NLRB signs off on private settlement resolving bargaining dispute, despite GC’s reluctance

Sanctioning a private settlement agreement, the NLRB allowed a union to withdraw unfair labor practice charges contending that an employer refused to provide the union with information related to a grievance and to changes to employee health benefits. Despite the General Counsel’s reluctance to sanction the non-Board settlement and the law judge’s denial of their joint motion, the Board cited its longstanding policy of “encouraging the peaceful, nonlitigious resolution of labor disputes,” approved the private agreement, and dismissed the complaint. Member Hirozawa was part of the three-member panel, having denied a motion for recusal brought by the employer’s counsel (McKenzie-Willamette Regional Medical Center Associates, LLC, July 29, 2014). Sec. 8(a)(5) allegations. The union alleged that the employer delayed turning over relevant information that it had requested in connection with a grievance; the employer also refused to furnish information about changes to employees’ health insurance benefits. Two months after the Sec. 8(a)(5) charges went to a Board hearing, the parties filed a joint motion asking the law judge to approve withdrawal of the charges and dismiss the complaint because they had privately settled their dispute. Settlement. In exchange for the union’s withdrawal of charges, the employer agreed to respond to future information requests from the union in a “timely fashion.” It also vowed not to propose any changes to employees’ current health benefits until the parties began negotiations for a successor contract, or to implement any such changes until it reached an agreement with the union (or an impasse). The agreement did not, however, require the employer to turn over the previously requested health benefits information, or to post any remedial notice about its alleged Sec. 8(a)(5) violations. GC objections. The General Counsel opposed the motion, arguing that approval was unwarranted at this late stage of the litigation. He was also troubled by the absence of a Board-approved remedy or an enforcement mechanism in the agreement itself. A law judge denied the motion, finding that the non-Board settlement did not meet the requirements of Independent Stave Co. However, the Board disagreed, and dismissed the complaint. While the General Counsel’s opposition to a proposed settlement “is an important consideration weighing against approval,” and the settlement certainly came late in the litigation process (and thus offered no meaningful conservation of agency resources), countervailing factors outweighed these concerns. Factors favored settlement. The union had not opposed the employer’s request to approve the settlement, and there were no individual discriminates bound by its terms. Nor were there any allegations of fraud, coercion, or duress in reaching the settlement and — contrary to the General Counsel’s assertion—no record evidence that the employer had a history of violating the Act or had ever breached previous settlement agreements. Also, contrary to the law judge and the General Counsel, the Board found the settlement itself was reasonable. The union’s request for health benefits information had been made in response to the employer’s apparent intent to make such changes; the employer’s commitment not to do so “appears to be of substantial value to the Union and would appear to obviate the Union’s immediate need for that information.” Also, the employer affirmatively agreed to timely respond to future requests. And, although the settlement didn’t offer everything that a Board order might have provided (i.e, a cease and desist order and a required notice posting), the lack of a full remedy did not warrant rejecting the settlement here, the Board said. “It is well established that approval of settlements under Independent Stave does not require that the remedies provided by the settlement be coextensive with the remedies that the Board would provide if the General Counsel were to prevail on all of the complaint allegations.” Lack of remedial notice. The absence of a remedial notice was a tough issue, the Board noted, acknowledging that “[a]s a general matter, we do not endorse the settlement of alleged unfair labor practices without a notice to employees of the alleged violations and the actions taken to settle them.” But in this case, there were no alleged violations that resulted in employee discipline or discharges, or involving threats or coercion; the alleged violations had a limited impact on individual employees. As such, the Board saw no need to reject the settlement for lack of a notice-posting requirement. No enforcement mechanism. Finally, while the settlement lacked an express enforcement mechanism, neither did it purport to waive the union’s access to the Board. The union was free to file an unfair labor practice charge over any subsequent unreasonable delays or outright refusals to provide requested relevant information, the Board observed. Moreover, the agreement could be revoked — and the underlying proceedings resumed — upon future noncompliance, or in the face of new unfair labor practices. “With these safeguards in place, the lack of a separate enforcement mechanism does not preclude us from approving this particular settlement.” Recusal motion denied. Member Hirozawa rejected a recusal motion brought by counsel for the employer based on previous “acrimonious” litigation between the attorney and the Communications Workers of America (CWA), whom Hirozawa represented (and had filed counterclaims against counsel on the CWA’s behalf). Hirozawa rejected the contention that his role in that earlier case — some 17 years ago — would cause a reasonable person to question his impartiality here. Nor would a reasonable person conclude that his participation in the case would violate ethical guidelines.
By Lisa Milam-Perez, J.D.