806 F.2d 269 | D.C. Cir. | 1986
In this case, we are called upon to review a series of orders by the National Labor Relations Board (“NLRB” or the “Board”). Over the objection of the Board’s General Counsel, the NLRB approved private settlement agreements disposing of certain unfair labor practice charges against TNS, Inc. (the “Company”). The settlement agreements were signed by TNS and fifty-six individual employees, all of whom were members of a bargaining unit represented by the petitioner, the Oil, Chemical and Atomic Workers International Union, AFL-
I.Background
A. Factual Background
TNS, Inc., an intervenor in this appeal, operates a plant in Jonesboro, Tennessee. In 1981, when the present dispute arose, TNS produced various forms of ammunition made from depleted uranium. Approximately one-hundred employees of TNS were members of the bargaining unit represented by the Union.
On May 1, 1981, bargaining unit employees began a work stoppage allegedly in protest over health and safety conditions at the TNS plant. After closing down operations for several months, the Company hired permanent replacements for the “striking" workers. This action prompted the Union to file unfair labor practice charges with the NLRB.
The Union charges to the Board alleged that the permanent replacement of workers engaged in a work stoppage under section 502 of the Labor Management Relations Act
While the General Counsel was presenting its case before an Administrative Law Judge (“AU”), seventy of the “striking” employees, represented by attorney William Shaw, moved to intervene in the proceedings. Intervention was granted for the limited purpose of allowing Shaw to question certain employees about working conditions at the TNS plant, and perhaps to introduce an expert witness.
At some point thereafter, however, Shaw and TNS began negotiations on a possible settlement of the unfair labor practice charges. At the conclusion of the hearings, Shaw and counsel for TNS presented signed settlement agreements to the AU for her approval.
The AU refused to approve the settlement agreements. She found that Shaw, in being permitted to intervene, had not been granted “standing” to settle the claims of the individual employees.
B. The Board’s Orders
In its first in a series of three orders, the Board reversed the AU’s decision to reject the settlements, and approved them “in principle.”
Two months later, the Union, the Company and the individual employees filed a joint motion with the Board stipulating that the employees had executed the settlement agreements with voluntary and informed consent.
On May 16,1985, the Board approved the settlement agreements over the General Counsel’s objections.
The Board went on to cite four reasons why giving effect to the proposed settlement agreements would “effectuate the policies of the Act.”
II. Discussion
A. Departure from Precedent
In Clear Haven, the Board outlined the “well settled,” and relatively stringent, two-part legal test to be applied in determining “whether or not to approve a settlement agreement and withdrawal of unfair labor practice charges.”
The Board’s policy against deference to private settlement agreements is grounded on the well-accepted principle that the Board, having filed an unfair labor practice complaint, proceeds in vindication of the public interest, not in vindication of private rights.
In support of its final order, the Board emphasized that the General Counsel’s unfair labor practice complaint was “novel,” and that there was a risk that the complaint would be found unmeritorious. Yet, under the Clear Haven test, for the limited purpose of passing on the acceptability of a proposed settlement, the Board must “of necessity” begin with the assumption that the case is meritorious.
In further support of its final order, the Board cited two cases purportedly illustrative of the Board’s “long-standing policy of encouraging resolution of disputes without resort to Board processes.”
In summary, the Board’s “well settled” standards for assessing private settlement agreements such as those reached in this case were delineated in Clear Haven. In this case the Board departed from those standards without explanation (and without even citing Clear Haven). We need hard
B. The Issues to be Addressed on Remand
Apart from the Board’s departure from well-established precedent, the orders here under challenge raise several additional concerns. We will briefly highlight these matters so that they, too, will be addressed by the Board on remand.
First, we find it disturbing that the Board foreclosed all inquiry into the ethical conduct of the attorney for the individual employees, who was paid $450 by the Company for each employee who signed a settlement agreement. Had the Company made such payments to a Union attorney, it surely would have been guilty of an unfair labor practice.
Second, we find it highly questionable— especially outside the grievance-arbitration context — for the Board to approve settlements and dismiss unfair labor practice charges merely on a showing that the settlements were “voluntary.” As noted in Clear Haven, the Board is the “agency entrusted with the power and the duty of enforcing the Act in which the public has an interest.”
Along these lines, we find it especially disturbing that the settlements in this case provided no remedy whatsoever for the
III. Conclusion
For the foregoing reasons, the orders of the Board are reversed, and the case remanded to the Board for further proceedings not inconsistent with this opinion.
So Ordered.
. 29 U.S.C. § 143 (1982).
. Id. § 158(a)(1), (3).
. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956).
. Complaint and Notice of Hearing, reprinted in Joint Appendix (“J.A.”) 176.
. See J.A. 293-94.
. At that point, 42 TNS employees had signed settlement agreements. Fourteen employees have signed since, bringing the total to 56.
. See Settlement Agreement, Release and Covenant Not to Sue; Severance Agreement, Rélease and Covenant Not to Sue, reprinted in J.A. 13-22.
. See J.A. 357.
. Id.
. See J.A. 358-75.
. Telegraphic Order of the Board (Feb. 22, 1985), reprinted in J.A. 1.
. Id.
. Joint Motion of Charging Party, Respondent, and Intervenors for Amendment of Board’s Order and to Approve Settlement Agreements and Releases, reprinted in J.A. 6.
. General Counsel’s Opposition to Joint Motion of Charging Party, Respondent, and Intervenors for Amendment of Board’s Order and to Approve Settlement Agreements and Releases, reprinted in J.A. 23-32.
. Telegraphic Order of the Board (May 16, 1985), reprinted in J.A. 2.
. 272 N.L.R.B. 215 (1984).
. 243 N.L.R.B. 501 (1979).
. Unpublished Order of the Board (Oct. 23, 1985), reprinted in J.A. 3, 4.
. J.A. 4.
. J.A. 5.
. J.A. 4.
. Because not all employees have signed settlement agreements, the ALJ must still rule on the legal question whether employees who engage in a work stoppage over hazardous working conditions may be permanently replaced. At oral argument, counsel informed us that a decision on this question is still pending before the ALJ.
. Unpublished Order of the Board (Oct. 23, 1985), reprinted in J.A. 3, 5.
. 236 N.L.R.B. at 853.
. Id. at 855-56.
. Id. at 853 (quoting Jack C. Robinson, 117 N.L.R.B. 1483, 1485, enforced, 251 F.2d 639 (3d Cir.1957)).
. Id. at 854; see also APD Transport Corp., 253 N.L.R.B. 468, 470 (1980) (under Clear Haven, failure of settlement agreement to provide for backpay and reinstatement falls "far short” of a "substantial remedy"), enforcement denied on other grounds, 672 F.2d 323 (3d Cir.1982).
. The Board has ... long recognized that the willingness of a charging party to withdraw charges is not necessarily a ground for dismissal of a complaint “for once a charge is filed, the General Counsel proceeds, not in vindication of private rights, but as the representative of an agency entrusted with the power and the duty of enforcing the Act in which the public has an interest.”
Clear Haven, 236 N.L.R.B. at 853 (quoting Ingalls Steel Constr. Co., 126 N.L.R.B. 584 n. 1 (1960)).
. 236 N.L.R.B. at 855; see also Ideal Donut Shop, 148 N.L.R.B. 236, 237 (1964) ("[Rjeinstatement and backpay are remedies which the Board provides in the public interest to enforce a public right. No private right to such relief
As this Board precedent makes clear, it is largely irrelevant that some of the "striking" employees have chosen not to settle, thereby preserving for the ALJ the legal question whether employees who engage in a work stoppage over hazardous working conditions may be permanently replaced. The public interest lies not only in resolving the legal issues raised by an unfair labor practice complaint, but in remedying the illegal practices, thereby discouraging their recurrence.
. 236 N.L.R.B. at 855-56.
. Unpublished Order of the Board (Oct. 23, 1985), reprinted in J.A. 3, 4.
. See Combustion Eng’g Inc., 272 N.L.R.B. 215 (1984) (agreement between union and employer to settle employee’s grievance short of arbitration); Coca-Cola Bottling Co., 243 N.L.R.B. 501 (1979) (same).
.See, e.g., Alpha Beta Co., 273 N.L.R.B. 1546, 1547 (1985) (Board furthers fundamental purposes of the Act by encouraging employers and unions to negotiate their differences, to discuss and settle grievances, and, if necessary, to arbitrate their differences), appeal docketed sub nom. Mahon v. NLRB, No. 85-7565 (9th Cir.1985); Roadway Express, Inc. v. NLRB, 647 F.2d 415, 426 (4th Cir. 1981):
[D]eferring to the [grievance] settlement in this case, effected by the union’s representative ... would not be repugnant to the national labor policy of respecting agreements freely made between an employee and employer, where such agreement had been effected under the protection of the employee’s bargaining agent..,. That certainly is promoting the use of the collective bargaining agent in resolving peaceably and amicably grievances and this is one of the primary purposes of the National Labor Relations Act.
. See, e.g., Columbia Broadcasting Sys. v. FCC, 454 F.2d 1018, 1026 (D.C.Cir.1971) (‘‘[Wjhen an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.") (footnote omitted); Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir.1970) (“[Ajn agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from the tolerably terse to the intolerably mute.”) (footnotes omitted), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971).
. See Darr v. NLRB, 801 F.2d 1404, 1409 (D.C.Cir.1986) (remanding for further consideration or explanation of Board’s decision to defer to an arbitrator's award).
. Section 8(a)(2) of the Act makes it an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” 29 U.S.C. § 158(a)(2) (1982).
. See, e.g., NLRB v. Autotronics, Inc., 596 F.2d 322, 325 (8th Cir.1979) (refusing to enforce Board order where Board failed to give "meaningful consideration” to charges that a settlement was procured by the unethical conduct of a Board attorney); Feld & Sons, Inc., 263 N.L.R.B. 332, 337-38 (1982) (in response to charges that attorney misconduct infected the settlement process, Board remands to administrative law judge “for the purpose of taking testimony concerning the circumstances surrounding the execution of the Settlement Agreement”).
. 236 N.L.R.B. at 853 (quoting Ingalls Steel Constr. Co., 126 N.L.R.B. 584 n. 1 (1960)).
. In this respect, we find the Board’s duty at least as great as that of a district court judge charged with the responsibility for approving class action settlements. See FED.R.CIV.P. 23(e); Armstrong v. Board of School Directors, 616 F.2d 305, 313 (7th Cir.1980) (district court may approve class action settlement only if it finds settlement "fair, reasonable and adequate”).
. See, e.g., Combustion Eng'g Inc., 272 N.L.R.B. 215 (1984) (both company and union made concessions to settle employee’s grievance; employee was reinstated but without backpay); Coca-Cola Bottling Co., 243 N.L.R.B. 501 (1979) (same).