10:0641(105)CA - Norfolk Naval Shipyard and Tidewater Virginia Federal Employees MTC -- 1982 FLRAdec CA
[ v10 p641 ]
10:0641(105)CA
The decision of the Authority follows:
10 FLRA No. 105
NORFOLK NAVAL SHIPYARD
Respondent
and
TIDEWATER VIRGINIA FEDERAL
EMPLOYEES METAL TRADES
COUNCIL, AFL-CIO
Charging Party
Case No. 3-CA-850
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision granting
Respondent's motion to dismiss the complaint in the above-entitled
proceeding. Thereafter, the General Counsel filed exceptions to the
Judge's Decision.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute (the Statute), the Authority has reviewed the rulings of the
Judge made at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
The Respondent's motion to dismiss was based upon the fact that it
had entered into, and complied in good faith with, a settlement of the
unfair labor practice charge filed in this case. Although the Charging
Party was not a party to the settlement, the Regional Director had
prescribed the terms thereof and had advised all parties that he was
refusing to issue a complaint and dismissing the charge. Although
notified of its appeal rights, the Charging Party did not appeal the
dismissal of the charge. However, for reasons not divulged in the
record, the Regional Director subsequently reversed the previous
determination and issued a complaint.
It is the policy of the Authority to encourage the informal
resolution of unfair labor practice charges. /1/ When such resolutions
are effected, and implemented, especially with the full concurrence of
agents of the Authority, absent overriding circumstances they must be
honored. To allow agreements entered into and relied upon in good faith
to be repudiated at will by any party would necessarily impair the
successful pursuit of informal resolutions and undermine the Authority's
policy in this respect. Cf. Great Lakes Program Service Center, Social
Security Administration, Department of Health and Human Services,
Chicago, Illinois, 9 FLRA No. 58 (1982) (wherein the Authority found a
violation of section 7116(a)(1) and (5) based upon respondent's
repudiation of the entire agreement with charging party in settlement of
an unfair labor practice charge).
In the instant case, since there is no showing of any circumstance
justifying repudiation of the settlement agreement, and in agreement
with the Judge, the Respondent's motion to dismiss must be, and it
hereby is, granted. /2/
ORDER
IT IS HEREBY ORDERED that the complaint in Case No. 3-CA-850 be, and
it hereby is, dismissed.
Issued, Washington, D.C., December 13, 1982
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
-------------------- ALJ$ DECISION FOLLOWS --------------------
Erick J. Genser, Esquire
For the General Counsel
Delores T. Griffin
For the Respondent
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION AND ORDER ON MOTION TO DISMISS COMPLAINT
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the United States Code, 5
U.S.C. 7101, et seq. /3/ and the Final Rules and Regulations issued
thereunder, Fed. Reg., Vol. 45, No. 12, January 17, 1980, 5
C.F.R.Chapter XIV. The charge herein was filed on January 28, 1980,
alleging violations of Secs. 16(a)(1), (4) and (8) of the Statute. An
additional charge had been filed in Case No. 3-CA-791; but on September
11, 1980, the Regional Director had approved the request of the Charging
Party to withdraw this charge, i.e., Case No. 3-CA-791.
On September 30, 1980, the Regional Director approved withdrawal of
the 16(a)(4) and (8) allegations in pending Case No. 3-CA-850; and, on
the same date, the Regional Director, pursuant to Sec. 2423.11(b)(2) of
the Regulations, approved an informal settlement which, in substance,
consisted of Respondent's execution of a letter, prescribed by the
Regional Director and its delivery to the principal employee involved in
Case No. 3-CA-850, Mr. Juett. Pursuant to the agreed settlement,
Respondent had executed the letter on September 23, 1980, and had
delivered said letter on September 25, 1980, to Mr. Juett. Accordingly,
the Regional Director in his letter of September 30, 1980, advised all
parties that he was refusing to issue a complaint in Case No. 3-CA-850
and, therein, advised the Charging Party of its right to obtain review
of his decision pursuant to Section 2423.10(c) of the Regulations.
No appeal was filed by the Charging Party. Nevertheless, by letter
dated November 17, 1980, the Acting Regional Director rescinded the
decision of September 30, 1980, and, on November 17, 1980, issued a
complaint in Case No. 3-CA-850, on the alleged 16(a)(1) violation, the
remainder of the charge having been withdrawn with the approval of the
Regional Director on September 30, 1980, which was the identical
violation as to which the Regional Director on September 30, 1980, had
refused to issue a complaint.
On December 24, 1980, Respondent filed a Motion to Dismiss which was
denied by the Regional Director by Order dated January 2, 1981. /4/
Pursuant to the Complaint and Notice of Hearing, dated November 17,
1980, a hearing was duly held before the undersigned in Norfolk,
Virginia, on January 8, 1981.
At the outset of the hearing, Respondent renewed its Motion to
Dismiss. Counsel for the General Counsel stated, in response to
questions by the undersigned, that: a) no new or different facts had
come to the attention of the Regional Director; b) Respondent had
complied fully with all terms of the settlement; c) no notice was given
to the parties prior to the decision; /3/ and d) the sole justification
given by counsel for the General Counsel for issuance of the Complaint,
contrary to the Regional Director's letter of September 30, 1980, was
that the Regional Director /6/ had changed his mind.
Conclusion
As I stated at the hearing, it would not effectuate the purpose or
policy of the Statute or of the Regulations to proceed to hearing on a
complaint in contravention of a settlement, approved by the Regional
Director and fully complied with in good faith by the Respondent, in the
total absence of grounds which would warrant setting aside an approved
settlement and without notice to the parties and an opportunity to be
heard prior to any such proposed action. Voluntary settlements, under
the control of the Regional Directors (See, Sec. 2423.11 of the
Regulations) are encouraged, and, indeed, are essential to the effective
administration of the Statute. Nothing would be more inherently
destructive of encouragement of voluntary settlements than disregard of
approved settlements after good faith compliance.
In this case, no ground was asserted that would support the setting
aside of the approved settlement, such as failure of the Respondent to
perform its obligations under the settlement. Nor, of course, was there
any notice to the parties and an opportunity to be heard prior to the
decision of the Regional Office to rescind the Regional Director's
letter of September 30, 1980. /7/ Under the circumstances, it is
unnecessary to determine the power, or authority, of the Regional to set
aside an approved settlement. However, it is appropriate to note that
Regulations narrowly circumscribe the authority of the Regional
Director. Thus, Sec. 2423.11(b)(1) provides, in part, as follows:
" . . . Upon approval by the Regional Director and compliance
with the terms of the informal settlement agreement, no further
action shall be taken in the case. If the respondent fails to
perform its obligations under the informal settlement agreement,
the Regional Director may determine to institute further
proceedings."
Strictly speaking, this subsection is not applicable to the present case
since the settlement was not between the charging party and the
respondent. Nevertheless, it indicates that "no further action shall be
taken" if the settlement agreement, approved by the Regional Director,
is complied with. The only reservation permitting further proceedings
is a failure of respondent "to perform its obligation" under the
settlement agreement.
The present settlement is governed by Sec. 2423.11(b)(2) of the
Regulations. Plainly, terms, or conditions, prescribed by the Regional
Director and accepted by a respondent, on the basis of which the
Regional Director determines not to issue a complaint, constitutes an
approved settlement and it is no less a settlement agreement whether or
not a form designating it as such (e.g., FLRA Form 58) is used. Indeed,
Sec. 2423.11(b)(2) provides, in part, as follows:
"(2) In the event that the charging party fails or refuses to
become a party to an informal settlement agreement . . . if the
Regional Director concludes that the offered settlement will
effectuate the policies of the Federal Service Labor-Management
Relations Statute, the agreement shall be between the respondent
and the Regional Director and the latter shall decline to issue a
complaint. The charging party may obtain a review of the Regional
Director's action by filing an appeal with the General Counsel in
accordance with Sec. 2423.10(c) . . . . "
While subsection (b)(2) does not contain the language of subsection
(b)(1) that "If the respondent fails to perform its obligations under
the informal settlement agreement, the Regional Director may determine
to institute further proceedings", such qualification can, and in my
opinion must, be assumed to apply to subsection 2423.11(b)(2) since
compliance by the respondent with its obligations under the informal
settlement agreement is an essential quid pro quo for the settlement
agreement whether pursuant to subsection (1) or (2) of 2423.11(b).
Where, as here, full compliance by Respondent with its obligations
under the settlement is conceded, the Regulations neither provide for
nor contemplate further proceedings by the Regional Director. To the
contrary, when the agreement is between the respondent and the Regional
Director, subsection 2423.11(b) specifically provides that,
" . . . the charging party may obtain a review of the Regional
Director's action by filing an appeal with the General Counsel in
accordance with Sec. 2423.10(c) . . . . "
No appeal was filed by the charging party.
In his Order Denying Respondent's Motion to Dismiss Complaint, the
Regional Director's reliance on Sec. 2423.12 is misplaced. Sec. 2423.12
does, it is true, provide, in part,
" . . . That a determination by a Regional Director to issue a
complaint shall not be subject to review."
However, Sec. 2423.11(b) provides that:
" . . . Upon approval by the Regional Director and compliance
with the terms of the informal settlement agreement, no further
action shall be taken in the case . . . " (2423.11(b)(1)).
and,
" . . . if the Regional Director concludes that the offered
settlement will effectuate the policies of the Federal Service
Labor-Management Relations Statute, the agreement shall be between
the respondent and the Regional Director and the latter shall
decline to issue a complaint . . . . "
When the Regional Director, by his letter of September 30, 1980,
concluded that the offered settlement would effectuate the policies of
the Statute he did decline to issue a complaint and the Regional
Director is estopped to assert authority under Sec. 2423.12 to issue a
complaint unless, for appropriate reasons, the approved settlement has
been set aside. Whether an approved settlement may be set aside, i.e.,
"the Regional Director may determine to institute further proceedings"
for any reason other than the respondent's failure to perform its
obligations under the informal settlement agreement is neither reached
nor decided inasmuch as no ground whatever was asserted except that the
Regional Director "changed his mind". Respondent's Motion, renewed at
the hearing, clearly does not go merely "to procedural matters that are
within the discretionary authority of the Regional Director" (Order, p.
1); nor did the Regional Director comply with provisions of Sec.
2423.11(b).
Accordingly, as the complaint issued herein alleges the same unfair
labor practice as was settled, pursuant to Sec. 2423.11(b) of the
Regulations, and as to which the Regional Director by letter dated
September 30, 1980, declined to issue a complaint, it being conceded
that Respondent has fully complied with its obligation under the
informal settlement agreement, it is recommended that the Authority
adopt the following
ORDER
IT IS HEREBY ORDERED that the complaint in FLRA Case No. 3-CA-850 be,
and it hereby is, dismissed.
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 12, 1981
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 2423.2 of the Authority's Rules and Regulations provides:
Sec. 2423.2 Informal proceedings.
(a) The purposes and policies of the Federal Service
Labor-Management Relations Statute can best be achieved by the
cooperative efforts of all persons covered by the program. To
this end, it shall be the policy of the Authority and the General
Counsel to encourage all persons alleging unfair labor practices
and persons against whom such allegations are made to meet and, in
good faith, attempt to resolve such matters prior to the filing of
unfair labor practice charges with the Authority.
(b) In furtherance of the policy referred to in paragraph (a)
of this section, and noting the six (6) month period of limitation
set forth in 5 U.S.C. 7118(a)(4), it shall be the policy of the
Authority and the General Counsel to encourage the informal
resolution of unfair labor practice allegations subsequent to the
filing of a charge and prior to the issuance of a complaint by the
Regional Director.
/2/ The Authority views as misplaced the General Counsel's reliance
upon the language of section 2423.12 of the Authority's Rules and
Regulations, which states that "a determination by a Regional Director
to issue a complaint shall not be subject to review." In the instant
case, a hearing based upon a complaint was held, an appropriate motion
to dismiss was made, and the Judge, correctly relying, at pages 3, 4,
and 5 of his Decision, upon section 2423.11 of the Authority's Rules and
Regulations (entitled "Settlement or adjustment of issues") and related
policy considerations, duly ruled upon such motion pursuant to the
authority granted to him as a Judge under section 2423.19(k) of the
Rules and Regulations.
/3/ For convenience of reference, Sections of the Statute hereinafter
are, also, referred to without inclusion of the initial "71" of the
Statute reference, e.g. Sec. 7116(a)(1), simply as "16(a)(1)".
/4/ A copy of the Regional Director's Order was received by the
Office of Administrative Law Judges on January 5, 1981, sometime after
the undersigned had left for hearings in Norfolk, Virginia; however,
the existence of the Order was unknown to the undersigned until it was
produced, at his request, at the hearing by counsel for the General
Counsel.
/5/ Counsel for the General Counsel, Mr. Genser, stated that he
personally called the parties and advised them that a complaint was
being issued.
/6/ On the surface, it appeared that the Acting Regional Director,
Mr. Bruce D. Rosenstein, had reversed the decision of the Regional
Director, Mr. Alexander T. Graham; however, counsel for the General
Counsel represented, and I have no reason to question in the slightest,
that Mr. Rosenstein carried out a decision of the Regional Director.
Nevertheless, it is poor form that a decision of the Regional Director
had been reversed by an Acting Regional Director.
/7/ Mr. Genser's statement that he called the parties and advised
them that a complaint was being issued certainly did not afford any
opportunity to be heard prior to such decision.