BPH Co Inc v. NLRB

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
–————
No. 01–1468 September Term, 2002
Filed On: June 27, 2003
BPH & COMPANY, INC., AS SUCCESSOR TO HEPC PALMAS, INC.,
D/B/A WYNDHAM PALMAS DEL MAR RESORT AND VILLAS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
–————
Before: EDWARDS, SENTELLE and HENDERSON, Circuit
Judges.
ORDER
It is ORDERED by the court that the opinion filed in this
case on June 27, 2003 be amended to
1. Add to the end of the first paragraph of the
opinion text, on page 2, (following ‘‘Wyndham Palmas
del Mar Resort, 334 N.L.R.B. No. 70 (2001) [hereinafter
Order].’’) the following sentence: ‘‘The Board has filed a
cross-application for enforcement.’’; and
2. Replace the final sentence of the opinion text on,
on p. 13, with the following sentence ‘‘For the foregoing
reasons, we grant the Company’s petition for review,
deny the Board’s cross-application for enforcement and
vacate the order of the Board.’’
Per Curiam
For the Court:
Mark Langer
Clerk
Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 6, 2003 Decided June 27, 2003
No. 01-1468
BPH & COMPANY, INC., AS SUCCESSOR TO HEPC PALMAS, INC.,
D/B/A WYNDHAM PALMAS DEL MAR RESORT AND VILLAS,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review and Cross–Application
for Enforcement of an Order of the
National Labor Relations Board
Howard S. Linzy argued the cause for the petitioner.
Robert Lombardi was on brief for the petitioner.
Ruth E. Burdick, Attorney, National Labor Relations
Board, argued the cause for the respondent. Arthur F.
Rosenfeld, General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
General Counsel, and Margaret A. Gaines, Attorney, were on
brief for the respondent.
Before: EDWARDS, SENTELLE and HENDERSON, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: BPH & Co.
(Company)1 petitions this court for review of a decision and
order of the National Labor Relations Board (NLRB or
Board) holding that the Company violated section 8(a)(1) and
(5) of the National Labor Relations Act (NLRA or Act), 29
U.S.C. § 158(a)(1), (5), when it withdrew its recognition of the
Union de Trabajadores de la Industria Gastronomica de
Puerto Rico, Local 610, HEREIU, AFL–CIO (Union) as the
exclusive bargaining representative of its employees. Wynd-
ham Palmas del Mar Resort, 334 N.L.R.B. No. 70 (2001)
[hereinafter Order]. The Board has filed a cross-application
for enforcement.
The Board maintains that the Company’s petition should be
dismissed because the Company failed to raise its objections
to the Board before seeking judicial review as required by
section 10(e) of the Act. See 29 U.S.C. § 160(e). We dis-
agree and hold that it properly raised its objections before
the Board. On the merits, we conclude that the Board’s
decision is not based on substantial evidence and, accordingly,
grant the Company’s petition.
I.
A.
In 1996 the Company acquired property in Humacao, Puer-
to Rico where it operated a resort hotel and restaurant.
Shortly thereafter, in February 1997, the Company recog-
nized the Union as the exclusive bargaining representative of
its employees and commenced collective bargaining. Approx-
imately six weeks after it recognized the Union (on March
1 BPH & Co. is the successor to HEPC Palmas, Inc. which was
the employer at all relevant times in this proceeding. For conve-
nience, we refer to the employer as ‘‘the Company.’’
3
26),2 the employees filed a petition to decertify the Union as
their bargaining representative pursuant to sections 7 and 9
(a) and (c) of the NLRA, 29 U.S.C. §§ 157, 159(a), (c).
The Union then filed charges against the Company, alleg-
ing that it had unlawfully refused to bargain with the Union
and had unlawfully coerced the employees to sign the decerti-
fication petition. In early June, the Union withdrew its
refusal to bargain charge and entered an informal settlement
agreement (Agreement)3 with the Company regarding the
remaining unfair labor practice charges. Under the Agree-
ment, the Company agreed not to assist or solicit employees
in the promotion, presentation or circulation of a petition to
decertify the Union and not to promise employees increased
wages and/or benefits in exchange for their support of a
decertification petition. It further agreed to post a 60–day
notice of the Agreement. The employee representative who
filed the decertification petition also agreed to withdraw the
petition. Significantly, the Agreement specifically includes a
nonadmission clause as follows: ‘‘By entering into this settle-
ment agreement the Employer [the Company] does not admit
having violated the National Labor Relations Act.’’ Settle-
ment Agreement of June 5, 1997, Joint Appendix (JA) 18.
The parties recommenced bargaining until September 5,
when employees filed a second decertification petition with
the Board. The petition contained the signatures of the
majority of employees (183 of 255) collected between July 10
2 All events occurred in 1997 unless otherwise noted.
3 The Board’s Casehandling Manual describes three kinds of
settlements: (1) a ‘‘formal’’ settlement, which ordinarily requires a
Board order followed by a court order of enforcement; (2) an
‘‘informal’’ settlement, which provides that the charged party will
take certain action to remedy ULPs and requires the Regional
Director’s approval but not a Board order or court decree; and (3) a
‘‘non-board adjustment.’’ NLRB CASEHANDLING MANUAL §§ 10140,
10146.1, 10164.1 (Nov. 2002), available at http://www.nlrb.gov/
manuals/chm/chm1–6.pdf. See Mammoth of Cal., Inc. v. NLRB,
673 F.2d 1091 (9th Cir 1982). The Agreement here effects an
informal settlement.
4
and August 23. On September 15 the Company formally
withdrew recognition of the Union. The Company’s with-
drawal spurred the Union to refile charges and this time the
Regional Director issued a complaint, charging that the Com-
pany had violated section 8(a)(1) and (5) of the Act by
unlawfully withdrawing recognition of the Union. Order
Consolidating Cases, Consolidated Complaint and Notice of
Hearing, at ¶ ¶ 7, 9, JA 40. The matter was submitted to the
Board on briefs and stipulated facts.
B.
Under well-settled precedent, an incumbent union enjoys a
presumption that it represents a majority of employees. Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 37
(1987). Unless it rebuts the presumption, an employer that
refuses to bargain with the union by withdrawing recognition
violates section 8(a)(1) and (5) of the Act. NLRB v. Curtin
Matheson Scientific, Inc., 494 U.S. 775, 778 (1990).4 It can
do so by showing that at the time of the withdrawal, ‘‘either
(1) the union did not in fact enjoy majority support, or (2) the
employer had a ‘good-faith’ doubt, founded on a sufficient
objective basis, of the union’s majority support.’’5 Id. (em-
4 Section 8(a)(1) and (5) make it an unfair labor practice (ULP):
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title
[section 7 of the NLRA];
TTTT
(5) to refuse to bargain collectively with the representatives of
his employees, subject to the provisions of section 159(a) of this
title [section 9(a) of the NLRA].
29 U.S.C. § 158(a)(1), (5).
5 In Levitz Furniture Co. the Board eliminated the good faith
doubt alternative, requiring the employer to show ‘‘the Union has
actually lost support of the majority of the bargaining unit employ-
ees.’’ Levitz Furniture Co. 333 N.L.R.B. No. 105, 2001 WL 314139,
at *2, *11 (Mar. 29, 2001) (emphasis added); see Marion Hosp.
Corp. v. NLRB, 321 F.3d 1178, 1186–87 (D.C. Cir. 2003) (acknowl-
5
phasis removed) (citing Station KKHI, 284 N.L.R.B. 1339(1987), enforced, 891 F.2d 230 (9th Cir. 1989)).6 A decertifica-
tion petition signed by a majority of the bargaining unit
suffices for an employer to have a good faith doubt about the
union’s majority support. Vincent Indus. Plastics, Inc. v.
NLRB, 209 F.3d 727, 737 (D.C. Cir. 2000); Sullivan Indus. v.
NLRB, 957 F.2d 890, 898 (D.C. Cir. 1992); Nat’l Med. Hosp.
of Orange Inc., 287 N.L.R.B. 415, 417 (1987). Nevertheless,
the employer may not withdraw recognition based on a ‘‘good
faith doubt’’ if unfair labor practices ‘‘significantly contribute
to such a loss of majority or to the factors upon which doubt
of such majority is based.’’ St. Agnes Med. Ctr. v. NLRB,
871 F.2d 137, 146–47 (D.C. Cir. 1989) (internal quotations
omitted). In that case, the ULPs ‘‘taint’’ the petition. Thus,
if ‘‘the Board determines that unremedied ULPs contributed
to the erosion of support for the union, the employer may
commit an unfair labor practice by withdrawing its recogni-
tion.’’ Vincent Indus., 209 F.3d at 737 (citations omitted);
see Olson Bodies, 206 N.L.R.B. 779, 780 (1973). To make its
determination, the Board uses the four-factor test of Master
Slack Corp., 271 N.L.R.B. 78, 84 (1984).7 Vincent Indus., 209
F.3d at 737; Lee Lumber & Bldg. Material Corp. v. NLRB,
edging change in Board policy effected by Levitz Furniture Co.).
The change does not apply, however, to cases—as here—pending
when Levitz was decided. Levitz Furniture Co., 333 N.L.R.B. No.
105, 2001 WL 314139, at *17.
6 The presumption is irrebuttable, however, for one year following
certification. Curtin Matheson, 494 U.S. at 777–78.
7 The Master Slack test considers:
(1) [t]he length of time between the unfair labor practices and
the withdrawal of recognition; (2) the nature of the illegal acts,
including the possibility of their detrimental or lasting effect on
employees; (3) any possible tendency to cause employee disaf-
fection from the union; and (4) the effect of the unlawful
conduct on employee morale, organizational activities, and
membership in the union.
Master Slack Corp., 271 N.LR.B at 84; see Vincent Indus., 209
F.3d at 737–38.
6
117 F.3d 1454, 1458–60 (D.C. Cir. 1997) (per curiam); NLRB
v. Williams Enters., 50 F.3d 1280, 1288 (4th Cir. 1995).
The Company argued before the Board that, consistent
with this long-held precedent, it lawfully withdrew recognition
of the Union based on the September 5 decertification peti-
tion signed by a majority of its employees. It emphasized
that the Stipulation of Facts contained no facts supporting
any ULP and that the Agreement provided no basis for any
ULP finding because it contained an express nonadmission
clause. See supra at 4–5. The Board, however, concluded
that the Company had violated the Act. Order at 5. Without
finding that any ULP in fact tainted the petition, presumably
because, as it acknowledged, ‘‘there has been no finding by
the Board (or admission by the Respondent) that an unfair
labor practice was committed,’’ the Board decided that an
employer that enters into a settlement agreement under
which it agrees to remedial notice posting cannot ‘‘lawfully
challenge the Union’s majority status on the basis of [an]
antiunion petition that was signed during the 60–day posting
period.’’ Id. at 3, 5. Relying on its decision in Douglas-
Randall, 320 N.L.R.B. 431 (1995), and on the holding in Poole
Foundry & Machine Co. v. NLRB, 192 F.2d 740 (4th Cir.
1951), the Board defended its decision—despite the fact that
it found no ULP that caused disaffection with the Union—on
the policy ground that the Board must have the power to give
effect to the remedies included in a settlement agreement.
Order at 3 (‘‘ ‘[A] settlement agreement is not an admission or
finding or unlawful conduct,’ but TTT ‘in order to give proper
effect to such an agreement, the [decertification] petition
should be dismissed.’ ’’ (quoting Douglas-Randall, 320
N.L.R.B. at 435 n.9)). Here, it said, the employer entered
into an agreement under which it ‘‘agreed to take precisely
the sort of remedial action that the Board might have ordered
to redress a violation of the Act: to post a notice for 60 days
stating that it would not engage in unfair labor practices that
were the subject of the Union’s charge.’’ Id. at 3. If an
employer could withdraw recognition based on a petition
signed during the posting period, the Board reasoned, the
purpose of the notice-posting remedy—to cure the ‘‘lingering
7
effects of the settled unfair labor practice conduct’’—would be
defeated. Id. at 4. In addition, the Board used the charged
conduct to support its conclusion that the Company caused
the employees to become disaffected with the Union, thereby
tainting the decertification petition and making the Compa-
ny’s resulting withdrawal of recognition a violation of section
8(a)(1) and (5). Id. at 5. Accordingly, the Board ordered the
Company to bargain with the Union. Id. at 5–6. The
Company then petitioned this court for review.
II.
The Board first asserts that we lack jurisdiction to consider
the Company’s petition because it did not raise before the
Board, as required by section 10(e) of the Act, the issues it
now presses before us. Section 10(e) of the Act mandates
that ‘‘No objection that has not been urged before the Board,
its member, agent, or agency, shall be considered by the
court, unless the failure or neglect to urge such objection
shall be excused because of extraordinary circumstances.’’ 29
U.S.C. § 160(e). The Board maintains that the Company’s
failure to challenge the ‘‘rule’’ established in the Board’s
decision ousts us of jurisdiction to review it. Objections to a
new Board ‘‘rule’’—here, the application of the Master Slack
analysis to conduct that is simply charged—are preserved for
judicial review, it emphasizes, only if they are first raised in a
motion to reconsider before the Board. See Int’l Ladies’
Garment Workers v. Quality Mfg. Co., 420 U.S. 276, 281 n.3
(1975) (petitioner’s objection that Board’s application of new
theory of liability violated its due process rights required to
be raised first in post-decision motion); see also Woelke &
Romero Framing, Inc. v. NLRB, 456 U.S. 645, 666 (1982)
(parties’ failure to raise issue on reconsideration before Board
prevented judicial review); Corson & Gruman Co. v. NLRB,
899 F.2d 47, 49–50 (D.C. Cir. 1990) (per curiam) (section 10(e)
barred objection to retroactive application of new Board rule
because objection not first raised in motion to reconsider).
The critical inquiry under section 10(e), however, is ‘‘wheth-
er the Board received adequate notice of the basis for the
8
objection.’’ Alwin Mfg. Co., Inc. v. NLRB, 192 F.3d 133, 143
(D.C. Cir. 1999); see Marshall Field & Co. v. NLRB, 318 U.S.
253, 255 (1943) (per curiam) (objections sufficient to ‘‘apprise
the Board that [the party] intend[s] to press the question’’ on
appeal); Parsippany Hotel Mgt. Co. v. NLRB, 99 F.3d 413,
417 (D.C. Cir. 1996) (ground for exception must be evident if
not explicit); see also Local 900, Int’l Union of Elec. v.
NLRB, 727 F.2d 1184, 1192 (D.C. Cir. 1984) (notice of objec-
tion sufficient to preserve issue not discussed by Board).
Here, despite the Board’s first-time application of Master
Slack to alleged, as opposed to established, conduct and
despite the fact that the Company’s attack on the Board’s
new application is made for the first time before us, the
Board was sufficiently apprised, for the purpose of section
10(e), of the critical issue—whether the Board’s ULP findings
are supported by substantial evidence.
Indeed, in the Company’s brief to the Board, it argued that
it did not violate the Act because it properly relied on the
second decertification petition to withdraw recognition of the
Union. It asserted that the decertification petition was not
tainted because neither the Stipulation of Facts nor the
allegations set forth in the Agreement constituted sufficient
evidence upon which the Board could find it had caused
employee disaffection with the Union, declaring:
There is no evidence in the Stipulation of Facts of
management coercion or of employer involvement in the
gathering of signatures. And it cannot be argued that
the March 1997 charges taint the validity of [the peti-
tion]. The parties amicably settled those disputes, and
the settlement expressly disavowed any wrongdoing by
[the Company]. Neither the Settlement Agreement nor
the posted notices call into question the objectivity or
validity of the signatures in [the petition].
Brief of Respondent at 6–7, JA 108–09. The Company fur-
ther emphasized:
A stipulated set of facts eliminates any fact dispute, and
the stipulations firmly establish the requisite elements of
a lawful withdrawal of recognition by [the Company]: (1)
9
a written petition; (2) signed by a substantial majority of
employees; (3) in the absence of any unfair labor prac-
tices; and (4) presented to [the Company’s] General
Manager. [The Company] properly acted on its doubt
about the Union’s majority status.
Id. at 7.
We believe the Company adequately apprised the Board of
its insufficiency-of-evidence argument to comply with section
10(e). The Board in fact acknowledged the Company’s insuf-
ficiency argument: ‘‘The Respondent asserts that the petition
was not tainted, because there is no evidence of management
coercion or involvement in the collection of signatures.’’ Or-
der at 2. Accordingly, we conclude that the Board was
sufficiently apprised of the Company’s substantial evidence
objection, notwithstanding its not being addressed expressly
to the conduct alleged in the Agreement, to allow us to review
the Company’s petition.
If the Board orders an employer to bargain with a union
notwithstanding the existence of a facially valid decertification
petition, we have consistently required the Board to support
with substantial evidence its finding that the employer’s
ULP(s) ‘‘tended to undermine a union’s majority support.’’
Quazite v. NLRB, 87 F.3d 493, 496 (D.C. Cir. 1996); Avecor
Inc. v. NLRB, 931 F.2d 924, 934 (D.C. Cir. 1991), cert. denied,
502 U.S. 1048 (1992) (substantial evidence must support find-
ing that ULP tended to undermine majority strength).
Although the Board does not dispute that in adjudicated
cases it may not find that an employer unlawfully withdrew
recognition based on a decertification petition without also
finding—based on substantial evidence—that the employer’s
ULP(s) caused disaffection with the union,8 it nonetheless
asserts that it may find that the employer violated section
8The Board acknowledges as much: ‘‘[U]nlike Master Slack, the
Union’s unfair labor practice charge was resolved by an informal
Board settlement agreement; there has been no finding by the
Board (or admission by the Respondent) that an unfair labor
practice was committed.’’ Order at 3.
10
8(a)(1) and (5) because ‘‘regardless whether [the Company]
admitted or denied engaging in unlawful conduct, [it] agreed
to a remedy.’’ Id. at 4.
The Board uses the Fourth Circuit’s decision in Poole
Foundry & Machine Co. v. NLRB, 192 F.2d at 743–44, as
authority for its conclusion.9 In Poole the court upheld the
Board’s bargaining order, concluding that the employer’s
withdrawal of recognition of the union based on a decertifica-
tion petition signed by sixty-four of sixty-six employees within
four months of the employer’s settlement agreement with the
union violated section 8(a)(1) and (5) of the Act. Id. The
court acknowledged that ‘‘[w]hile not an admission of past
liability, a settlement agreement does constitute a basis for
future liability and the parties recognize a status thereby
fixed.’’ Id. at 743. It explained,
An entire structure or course of future labor relation-
ships may well be bottomed upon the binding effect of a
status fixed by the terms of a settlement agreementTTTT
Otherwise, settlement agreements might indeed have
little practical effect as an amicable and judicious means
to expeditious disposal of disputes arising under the
terms of the Act.
Id.The Board reads this language to empower it to fashion a
rule that, even without a ULP finding, ensures that the
remedy contained in a settlement agreement achieves its
purpose. Just as the Board in Poole required that an em-
ployer that agreed to bargain with the union agreed to do so
for a reasonable time, thereby furthering the purpose of that
remedy, so too can the Board adopt a rule designed to ensure
that the purpose of the notice-posting provision is accom-
9 The Board also relies on its decision in Douglas-Randall, in
which it affirmed the Regional Director’s dismissal of a decertifica-
tion petition after the employer settled section 8(a)(5) charges. The
Douglas-Randall decision was not judicially reviewed and its ratio-
nale is expressly derived from Poole. Douglas-Randall, 320
N.L.R.B. at 432–33.
11
plished, namely: ‘‘ ‘to provide sufficient time to dispel the
harmful effects of the [allegedly unlawful] conduct’ and to
ensure that employees are fully informed of their statutory
rights.’’ Order at 4 (quoting Chet Monez Ford, 241 N.L.R.B.
349, 351 (1979) (alterations in original)).
We believe the Board missed the point of Poole. In approv-
ing the Board’s ‘‘reasonable time’’ requirement, the Fourth
Circuit upheld the Board’s holding that an agreement to
bargain with the union necessarily implies an agreement to
bargain for a reasonable time—otherwise the agreement
would be meaningless. Poole, 192 F.2d at 743–44. By with-
drawing recognition less than four months later, the employer
violated section 8(a)(1) and (5) because the employer had gone
back on its agreement to bargain: ‘‘It follows that Poole, after
having solemnly agreed to bargain with the Union, should not
be permitted, within three and one-half months after the
agreement, to refuse so to bargain, even if as here, the Union
clearly did not represent a majority of the employees.’’ Id.The Board’s power to act in that case was not based on the
fact that the employer ‘‘agreed to a remedy’’ but instead on
the fact that the employer violated the settlement agree-
ment.10
10 We also note that Poole has been limited to cases in which
section 8(a)(5) refusal-to-bargain charges are made and the employ-
er agrees to bargain with the union. As the Seventh Circuit
explained:
Underlying [the Poole] rationale are the competing interests of
employee free choice versus stable bargaining relationships and
industrial peace. The Board has implicitly made the determina-
tion that employee free choice may be temporarily sacrificed (in
that an employer may be forced to bargain with a union that no
longer has the support of a majority of the employees) for a
‘‘reasonable time’’ so as to give the bargaining relationship an
opportunity to succeed and thereby promote industrial stabili-
tyTTTT It appears to us, however, that the primary justifica-
tion for this infringement on employee free choice is to restore
with some force a bargaining relationship that was interrupted
as a result of the employer’s refusal to bargain. That justifica-
tion is absent here [because] [i]n the present case, unlike in any
12
We well recognize that the Board bears the ‘‘primary
responsibility for developing and applying national labor poli-
cy,’’ Curtin Matheson, 494 U.S. at 786, and ‘‘necessarily must
have the authority to formulate rules to fill the interstices of
the broad statutory provisions.’’ Beth Israel Hosp. v. NLRB,
437 U.S. 483, 500–01 (1978). In addition, we will ‘‘uphold a
Board rule as long as it is rational and consistent with the
Act, even if we would have formulated a different rule.’’
Curtin Matheson, 494 U.S. at 787 (citation omitted). But
such deference is not afforded if the Board’s rule is inconsis-
tent with the Act. NLRB v. United Food & Comm. Workers
Union, Local 23, 484 U.S. 112, 123–24 (1987). Here the
Board’s rule contravenes the Act because it allows the Board
to routinely find a violation of the Act in the absence of
substantial evidence. The only evidence on which the Board
based its finding that the Company’s ULPs caused the loss of
support for the Union is the Agreement—an Agreement that
specifically provides that the Company admitted no wrongdo-
ing. This falls far short of satisfying the substantial evidence
standard.
The Board maintains that our rejection of its new rule will
undercut Board-supervised settlement agreements because,
for example, ‘‘an employer could commit serious unfair labor
practices, sign a settlement agreement with a nonadmission
clause, and then avoid its duty to bargain by relying on the
other case in which the Board has ordered the employer to
bargain for a reasonable time on the basis of a settlement
agreement, the employer was not even alleged to have refused
to bargain prior to the settlement.
NLRB v. Key Motors Corp., 579 F.2d 1388, 1390–91 (7th Cir. 1978);
see also NLRB v. Vantran Elec. Corp., 580 F.2d 921, 925 (7th Cir.
1978) (where it was unclear settlement agreement required employ-
er to bargain for a reasonable time, ‘‘Board exceeded its remedial
powers by ordering the employer to bargain for an extended
certification year on the basis of this TTT settlement’’).
Poole, then, does not support the Board’s decision here for the
additional reason that section 8(a)(5) charges were not the subject
of the settlement agreement—they were withdrawn—and the Com-
pany did not agree to bargain with the Union.
13
union’s loss of majority support attributable to the employer’s
own unremedied conduct.’’ Order at 4. The Board’s argu-
ment rests on two fallacious assumptions: first, that a settling
party is necessarily guilty of the conduct with which it has
been charged; and, second, that the Board will have no way
of protecting against parties who seek to use a nonadmission
clause in a settlement agreement to avoid sanctions for ULPs.
The Board’s first assumption is counterfactual; the second
is specious. A charged party cannot compel the Board or its
agents to enter into a settlement agreement. If, in a case
such as this one, the Regional Director is convinced that the
employer is guilty of unfair labor practices, he can either
decline to approve an informal settlement agreement and
insist that the unfair labor practices be adjudicated or require
an admission of liability from the employer as a condition of
settlement. In fact, current Board policy advises that ‘‘[n]on-
admission clauses should not be routinely incorporated in
settlement agreements,’’ NLRB CASEHANDLING MANUAL
§ 10130.8, so that Board agents have reason to understand
they can reject such clauses in egregious cases. If, however,
the Regional Director elects to approve a settlement in which
the parties specifically agree that the charged party ‘‘does not
admit having violated the National Labor Relations Act,’’ as
here, then, plainly, the employer has not agreed to remedy
unfair labor practices. Rather, the employer has agreed to
take certain actions to secure a dismissal of the pending
unfair labor practice charges—nothing more and nothing less.
And in any event, if a party fails to comply fully with a
settlement agreement, the Regional Director can revoke ap-
proval of the agreement and issue or reissue the complaint.
NLRB CASEHANDLING MANUAL § 10152. In short, the Board
is in no way thwarted if it is bound by the terms of a
settlement agreement which includes a nonadmission clause.
For the foregoing reasons, we grant the Company’s petition
for review, deny the Board’s cross-application for enforce-
ment and vacate the order of the Board.
So ordered.