disputes, I have expressed the view that we ought to be about promoting the stability of voluntary recognition agreements as opposed to unnecessary litigation. 10 The Board has concurred with this approach in its promotion of settlement agreements negotiated where a decertification petition has been filed and an incumbent union has an established relationship with the employer.¹¹ Finally, both our rule relating to settlement judges, 12 an approach which has been enormously successful in settling cases which would otherwise involve time consuming litigation, as well as our proposed rule on single site locations, 13 have had as their aim the achievement of these same objectives. The majority, which now insists on litigating an issue in which the settlement is not perfectly to its liking, has undermined the parties' own private voluntary mechanisms and the objective of settling cases that otherwise drain both private and public resources. Indeed, the majority does not even know what the amount received by the employees in question constitutes as a percentage of total backpay liability. This dramatizes anew the pitfalls involved where the Board, sitting in Washington, D.C., seeks to substitute its judgment and impose its will upon the parties in the field who do not object to and are satisfied with the negotiated settlement. I would adhere to Independent Stave and approve the settlement. Today, the majority acts inconsistently with the principles established in Independent Stave. This decision marks a retreat from both Independent however, emphasizes the importance of cooperation under the Act in both the union and the nonunion environment. The majority apparently would find the promotion of cooperation in the latter context is unwanted and inappropriate. I disagree for the reasons stated in Keeler Brass. See also Webcor Packaging, 319 NLRB 1203 fn. 13 (1995), enfd. 118 F.3d 1115 (6th Cir. 1997). Lexington Fire Protection Group, Inc., 318 NLRB 347, 348 fn. 11 (1995); Chel LaCort, 315 NLRB 1036 (1994); James Luterbach Construction Co., Inc., 315 NLRB 976, 982 (1994), (Gould, W., concurring). Illustrative of a decision which substantially diminished litigation through its broad and clear mechanical rule relating to jurisdiction was Management Training, 317 NLRB 131 (1995). The doctrine in Management Training has been approved in Teledyne Economic Development V. NLRB, 108 F.3d 56 (4th Cir. 1997), and in Pikeville United Methodist Hosp. V. NLRB, 109 F.3d 1146 (6th Cir. 1997) where we asserted jurisdiction over private employersexactly as the statute behooves us to do. 10 Smith's Food & Drug Centers, 320 NLRB 844, 847-848 (1996) (Gould, W., concurring). 11 Douglas-Randall, Inc., 320 NLRB 431 (1995). 12 61 Fed. Reg. 6940 (1996) (to be codified at 29 CFR Part 102). 13 60 Fed. Reg. 50146 (1995) (to be codified at 29 CFR Part 103) (proposed Sept. 28, 1995). Stave and the policies promoting the voluntary resolution of disputes. Accordingly, for all the reasons above, I dissent. MEMBER BRAME, dissenting. The administrative law judge's approval of the settlement agreement between the Charging Party and the Respondent should be approved by the Board as consistent with the criteria set forth in Independent Stave Co., 287 NLRB 740 (1987). The complaint in this case alleges various violations of Section 8(a)(1), (3), and (5) of the Act. The settlement agreement provides for monetary payments by the Respondent to each of the named discriminatees. One of the discriminatees, Gould, testified at the hearing that he was in "full agreement" with the settlement, and the two others, Southern and Yankopulos, testified that they understood and agreed to the terms of the settlement. The discriminatees were not "stampeded," for one of three, Yankopulos, negotiated an arrangement in which her termination would be recorded by the Respondent as a layoff and the Respondent would give her a neutral letter of recommendation for other employment. Finally, there is neither a contention nor a hint in the record that fraud or coercion was involved in reaching the settlement. As the majority notes, there were numerous allegations in the complaint not addressed by the settlement. The fact, however, that not all complaint allegations are remedied does not in itself compel the Board's disapproval of a settlement under Independent Stave. Rather, the standards of that case provide for the consideration of many factors in assessing the adequacy of a settlement, with no one factor being determinative. Here, the Charging Party, all the discriminatees specifically named in the complaint, and the judge were satisfied with the terms of the settlement. Additionally, the Union has disclaimed any interest in representing the unit employees for the purposes of collective bargaining. Lastly, to the extent that the settlement may not address certain allegations relating to harassment, violence or threats of violence, individuals are not without recourse, given the existence of criminal and civil remedies available to them and the broad knowledge of those remedies in the workplace.¹ For the foregoing reasons, and additionally considering the risks inherent in litigation, I find the settlement reached here reasonable and that any further involvement by the Board is unnecessary. Accordingly, I would vote to affirm the judge's approval of the settlement. I, therefore, dissent. 1 In this regard, conduct which arguably is prohibited by the NLRA can also be the basis for state law criminal actions or actions in tort, which would not be generally preempted by the NLRA. See. e.g., Farmer v. Carpenters Local 25, 430 U.S. 290 (1977).