NLRB Grants Remand to Allow for Withdrawal of Previously Decided Charge

On May 26, 2017, in Food Servs. of Am., Inc., 365 NLRB 85, the National Labor Relations Board (NLRB) issued an unusual order granting remand of previously decided case to allow for withdrawal of an unfair labor practice charge pursuant to a preexisting, but unknown, outside settlement agreement.

The underlying case involved the discharge of two Food Services of America, Inc. (FSA) employees, Elba Rubio and Paul Carrington. In 2011, Rubio sent a coworker instant messages warning that her job was at risk and advising how she could improve her performance and deal with their mutual supervisor. After the coworker provided a copy of the instant messages to FSA, Rubio’s employment was terminated.

Following Rubio’s discharge, she asked Carrington (her former coworker and current boyfriend) to transfer FSA company emails to her personal email account in order to assist with a potential discrimination and retaliation claim. Carrington agreed and transferred hundreds of emails to Rubio’s personal account, many containing confidential business information. FSA subsequently discovered the transfer of confidential emails and terminated Carrington’s employment as well.

In May 2014, the NLRB determined that FSA violated the National Labor Relations Act (the Act) when it discharged Rubio for engaging in protected concerted activity but held that Carrington’s transfer of emails did not constitute protected concerted activity and his discharge was lawful. See Food Servs. of Am., Inc., 360 NLRB 1012 (2014).

FSA filed a subsequent motion to modify the NLRB order or, alternatively, stay the matter pending review by the D.C. Circuit of the U.S. Court of Appeals. However, on October 18, 2016, while FSA’s motion was still pending, the General Counsel filed its own motion asking the NLRB to remand the case to the Regional level so that the initial charges could be dismissed. In its motion, the General Counsel explained that years early in February 2014 (before the NRLB issued its original order), Rubio, Carrington, and FSA had reached a global outside settlement agreement that had not been previously brought to the NLRB’s attention.

Ultimately, the NLRB agreed to grant the motion and remand the matter to allow for withdrawal of the charges because of the “unique circumstances” presented. In doing so, the NLRB expressed its displeasure with the parties’ unexplained failure to promptly bring the settlement agreement to its attention but found that numerous factors supported remand. Specifically, the NLRB held that: 1) all relevant parties agreed to be bound by the settlement; 2) the settlement resolved not only the NLRB matter but other pending litigation; 3) the General Counsel sought remand and no opposition had been filed; 4) the risks inherent in continued litigation; 5) the long passage of time; 6) the absence of any fraud, coercion, or duress in securing the settlement agreement; and 7) the absence of proof that FSA has a history of violating the Act.

This case presents a good reminder that parties to litigation must promptly bring all settlements to the fact finder’s attention or risk potentially losing the benefit of their bargained for compromise.

For more information on this article, please contact Attorney Michael Link, at, 952-921-4606 or any attorney at Peters, Revnew, Kappenman & Anderson, P.A.