January 2011 - National Labor Relations Board

10142 PROCESSING OF NON-BOARD ADJUSTMENTSevidence of noncompliance with the undertakings in theprivate agreement.Since the Regional Office may be called upon to determine whether there hasbeen a breach of the private non-Board adjustment, care must be taken by the Boardagent to insure that the terms of the resolution are clear and understood by all parties.10142.4 Withdrawal or Dismissal Based on Unilateral ActionA charged party may, on occasion, take adequate remedial action without beingwilling to enter into a written settlement agreement or to acknowledge by a posted noticethat the action is being taken pursuant to settlement of a charge. Some examples include:interrupted bargaining negotiations that resume; an alleged discriminatee who is offeredreinstatement with backpay; and a union that ceases striking for an illegal objective.In such circumstances, the case may be disposed of administratively as set forthbelow:(a) Withdrawal: When unilateral remedial action is accompanied by a voluntarywithdrawal request from the charging party, approval of the request should ordinarily begranted. The case may be closed as adjusted and the parties should be sent a letterapproving the withdrawal request.(b) Dismissal: When unilateral remedial action is not accompanied by awithdrawal request, the Regional Director must then determine whether effectuation ofthe purposes of the Act calls for further proceedings. If the action taken is a full orsubstantial remedy in fact, if there is no history of prior similar practices by the samecharged party and if there is no likelihood of recurrence, the charge may be dismissed onthe ground that effectuation of the purposes of the Act does not warrant furtherproceedings. The case, when closed, should be considered adjusted.10142.5 Representation Case Implications of Non-Board AdjustmentsThe Board agent should consider the impact of a non-Board adjustment on relatedrepresentation cases. For example, a non-Board adjustment which encompasses theobligation to bargain and an extension of the certification year is recognized by theBoard. Straus Communications v. NLRB, 625 F.2d 458 (2d Cir. 1980); Gulf StatesManufacturers v. NLRB, 598 F.2d 896 (5th Cir. 1979); Vantran Electric Corp., 231NLRB 1014 (1977), enf. denied 580 F.2d 921 (7th Cir. 1978). Cf. Deister ConcentratorCo., 253 NLRB 358 fn. 2 (1980). Therefore, in order to avoid disputes as to the terms ofthe adjustment, the parties should memorialize in writing any agreement to extend thecertification year. See Mar-Jac Poultry Co., 136 NLRB 785 (1962).The non-Board settlement of unfair labor practice charges involving allegations ofemployer misconduct concerning the filing of a decertification petition, improperwithdrawal of recognition, or repudiation of a bargaining obligation requires thedismissal of any decertification petition filed after the alleged conduct. Liberty Fabrics,Inc., 327 NLRB 38 (1998); Supershuttle of Orange County, Inc., 330 NLRB 1016 (2000).Sec. 11733.2.Revised 01/11