National Telephone Services

National Labor Relations Board - Board Decisions

Jan 4, 1991

301 N.L.R.B. 1 (N.L.R.B. 1991)

1
301 NLRB No. 1
NATIONAL TELEPHONE SERVICES
1 In a letter dated July 9, 1990, transmitting a copy of her brief to the ad-
ministrative law judge to the Board, counsel for the General Counsel advised
the Board that she has no objection to the settlement agreement approved by
the judge for resolving the unfair labor practice cases or to his recommenda-
tion on the objections in the representation case.
2 In adopting the judge’s recommendation to accept the settlement agreement
presented unilaterally by the Respondent, we note, as he did, that it settles all
the allegations of the complaint by providing for the appropriate remedies, in-
cluding notice posting, and that the Respondent has not been shown to be a
recidivist violator of the Act. As to the Charging Party’s contention that the
agreement limits the Regional Director’s discretion concerning the timing for
the rerun election, we find that, in the circumstances here, the election could
not have been held before the October date set forth in the agreement. Such
circumstances include not only the customary 60-day notice posting period but
the time that has elapsed seeking Board review.
1 Respondent’s name appears as corrected at the hearing.
2 A review of the transcript appears to show that R. Exhs 1 and 2 were not
admitted. That oversight is corrected and both exhibits are received. To avoid
confusion, the three-page stipulation on objections is re-marked as R. Exh. 1(a)
and the two-page document, the informal settlement agreement with the at-
tached notice to employees, is re-marked as R. Exh. 1(b).
National Telephone Services, Inc. and Communica-
tions Workers of America and its Local 9404,
AFL–CIO. Cases 32–CA–10515, 32–CA–10623,
32–CA–10676, 32–CA–10723, and 32–RC–3056
January 4, 1991
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 25, 1990, Administrative Law Judge James
M. Kennedy issued the attached decision. The Charg-
ing Party filed exceptions and a supporting brief and
the Respondent filed an answering brief in support of
the judge’s decision.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to approve the settlement agreement of
the Respondent.2
ORDER
The National Labor Relations Board approves the
settlement agreement of the Respondent and orders
that the Respondent, National Telephone Services, Inc.,
Hayward, California, its officers, agents, successors,
and assigns, shall take the action set forth therein.
IT IS FURTHER ORDERED that the election in Case
32–RC–3056 is set aside, and that the case is re-
manded to the Regional Director for Region 32 to con-
duct at the place the previous election was held a new
election at the earliest time he deems the circumstances
will permit the free choice of a bargaining representa-
tive.
[Direction of Second Election omitted from publica-
tion.]
Elaine D. Climpson, for the General Counsel.
Michael F. Marino and Lee Carol Johnson Esq. (Reed,
Smith, Shaw & McClay), of Washington, D.C., for the Re-
spondent.
David Borgen, of Burlingame, California, for the Charging
Party.
NOTICE OF APPROVAL OF INFORMAL
SETTLEMENT AGREEMENT AND REPORT ON
OBJECTIONS
JAMES M. KENNEDY, Administrative Law Judge. This case
was opened for hearing before me in Oakland, California, on
April 23–24, 1990, on a consolidated complaint issued by the
Regional Director for Region 32 of the National Labor Rela-
tions Board on December 29, 1989. It is based on charges
originally filed by Communications Workers of America and
its Local 9404, AFL–CIO (the Union or the Charging Party)
on August 10, October 3 and 26, and November 14, 1989,
respectively; some of those charges were subsequently
amended. The complaint alleges that National Telephone
Services, Inc.,1 (Respondent) has committed certain viola-
tions of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act. Also consolidated for hearing are certain objec-
tions to the representation election in Case 32–RC–3056,
which by an order of the Regional Director require me to
issue a report on objections.
The Posture of the Case
Prior to going on the record in this case, I conducted a set-
tlement conference. The conference was unsuccessful but did
permit the parties to explore their areas of agreement and
disagreement. Upon opening the record, Respondent orally
presented a settlement proposal which would purportedly set-
tle the entire unfair labor practice case and which would
have set the rerun election for a date no earlier than October
5–6, 1990. The Charging Party objected to my considering
the matter as the terms were not then concrete. I thereupon
directed Respondent to reduce its proposal to writing and ad-
journed the hearing to the next day so that could be accom-
plished.
On the following day, Respondent presented me with Re-
spondent Exhibit 1,2 a proposed settlement which was typed
on a standard NLRB informal settlement form providing for
approval by the administrative law judge, together with an
official NLRB notice to employees, moving that I approve
it. As part of the proposal, Respondent included a stipulation
on objections in which it agreed to a rerun election no earlier
than October 1, 1990, or as soon as possible thereafter. Al-
though on their face they do not appear to be contingent on
one another, Respondent on the record clearly stated that
they were. Therefore, they must be considered together, not
separately. Counsel for the General Counsel advised that the
undertakings set forth in Respondent’s proposed informal set-
tlement would fully remedy the unfair labor practices alleged
in the complaint. The Charging Party did not disagree, but
nevertheless opposed the motion. Counsel for the General
Counsel stated that she did not oppose the settlement agree-
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment, but was unable to join it because the date of the rerun
election was too distant. She asserted that the election should
be promptly held upon the completion of the 60-day posting
period, then targeted for early August 1990. Substantively,
however, she had no objection to the proposal.
The Charging Party opposed it in its entirety. It agreed
with the General Counsel that the new election date was too
distant. It also objected to the fact that it contains a non-
admission clause. It wishes to characterize Respondent as a
chronic violator of the Act, not entitled to such a clause. In
support of that argument it points to the instant complaint,
to a case settled in Region 5 in May 1989, but which the
charging local union later withdrew, and to new charges cur-
rently pending in Region 5 in which, at least as of this hear-
ing date, there had been no determination of merit. It also
demanded that Respondent sign a formal settlement pro-
viding for the entry of a Board order and court judgment.
The Charging Party further objected to the proposal on
procedural grounds, arguing that there is no ‘‘agreement,’’
that approving the settlement ‘‘dictates’’ settlement terms to
a party, and that the administrative law judge has no author-
ity to set election dates.
Because of the unusual nature of the procedure proposed,
and because of the General Counsel’s somewhat equivocal
stance as well as the Charging Party’s opposition, I con-
cluded that it would be best to take the matter under advise-
ment. To that end I allowed the parties time to file memo-
randa of points and authorities in support of their respective
positions. The Charging Party filed a memorandum in oppo-
sition to the motion; Respondent filed a memorandum in
support; the General Counsel filed a well-written and insight-
ful memorandum detailing my authority to deal with the
issue. All of them have been carefully considered.
Factual Background
This matter is one which pits the application of common
sense and practicality against what can fairly be considered
one party’s desire to be vindicated by hearing of its per-
ceived loss of statutory rights. When the complaint was
issued, the Charging Party believed that its charges were
meritorious and that the Board would issue an appropriate re-
medial order, set the election aside, and rerun it after an ap-
propriate remedial period and posting of a notice. This proc-
ess, if litigated to conclusion, would take at least a year be-
fore the Board, and if appealed to the courts, perhaps 2 or
3 years. Assuming a complete litigation success by the Gen-
eral Counsel and the Charging Party, such litigation would
have resulted in a finding that Respondent had violated the
Act, the 1989 election would have been set aside and a new
election scheduled, probably for sometime in 1992. Of
course, as in any litigation, success, whether complete or not,
cannot be guaranteed. Nor can it be assumed. Moreover, liti-
gation has its expenses, not just those of the private litigants,
but also for the taxpayer. If the law can be enforced without
spending money in litigation, that savings benefits everyone.
Moreover, the Act is remedial in its purposes. It is de-
signed to allow employees the right to exercise their Section
7 rights in a reasonably prompt fashion and in an atmosphere
free of restraint and coercion. When that end can be accom-
plished without resort to any, much less lengthy, litigation,
that path is the preferred one. Because it is often negotiated
a path, one which has both educational and nonculpable fea-
tures, it is usually favored by the parties and the Board; ac-
ceptance of the policies of the Act without litigation is clear-
ly in the public interest. Farmers Cooperative Gin Assn., 168
NLRB 367 (1967). Election concerns, however, can com-
plicate the situation.
In election cases, the Board must be careful to see that
employee voting rights are exercised without the atmospheric
influence of unfair labor practices or other election mis-
conduct. At the same time, if such misconduct is believed to
have occurred, the Board must remedy the situation as quick-
ly as it can so those rights may promptly be exercised free
of such contaminants. Its duty to perform this task is inde-
pendent of the rights of the private parties, for the Board in
such situations acts in the public interest. Thus the concerns
of the parties, while to be given due consideration, are not
controlling.
In that context, the following facts are relatively undis-
puted. Respondent is a Delaware corporation which provides
national, i.e., long-distance, telephone services and meets the
Board’s jurisdictional standards. On July 5, 1989, the Union
filed a petition for a representation election. On August 8,
1989, the Regional Director approved a Stipulated Election
Agreement. That agreement provided for an election on Sep-
tember 29 and 30, 1989, among the employees in the fol-
lowing unit:
All full-time and regular part-time operators, team lead-
ers, office assistants, receptionist, customer relations
representatives, switch technicians and field technicians
employed by [Respondent] at its Hayward, California
facility, and including customer relations representa-
tives, field technicians and switch technicians employed
by [Respondent] at its Denver, Colorado, Los Angeles,
California, Las Vegas, Nevada, and Phoenix, Arizona
facilities; excluding professional employees, guards and
supervisors as defined in the Act.
An election was conducted on the above dates. Of ap-
proximately 125 eligible voters, 43 voted for representation
by the Union while 64 voted against. There were no void
ballots and the nine challenged ballots were insufficient to
affect the outcome of the election. The Union responded to
this result by timely filing objections to the outcome of the
election and by filing the instant unfair labor practice
charges. The Regional Director on January 3, 1990, issued
his report and recommendation on objections. In it he noted
that the objections, for the most part, tracked the allegations
of the complaint and ordered the matter consolidated with the
complaint for a hearing. On April 13, 1990, he issued an
amended report having a similar recommendation. On that
basis the administrative law judge assigned to the case is ob-
ligated to make a report to the Board recommending the ap-
propriate manner to process the election case. Should the
election be set aside, and if so, on what basis?
At the outset of the hearing, without admitting that it had
engaged in the unfair labor practices alleged and without
conceding that it had committed any conduct which would
affect the outcome of the September 1989 election, Respond-
ent signed an informal Board settlement proposal which, the
General Counsel agrees, fully remedies the unfair labor prac-
tices set forth in the consolidated complaint. Not only does
it provide for remedial orders with respect to conduct, it pro-
3NATIONAL TELEPHONE SERVICES
3 Sec. 101.9(d)(1) reads as follows:
If the settlement occurs after the opening of the hearing and before the
issuance of the administrative law judge’s decision and there is an all-
party informal settlement, the request for withdrawal of the complaint
must be submitted to the administrative law judge for approval. If the all-
party settlement is a formal one, final approval must come from the
Board. If any party will not join in the settlement agreed to by the other
parties, the administrative law judge will give such party an opportunity
to state on the record or in writing its reasons for opposing the settlement.
4 The Charging Party argues, based on language found in Chemical Workers
Local 1-591 (Snelson, Inc.), 208 NLRB 296 (1974), and Gimbel Bros., 100
NLRB 870 (1952), that my, and therefore, the Board’s, power to settle cases
is extremely limited. Gimbel is readily distinguishable. There, respondent
union complained that the General Counsel had not given it an opportunity
to settle the case, asserting such an omission was contrary to the Administra-
tive Procedure Act. The Board found proof on the issue wanting. The trial ex-
aminer’s language, found at 887, to the effect that the Board has only a lim-
ited power of review and cannot originate or dictate settlement terms, refers
to only its authority over the General Counsel, nothing more. Similarly, in
Chemical Workers, the administrative law judge’s language referred to the
General Counsel’s refusal to accept a nonadmission clause in a case involving
multiple incidents of strike violence. He, too, declined to review the General
Counsel’s discretion to refuse its inclusion. Neither of these cases addressed
the issue presented here, whether the Board has the authority to accept a re-
spondent’s commitment to remedy all of the unfair labor practices alleged and
to refrain from future violations, where it has used standard Board forms and
where the General Counsel has acknowledged that the proposal effectuates the
policies of the Act. Thus I do not find the Charging Party’s cases persuasive;
their language has no contextual relevance here.
vides a make-whole remedy for three named employees who
suffered allegedly discriminatory pay losses. Respondent also
stipulated, in conjunction with the settlement proposal, to set
aside the 1989 election so long as the rerun election is not
held before October 1, 1990.
Analysis
Respondent’s proposal is very attractive, but not without
its drawbacks. The most obvious is the fact that neither the
General Counsel nor the Charging Party have accepted it. In-
deed, the Charging Party has clearly rejected it. Yet, it is
clear that the General Counsel’s objections are minimal and
he has tacitly, if not expressly, accepted it. As his representa-
tive stated on the record, ‘‘[O]ur principal problem is with
the delay of the election . . . But, from a practical stand-
point, we recognize that if we try this case and file briefs
and go along that procedure, and we win and we get the
election set aside, that we are talking about not having an
election until the minimum of a year from now . . . [B]eing
pragmatic, and recognizing the realities of that, . . . we can’t
recommend the settlement, but we won’t oppose it.’’
Yet that drawback does not appear insurmountable. Noth-
ing in the Board’s Rules prohibits the administrative law
judge from taking such a settlement, although as both the
General Counsel and the Charging Party point out, Section
101.9(d)(1) might be read as requiring at least two of the op-
posing parties to agree.3 Nonetheless, counsel for the General
Counsel does not so read that language. Even so, the Section
101 Rules are only descriptive of the Board’s procedures;
they are not binding. The Rules set forth in Section 102 are
the ones which have binding effect. But even the Section 101
language is too vague to cover the situation here. Accord-
ingly, like the General Counsel, I do not find that language
to be controlling.
Obviously, if the General Counsel had specifically agreed
with Respondent, or if the Charging Party had agreed with
Respondent, there would be a better guaranty that Respond-
ent’s undertakings would in fact be carried out. Yet, the Gen-
eral Counsel’s decision not to join the settlement does not
mean that the Regional Office will not oversee compliance.
Obviously it will. Insofar as the Regional Director is con-
cerned, this settlement differs little from an imposed order.
In such situations a respondent has even less incentive to
comply than here. The Regional Office clearly pursues com-
pliance in those cases. I have every confidence that they will
do so here as well, for the Regional Director is the Board’s
representative in compliance matters. Thus, the lack of an ac-
tual ‘‘agreement’’ is of little moment insofar as the public
interest is concerned. If Respondent takes the steps it prom-
ises to take, the alleged unfair labor practices will be fully
remedied and the atmosphere will be cleansed. If that occurs
the Charging Party can have no real complaint and any sub-
sequent election will be fair.4 In any event, this settlement
may fairly be characterized as an agreement between Re-
spondent and the Board.
That takes me to the second apparent drawback, the timing
of the second election. The stipulated election agreement pro-
vides that all procedures after the ballots are counted shall
conform to the Board’s Rules and Regulations. Postelection
procedures are set forth in Board Rule 102.69, specifically
subsection (f). That Rule, in essence, says that the Board
itself is ultimately to rule on the merits of the objections and
to decide what action is appropriate to take. The administra-
tive law judge, in a consolidated case such as this, sits as
the Board’s representative and has the authority to rec-
ommend what action the Board should take. His rec-
ommendations are subject to the review process and the
Board is free to adopt, reject, or modify whatever rec-
ommendation he makes. That simply means it is the Board
which will make the final decision. Its decision may include
an order setting aside the objected-to election and ordering
a rerun.
Thus, the Charging Party’s opposition to the motion inso-
far as it contends the judge has no authority to set a rerun
election is not a correct analysis. The judge, when issuing his
report, simply makes a recommendation. He does not issue
the order himself; that power is reserved to the Board. In this
case, Respondent’s stipulation does not totally limit the
Board’s discretion regarding when to set the election. The
only limit is that the election may not be run before October
1, a date it could not possibly have met had litigation taken
its course. After that date, the Board’s discretion (usually
delegated to the Regional Director for discussion with the
parties) is unfettered. Compare Coca-Cola Co., 266 NLRB
165 (1983).
Given that analysis, as well as applying the pragmatic con-
siderations cited above, the drawbacks are either insignificant
or nonexistent. Indeed, Coca-Cola, has many similarties to
this case. As here, a motion was made asking the judge to
approve a Board informal settlement agreement on a unilat-
eral basis; moreover, the charging party and respondent had
agreed to a new election, but at a time which the Regional
Director would not adopt. As in this case, litigation would
have postponed the rerun election, if any, for several years.
The judge approved the settlement over the Regional Direc-
tor’s objection, essentially taking the same pratical approach
I take here. The principal difference between Coca-Cola and
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
instant case is that in that case there was an agreement be-
tween two of the three litigants. Although that is not the case
here, that issue has been dealt with above.
The only other point raised by the Charging Party in its
written opposition is the propriety of the nonadmission lan-
guage which Respondent has insisted on. I have discussed
the facts above, noting that the Charging Party contends Re-
spondent is a chronic wrongdoer. Based on the evidence
which the Charging Party has presented, however, I am un-
able to concur. The only previous time Respondent has been
before the Board, it signed a settlement agreement only to
have the charging union withdraw the charge. Whatever the
underlying merits may have been, I am unable to consider
that case as evidence that Respondent had ever violated the
Act. Certainly neither the instant charges, nor unresolved
charges pending in another Region, can be used to support
the claim. Accordingly, Respondent concern here is without
viable support. I believe it is a proper exercise of discretion
to accept this agreement with the inclusion of the nonadmis-
sion language. See Mine Workers (Decker Coal), 294 NLRB
162 (1989). Nor is this an 11th hour settlement proposal
coming after trial and against a history of wrongdoing. Com-
pare Teamsters Local 115 (Gross Metal Products), 275
NLRB 1547 (1985).
The Board recently discussed the importance of settle-
ments in Independent Stave Co., 287 NLRB 740 (1987). Al-
though purporting to deal with private, non-Board settle-
ments, the case set forth some principles which are applica-
ble here. It said that before approving a purported settlement,
it would examine four factors: 1. whether the parties have
agreed to be bound and what position the General Counsel
has taken in regard to the settlement; 2. whether the settle-
ment is reasonable in light of the allegations of the complaint
against the risk inherent in litigation; 3. whether there has
been any fraud, coercion, or duress by any party in reaching
the settlement; and 4. whether the respondent had a history
of violations or has breached past settlement agreements.
In this case Respondent has offered the settlement agree-
ment and has promised to abide by its terms: it seems
‘‘bound’’ within the meaning of Independent Stave. The
General Counsel does not oppose its terms and has acknowl-
edged that it effectuates the Act. Only the Charging Party ac-
tively opposes the agreement. The risk of litigation include
not only the risk of losing, but the loss of time in litigation.
Many cases have been lost by delay. The aphorism: ‘‘Justice
delayed is justice denied,’’ has a particularly strong applica-
tion here. Finally, there is no contention that the settlement
is fraudulent, and the Charging Party’s claim that Respondent
has a history of wrongdoing and breaching settlement agree-
ments has been previously disposed of. Thus, on analyzing
the factors set forth in Independent Stave, and applying them
to the facts of this case, there appear to be no impediments
to my approving the settlement.
Accordingly, the parties are advised that I have today ap-
proved the document entitled ‘‘Settlement Agreement’’
which was signed by Repondent’s attorney Michael F.
Marino on April 24, 1990. Under separate cover I am trans-
mitting it to the Regional Director for Region 32 for distribu-
tion to the parties in the usual way and for supervision of
compliance. On compliance therewith, the Regional Director
will so advise me in writing and I shall direct that the unfair
labor practice cases be closed.
Recommendation Regarding the Election in Case 32–
RC–3056
Based on Respondent’s stipulation on objections dated
April 24, 1990, I recommend that the Board set aside the
election of September 29–30, 1989, in Case 32–RC–3056
and schedule a new election on or after October 1, 1990, so
long as there has been compliance with the settlement agree-
ment in Cases 32–CA–10515, 32–CA–10623, 32–CA–10676,
and 32–CA–10723.5