Lectromelt Casting Co., 933 (1984)

LECTROMELT CASTING CO.

Lectromelt Casting and Machinery Company, a Division of Akron Standard Division, Eagle Picher Industries, Inc.; and Lectromelt Casting Division, Ravenna Industries, Inc., a wholly-owned subsidiary of the A. C. Williams Company and Hells Palmer Lectromelt Casting Division, Ravenna Industries,

Inc., a wholly-owned subsidiary of the A. C.

Williams Company and Donnal May. Cases 8CA-13000 and 8-CA- 13431

11 April 1984 DECISION AND ORDER REMANDING

BY CHAIRMAN DOTSON AND MEMBERS

ZIMMERMAN AND HUNTER

On 1-December 1982 Administrative Law Judge Lowell Goerlich issued the attached decision. The General Counsel filed exceptions and a supporting brief, Respondents Akron and Ravenna filed crossexceptions and supporting briefs, and Respondent Akron filed a brief in support of the judge's decision.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.

The Board has considered the decision and the record in light of the exceptions and briefs1 and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order only to the extent consistent with this Decision and Order.

Based on his assessment of the credited testimony, the judge found that Helis Palmer was suspended for cause and not because of his union or other protected activities. Accordingly, he recommended that the consolidated complaint, as amended, be dismissed insofar as it alleges that Palmer was unlawfully suspended. We agree.

Without reaching the merits, the judge recommended further that the complaint be dismissed in its entirety. In this respect, he found that a private settlement agreement between the Union and Respondent Ravenna bars prosecution of a claim that employees were unlawfully discharged following an unauthorized work stoppage precipitated by Palmer's suspension.

I Respondent Akron has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and positions of the parties.

2 The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.

1951). We have carefully examined the record and find no basis for reversing the fmndings.

269 NLRB No. 161

Contrary to the judge, we find, on the facts and for the reasons set forth below, that the private settlement agreement here in question is not a bar to this aspect of the proceeding, which we shall remand to the judge for disposition on the merits.

The record establishes that Palmer was given a 5-day disciplinary suspension commencing Monday, 11 June 1979. On that date, Respondent Akron met with a union committee which sought revocation of the suspension. This grievance was not resolved. On the following day employees went out on a wildcat strike to protest the suspension. In the course of the strike, which the General Counsel concedes was unprotected, Akron obtained a temporary restraining order against employee misconduct, citing mass picketing and blocking of its facility by strikers.3

Contemporaneously, Akron filed a Section 301 suit against the Union for breach of contract, seeking compensatory and punitive damages, and on 20

June, the day after the strike ended, filed charges with the Board. A complaint subsequently issued alleging that the Union, through its officers, agents, and representatives, including the three alleged discriminatees herein: Palmer, Donnal May, and Eddie May, violated Section 8(b) of the Act by engaging in the picket line misconduct, mentioned above.

Meanwhile, on 18 June, Akron discharged 10 employees, including Palmer and the two Mays, for having 'instigated, supported and/or participated in the illegal wildcat strike....' Grievances lodged on their behalf were rejected by Akron 25

June. On 16 July counter charges were filed against Akron by Palmer and, subsequently, by another former striker, Probst, on behalf of himself and others, alleging that they were unlawfully discharged.

This is how matters stood when Respondent Ravenna, cognizant of the foregoing, purchased Akron's assets and took over the latter's operations as a successor on 20 August 1979. On the same date, Ravenna entered into an agreement with the incumbent Union recognizing it as the employees' bargaining representative and adopting the labor agreement of its predecessor, subject to certain modifications, terms, and conditions, of which the following are here relevant:

6. All lawsuits and NLRB charges filed by Lectromelt Division will be dropped.

7. The ten (10) employees terminated by Lectromelt Division will be reinstated Wednesday, s Subsequently, Respondent Akron obtained a preliminary injunction against the Union for the conduct here cited.

933

DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 22, 1979, provided that they drop all charges and claims against Lectromelt Division.

Thereafter, the parties signed a document memorializing certain action taken pursuant to the above accord. It states:

Of the ten (10) employees terminated four (4) did notify the Company by August 22, 1979 of their intention to drop their charges ...

These four employees submitted to the Company a copy of a letter they gave the NLRB indicating their desire to drop charges.

They are therefore reinstated.

The remaining six (6) employees who were terminated will not be reinstated.

Consistent with the agreement, the Respondent also ended all litigation and abandoned all claims arising out of the wildcat strike.

As previously mentioned, the judge held that this agreement and the action taken with respect to it extinguished the right of employees to seek adjudication of their claim that they were unlawfully discharged. We disagree.

The Board's authority to adjudicate an unfair labor practice charge under Section 10(a) of the Act is not affected by any private agreement among parties to a dispute which is the subject of that charge.4

To be sure, the Board has deferred to private settlement agreements under certain circumstances where the Board is persuaded that it would effectuate the purposes of the Act to do so.5

However, in the case before us, yielding to the agreement in no manner resolves the issues raised.

For, on its face, the agreement does no more than offer each discharged striker immediate reinstatement as a quid pro quo for abandoning his claim that he was unlawfully discharged. With respect to those who failed or refused to accept this offer within the time allowed, the offer was withdrawn and the discharged employees were left in the same position as before-free to exercise whatever right of access to the Board's processes the Act allows.

In these circumstances, we find that the settlement agreement between Respondent Ravenna and the Union does not bar prosecution of complaint allegations that Palmer and the two Mays, who with three others did not accept the offer of rein' Machinists Lodge 743 v. United Aircraft Corp., 337 F.2d 5 (2d Cir.

1964).

a See, e.g., Central Cartage Co., 206 NLRB 337 (1973).

statement,6 were discharged in violation of Section 8(a)(3) and (1) of the Act.

Accordingly, we will remand this proceeding to the judge for a decision on the merits.7 ORDER

Pursuant to Section 102.48 of the Board's Rules and Regulations, it is ordered that Cases 8-CA13000 and 8-CA-13431 be remanded to Administrative Law Judge Lowell Goerlich for disposition on their merits.

IT IS FURTHER ORDERED that the judge shall prepare and serve on the parties a Supplemental Decision in said cases containing his resolutions with respect to the credibility of witnesses, findings of fact, conclusions of law, and recommendations; and that, following the service of such Supplemental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable.

CHAIRMAN DOTSON, dissenting in part.

Like the judge I would defer to the August 1979 settlement between the Respondent and the Union and dismiss the allegations that the Respondent discriminatorily discharged Palmer and Donnal and Eddie May. By the settlement the parties reasonably resolved multiple disputes resulting from a wildcat strike and gave the 10 discharged strikers an opportunity for reinstatement. The agreement represents the fruits of voluntary bargaining and is consistent with the policies of the Act. Deferral is appropriate.

8 The complaint in this proceeding does not allege violations with respect to the other employees who failed to accept the offer of reinstatement.

7 Having decided to remand the instant proceeding, we shall deny the Respondent's motion to introduce newly discovered evidence, without prejudice to the Respondent's right to renew its motion before the judge.

DECISION

STATEMENT OF THE CASE

LOWELL GOERLICH, Administrative Law Judge. Helis Palmer, an individual, filed the original charge in Case 8-CA-13000 on July 16, 1979, alleging that Lectromelt Casting Co. had discharged him on June 18, 1979, in violation of Section 8(a)(3) of the National Labor Relations Act herein referred to as the Act.

On August 13, 1979, Palmer filed an amended charge of the same import in Case 8-CA-13000 except that it named the Employer as Lectromelt Casting and Machinery Co.

On or about August 20, 1979, Lectromelt Casting Division, Ravenna Industries, Inc., a wholly-owned subsidiary of The A. C. Williams Company, hereinafter referred to as Ravenna, acquired the assets of Lectromelt Casting 934

LECTROMELT CASTING CO.

and Machinery Company, a Division of Akron Standard Division, Eagle Picher Industries, Inc., hereinafter referred to as Akron, and continued Akron's operations.

On December 12, 1979, Donnal May, an individual, filed a charge in Case 8-CA-13431...