Copper State Rubber

National Labor Relations Board - Board Decisions

Jan 15, 1991

301 N.L.R.B. 138 (N.L.R.B. 1991)

138
301 NLRB No. 24
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On October 9, 1990, the Respondent filed a statement in opposition to the
General Counsel’s appeal. On October 15, 1990, the Charging Party filed its
own appeal, which supports the General Counsel’s appeal.
2 See Independent Stave Co., 287 NLRB 740 (1987).
3 We do not necessarily suggest that the Board would never accept a re-
spondent’s proffered adjustment over the objections of the General Counsel
and Charging Party. If the Board concludes that a proffered adjustment covers
all the allegations of the complaint and effectuates the remedial purposes of
the Act, the Board may well accept the adjustment, even over the objections
of the General Counsel and the Charging Party. However, we do not pass on
that issue.
4 Northern California District Council of Hodcarriers (Joseph’s Land-
scaping Service), 154 NLRB 1384 (1965).
5 Again, we are not suggesting that a release and waiver clause can never
appear in a settlement or adjustment. Rather, we simply conclude that the
breadth of the release and waiver clause in this case, together with the fact
that the employee was without counsel, are factors militating against accept-
ance of the proffered adjustment.
Copper State Rubber of Arizona, Inc. and United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, District 65, AFL–
CIO. Cases 28–CA–10014, 28–CA–10066, 28–
CA–10133, 28–CA–10212, 28–CA–10251, and
28–CA–10374
January 15, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 21, 1990, a hearing in the above-entitled
proceeding opened before Administrative Law Judge
James M. Kennedy of the National Labor Relations
Board. At various times prior to and after the opening
of the hearing, counsel for the General Counsel sub-
mitted a comprehensive informal settlement proposal
to Respondent for its consideration. During the course
of settlement discussions, the Respondent moved the
judge to accept an offer it had prepared. This offer re-
lated to all the allegations of the complaint except
those concerning employee Wilfrido Miranda. The
General Counsel and the Charging Party refused to ac-
cept the offer and asked the judge to reject it.
After considering objections filed by the General
Counsel and the Charging Party, but prior to taking
any evidence, the judge found that acceptance of the
Respondent’s offer would fully effectuate the policies
of the Act. On September 14, 1990, Judge Kennedy
issued a Notice of Approval of Partial Informal Settle-
ment Agreement. In essence, Judge Kennedy thereby
accepted Respondent’s offer. The accepted offer pro-
vides for, inter alia, backpay in the amount of $5000
to discriminatee Tom Dotson, contingent on his execu-
tion of a waiver and release clause, a minimal amount
of backpay to two other discriminatees, and the pay-
ment of a Christmas bonus and two safety bonuses to
all three discriminatees. The offer further states that it
‘‘is intended to settle all allegations in the consolidated
complaint . . . except those allegations pertaining to
the alleged discriminatory discipline and discharge of
Wilfrido Miranda.’’
On September 25, 1990, the General Counsel filed
a request for special permission to appeal the judge’s
ruling.1 He contended, inter alia, that the purported set-
tlement is not a settlement; that the judge lacks author-
ity to approve it; that the settlement should be rejected
because it does not include a reservations clause pro-
viding that the General Counsel can use evidence un-
derlying the settled allegations in the litigation of the
nonsettled allegations; that the waiver and release
agreement is contrary to Board policy; and that the
purported settlement approved by the judge was far
more favorable to the Respondent than any settlement
previously offered by the Regional Director, thereby
tending to undermine the Regional Director’s authority
to negotiate settlements.
Having duly considered the matter, and for the rea-
sons that follow, the Board has decided to grant the
appeals of the General Counsel and the Charging Party
and to revoke the judge’s Notice of Approval of the
Partial Informal Settlement.
First we note that the General Counsel and the
Charging Party have not agreed to Respondent’s offer
of settlement. The Board has held that the opposition
of the General Counsel and the Charging Party is a
significant factor to be considered in determining
whether a non-Board settlement is to be accepted.2 We
do not believe that some lesser standard should govern
a proffered adjustment made by a respondent to an ad-
ministrative law judge. Accordingly, the fact that the
General Counsel and the Charging Party oppose the
proffered adjustment involved here militates against
acceptance of it.3
Second, the Respondent’s offer does not address all
the allegations of the complaint. We recognize that,
contrary to the General Counsel’s contention, the evi-
dence underlying the settled allegations can be used as
background evidence to support the allegations to be
litigated.4 However, because of that very fact, accept-
ance of the proffered adjustment in the instant case
would not necessarily save the parties from the time
and expense of extensive litigation.
Third, we note that the adjustment does not provide
for the entry of a Board order. Hence, it provides no
protection against future misconduct.
Finally, the adjustment contains release and waiver
language with respect to Dotson that is extremely
broad. For example, the clause can be read to forbid
the employee from filing charges with respect to future
unrelated matters. In addition, Dotson signed it without
counsel. In these circumstances, the release and waiver
language militates against acceptance of the proffered
adjustment.5
139COPPER STATE RUBBER
ORDER
IT IS ORDERED that the appeals are granted, approval
of the settlement is revoked, and this matter is re-
manded to the administrative law judge for further ap-
propriate action.