Tyee Construction Co.

National Labor Relations Board - Board Decisions

Jun 14, 1974

211 N.L.R.B. 600 (N.L.R.B. 1974)

600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tyee Construction Co. and Harold J. Honeycutt and
James Ingraham. Case 19-CA-5386
June 14, 1974
SUPPLEMENTAL DECISION AND
ORDER
On the basis of unfair labor practice charges filed
by Harold J. Honeycutt and James Ingraham
(hereafter Charging Parties) on July 27, 1971, a
complaint herein was issued on February 2, 1972,
alleging, in substance, that Tyee Construction Co.
(hereafter Respondent) had engaged in certain unfair
labor practices proscribed by Section 8(a)(1) of the
Act by: (1) laying off or discharging on July 21, 1971,
eight named employees because of their participation
in a concerted refusal to work, and (2) thereafter
failing and refusing to employ the Charging Parties
because of their participation in said concerted work
stoppage and an earlier concerted work stoppage.
Following a hearing conducted on March 7 and 8,
1972, Administrative Law Judge 1 Robert L. Piper
issued his Decision on June 1, 1972, finding that
Respondent had violated the Act essentially as
alleged . He recommended that Respondent be
ordered to: (1) cease and desist from engaging in said
unlawful conduct, (2) offer reinstatement to the
Charging Parties, and (3) make each of the eight
named individuals whole for any loss of pay he may
have suffered by virtue of Respondent's unlawful
conduct. Thereafter, Respondent filed timely excep-
tions to the Administrative Law Judge's Decision.
On March 9, 1973, the Board issued a Decision and
Order2 declining either to exercise its remedial
powers or render a decision on the merits in this case.
Instead, the Board chose to defer to the parties'
contractual grievance-arbitration procedures in ac-
cordance with the policies enunciated in Collyer
Insulated Wire, A Gulf and Western Systems Co.,3 and
National Radio Company, Inc.4 As in other deferral
cases, the Board retained jurisdiction "[f ]or the
purpose of entertaining an appropriate and timely
motion for further consideration upon a proper
showing that either (a) the dispute has not, with
reasonable promptness after issuance of [the] Deci-
sion, either been resolved by amicable settlement in
the grievance procedure or submitted promptly to
arbitration, or (b) the grievance or arbitration
procedures have not been fair and regular or have
reached a result which is repugnant to the Act."
Thereafter, on April 23, 1973, the General Counsel
and the Charging Parties each filed Alternative
Motions for Reconsideration or Reopening of the
Record. On May 23, 1973, the motions to reopen the
record were granted and the case was remanded to
the Regional Director for Region 19 with instruc-
tions to arrange for a further hearing before an
Administrative Law Judge "[t]o receive testimony
with respect to the Board's Decision and Order in
light of its prior Decision in Kansas Meat Packers, a
Division of Aristo Foods, Inc. "5
Prior to the date scheduled for the reopened
hearing, attorneys for the Charging Parties, Respon-
dent, and General Counsel entered into a stipulation
in settlement of the case, subject to Board approval,
insofar as it relates to the Charging Parties. The
stipulation was approved by the Office of the
General Counsel on August 7, 1973.
The aforesaid stipulation is hereby approved and
made a part of the record herein, and the proceeding
is hereby transferred to and continued before the
Board in Washington, D.C., for entry of a Supple-
mental Decision and Order pursuant to the provi-
sions of said Stipulation.
SUPPLEMENTAL ORDER
Upon the basis of the stipulation and the entire
record in this proceeding, and pursuant to Section
10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board
hereby orders that:
A. This Supplemental Order shall take effect
when the Regional Director for Region 19 has
determined, and notified the Board and the parties in
writing, that Respondent has, promptly after is-
suance of this Supplemental Order, complied with
paragraph 6 of the stipulation, and with paragraphs 1
and 3 of the settlement document attached thereto
and marked Appendix "A."
B. The Board's order reopening the record dated
May 23, 1973, be dismissed, and any outstanding
orders of the Regional Director pertaining to
scheduling of a hearing pursuant to the Board's
Order be quashed.
C. The complaint herein, insofar as it pertains to
the Charging Parties, Honeycutt and Ingraham, be
dismissed in its entirety pursuant to the "amicable
settlement" provisions of the Board's original Order
at 202 NLRB 307.
D. The Board retain jurisdiction of this proceed-
ing, consistent with its Order at 202 NLRB 307, last
paragraph, as regards the right of the other six
employees named in paragraph 3 of the stipulation to
file timely grievances following receipt of the
notification letter referred to in paragraph 6 thereof
The title of "Trial Examiner" was changed to "Administrative Law 3 192 NLRB 837.
Judge" effective August 19, 1972. 4 198 NLRB No. 1.
2 202 NLRB 307. 5 198 NLRB No. 2
211 NLRB No. 90
TYEE CONSTRUCTION CO. 601
and attached thereto in sample form as Appendix
"B," and to move for further consideration by the
Board in the event "that either (a) their grievances
have not been resolved by amicable settlement or
submitted promptly to arbitration, or (b) the griev-
ance or arbitration procedures have not been fair
and regular or have reached a result which is
repugnant to the Act."
MEMBERS FANNING and JENKINS, dissenting:
We are unable to agree that the Supplemental
Decision and Order approving the settlement stipula-
tion in the subject case would effectuate the policies
of the Act.
In our dissent in the Decision and Order (202
NLRB 307), in which the majority refused to
consider the allegations in the complaint involved
herein on their merits and deferred the issues to an
arbitral tribunal under the collective-bargaining
contract, we cautioned that such deferral would not
only undermine the Act's protection of the eight
individuals involved, but would result in making the
statutory rights of such individuals "a plaything of
private treaty and interpretation." The subsequent
history of this case and the settlement agreement
which the parties have worked out, and which our
colleagues would accept without reservation, have
affirmed our prediction.
Now more than 1 year after the Board's original
Decision and Order, and almost 3 years after the
commission of the Respondent's alleged unfair labor
practices, the settlement presented for Board approv-
al only partially remedies the alleged violations
involving the two Charging Parties, Honeycutt and
Ingraham. The fate of the six other employees named
in the complaint, and who the Administrative Law
Judge in his Decision found were similarly situated,
is still left dangling and unresolved.
We continue to be convinced that the basic issue in
this case, involving the condonation of an illegal
strike and the subsequent discriminatory discharge of
the employees involved, is clearly not an area within
the confines of the contract or the expertise of an
arbitrator, and involves statutory, not private, rights.
This is an approach uniformly accepted by the Board
and the courts for many years.
Assuming arguendo that the reinstatement and
backpay provisions, as applied to Honeycutt and
Ingraham in the settlement, are in accord with the
compliance the Regional Director would have
initially insisted upon, the provisions as set forth in
the settlement provide a private, not a public,
remedy. We are concerned that the settlement
worked out after issuance of the Board's Decision
and Order does not contain the elements which
would be expected and required in a meaningful
Board remedy intended to protect the Section 7
rights of employees: the posting of a notice, "cease
and desist provisions," and provisions for court
enforcement.
Additionally, in view of the work stoppages which
go back to 1968, and the strained relations between
the Respondent and its employees, as shown by facts
fully described in the Administrative Law Judge's
Decision, the acceptance of the "non-admission"
provision of wrongdoing or violation as an integral
part of the settlement agreement by the majority
fortifies our view that we do not have here a proper
or effective settlement. It is clear on its face that such
settlement is not concerned with protecting the
statutory rights of the two employees involved and
other employees of the Respondent.
As for the six employees to whom the settlement
gives the right to file timely grievances following the
receipt of a notification letter, this appears to be the
same empty right which the employees in question
were alerted to more than a year ago in the Board's
Decision and Order. In our opinion this merely gives
the Respondent license to continue "footdragging" in
reaching a solution to the issues involved herein.
We raised objections to the contract deferral
approach in our prior dissent in light of the teachings
of Kansas Meat Packers, a Division of Aristo Foods,
Inc., 198 NLRB No. 2. Subsequently, the Charging
Parties and the General Counsel raised the same
objections in motions for reconsideration of the
Board's Decision and Order. Indeed, upon second
thoughts, the majority also became concerned with
the issue involved in the objections, and the motions
were granted by the Board on May 23, 1973, and the
case was remanded to the Regional Director to
arrange for further hearing.
In the motions for reconsideration, as well as in our
prior dissent, serious questions were raised whether
the employees would or could be properly represent-
ed under the contract's complicated grievance
procedures. The Union took no part in the unfair
labor practice proceeding and has filed no briefs, or
otherwise expressed an interest in their welfare. The
employees involved must depend upon the Union's
hiring hall for job referrals, and they are not in a
position to take an independent or forthright stand to
force the Union to pursue their interests.
We feel that there is a deep inconsistency in the
majority's now accepting a settlement which leaves
such doubts unresolved and which appears to express
such unconcern for the six employees involved.
For the above reasons, we would not accept the
settlement agreement.