Operations In Fiscal Year 1988 - National Labor Relations Board

Operations in Fiscal Year 1988 21"NLRB Procedure," Chapter IV on "Representation Proceedings,"and Chapter V on "Unfair Labor Practices" discuss someof the more significant decisions of the Board during the reportperiod. The following summarizes briefly six of the decisions establishingor reexamining basic principles in significant areas.1. Jurisdiction Over Foreign-Run Nonprofit CenterIn Goethe House New York,' the Board asserted jurisdictionover a nonprofit cultural center sponsored and funded by theFederal Republic of Germany. The Board found that the employerdid not come within any of the express exclusions defmedin Section 2(2) of the Act and that certain cases dealing with foreignflagships were inapplicable because they dealt with disputesamong foreign nationals on ships only temporarily within the territorialUnited States. Accordingly, the Board possessed statutoryjurisdiction over the employer. The -Board further concluded,as in State Bank of India I, 2 that it should not exercise its discretionto decline jurisdiction over an entity that was "an agency orinstrumentality" of a foreign state where, as here, the employer isotherwise engaged in commerce within the meaning of the Act.In so holding, the Board expanded on State Bank of India Psconclusion that the Foreign Services Immunities Act of 1976(FSIA) was inapplicable, fmding that the legislative history ofthe FSIA specifically stated that the employment of personsother than citizens of the sponsoring foreign government was notto be considered public or governmental activity.2. Effect of Settlement AgreementsIn Independent Stave Co., 3 the Board, examining the standardsto be applied in reviewing settlements, overruled the approachtaken by the majority in Clear Haven Nursing Home. 4 The Boardreasoned that the Clear Haven majority improperly presumed, asa predicate to examining the reasonableness of a settlement, thatthe General Counsel would prevail on every violation alleged inthe complaint and that, therefore, the settlement must substantiallyremedy each and every such allegation. Instead, the Boardadopted a more hospitable approach under which settlementswill be evaluated in light of all the circumstances of the case including,but not limited to: (a) whether all parties have agreed tobe bound; (b) whether the settlement is reasonable in light of thenature of the violations alleged, the risks inherent in litigation,and the stage of the litigation; (c) whether the settlement was theproduct of fraud, coercion, or duress; and (d) whether the respondenthad a history of violations or breaches of previous settlementagreements.1 288 NLRB No. 29.2 229 NLRB 838 (1977)'287 NLRB No. 76.4 236 NLRB 853 (1978).