United Food and Commercial Workers Union, Local No. 23, AFL-CIO-CLC v. N.L.R.B., AFL-CIO-CL

• Citation: 788 F.2d 178
• Decision Date: 16 April 1986
• Docket Number: P,No. 85-3116,AFL-CIO-CL,85-3116
• Parties: 122 L.R.R.M. (BNA) 2121, 104 Lab.Cas. P 11,934 UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 23,etitioner, v. N.L.R.B., et al., Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 178

788 F.2d 178

122 L.R.R.M. (BNA) 2121, 104 Lab.Cas. P 11,934

UNITED FOOD AND COMMERCIAL WORKERS UNION, LOCAL NO. 23 AFL-CIO-CLC, Petitioner, v. N.L.R.B., et al., Respondents.

No. 85-3116.

United States Court of Appeals Third Circuit.

Argued Jan. 9, 1986.

Decided April 16, 1986.

Peter J. Ford (argued), United Food and Commercial Workers Intern. Union, Washington, D.C., for petitioner.

Eric G. Moskowitz (argued) and Aileen A. Armstrong, N.L.R.B., Washington, D.C., for respondents.

Before GARTH and STAPLETON, Circuit Judges, and FULLAM, District Judge ^*.

OPINION OF THE COURT

GARTH, Circuit Judge:

In this case, this court is faced with the question of whether a charging party alleging unfair labor practices is entitled to an evidentiary hearing on its objections to proposed informal settlement agreements entered into by representatives of the National Labor Relations Board (Board) and the charged parties after the Board has issued a formal complaint. In Leeds & Northrup Co. v. NLRB, 357 F.2d 527 (3d Cir.1966), this court held that "once a complaint has issued, the charging party is entitled to an evidentiary hearing upon its objections to the proposed settlement agreement, be it formal or informal." 357 F.2d at 533. Local 23 has petitioned to review the General Counsel's refusal to entertain its objections to an informal settlement at an evidentiary hearing. We grant the petition and remand for an evidentiary hearing pursuant to Leeds & Northrup.

I.

On August 9, 1984, the United Food and Commercial Workers Union, Local 23, AFL-CIO-CLC (Local 23), filed unfair labor practice charges with the Board against Charley Brothers, Co., Inc., (Charley Bros.) owner and operator of Mars Shop 'N Save, a grocery store located in the Cranberry Mall in Mars, Pennsylvania. In its complaint, Local 23 alleged that Charley Bros. had violated Secs. 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Secs. 158(a)(1) and (3), ¹ by executing a collective-bargaining agreement containing union security and dues check-off provisions with the United Steelworkers of America, Local 14744, (Steelworkers) at a time when the Steelworkers did not represent an uncoerced majority of the employees. ² In a separate charge filed that same day, Local 23 alleged that the Steelworkers violated Secs. 8(b)(1)(A) and (2) of the NLRA, 29 U.S.C. Secs. 158(b)(1)(A) and (2), ³ by executing the collective-bargaining agreement and accepting recognition by Charley Brothers. On September 14, 1984, Gerald Kobell, the Regional Director of the NLRB, consolidated the two complaints and issued formal unfair labor practice charges against Charley Brothers and the Steelworkers.

Specifically, Charley Brothers was charged with:

(1) interrogating employees concerning their activity on behalf of Local 23;

(2) destroying authorization cards given to employees by Local 23 in the presence of employees;

(3) granting recognition to the Steelworkers as the exclusive collective-bargaining representative of its bargaining unit employees at a time when the Steelworkers did not represent an uncoerced majority of the employees;

(4) participating in the solicitation of employee signatures on Steelworkers' authorization cards;

(5) denying Local 23 access to its facility for organizational purposes while granting access to the Steelworkers for the same purpose;

(6) informing employees that Charley Brothers had selected the steward for the Steelworkers;

(7) informing employees that they could only receive union representation by selecting the Steelworkers;

(8) soliciting employee signatures for a petition in support of the Steelworkers on several occasions; and

(9) withholding and deducting dues for the Steelworkers from all bargaining unit employees' pay regardless of whether the employees had authorized such deductions.

App. 23-25; 49.

The Steelworkers were charged with receiving assistance from Charley Bros. and unlawfully bargaining for and executing a collective-bargaining agreement including a union security and dues check-off provision.

To remedy the unfair labor practices allegedly committed by Charley Brothers, the Regional Director sought an order requiring the company to

withdraw and withhold recognition from the Steelworkers as the exclusive bargaining representative of the employees employed at its Mars facility, and to cease and desist from giving any force or effect to any collective-bargaining agreement covering those employees ... unless and until the Steelworkers are certified by the Board as the collective-bargaining representative of the employees at that store.

App. 25-26.

As to the Steelworkers, the Regional Director sought an order requiring the Union

to cease accepting recognition as the exclusive bargaining representative of employees employed by the Employer at its Mars facility, to cease and desist from giving any force or effect to any collective-bargaining agreement covering those employees, ... unless and until the [Union] is certified by the Board as the collective-bargaining representative of the employees at that store and to reimburse all present and former employees for any dues, initiation fees and other monies, paid directly to [the Steelworkers] or withheld for [the Steelworkers'] benefit pursuant to the union checkoff authorization provision set forth in the collective-bargaining agreement with appropriate interest.

App. 33.

On September 24, 1984, Vic's Markets acquired the Mars Shop 'N Save Store from Charley Brothers with notice of the unfair labor practice charges pending against Charley Brothers. Vic's Markets extended recognition and assistance to the Steelworkers as the exclusive bargaining representative of the Mars Shop 'N Save employees. Accordingly, on October 11, 1984, Local 23 filed charges against Vic's Markets and the Steelworkers similar to those previously filed against Charley Brothers and the Steelworkers. On November 14, 1984, the Regional Director issued formal unfair labor practice complaints against Vic's Markets and the Steelworkers. ⁴

The complaint against Vic's Markets charged that Vic's, as a "successor employer" to Charley Bros., was liable for any unfair labor practices allegedly committed by its predecessor. Further, the complaint alleged that Vic's Markets unlawfully recognized the Steelworkers, enforced the collective-bargaining agreement, and withheld dues on behalf of the Steelworkers in violation of Sections 8(a)(1), (2) and (3) of the NLRA, 29 U.S.C. Secs. 158(a)(1), (2) and (3). App. 50-59. The Steelworkers were charged with unlawfully accepting recognition from Vic's Markets, adopting the collective-bargaining agreement and accepting dues from Mars Shop 'N Save employees.

On November 15, 1984, the Regional Director consolidated the four cases against Charley Brothers, Vic's Markets and the Steelworkers and scheduled an unfair labor practice hearing for December 4, 1984. Prior to that date the Board's regional office and the charged parties entered into settlement negotiations, allegedly without notice to Local 23. On November 22, 1984, the scheduled hearing was indefinitely postponed, and, by letter dated November 28, 1984, the Regional Director informed Local 23 of proposed informal settlement agreements in the consolidated cases. In that letter, the Regional Director indicated his intention to approve the agreements "inasmuch as ... [they] fully remedy any violative conduct alleged in [Local 23's] charges." App. 85.

On December 6, 1984, Local 23 submitted to the Regional Director six objections to the proposed informal settlement. Specifically, Local 23 argued that:

(1) The proposed settlement agreements were entered into without the Charging Party being afforded full opportunity to dispose of the cases by amicable adjustment, as required by the Board's rules. Therefore, the agreements are invalid;

(2) The proposed settlement agreements inadequately remedy the unfair labor practices alleged in the consolidated complaints because the sixty (60) day notice posting periods provided therein are of insufficient duration to dissipate the effect of the unfair labor practices and to permit a free representation election. It is necessary to hold an administrative hearing to fully remedy the alleged violations of law;

(3) Since they do not specifically prohibit employees of the Respondent Vic's Markets who are representatives or agents of the Respondent Steelworkers from utilizing the Mars Shop 'N Save facility for organizational purposes during the notice posting period, the proposed settlement agreements inadequately remedy the alleged unfair labor practices because they do not provide Local 23 with any countervailing special access remedies;

(4) The proposed settlement agreements inadequately remedy the alleged unfair labor practices because they are not formal settlements providing for Board approval, a Board order and the consent entry of a court judgment enforcing the order;

(5) The proposed settlement agreements inadequately remedy the alleged unfair labor practices because they contain non-admission clauses whereby the Respondent Vic's Markets and the Respondent Steelworkers do not admit to any violation of the National Labor Relations Act; and

(6) The proposed Notices to Members contain ambiguous language which, if posted, will confuse employees concerning the factual background of the settlements and the exercise of their Section 7 rights.

App. 101-102.

Further, Local 23 requested that the Regional Director "afford Local 23 an evidentiary hearing on its objections to the proposed settlement agreements." App. 101.

By letter of December 12, 1984, the Regional Director informed Local 23 of his approval of the settlement agreements and the corresponding withdrawal of the Board's pending unfair labor practice complaints against Vic's Markets, Charley Bros. and the Steelworkers. Responding to Local 23's objections, the Director substantially rejected Local...