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.