Mahon v. N.L.R.B., 85-7565

• Decision Date: 23 February 1987
• Docket Number: No. 85-7565,85-7565
• Citation: 808 F.2d 1342
• Parties: 124 L.R.R.M. (BNA) 2762, 55 USLW 2445, 105 Lab.Cas. P 12,175 Elizabeth MAHON, Terry Rendon, Florence O'Day, Norma Meyers, Carole Mitchum, Richard Hutson, Linda Parrette and Josie Malendez, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Alpha Beta Company, Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1342

808 F.2d 1342

124 L.R.R.M. (BNA) 2762, 55 USLW 2445,

105 Lab.Cas. P 12,175

Elizabeth MAHON, Terry Rendon, Florence O'Day, Norma Meyers Carole Mitchum, Richard Hutson, Linda Parrette and Josie Malendez, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent and Alpha Beta Company, Intervenor.

No. 85-7565.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 15, 1986.

Decided Jan. 26, 1987.

As Amended on Denial of Rehearing Feb. 23, 1987.

Garry, McTernan, Stender & Walsh, Francis J. McTernan, San Francisco, Cal., for petitioners.

N.L.R.B., Pat Wynns, Washington, D.C., for respondent.

McLaughlin & Irvin, Henry F. Telfeian, San Francisco, Cal., for intervenor Alpha Beta Co.

Petition for Review of an Order of the National Labor Relations Board.

Before GOODWIN, HUG and WIGGINS, Circuit Judges.

GOODWIN, Circuit Judge:

Eight members of Local 428, Retail Clerks Union challenge the National Labor Relations Board's deferral to a prearbitration settlement agreement in dismissing their unfair labor practices claims for back pay following reinstatement after disciplinary discharges. We affirm.

A number of factual questions were decided by the administrative law judge, but this petition turns on the narrow legal question whether the Board's deferral to the settlement agreement is repugnant to the policy of the National Labor Relations Act to protect statutory rights. This is the second time this court has considered questions related to the same basic dispute which arose out of disciplinary discharges following refusals to work during sporadic picketing by Teamsters' locals in the summer of 1978. For factual background, see Alpha Beta Co. v. Retail Store Employees Union Local 428, 671 F.2d 1247 (9th Cir.1982).

Without rehearsing the controverted evidence heard by the administrative law judge, it is sufficient to note that roughly 20 retail store employees, members of two local unions, received disciplinary leaves or layoffs. They had either failed to report for work, or had left work after being informed, correctly or otherwise, that pickets had appeared at their stores. The administrative law judge resolved factual disputes about the actual presence of pickets, about the approval or disapproval of the Teamster picketing by the Retail Clerks Union, about the validity of the "no-strike" clause of that bargaining agreement, and about the application of the clause to the "sympathy strike" by the individual workers. These and other issues had all been settled earlier in a written settlement agreement reached after negotiations by a board of adjustment which had been convened under the terms of a collective bargaining agreement.

The administrative law judge gave consideration to the settlement agreement, but decided on the authority of earlier NLRB cases that the settlement agreement did not fully protect the statutory rights of the aggrieved workers. The right of employees to engage in a sympathy strike is a protected right under Sec. 7 of the Act, 29 U.S.C. Sec. 157 (1982). International Brotherhood of Electrical Workers, Local 387 v. NLRB, 788 F.2d 1412, 1414 (9th Cir.1986). The administrative law judge determined that the disciplinary actions taken by management were in violation of Sec. 8(a)(1) and 8(a)(3) of the Act, 29 U.S.C. Secs. 158(a)(1) and (3) (1982). It is not necessary for us to comment upon the correctness of the administrative law judge's assessment of the employer conduct as an unfair labor practice, and we decline to do so.

The Board, in reviewing the decision of the administrative law judge, concluded that the employees, at least through their representatives at the meetings of the adjustment board, had consented to the settlement. The settlement agreement provided for reinstatement of some employees but expressly excluded back pay. The testimony before the administrative law judge on the consent question supports the Board's view that if the employees had mental reservations about their back pay claims, such reservations were not communicated to the management parties. On its face, the settlement document recites that it was agreed to by the local unions, management and the concerned employees. It is also undisputed that the union--the employees' representative--agreed to the settlement.

In any event, after the settlement was reached, the employees proceeded as charging parties before the NLRB with the individual back pay claims they had filed. They prevailed at the administrative law judge level but lost before the Board. The matter pending before us now, therefore, arises because of the divergence between the administrative law judge's interpretation of the settlement agreement and that of the Board. The issue boils down to the single question whether the Board abused its discretion by overruling the administrative law judge and deciding to defer to the settlement agreement. We have no warrant to second guess the Board unless it abused its discretion. Servair, Inc. v. NLRB, 726 F.2d 1435, 1438-39 (9th Cir.1984). Douglas Aircraft Co. v. NLRB, 609 F.2d 352, 354 (9th Cir.1979).

The NLRB's standards for deferral to a pre-complaint settlement are set out in Airport Parking Management v. NLRB, 720 F.2d 610, 614-617 (9th Cir.1983). In Airport Parking, we held that the NLRB did not abuse its discretion in refusing to defer to a strike settlement. We noted that the settlement contained no discussion of the unfair labor practice issue. The settlement did not waive unfair labor practice complaints, made no mention of back pay, and did not consider questions of fault. The union filed new unfair labor practice charges three days after executing the settlement. We agreed with the finding that " 'the union, and presumably the employees, did not understand that the agreement was intended to extinguish all claims arising out of the strike.' " Airport Parking 720 F.2d at 617 (quoting the ALJ's decision).

The Board in the pending case found that the union and the employees had agreed in the settlement to extinguish all claims. The Board stated that the settlement was made under the grievance procedure of the relevant bargaining agreement; that the grievance proceedings were fair and regular; that all parties, including the employees, had agreed to be bound; and that the terms of the settlement were not clearly repugnant to the labor protective policy of the Act.

The administrative law judge had found as a fact that the discharged employees had consented to the settlement, but that they had done so with a mental reservation that they could still seek to recover all lost wages in NLRB proceedings. These reservations may or may not have been encouraged by NLRB personnel. The record is not clear whether union advisors told the workers they could consent to the settlement and also recover back pay. All but four of the original grievances had resulted in restoration of employment, but in the petitioners' cases, without back pay. The administrative law judge, believing that deferral to the settlement agreement would be inconsistent with the Act, allowed back pay and other relief on the authority of Roadway Express, Inc., 246 NLRB 174 (1979), enforcement denied sub nom. Roadway Express, Inc. v. NLRB, 647 F.2d 415 (4th Cir.1981) and American Cyanamid Company, 239 NLRB 440 (1978). The...