49:0431(36)CA - - Agriculture, Food Safety and Inspection Service, Washington, DC and AFGE, National Joint Council of Food Inspection Locals, AFL-CIO - - 1994 FLRAdec CA - - v49 p431

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[ v49 p431 ]
The decision of the Authority follows:

49 FLRA No. 36












(Charging Party/Union)




March 8, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge.

This case was initiated by charges filed by the American Federation of Government Employees (AFGE) on behalf of the National Joint Council of Food Inspection Locals (Charging Party/Joint Council). The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to implement a Relationship-By-Objectives (RBO) Action Plan agreement executed by the Respondent and the Charging Party on April 1, 1991. The Judge found that the Respondent violated the Statute as alleged and recommended that the Respondent be ordered to take the steps necessary to implement the RBO agreement. The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the Respondent's exceptions.

Subsequently, on March 11, 1993, and July 27, 1993, the Respondent and the Charging Party jointly requested the Authority to hold in abeyance a decision in this case because the Respondent and the Charging Party had agreed to an interim action plan, in the form of a Memorandum of Understanding, dated January 28, 1993. The General Counsel opposed the requests. The Authority granted the requests on April 23, 1993, and August 20, 1993, respectively, and ordered the Respondent and the Charging Party to file a joint submission advising the Authority as to all matters pertinent to the disposition of this case. The General Counsel was granted the right to respond to the joint submission.

On September 30, 1993, the Respondent and the Charging Party filed a joint submission with the Authority. The joint submission states that "the interim action plan arrived at in January 1993 is effective in addressing problems in the parties' relationship" and, therefore, "the parties have determined to make this action plan permanent." Joint Submission at 1-2. The joint submission also states that the interim "action plan effectively resolves all the outstanding issues, including those issues presented by the Administrative Law Judge's decision and the Respondent's exceptions thereto." Id. at 2. The Respondent and the Charging Party conclude by stating that "[a]ccordingly, the parties request that the complaint in this case be dismissed by the Authority, the Respondent requests approval to withdraw its exceptions to the Administrative Law Judge's decision[,] and the Union requests approval to withdraw the amended unfair labor practice charge it has filed in this case." Id.

The General Counsel filed an opposition to the joint submission. The General Counsel states that "since the parties have apparently resolved Respondent's repudiation of the original [RBO] . . . there is no reason now for the Authority to remedy that aspect of this matter." General Counsel's Opposition at 1. The General Counsel notes that, had the parties resolved this matter at any point prior to the Judge's decision, the General Counsel "would have agreed to let the matter be withdrawn." Id. at 2. The General Counsel asserts, however, that in view of the Judge's finding of a violation of the Statute by the Respondent, the "Respondent's egregious conduct in rejecting an agreement negotiated and executed by its Administrator is a circumstance that warrants a decision by the Authority and an appropriate prospective remedy . . . ." Id. The General Counsel asserts further that a notice to employees is warranted because the Respondent's conduct was not "a 'garden variety' kind of repudiation of an agreement[,]" but rather was affected by actions of "outsiders (lobbyists) to the parties' bargaining relationship . . . ." Id. at 3.

An opposition to the joint submission was also filed jointly by the Southern and Mid-Atlantic Councils of Food Inspection Locals, members of the Joint Council. The President of the Southern Council states that he "filed the original [unfair labor practice charge] thr[ough] AFGE" and, therefore, "question[s] the withdrawal . . . by anyone other than" himself. Southern and Mid-Atlantic Councils' Opposition at 2. The Southern and Mid-Atlantic Councils assert that the action plan agreed to by AFGE and the Respondent is ineffective and request the Authority to deny the requests in the joint submission.(*)

II. Analysis and Conclusions

The Authority has considered the Judge's decision, the exceptions and opposition thereto, and the record in this case in light of the joint submission and the oppositions to the joint submission. We will grant the joint requests and give effect to the agreement of the Respondent and the Charging Party by dismissing the complaint.

The complaint in this case alleged, and the Judge found, that the Respondent improperly refused to implement the RBO agreement executed on April 1, 1991. The RBO agreement basically "sets forth objectives, action steps, [and] responsibilities . . . under the objective of 'labor management cooperation' . . . ." Judge's Decision at 4. The Respondent and the Charging Party state that between April 23 and July 27, 1993, they "conducted five orientation and training sessions at various locations throughout the United States to acquaint the Union's local presidents and the Respondent's supervisors and managers with the terms of the interim action plan." Joint Request of July 27, 1993. The interim action plan of January 28, 1993, provides that the "plan expresses the goals and objectives of the parties and the steps that must be taken to attain these goals." Joint Request of March 11, 1993, Attachment at 1.

The joint submission by the Respondent and the Charging Party constitutes a private settlement agreement and, for the following reasons, we will give that agreement effect. The Statute provides that "the statutory protection of the right[s] of employees . . . facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment . . . ." 5 U.S.C. § 7101(a)(1)(C). Section 2423.2 of the Authority's Rules and Regulations encourages attempts to resolve unfair labor practice allegations prior to the filing of charges with the Authority. Further, section 2423.11 of the Rules and Regulations provides specific procedures for the formal or informal settlement of unfair labor practice charges at various stages prior to the issuance of a decision by an Administrative Law Judge. See also Decision on Request for General Statement of Policy or Guidance, 23 FLRA 342 (1986). However, our Regulations are silent as to settlement, either with the Authority as a party, or as a private settlement proposal, after a case has come before the Authority on exceptions to a Judge's decision. We have not previously been requested to give consideration to a private settlement proposal at such a late stage in an unfair labor practice proceeding.

Having considered the matter, we conclude that our policy of encouraging informal resolution of charges in unfair labor practice proceedings should extend to any phase of those proceedings where it is shown that the purposes and policies of the Statute will be effectuated by allowing such resolution. We emphasize, however, that the import of our established policy has been to encourage early resolution of disputes. In reaching this decision, we have considered the established policy of the National Labor Relations Board (NLRB) regarding such agreements. In the NLRB's view, the purpose of considering such settlements is to end labor disputes in a peaceful, nonlitigious manner and, insofar as is possible, to prevent a repetition of the practices that gave rise to those disputes. See Independent Stave Co., Inc., 287 NLRB 740, 741 (1987) (Independent Stave); and Wallace Corp. v. NLRB, 323 U.S. 248, 253-54 (1944). See also Longshoremen ILA Local 1814 (Amstar Sugar), 301 NLRB 764 (1991) (Amstar Sugar). We agree with the NLRB that, "while there is a 'public interest in the vindication of statutory rights'[;] there is an 'equally important public interest in encouraging the parties' achievement of a mutually agreeable settlement without litigation.'" Amstar Sugar, 301 NLRB at 764-65 (citations omitted).

Accordingly, in this and future cases, when one or more of the parties requests that we give effect to a settlement agreement in lieu of further proceedings upon a complaint, the Authority will determine whether it will effectuate the purposes and policies of the Statute to give effect to that settlement agreement. In making this determination, the Authority will examine all of the circumstances surrounding the case including, but not limited to: (1) whether the charging party, the respondent, and any of the individual discriminatees have agreed to be bound by the settlement, and the position of the General Counsel regarding the settlement; (2) whether the settlement is reasonable, in light of the nature of the violations alleged in the complaint, the risks inherent in continued litigation, and the stage of the litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether the respondent has a history of engaging in violations of the Statute, has breached previous settlement agreements resolving unfair labor practice disputes, or has failed or refused to honor previous orders of the Authority. See Independent Stave, 287 NLRB at 743.

Notwithstanding our decision to allow the private settlement of unfair labor practice charges at all stages of the unfair labor practice process, we will not automatically give effect to settlements reached by the parties and proposed to the Authority for approval. In addition to examining the factors set forth above, we will also consider our statutory mandate and not approve any settlement that conflicts with the Statute or the Authority's policies. See id. at 741. We will consider the terms of the proposed settlement in each case in view of all of the circumstances and will carefully consider any objections filed by the General Counsel.

We note that the Authority is not a party to a private settlement. The parties to a private settlement must recognize that each is voluntarily foregoing the possibility of prevailing in a proceeding before the Authority. On the other hand, if the Authority rejects a proposed settlement, even though that settlement would effectuate the purposes and policies of the Statute, the parties would be compelled to take the very risks they have decided to avoid. See id. at 743.

When the Authority finds an unfair labor practice and issues an order, the Authority may seek court enforcement of its order. When the Authority is a party to a settlement, a finding of an unfair labor practice cannot be based on presettlement conduct unless there has been a failure to comply with the settlement agreement or subsequent unfair labor practices have been committed. See Quinn Co., 273 NLRB 795, 799 (1984); and Hollywood Roosevelt Hotel, 235 NLRB 1397 (1978). On the other hand, when the Authority allows a private settlement agreement to which it is not a party, the Authority cannot seek court enforcement of that settlement. The fact that the Authority allows such a settlement does not preclude either the General Counsel from issuing a complaint based on subsequent charges alleging the same conduct or the Authority from finding a violation concerning such charges. See Aratex Services, 300 NLRB 115, 117 (1989); and Quinn Co. Such charges must be timely filed under section 7118(a)(4) of the Statute. Further, an alleged violation of the Statute by a failure to comply with a private settlement agreement must be viewed independently of earlier allegations that are time-barred by section 7118(a)(4) of the Statute.

We have examined all of the circumstances surrounding this case within the framework set forth above and have decided to give effect to the settlement agreement. The Respondent and the Charging Party have agreed to be bound by the terms of their January 28, 1993 memorandum of understanding, and we have given consideration to the position of the General Counsel and the Southern and Mid-Atlantic Councils on this matter. We find that the settlement is reasonable, in light of the nature of the violations alleged in the complaint, the risks inherent in continued litigation, and the stage of the litigation.

The complaint alleged that the Respon