George Banta Co., Inc. v. N.L.R.B.
| Decision Date | 14 September 1979 |
| Docket Number | No. 78-1437,78-1437 |
| Citation | 604 F.2d 830 |
| Parties | 101 L.R.R.M. (BNA) 3102, 86 Lab.Cas. P 11,470 GEORGE BANTA COMPANY, INC., Banta Division, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Michael J. Rybicki, Chicago, Ill. (R. Theodore Clark, Jr., Jeffrey L. Madoff, Grant E. Morris, Seyfarth, Shaw, Fairweather & Geraldson, Washington, D. C., on brief), for petitioner.
Christopher W. Katzenbach, NLRB, Washington, D. C. (John S. Irving, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, John D. Burgoyne, Asst. Gen. Counsel, NLRB, Washington, D. C., on brief), for respondent.
Irving M. King, Thomas D. Allison, Peggy A. Hillman, Cotton, Watt, Jones, King & Bowlus, Chicago, Ill., on brief, for intervenor.
Before BRYAN, Senior Circuit Judge, HALL, Circuit Judge, and MacKENZIE, * District Judge.
Petitioner George Banta Company, Inc. (Banta) seeks review of a National Labor Relations Board order enforcing a formal settlement stipulation signed by Banta, the union representing its employees, and the NLRB General Counsel. The Board approved the settlement, and issued its order, following its rejection of Banta's attempt to withdraw from the agreement. In seeking to set aside the order, Banta contends that it had an absolute right to withdraw at any time prior to the Board's approval of the settlement or, alternatively, that its withdrawal was justified by changed circumstances and Board delay. We find no merit to these contentions and, accordingly, grant the Board's cross-petition for enforcement of the order.
Banta is engaged in the printing business and maintains two production facilities in Menasha, Wisconsin. Two groups of employees at these facilities, bindery and lithographic workers, are represented by the Graphic Arts International Union, AFL-CIO, CLC. In February, 1977, Banta and the Union began negotiations for a new collective bargaining agreement, to replace the existing one which was due to expire April 4, 1977. Negotiations continued until April 4, 1977, when Banta announced that it was immediately implementing its "last contract offer", including provisions for lengthening the work week and limiting employer contributions to a health insurance plan. On the same day, the Union membership voted not to work under the company's unilaterally imposed terms, and began a strike.
The Union subsequently accused the company of unfair labor practices, resulting in a complaint filed by the NLRB Regional Director on June 27, 1977. The complaint charged Banta with violating §§ 8(a)(5) and 8(a)(1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and 158(a)(1), by unilaterally changing wages, hours of work and other terms of employment, at a time when negotiations between the parties were continuing and when no bargaining impasse had occurred. It also characterized the resulting strike as an unfair labor practices strike. 1 A hearing on the complaint was scheduled for July 11, 1977. In addition, the Regional Director was granted Board authorization under § 10(j) of the Act, 29 U.S.C. § 160(j), to seek injunctive relief in district court to require recission of the alleged unfair labor practices pending resolution of the charge.
The scheduled hearing was never held, and the authorized injunctive relief against the company was never sought. Instead, Banta entered into settlement negotiations with the NLRB Regional Director, and on July 22, 1977, the company signed a settlement stipulation. The company agreed in the settlement, Inter alia, to revoke implementation of its "last contract offer" of April 4, 1977, and to "revert to the wages, hours of work and other terms and conditions of employment which existed prior thereto, but excluding cost-of-living adjustments, arbitration procedure and union security." The stipulation contains a nonadmission clause, and does not expressly state that the strike was the result of unfair labor practices by the company. However, the agreement includes a statement of the striking employees' reinstatement rights, which coincide precisely with those of unfair labor practice strikers. 2
The agreement provides that "(u)pon this Stipulation . . . and without any further notice of proceedings herein, the Board may enter an order forthwith" based upon the terms of the stipulation, and the company waives all defenses to judicial enforcement of the order. Finally, the document states that the
On August 5, 1977, the Union formally objected to the terms of the settlement, particularly its failure to provide for the cost-of-living adjustments which had been part of the collective bargaining agreement which expired on April 3, and requested a hearing. 3 The Regional Director rejected the Union's arguments, and its hearing request, finding that the stipulation "appears to remedy the violations found" and that "a hearing will unnecessarily delay . . . the remedy." On August 12, he signed the stipulation and submitted it to the NLRB General Counsel for approval.
The Union renewed its objections to the agreement, and on August 30, 1977, Union representatives met with members of the General Counsel's staff in Washington to discuss the objections. On September 20, the General Counsel notified the Union that, while the Union's right to continuing cost-of-living adjustments presented a "difficult and complex legal issue", he had signed the stipulation and had forwarded it to the Board with his recommendation that it be approved. The Union was given until October 5 to file its objections with the Board, and this deadline was subsequently extended to October 17 because of a substitution in the Union's counsel. In a telegram dated October 4, Banta strenuously objected to this time extension, stating:
Because of the tremendous delays that have occurred already in the processing of this formal settlement which was initially signed by Banta Division in early July, any further delay would cause irreparable harm, especially since the strike which commenced on April 4 is still in progress. Banta Division therefore requests that the requested extension be denied and/or revoked and that the Board expeditiously act on the formal settlement agreement that has already been recommended and approved by both the Regional Director and the General Counsel.
While the settlement agreement was thus progressing toward final Board approval, collective bargaining negotiations between Banta and the Union had resumed. On September 7, 1977, the company notified the Union that it was partially implementing the terms of the settlement stipulation. In a notice utilizing the exact language of the stipulation, Banta revoked implementation of its April 4 "last contract offer" and reverted to the previous conditions of employment as specified in the stipulation.
On October 8, 1977, following meetings at which the provisions of the settlement stipulation were explained to the Union membership, the Union signed the stipulation. The Union notified Banta that it had now joined in the settlement agreement and, in the same letter, accepted Banta's most recent contract proposal, reserving the right to challenge the proposal's reinstatement plan as not complying with the settlement stipulation or the relevant law. Banta accepted the striking employees' unconditional offer to return to work and immediately resumed production operations.
On October 20, 1977, the Union filed new unfair labor practice charges against Banta (Banta II), accusing the company of violating both the National Labor Relations Act and the terms of the settlement stipulation by massive discrimination against returning employees who had participated in the strike. Five days later, Banta notified the Board that "in light of the great delay in approving Settlement . . . and due to new issues relative to the Settlement raised in (Banta II), effective immediately the Employer withdraws its offer of Settlement."
Following extensive arguments by all parties, the Board, on July 14, 1978, refused to permit the company to withdraw from the stipulation and entered its order enforcing the agreement's terms. 236 NLRB 224 (1978).
Banta now petitions this court to set aside the Board's order, on the grounds that its October 25, 1977, letter to the Board effectively nullified its consent to the agreement. The Board cross-petitions for enforcement of the order, which it characterizes as a valid consent order. 4 The sole issue presented in our review of the order is whether the Board properly rejected Banta's attempted withdrawal from the settlement stipulation.
Banta contends that, under both general contract law principles and the Board's own procedural rules, a party has an absolute right to withdraw from a settlement stipulation at any point prior to the agreement's approval by the Board. We see no merit to this contention.
Neither the Board's procedural rules nor any of its prior cases address the issue of the right to withdraw from a formal settlement stipulation in an unfair labor practice case. 5 The procedural rules cited by Banta merely emphasize that no agreement between the General Counsel and a party charged with unfair labor practices can become a final disposition of the charges until the Board itself, exercising its duty to determine whether the settlement both remedies the alleged unfair practices and serves the broader public policies of the Act, approves it. We find nothing in the rules which could lead Banta to...
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