International Hod Carriers, Etc.

National Labor Relations Board - Board Decisions

Mar 22, 1957

117 N.L.R.B. 724 (N.L.R.B. 1957)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization , to form labor or-
ganizations , to join or assist United Packinghouse Workers of America, CIO,
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
,condition of employment , as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Harryette Elam immediate and full reinstatement to her
former or substantially equivalent position, without prejudice to her seniority
or other rights or privileges , and will make her whole for any loss of pay she
may have suffered as the result of our discrimination against her.
All our employees are free to become or remain members of United Packinghouse
Workers of America, CIO, or any other labor organization.
PHMRmACY PAPER Box Co.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced , or covered by any other material.
International Hod Carriers, Building and Common Laborers
Union of America, Local #341 and John Allan Grant
J. H. Pomeroy and Company , Inc. and John Allan Grant. Cases
Nos. 19-CB-273 and 19-CA-909. March 22, 1957
- SUPPLEMENTAL DECISION AND DETERMINATION
On April 30,1954, the Court of Appeals for the Ninth Circuit entered
a decree enforcing a Decision and Order by the Board of March 3,
1954, which had been issued pursuant to a settlement agreement in this
proceeding. Thereafter, a supplemental proceeding was held before
David F. Doyle, Trial Examiner, to determine the amount of back
pay due Grant under paragraph A (2) (e) and paragraph B (2) (c)
of the court's decree.
On September 5, 1956, the Trial Examiner issued his Supplemental
Intermediate Report in the above-entitled proceeding, a copy of which
is attached hereto, finding that back pay in the sum of $272.03 was
due Grant for the year 1953 and that this amount had been computed
correctly, agreed upon by the parties, and tendered in payment by the
Respondents. The Trial Examiner further found that the issue of
Respondents' back-pay liability to Grant for the year 1954 was not
properly before him, but that, in any event, the General Counsel had
failed to establish by a preponderance of the evidence that either Re-
spondent Company or Respondent Union was liable for back pay for
the year 1954. Thereafter, the General Counsel filed timely exceptions
to the Supplemental Intermediate Report, together with a supporting
brief, and Respondents filed reply briefs.
117 NLRB No. 114.
INTERNATIONAL HOD CARRIERS, ETC. 725
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Murdock and Rodgers].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Supple-
mental Intermediate Report, the exceptions, the briefs, and the entire
record in this proceeding, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the modifications
noted below.'
We find, like the Trial Examiner, and, for the reasons stated by
him, that under the terms of the decree of the court of appeals, the
Board's function in the case at bar is limited to determining the amount
of back pay due Grant from the date of the original discrimination
against him on September 29, 1953, until his employment by the
Company in the same or substantially equivalent position as the job
which was discriminatorily denied him on September 29, 1953. We
further find, as did the Trial Examiner, that Grant was so employed on
October 29, 1953, when he was hired as a carpenter by Respondent
Company at a higher rate of pay than the laborer's job which had
been discriminatorily refused him. As the parties agree that Re-
spondents' joint and several liability for this period, from September
29 to October 29, 1953, amounts to $272.03, and as this sum was com-
puted correctly, we shall adopt the Trial Examiner's determination
that this is the sole amount due to Grant. In view of the foregoing, it
is unnecessary for us to consider the other issues considered by the
Trial Examiner and we do not, therefore, either adopt or reject his
findings relating to those issues.
[The Board determined that the net back pay due John Allan Grant
is $272.03.]
i In the Trial Examiner's Supplemental Intermediate Report, the dates "November 4,
1954" and "November 10, 1954" appear in the third paragraph of his "Findings of Fact."
These dates are hereby corrected to read "November 4, 1953" and "November 10, 1953."
SUPPLEMENTAL INTERMEDIATE REPORT AND
RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was instituted by the Regional Director (Nineteenth Region,
Seattle, Washington ) on April 12, 1956, pursuant to Section 102.51a et seq., of
the Board 's Rules and Regulations , to determine the amount of back pay due and
owing to John Allan Grant under a decree of the United States Court of Appeals,
Ninth Circuit, entered with consent of all parties on April 30, 1954.
The proceeding involves only the liability of the Union and J. H. Pomeroy and
Company, Inc., there being no controversy concerning the liability of Robinson-
Roedel Tile Company. Pursuant to notice to all parties, a hearing was held on the
issues raised by the back-pay specification of the General Counsel, and the duly
filed answers of the Respondents here involved , on June 18, 19, and 20, 1956, at
Seattle, Washington . Thereafter, the proceeding was adjourned on the joint motion
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of counsel to various dates to permit the Respondents to assemble and submit to the
Trial Examiner certain correspondence which had occurred between the parties.
The hearing was closed by an order of the Trial Examiner dated July 30, 1956.
At the hearing and at all times thereafter, the General Counsel, the Company, and
-the Union were represented by counsel who were afforded a full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence bearing on the
-issues, to argue the issues orally upon the record, and to file briefs and proposed
findings. Counsel for all parties have filed briefs which have been carefully
,considered.
1. THE ISSUE-RESPONDENTS' BACK-PAY LIABILITY FOR 1954
It was stipulated at the hearing that the joint and several liability of the Respondents
to make whole Grant for the year 1953 was properly computed at $272.03, and that
payment of that sum had been tendered to the General Counsel.
The General Counsel makes no claim herein for back pay for Grant for the
year 1955.
To support his claim for back pay for the year 1954, the General Counsel intro-
duced into evidence voluminous payroll records of the Company and copies of his
computations. These computations are mathematically correct and in accord with
the standard practice of the Board. The General Counsel claims that back pay in
the amount of $7,115.61 is due Grant for 1954 with both Pomeroy and the Union
jointly and severally liable for $2,687.67, the amount accruing up to May 19, 1954,
and with the Union solely liable for the balance of $4,427.94.
The Respondents do not claim that any of the computations are incorrect mathe-
matically. They do, however, challenge most vigorously the General Counsel's
legal basis for the computations, and claim that they owe Grant nothing for the
year 1954, and that their tender of $272.03 discharged their entire monetary liability
under the settlement agreement, Board order, and court decree. The major conten-
tions of the parties are set forth at length hereafter, together with my decisions on
the same.
II. FINDINGS OF FACT
A. The 1953 complaint; the settlement stipulation
It is undisputed that on September 29, 1953, John Allan Grant filed a charge.
against the Respondents with the Board, and that the General Counsel on October
29, 1953, issued a complaint and notice of hearing to the two Respondents.' This
charge and complaint alleged in substance that on September 29, 1953, while oper-
ating a construction project known as the Wildwood Project in the Territory of
Alaska, the Company had discriminatorily refused to hire Grant, and that the Com-
pany had been induced to that discrimination by the Union.
It is not disputed that on October 29, 1953. the Company hired Grant as a
carpenter and that Grant continued in that employment until November 14, 1953,
On which date his employment was terminated because of lack of work. The General
Counsel conceded at the hearing that there was no discrimination in this termination.
Although at the hearing the General Counsel claimed that Grant's employment as
a carpenter was not "equivalent" to his employment as a laborer, it is undisputed
that up to that moment the parties had all treated that employment as equivalent.2
However, to resolve any issue on that point, I find, on all the evidence in the case,
that this employment of Grant as a carpenter was "reinstatement" of Grant to
"equivalent" employment, as those terms are used in the Act.
About the same time that Grant's employment as a carpenter began, negotiations
for a settlement of the issues framed by the complaint were instituted by counsel for
the parties at Anchorage, Alaska. By November 4, 1954, the parties had agreed to
settle the case, and on November 10, 1954, a stipulation formalizing the agreement
was executed by the following parties: Mr. Hartlieb, present counsel for the Union;
John G. Manders, the then counsel for the Company; Paul E. Weil, field attorney
in the Regional Office for the General Counsel; and John Allan Grant, the alleged
discriminatee and claimant herein. This settlement stipulation originally covered
two employees, Grant, the claimant herein, and one James A. Skeens.
Thereafter, the General Counsel found it necessary to redraft the settlement stipu-
lation in order to eliminate Skeens from its provisions. The redrawn instrument was
1 The date of issuance of complaint is recited in the settlement stipulation ( Company's
Exhibit No 2).
9 Tr. page 188 et Seq . See also reference hereinafter to letter of Well, dated June 1,
1954.
INTERNATIONAL HOD CARRIERS, ETC. ..727
then executed by counsel for the parties and the claimant Grant, under date of
December 15, 1953.
This settlement stipulation, after a recital of the filing of the charge, the issuance
of the complaint, and other jurisdictional facts, stated that without further notice the
Board might enter its order providing as follows:
A. International Hod Carriers, Building and Common Laborers Union of
America, Local 341, its officers, agents and representatives, shall:
(1) Cease and desist from:
(a) Causing or attempting to cause Respondent Employers, or any other
employers to discriminate against employees in violation of Section 8 (a) (3)
of the Act, and with respect to whom membership in Respondent Union has
been denied or terminated on grounds other than their failure to tender periodic
dues and initiation fees uniformly required as a condition of retaining or obtain-
ing membership in the Union.
(b) Restraining and coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
(2) Take the following affirmative action which the Board finds will effectuate
the policies of the National Labor Relations Act:
(a) Notify J. H. Pomeroy and Company, Inc. and Robinson-Roedel Tile
Company in writing, that they withdraw their objections to the employment
of John Allan Grant, and that they request J. H. Pomeroy and Company, Inc.
and Robinson-Roedel Tile Company, respectively to offer him immediate and full
reinstatement to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges.
(b) Post in conspicuous places in its hiring hall and all places where notices to
members are customarily posted, copies of the Notice attached hereto marked
Appendix A, copies of said notice to be furnished by the Regional Director for
the Nineteenth Region shall, after being duly signed by Respondent Union's
representatives, be posted by it immediately on receipt thereof and maintained
by it for a period of at least sixty (60) days consecutively thereafter. Reasonable
steps shall be taken by Respondent Union to insure that said Notices are not
altered, defaced or covered by any other material.
(c) Direct and notify the dispatcher of the hiring hall to dispatch John Allan
Grant without discrimination.
(d) Mail to the Regional Director for the Nineteenth Region sufficient signed
copies of the Notice attached hereto and marked Appendix A for posting, Re-
spondent Employers willing, at their respective places of doing business at the
Kenai Project. Copies of said Notice to be furnished by said Regional Director
shall, after having been signed as provided above, be forthwith returned to said
Regional Director for such posting.
(e) Make whole John Allan Grant for any loss of pay he may have suffered
because of the discrimination against him from the date of such discrimination to
the date upon which he shall be restored to the position or substantially equiv-
alent position which he held before such discrimination took place.
(f) Notify the Regional Director for the Nineteenth Region in.writing within
twenty (20) days from the date of this order what steps the Respondent Union
has taken to comply with this Order.
B. J. H. Pomeroy and Company, Inc., its officers, agents, assigns and suc-
cessors, shall:
(1) Cease and desist from:
(a) Encouraging membership in Respondent Union, or any other Union or
labor organization of its employees by discriminating in regard to hire or tenure
of employment of its employees or any term or condition of employment, except
to the extent permitted by the proviso to Section 8 (a) (3) of the Act.
(b) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of the rights guaranteed in Section 7 of the Act.
(2) Take the following affirmative action in order to effectuate the policy
of the National Labor Relations Act, as amended:
(a) Post at its construction office at the Kenai Project copies of the Notice
attached hereto and marked Appendix B. Copies of said Notice, to be furnished
by the Regional Director for the Nineteenth Region, shall, after being duly signed
by Respondent Pomeroy's representative, be posted by it immediately upon
receipt thereof and be maintained by it for a period of at least sixty (60) days
consecutively thereafter in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Re-
spondent Pomeroy to insure that such Notices are not altered, defaced or covered
by any other material.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the dispatcher of the hiring hall that John Allan Grant is to be dis-
patched without discrimination to laboring jobs with Respondent Pomeroy.
(c) Make whole John Allan Grant for any loss of pay he may have suffered
because of the discrimination against him from the date of such discrimination to
the date upon which he shall be restored to the position or substantially equiv-
alent position which he held before such discrimination took place.
(d) Notify the Regional Director for the Nineteenth Region in writing within
twenty (20) days from the date of this order what steps Respondent Pomeroy has
taken to comply herewith.
* * * * * *
8. It is further stipulated and agreed that any United States Court of Appeals
for any appropriate circuit may upon application by the Board enter its decree
enforcing the order of the Board in the form set forth above. The Respondents
waive all defenses to the entry of the decree including alleged compliance with
the order of the Board and its right to receive notice of the filing of an applica-
tion for the entry of such decree provided that such decree is in the words and
figures of the order set forth above. However, Respondents shall be required
to comply with the affirmative provisions of the Board's order after entry of the
decree only to the extent that they have not already done so.
9. This Stipulation contains the entire agreement of the parties, there being
no agreement of any kind, verbal, or otherwise, which alters, varies or adds to
this Stipulation.
10. This Stipulation is subject to the approval of the National Labor Relations
Board and it is of no force and effect unless and until the Board has approved
this Stipulation. Respondents will immediately comply with the provisions of
the order set forth in paragraphs 7A, B, and C, above.
[Emphasis supplied.]
It should be noted that the provisions of the settlement stipulation followed very
closely the conventional order of the Board in litigated cases involving the same type
of discrimination. However, the settlement stipulation differed from the conventional
remedy ordered by the Board in such cases in three very important respects. It
should be noted that the stipulation does not require that (1) the Union notify Grant
in writing that it withdrew its objection to his employment, or (2) the Company offer
Grant reinstatement to his former or equivalent employment, or (3) that the Union
actually dispatch Grant, then, or at any specific time in the future, to employment with
the Company.
These variations are of paramount importance to an understanding of the contro-
versy which arose thereafter concerning the compliance of the Union and the
Company.
It is admitted that Mr. Weil, Mr. Manders, and Mr. Hartlieb, counsel for the
parties, executed the settlement stipulation at Anchorage, Alaska, and Mr. Grant
testified that he signed the settlement stipulation when it was presented to him by
Mr. Weil. , As of the date of its execution, apparently all the parties were satisfied
with their undertaking, and their understanding of the same.
B. The Order of the Board; the consent decree of the United States Court of
Appeals, Ninth Circuit
Thereafter, in ensuing months, the settlement stipulation was submitted to the
mechanics of administrative and court approval. On March 3, 1954, the Board
issued its Order, approving the settlement stipulation and requiring that the
Respondents cease and desist from the conduct specified in the settlement stipulation,
and take the identical affirmative action contained in that agreement. On April 30,
1954, a consent decree was entered by the Court of Appeals, Ninth Circuit. The
order provisions of this decree were identical with the terminology of the Order
of the Board and the language of the settlement stipulation. The Respondents
received copies of the decree on May 4, 1954.
C. The correspondence on compliance
Meanwhile, Weil, representing the General Counsel, proceeded with obtaining
Respondents' compliance with certain of the affirmative remedial directives con-
tained in the settlement stipulation. As has been noted, Weil had found it necessary
to make certain changes in the settlement agreement, not relevant here, and counsel
for Respondents had readily agreed to, and assisted in, the redrafting of the
agreement.
INTERNATIONAL HOD CARRIERS, ETC. 729
On March 10, 1954, approximately 6 days after the entry of the Board's Order,
R. K. Young, president of Local 341, mailed the following letter to Thomas P.
Graham, Regional Director of the Board at Seattle, Washington: 3
Re JOHN ALLAN GRANT
Case No. 19-CB-273
DEAR SIR: Pursuant to Board Order in the case of the International Hod
Carriers', Building and Common Laborers' Union of America, Local 341, vs.
John Allan Grant, Case No. 19-CB-273, please be advised that we have this
date written Robinson-Roedel Tile Company and J. H. Pomeroy and Company,
Inc. advising them that we withdraw any objection to the employment of John
Allan Grant, and further request that said employers offer him immediate and
full reinstatement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges. Copies of these letters
are enclosed.
We have this date posted a signed copy of Appendix "A" as per directions of
the above-mentioned Board Order.
So far as we are aware, we have complied with the Order. If there is
anything further that we must do at this time we will appreciate your so
informing us at once.
Enclosed in Young's letter were carbon copies of two letters, each dated March 10,
1954, one to the Company here involved, and the other to Robinson-Roedel Tile
Company. The one to Pomeroy reads as follows: 4
DEAR SIRS: Pursuant to Board Order in the case of International Hod
Carriers' Building and Common Laborer's Union of America, Local 341 vs
John Allan Grant, Case No. 19-CB-273, please be advised that your corre-
spondent herein withdraws any objections to your employment of John Allan
Grant and requests that said John Allan Grant be offered immediate and full
reinstatement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges.
Very truly yours,
On March 16, 1954, Weil addressed a letter to Manders giving the latter figures
as to back pay which had been furnished to Weil by Grant. On May 17, 1954,
Weil again wrote Manders enclosing 12 copies of the notice to all employees to be
posted by Manders' clients "pursuant to the decree entered in the Ninth Circuit."
This letter also gave the first hint that, in the opinion of the General Counsel, the
Respondents might not be complying with the decree of the circuit court. A para-
graph of this letter reads as follows: 5
Since this exchange of information I have heard from John A. Grant to the
effect that the Union is still engaged in the same type of discrimination about
which complaint was made before. I recommend to you that you call the
attention of the Company Respondents, or at least of Pomeroy, to this fact,
since they are still operating this project and it may be of interest to them since
presumably if our further investigation finds that Mr. Grant's allegations are
true, it will be necessary to seek further action before the Ninth Circuit.
[Emphasis supplied.]
On May 19, 1954, the Associated General Contractors, acting for Pomeroy,
addressed the following wire to Thomas P. Graham, the Regional Director at
Seattle: 6
REFERENCE CASE GRANT YOUR FILES 19-CA-909 AND 19-CB-273
NLRB VERSUS LABORERS POMEROY AND ROEDEL SETTLED BY
STIPULATION AND REQUIRING NOTICE TO YOU BY MAY 20 OF
STEPS TAKEN STOP ALL PROVISIONS OF NOTIFICATION POSTING
AND NOTICE TO DISPATCH HAVE BEEN COMPLIED WITH BUT
DUE TO ILLNESS OF RESPONDENTS ATTORNEY HANDLING PAY
ADJUSTMENT THAT PORTION OF STIPULATION STILL PENDING
STOP ACCOUNT POMEROY MEMBER THIS ASSOCIATION RESPECT-
FULLY REQUEST YOU ACCEPT THIS AS NOTICE WITHIN TWENTY
s Union's Exhibit No 1
* Union's Exhibit No. 3
5 Company 's Exhibit No. GA
e Company's Exhibit No 7
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DAY LIMITATION AND ALLOW RESPONDENT ONE ADDITIONAL
WEEK TO PROCESS FINAL PAPERS IN CONFORMITY WITH NOTICE
OF NINTH CIRCUIT COURT PLEASE ADVISE CONCURRENCE AND
THANKS
L. A. MOORE
ASSOCIATED GENERAL CONTRACTORS
On the following day, Graham replied that the request for an extension of time had
been granted.
On May 20, 1954, Manders addressed a letter to Weil, which enclosed a letter
which showed compliance with the court's decree by the Company, with the excep-
tion of the payment of money for back pay. Manders' letter then transmitted certain
figures of the Company to be used by Weil in the computation of back pay?
At this point it developed that Weil did not agree with Manders as to the base
which was to be used in the computation of Grant's back pay. The Company had
furnished to Weil figures showing the pay of the highest paid laborer on the Com-
pany's job at Kenai, for the period involved in Grant's discrimination. In his letter of
June 1, 1954, Weil pointed out that it would be unfair to use the pay of the highest
paid laborer in the computation of Grant's pay. He advised the Company that it
should furnish him with the payments made to all laborers during the period and
that he would ascertain the average pay of these laborers per day, and using this
average as a base would then compute Grant's back pay. At this point it is also
crystal clear that Weil's understanding of the settlement stipulation, Board Order,
and court decree was the same as the understanding of counsel for the Respondents.
At that point all counsel agreed that they were engaged in computing the back pay
for a definite period in 1953, and that no back pay for the year 1954 was involved in
the case. Counsel for all parties were in agreement that Grant's employment as a
carpenter effected "in mitigation of possible back pay liability by that company in
consideration of the charges herein," tolled the liability of both Respondents as of
October 28, 1953, the last date before Grant's rehire as a carpenter.
Weil's letter of June 1, 1954,8 reads in part as follows:
However, as I see the case, the back pay period for Mr. Grant ends at the
date upon which he was hired as a carpenter, i. e., October 29, 1953. Since it
was my impression from my conversations with the principals while in Kenai
that his employment at that time and in that capacity was in mitigation of possible
back pay liability by that Company in consideration of the charges herein.
Thus, the back pay period extends from September 26, 1953, the date of the
alleged discrimination, to October 28, 1953 the last date which occurs before
Mr. Grant's hire as a carpenter. [Emphasis supplied.]
On June 17, 1954, Manders transmitted to Weil the payroll data concerning the
laborers who had worked for Pomeroy during the period from September 26, 1953,
to October 28, 1953.
On June 17, 1954, Weil wrote Hartlieb saying that he was proceeding with the
computation of the back pay but pointing out that he had not received a report from
the Union as to the action which the Union had taken in compliance with the decree
of the court. Evidently Young's letter of March 10, 1954, had been misplaced. At
a later date General Counsel agreed that it, together with enclosures, had been
received in the regular course of the mail.
On June 22, 1954, Hartlieb on behalf of the Union replied to Weil's letter as
follows:
As to the John Allan Grant case, I know nothing about Mr. Manders objection
to back pay. I am sorry that I am unable to tell you more about the John
Allan Grant case than you already know. I do know this however, that on
March 10, 1954, I caused letters to be written in the case requesting that they
hire John Allan Grant, pursuant to Board order. I also sent a letter to Mr.
Graham, of your office, notifying him that such letters had been sent and that
notice had been posted by the union as required by the Board order. Now, so
far as I know, we have done everything to comply in this case that we have
done in any other case, therefore the only thing I can figure out is that either
our letter of March 10 never reached your office or has never been called to
your attention. In any event, Mr. McFarland will be in Seattle within the next
week and he has in his file copies of these letters of March 10, which I told
7 Company's Exhibits Nos. 9 and 10
8 Company's Exhibit No 12
INTERNATIONAL HOD CARRIERS , ETC. 731
him to call to your attention . At that time you may also confirm his satisfaction
with the figures in the Arquillo and Rock cases .9
Apparently nothing was done further in the matter at that time for on August
30, 1954 , Weil wrote Manders that further action was held up , "awaiting a report
from one of our agents upon additional allegations which may affect the amount
of back pay if found to be based on fact ." Weil stated that he would inform the
Company as soon as he had made a final determination of the back pay due.lo
On October 14, 1954 , Graham , the Regional Director of the Board , wrote a letter
to the Union which changed substantially the status of the case , because this letter
introduced for the first time the present contentions of the General Counsel. This
letter reads as follows: li
GENTLEMEN : In response to reports that the Respondents have failed to com-
ply with the terms of the decree of the Court of Appeals for the Ninth Circuit
in the above designated cases, I have caused an investigation into the status of
compliance to be made, and I have the results of such investigation before me.
It appears from our investigation that with the exception of posting notices
and addressing letters 12 to the Employer Respondents involved in this matter the
Union has failed to comply with the affirmative provisions of the decree. It
appears that the back pay for the period covered by Robinson -Roedel Tile Com-
pany has been agreed upon , but has not been paid .' It appears further that the
back pay for the period covered by J. H . Pomeroy Company, Inc. has been under
discussion and a final figure has not been determined which is acceptable to all
parties. I agree with Mr. Weil that the appropriate method of determining
back pay for this period is on the basis of the average wages earned by the ten
laborers who were hired at the time of the discrimination . This figure is
$272.03.
It appears further that the Union has not complied with Section 2 ( c) of the
order relating to the Union, in that they have not directed and notified the dis-
patcher of the hiring hall to dispatch John Allan Grant without discrimination
and, furthermore , the dispatcher of the hiring hall has not dispatched John Allan
Grant, without discrimination , as provided in the order . For this reason it ap-
pears that the said John Allan Grant should have been dispatched during the
1954 season and it appears , therefore , that inasmuch as he was discriminatorily
refused such dispatch that a further back pay period covering that entire season
exists. Therefore , computation must be made of the amount of back pay which
has accrued during the 1954 season.
A list has been submitted during the investigation of compliance by the Em-
ployer , showing the dispatch of various individuals between March 12, 1954,
through May 24, 1954 . It would appear that if the Union had complied in good
faith with the decree of the Court of Appeals that Mr. Grant would have been
dispatched some time during this period and would have been employed at least
up to and including September 7, 1954.
I therefore recommend to you that you try to agree on a basis for payment to
Mr. Grant of both figures for the year 1953 , and arrive at and agree to a figure
for the year 1954 . I further advise you to comply with that portion of the de-
cree which I called to your attention , at the very earliest possible time. If I have
not been notified within ten days what steps you are taking and have taken to
comply with the decree I shall recommend to the Board that an order be sought
from the U. S. Court of Appeals for the Ninth Circuit, adjudging you to be in
contempt of that court.
Very truly yours,
[Emphasis supplied.]
On October 19, 1954 , Hartlieb replied to Graham that he would answer concerning
compliance by the Union as soon as he had a chance to talk to Mr. McFarland , presi-
dent of the Union , who was at that moment out of town . On October 22, Hartlieb
replied as follows: 13
DEAR SIR : Mr. McFarland has returned to this city and I have discussed the
above case with him this date.
I am informed that the Union has not received any word on what is the final
figure due Mr. Grant from the period covered by Robinson Roedel Company.
9 Union's Exhibit No 5
10 Company 's Exhibit No. 15
11 Union ' s Exhibit No. 6
19 Evidently Young's letter of March 10, 1954 , had been located.
13 Union's Exhibit No 8.
'732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. McFarland states that the Union agreed to be bound by any figure which
was acceptable to Respondent Company. As soon as we are informed by you
as to our indebtedness in the matter we will at once gladly remit.
As to the Pomeroy period your letter states that the figure is $272.03. Does
that figure represent the Union 's share of a total figure or is that figure to be paid
,one half by each of the two respondents involved? Again , as soon as we are
informed as to the amount the Union is responsible for we will gladly remit.
So far as I can ascertain the last word the Union received from your office on
the amount of the indebtedness carried a date line of July 22, 1954 and stated
that the amount due Mr. Grant had not at that date been determined. Mr.
McFarland on July 20, 1954, wrote to Mr. Weil concerning the Rock and Arquillo
cases. In that letter he acknowledged receipt of a directive from your office stat-
ing the amount due from Respondent Union in the Rock and Arquillo cases and
stated to Mr. Weil that the Union awaited a determination upon the amount due in
the Grant case. Since he had received a letter from your office directing him
to pay Rock and Arquillo a certain amount he assumed the same procedure would
be followed in the Grant case. Please be assured that the Union has not inten-
tionally ignored any correspondence from your office.
In regard to Section 2 (C) of the order relating to the Union , I am informed
.that Mr. Oberg , the agent at Kenai, Alaska , was told of the order, told to dis-
patch Mr. Grant and a copy of Exhibit A was posted in the Union Hall. Mr.
(Grant never came into the Union Hall as far as is known nor did he ever give
the Union the opportunity to dispatch him. Sometime during the month of
September Mr. Turnbough of your office suggested that Grant's name be put on
the list. This was done . On September 30th the Union received a letter from
Mr. Grant bearing a Kenai postmark stating that he desired to be put on the
,l ist. This was the first that the Union had had any communication from Mr.
(Grant since the date of the Board Order . The Union has stood ready at all
times and does to this date stand ready to help Mr. Grant find employment but
in fairness to all concerned I believe it should be conceded that before the Union
can help Mr. Grant it must be true that Mr. Grant make himself available.
It is the Union's sincere desire that this matter be closed in the near future to
the satisfaction of all interested parties and it is hoped that the above letter of
.explanation will help to accomplish that end.
Very truly yours,
[Emphasis supplied.]
(Signed) GORDON W. HARTLIEB.
On December 14, 1955, Hartlieb wrote to Walker, Chief Law Officer of the
Regional Office, as follows: 14
A review of our file in the above captioned case reveals that the enclosed letters
were sent to the addressees indicated on the respective letters on the date lines
thereof. We are enclosing these copies for your inspection.
You will notice that in his letter of March 10, 1954, R. K. Young, President of
Local #341 informed the Board what affirmative steps he had taken pursuant
to the Board's order and requested you to inform him if there was anything
further to be done.
In my letter of June 22, 1954, I stated you will notice that we had on March
the 10th, notified the Board what affirmative steps had been taken and so far
as I was aware we had done everything to be done to be in compliance.
It would seem that either your correspondence covering this matter has been
lost or mislaid. I am very sorry that there has been so much trouble over this
case. The Union has from the very beginning attempted to give full cooperation
in this matter and has done everything that it possibly could to cooperate with
the Board and to comply with its orders and you may be sure that we will
continue to do so.
On January 11, 1956, by letter addressed to counsel for the Company, Patrick H.
Walker, Chief Law Officer of the Regional Office, made the position of the General
Counsel clear on the matter of compliance. He wrote to Mr. Thelen as follows, and
enclosed a copy of this letter to Mr. Hartlieb: 15
DEAR MR. THELEN: Upon returning to the office following a vacation I found
your letter of December 21 awaiting my reply. I regret the inconvenience this
delay has occasioned you. This date I am replying also to the December 14
letter from Mr. Hartlieb. In order to coordinate my expressions to each of
14 Union's Exhibit No. 9.
15 Union 's Exhibit No. 10.
INTERNATIONAL HOD CARRIERS, ETC. 733
you I enclose a copy of my letter to Mr. Hartlieb. So, also, a copy of this
letter is being supplied to Mr. Hartlieb. This is a consideration of the several
propositions advanced by you.
1. I agree as stated by you that a conference was held on November 4, 1953,
whereby those in attendance reached agreement that (a) stipulation would
dispose of the allegations of the complaint without necessity for a formal pro-
ceeding, (b) back pay provided for in the stipulation would be subject to equal
payment by the respondents concerned, (c) the amount of back pay then under
discussion would be calculated and submitted for negotiation and approval, (d)^
an agreed sum of $769.40, representing liability of Robinson-Roedel and the
union, and an agreed sum of $272.03 representing liability of Pomeroy and
the union was reached, (f) on December 8, 1954, Pomeroy submitted its check
No. K-1869 in the sum of $260.38; on December 6, 1954 the union submitted
its check No. 179 in the sum of $103.62; on December 9, 1954 Robinson-Roedel
submitted its check No. 999 in the sum of $260.38 and the union submitted its
check No. 180 in the sum of $293.12.
2. Thereafter the executed stipulation was submitted to the Board for its
approval, which effected approval and issued its decision and order on March 3,
1954. Pursuant to the terms of the stipulation as approved by the Board, it
was submitted to the Circuit Court of Appeals for the Ninth Circuit on March
19, 1954.
3. Further, I agree Mr. Manders, on behalf of Robinson-Roedel and Pomeroy
sent a letter to the union dated March 22, 1954 and May 19, 1954 respectively,
requesting the union to dispatch Grant to employment without discrimination.
The letters accord with the requirement of paragraph B (2) (b) of the decree and
order. I concede that the act tolled the liability of each employer respondent
as of the respective dates of the letters. Of course Robinson-Roedel was not
an employer of building laborers in Kenai in 1954.
4. I accept as a fact that the union, by letter dated March 10, 1954, notified
each employer respondent it withdrew objection to employment of Grant. The
union, however, failed or neglected to deliver a like notification to Grant. By
reason of operation of law, liability of the union continued. It necessarily
follows I withdraw my contention that liability also springs from failure or
neglect to make the notification to the employer respondents. By operation of
law I mean to rely upon the decisional doctrine expressed in Local 595, Inter-
national Association of Bridge Structural and Ornamental Iron Workers, 109'
NLRB 73. The principle of law enunciated therein was affirmed by the Court
of Appeals for the Second Circuit in N. L. R. B. vs. IBTCW&HofA Local 182'
decided December 2, 1955.
5. In the course of the 1954 employment season Mr. Grant made direct
application for employment to supervisory employees of Pomeroy in January
and March 1954. The application was rejected in each instance. I do not
contend these applications and rejections resulted in any new discrimination.
This is a reiteration of my expressions to you in my letter of October 26, 1955.
On September 29, 1954, by registered letter to the union, Grant requested
dispatch to employment. No response to the letter was received and no dis-
patching of Grant occurred in 1954. From September 15 to 17, 1954, a staff
member from this office conducted an investigation of the steps undertaken by
the union to effect compliance with the order and the decree. Following that
investigation the Regional Director by letter dated October 14, 1954, advised
the union that full compliance had not been achieved.
I have reviewed the foregoing in detail evidenced herein by reason of your
apparent contention that claim for liability terminated in finality upon the
entry into of agreement to reduce the issues of the complaint to stipulation and
the calculation of back pay to Grant. The claim of back pay beyond the
employment year of 1953 is not a repudiation of the settlement agreement. I
regret you are making such implication. I gather it is your view the settlement
agreement, once consummated, should operate in finality in the same manner
that occurs with respect to settlement agreements in private litigation. The
Act is a public act, hence there are no private rights conferred by it. Also,
the Board order imposes a continuing obligation which operates prospectively
as well as retrospectively. See N. L. R. B. v. Mexia Textile Mills, 339 U. S.
563; Southeastern Rubber Mfg., 213 F.'2d 11; Agwilines Inc. v. N. L. R. B.,
87 F. 2d 146; Nathanson v N. L. R. B., 344 U. S. 25
In the event it becomes necessary to resolve the issue of the claim for back.
pay for 1954 by record testimony, in the pleadings I will allege the facts set
out in paragraphs 1 to 4 herein. Also, I will stipulate the same.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The joint and several liability for 1953 back pay was agreed upon in the
sum of $272 .03. The union submitted its check in the sum of $103.62 which,
together with deductions in the sum of $32 . 39, totals $136 .01, or one half the
figure of $272 .03. The Pomeroy check in the sum of $260 . 38 added to $ 103.62
totals $364 00, or an overpayment of $146.38. Without waiving the joint
.and several liability for back pay but yet recognizing that Pomeroy and the
union had agreed to contribute equally , I would limit the liability of Pomeroy
-for the year 1953 to $136 .02, subject to deduction for employer contribution
to social security.
Very truly yours,
[Emphasis supplied.]
To complete the record of correspondence between the parties, three additional
letters need be mentioned . On September 29, 1954 , Grant , the claimant herein,
sent the following letter to the Union.16
MR. LEO OBERT,
Shop Steward Laborers Union,
c/o Pomeroy Project,
Kenai, Alaska.
DEAR MR. OBERT: I would appreciate very much your putting my name on
the list for hire of laborers.
Due to the fact that I do not know how to contact you, I thought it best to
write you and let you know that I am very desirous of obtaining work. I have
been a permanent resident of Kenai for the past 21/2 years and before this time
a resident of Anchorage and am a married man.
Would appreciate your letting me know how my name stands on the list
and how soon I might except to be called to work.
Very truly yours,
It should be noted in connection with the above that this letter was the first and
only request made by Grant, either personally or by letter , that the Union place him
on its list of unemployed men since the date on which Grant signed the settlement
stipulation on November 10, 1954. It should also be noted that this letter was
dated September 29, 1954 , and that counsel for all parties concede that construction
work in Alaska is seasonal , stopping entirely in the midst of the winter , resuming
gradually in the spring , booming during the summer , and petering out in the fall.
On April 7 , 1955 , R. E. McFarland , secretary -treasurer of the Union , sent the
following letter to Grant: 17
DEAR SmR : This is to notify you that if you will make yourself available fol
work in Kenai , Alaska, you will be sent out on the first call that the steward,
Henry Kamstra , for Local 341 , receives.
It is suggested that you make yourself available in the same manner and at the
same place or places that men on the labor market in the Kenai area make them-
selves available for work.
On the same date, McFarland by letter instructed Steward Henry Kamstra as
follows: 18
DEAR SIR AND BROTHER : You are hereby directed to make a diligent effort
to find one John Allan Grant of Kenai, Alaska, and offer to place him in em-
ployment. Send him out on the first call that you receive for men in the im-
mediate future.
Fraternally yours,
It is admitted that thereafter the Union dispatched Grant to a job on the Pomeroy
project , and that Pomeroy employed Grant , beginning on April 11 , 1955. The
General Counsel makes no claim for back pay for Grant for any time during the
year 1955.
D. The oral testimony
John Allan Grant , the claimant herein , testified as to his efforts to obtain employ-
ment in the vicinity of Kenai during the year 1954 . Because that locality is sparsely
settled , the opportunities for employment except for Government construction
projects is necessarily limited . There is some seasonal work in the fishing , canning,
is General Counsel's Exhibit No 20.
17 General Counsel 's Exhibit No 22.
's General Counsel's Exhibit No. 24.
INTERNATIONAL HOD CARRIERS, ETC. 735
and lumbering industries. According to his testimony, and records in evidence,ia
Grant worked for Libby, McNeill & Libby at Kenai for 2 periods in 1954, for a
total of 10 days. In addition, he worked 1 day for an employer by the name of
Olday. From his detailed narration of efforts to obtain employment, and consider-
ing the dearth of employment opportunities in the Kenai area, it would appear that
Grant made a substantial search for employment. However, he neglected to take
two courses of action which have an important and special significance in this con-
troversy. According to his own testimony, from the date upon which he was laid
off for lack of work on the Pomeroy job on November 14, 1953, until he wrote his
letter to the Union asking that his name be placed on the list of unemployed on
September 29, 1954, he never went to the Union in search of employment, or spoke
to any union officer regarding the same. In his testimony, Grant said that he did
not know who had charge of union affairs in the area, and did not know where union
officers could be met in the Kenai area since the Union maintained no office in
that place. Grant also testified that he did not go to the offices of the Company at
the Wildwood project to ask the Company for work during the entire construction
season of 1954. It should be noted also that in 1952 and 1953 Grant had gone to
the offices of the Company at the project to seek employment, and had been em-
ployed, except for that occasion, which resulted in the tiling of charges herein.
Grant testified that in the early part of 1954 he approached Chumbley, superin-
tendent of the Company, in a saloon known as the Inlet Bar. He asked Chumbley
when the latter was going to have a job for him. Chumbley replied to him, "Go see
your buddy, Weil." When Grant was asked on direct examination if he had other
conversations with Chumbley in regard to a job during the year 1954, his reply was
that he had seen Chumbley frequently in the vicinity of Kenai, had ridden in the
same truck with him, but could not recollect any specific conversation in which he
asked Chumbley for a job, or recollect Chumbley's responses.
Grant also testified that early in 1954 he had a conversation with Adams, superin-
tendent of carpenters on the Pomeroy project, at the post office in Kenai. On
this occasion, Adams told him that the Company was hiring carpenters and that if
Grant saw the business agent for the Carpenters Union and obtained a dispatch,
Adams thought the Company could put him to work. Grant also spoke to Red
Williams, utility superintendent in charge of truckdrivers for the Company, about a
job. Williams replied that as far as he was concerned he would like to put Grant to
work but he didn't want to get into any trouble.
It was also stipulated by counsel that I. C. Chumbley, superintendent on the
project during 1954, who was unavailable at the time of the hearing, if called as a
witness would have testified that it had been the hiring procedure of the Company
since he had been superintendent to request men from the various unions, as they
were needed. Obert was designated as job steward for the Laborers Union about May
7, 1954, to replace James Arness who had left the employ of the Company to work as a
fisherman. It was the Company's practice at the beginning of the season, which in
1954 was between May 1 and 15, to include in the Company's request for men from
the Union, that it dispatch men to the job who had previously worked for the
Company, and that other men were recruited directly by the Company, and that
the Company requested certain men by name from the Union. He said the men
who are hired "off the bank," or not through a union, were assigned to work by the
Company, and advised of the union-shop provisions of the AGC agreement, and
requested to notify the unions of their employment after they actually went to work.
The procedure of hiring through the Union during 1954 was outlined in a letter dated
May 26, 1954, in which certain men were named as having the authority to request
the unions for men. Among those were Chumbley, general superintendent, Adams,
building superintendent, and Williams, utility superintendent. Chumbley's testimony
stated that he would not have considered Grant for employment instead of Arness
during the winter of 1954 because he did not believe that Grant had the experience
required for the job. Arness had a history of intermittent employment with the
Company going back to April 29, 1952. A letter dated May 19, 1954, signed by
Charles D. McVey, office manager for the Company, was sent to Local 341 as
notification to that Union that Grant was to be dispatched without discrimination
to laboring jobs with the Company. Also, pursuant to the Board's Order and the
court decree, the required notice to all members of Local 341 and the notice to all
employees were posted conspicuously on the job site at Kenai.
Chumbley said he remembered speaking to Grant in the Inlet Bar at Kenai during
March 1954. Williams was with him at the time; the conversation was very brief,
and Grant did not ask for a job at that time nor at any other time thereafter.
19 General Counsel's Exhibit No 23.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chumbley specifically denied that he said on that occasion or any other occasion,
"Go see your buddy, Weil."
In addition to the above, it was stipulated that Mrs. Grant, if called as a witness,
would corroborate the testimony of her husband. And it was further stipulated
that if Arness, the union steward, was called he would testify that the Union main-
tained no office or hiring hall at Kenai in the year 1954, and that the successive
stewards in that year on the Wildwood Project were Davidson, Arness, and Obert, and
that the duties of the stewards were ( a) to collect dues, ( b) to note entry payments in
dues books, and (c) to remit collections to the Anchorage office of the Union.
Concluding Findings
Upon all the evidence, I find that the Respondents are jointly and severally liable
for back pay in the sum of $272.03 for the period September 26, 1953, to October
28, 1953. 1 further find that on the last-mentioned date Grant was reinstated to
equivalent employment by the Employer with' the consent of the Union, as evidenced
by the settlement agreement and Weil's letter of June 1, 1954. I also find that the
Respondents have tendered to the General Counsel payment of $272.03, and by that
act have complied in full with the "make whole" provision of the decree of the
Court of Appeals, Ninth Circuit, entered April 30, 1954. I find specifically that no
back pay is due the claimant for the year 1954.
As mentioned previously, counsel for the Respondents have vigorously opposed any
assessment of back pay for the year 1954. Their assault upon the procedure, and
propositions of law, advanced by the General Counsel as the basis for such assessment,
covers a wide front, and, upon examination of the law and the evidence, I must agree
with the Respondent: in many particulars. The Respondents challenge first the
jurisdiction of the Board to make an award of back pay based on their alleged
discriminatory conduct in the year 1954. They point out that the General Counsel's
procedure ignores the decree of the court of appeals, violates the Board's 6-month
statute of limitation on unfair labor practices, and seeks to penalize them for the Gen-
eral Counsel's own dilatory conduct.
I will turn first to the question of jurisdiction. It appears to be clear that where a
court of appeals has issued a decree enforcing the order of the Board, the court
continues to have exclusive jurisdiction over the compliance of the respondents with
that decree. The Board may not, on its own initiative, reopen or modify the re-
medial provisions of the court's decree. In International Union of Mine, Mill and
Smelter Workers v. Eagle-Picher Mining & Smelting .Co., 325 U. S. 335 (1945),
the Supreme Court refused to allow the Board to take such action. The Court
defined the issue presented in that case as:
whether, despite a decree entered at the Board's behest, prescribing the
method of enforcement of the relief granted by the Board, that body retains a
continuing jurisdiction to be exercised whenever, in its judgment, such exercise
is desirable and may, therefore, oust the jurisdiction of the court and recall the
proceeding for further hearing and action. CP. 339.1
The Court then held that the Board's administrative proceeding had merged in the
decree of the United States Court of Appeals, and that the Board no longer retained
jurisdiction over the proceeding to the extent that the decree was final. The Court
then held that the decree was final, pointing out, ". . . here the order was definite and
complete; it contemplated only arithmetical computation." (P. 341.) Thus it was
held that the Board was without power to vacate the decree by itself, and retry and
redetermine issues in the case.
In N. L. R. B. v. Bird Machine Co., 174 F. 2d 404, the Court of Appeals, First
Circuit, further defined the area in which the Board retained jurisdiction to act, after
the entry of such a decree:
In considering what disposition we should make of the pending motion, we
express our agreement with the following remarks of the court in Wallace
Corp. v. N. L. R. B., 4 Cir., 1947, 159 F. 2d 952, 954:
The order of the Board which we have heretofore ordered enforced does
not specifically provide what amounts are to be paid to the employees named
or what positions are to be tendered to them, but covers these matters in
general terms. General orders of this sort entered by the Board with
respect to back pay and reinstatement manifestly contemplate further ad-
ministrative action on its 'part, i. e., determination of the exact amount of
back pay to be tendered and determination as to what positions are available
and substantially equivalent for the purposes of the reinstatement ordered.
Such general orders are analogous to interlocutory judgments of courts
INTERNATIONAL HOD CARRIERS, ETC. 737
fixing liability but leaving for future determination questions as to amount
of liability ; and our decrees affirming or enforcing them are analogous to
our affirmance of interlocutory judgments on appeal . After the general
order of the Board for back pay and reinstatement is affirmed or ordered
enforced by us, the Board must work out the details of reinstatement
and of the amounts to be paid as back pay under the general provisions
of the order . This can ordinarily be done by negotiation ; but, if controversy
arises, the facts must be found by the Board , the body to which Congress
has committed the administrative process.
We agree further , as stated in Home Beneficial Life Ins. Co. v. N. L. R. B.,
4 Cir., 1949, 172 F. 2d 62, that upon the entry of our original enforcement
decree the Board had full power, without additional direction from us, to hold
a further hearing for the purpose of making specific findings and orders imple-
menting the general remedial provisions of an interlocutory character embodied
in the earlier order of the Board . To that extent , the present motion is really
unnecessary.
We have one qualification with reference to the further hearing which the
Board proposes to conduct as to the adequacy of respondent 's action in rein-
stating Favor. As we pointed out in N. L. R. B. v. Draper Corp., 1 Cir., 1947,
159 F. 2d 294, 297, the reinstatement provision of the Board's order , which we
have directed to be enforced , requires "reinstatement of the employee to his
former position wherever possible, but if such , position is no longer in existence
then to a substantially equivalent position ." In other words , if Favor's old
position is still in existence , our earlier decree, without the need of supplemental
definition , specifically commands that respondent offer Favor reinstatement to
that position . If it is the Board's contention that though the old position re-
mains in existence, respondent has failed to offer Favor reinstatement to that
position , the issue thus tendered is whether respondent is in contempt of our
decree. Determination of questions of fact on this issue is not a proper
administrative function of the Board but becomes the function of this court in
contempt proceedings.
As above stated , the Board also asks leave to hold a further hearing with
reference to the form and sufficiency of the notice required to be posted. The
Board's original order in this respect was not interlocutory in character. The
exact form and contents of the notice were prescribed in the order . Unlike the
provision of the order requiring respondent to make the employee whole for
any pecuniary loss he may have suffered by reason of the discriminatory dis-
charge, which was expressed in terms of a general formula , the order for the
posting of a notice called for compliance forthwith ; and did not need any
supplemental findings or order defining the obligation more precisely. Like-
wise, our earlier decree directing the posting of the specified notice called for
compliance forthwith . We understand from counsel for the Board that it is
the Board 's intention to establish that respondent did not post copies of the
notice furnished by the Regional Director, as specifically required by the Board's
order and our enforcing decree, but took upon itself to post its own typewritten
copies of the notice , which typewritten copies were not as conspicuous or impres-
sive as the forms of the notice customarily furnished by the Regional Director.
If this is so, the matter is one for our determination in contempt proceedings;
and if we should find that respondent has violated the specific terms of our decree
as to the posting of the notice , it will be for us to determine what further
steps respondent must take to purge itself of contempt. Such matter is not
appropriate to be remitted to the Board for administrative determination.
With the area of Board jurisdiction clearly marked by these decisions , it appears
that the Board, and a Trial Examiner as its agent, under the instant decree has the
right to conduct a hearing and make a finding as to the amount of back pay due
for the year 1953, which apparently was contemplated by the parties in their settle-
ment stipulation , the Board in its order , and the court in its decree . This I have done.
However, the back-pay specification issued by the General Counsel goes far
beyond that point. By paragraph 5 of the back-pay specification, he seeks to fasten
liability on the Respondents for the year 1954 because of conduct alleged as follows-
Beginning on January 11, 1954 and thereafter, Pomeroy employed building
laborers obtained through the agency of the Union 's dispatching system , but de-
spite a settlement stipulation entered into by and between this Agency and the
Union and Pomeroy on December 15, 1953, whereby the Respondents agreed
4 2 3 7 8 4-. 7-v o 1 117-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to discontinue certain discriminatory hiring practices, the above Respondents
did in fact continue these practices in January 1954 and thereafter in that Pome-
roy refused to hire John Allan Grant unless he was dispatched by the Union
and the Union refused to dispatch John Allan Grant to Pomeroy until the dates
hereinafter set forth. [Emphasis supplied.]
By paragraph 6 of the specification the General Counsel alleges that Pomeroy did
not notify the Union by letter that "Grant was to be dispatched without discrimina-
tion" until May 19, 1954, and by paragraph 7, that the Union did not dispatch Grant
until April 11, 1955. He concludes that because of that conduct, the Company is
liable for back pay up to May 19, 1954, and the Union up to April 11, 1955.
The issues raised by those allegations, in my opinion, are clearly of a type within
the exclusive jurisdiction of the court of appeals, for it is undisputed here that the
settlement stipulation was approved and incorporated into the Board's Order, which
in turn was merged in the court's decree. Therefore, I am constrained to dismiss the
General Counsel's claim for back pay during 1954. If these Respondents continued
to engage in the same discriminatory conduct toward Grant in 1954, as they had
practiced against him in 1953, that certainly presented a question for resolution in
contempt proceedings before the court. The same reasoning would apply to a new
offense of a similar nature committed after the entry of the decree; for by its terms the
decree forbade such conduct.
The Respondents also point out that the General Counsel's procedure here violates
the 6-month statute of limitations imposed on unfair labor practices by the Act.
Counsel for the Respondents concede that if they committed an unfair labor practice
toward Grant in 1954, the General Counsel could have proceeded against them in
contempt before the court, or, upon a new charge duly filed, could have prosecuted
them again before the Board. They point out that he elected to do neither, but now
seeks to prove against them in this proceeding, conduct against which the statute of
limitations has long since run. Again, I am constrained to agree with Respondents.
A back-pay specification is not a substitute for a charge duly filed and a complaint
duly issued, nor in a proceeding based on such a specification can charges of new
discriminations be heard.
It is the principal contention of the Respondents that they have acted in good faith,
and have promptly complied with the decree of the court and the order of the Board,
but that the General Counsel in this proceeding has repudiated his settlement stipu-
lation and seeks by adding provisions to the court's decree to hold them responsible
for back pay in the year 1954.
It appears to me that the claim of the General Counsel in this proceeding is based
on a fundamental misunderstanding of the nature of the administrative remedies.
This may be seen clearly in his brief, which sets up his four principal points in the
following language:
The argument on which this position is based may be summarized as follows:
1. This proceeding is based on a Board Order and Court Decree. These
should be interpreted in the same manner as any other Order and Decree without
regard to the fact that they are based on a Settlement Stipulation rather than
the facts adduced at a hearing.
2. The cases establish that back pay liability of the Union continues to the
date when it notifies the discriminatee , as well as the employer, that it withdraws
its objections to his being hired by the employer. The Union did not so notify
Grant until April 7, 1955.
3. Apart from the Union's failure to notify Grant of its withdrawal of ob-
jections, and even if the Order and Decree are to be considered in conjunction
with the Settlement Stipulation, back pay runs until the Settlement Stipulation
has been fully carried out. This was not done until the Union in April of 1955
notified its steward at Kenai to dispatch Grant without discrimination.
4. The amount of back pay due for 1954 should be fixed at the figure com-
puted by General Counsel and set forth in the Back Pay Specification. This
computation is based on figures the accuracy of which is not challenged . During
the entire period for which back pay accrued Grant was able to work, was avail-
able for work, and was diligently seeking employment. [Emphasis supplied.]
At another point in his brief General Counsel applies the same theory to the liability
of Pomeroy , stating, "Pomeroy on May 19, 1954, posted the notices required (TR.
14). It is also conceded that on the same day, Pomeroy notified the Union that
Grant was to be dispatched to laboring jobs with it without discrimination. Gen-
eral Counsel admits that this action tolled the running of back pay as to Pomeroy
after that date... .
INTERNATIONAL HOD CARRIERS, ETC. 739
Provisions in Board orders and court decrees, directing the reinstatement of
discriminatees and the payment, of money to make discriminatees whole, are
remedial in character, not penal. Back pay ceases to run on the day when a
discriminatee is reinstated to his former job or one of genuine equivalence. No
one has ever claimed that back pay is a form of penalty that runs until the final
act of compliance with the Board's order or court decree is accomplished. The
remedial plan of the various provisions contemplates that discriminatees will be
quickly reinstated, which tolls the running of back pay, and that thereafter the
amount of back pay to make the discrimmatee whole will be computed, and for a
certain length of time, usually 60 days, certain notices will be posted by the
offending respondents. Back pay is not a penalty which runs or accrues until the
last act of compliance is performed; it is not a device used to spur respondents to a
prompt compliance with the Board's order or the court's decree. Reinstatement is
the first objective of the remedy because it ends the discrimination and restores the
status quo. It is contemplated that the computation of back pay, and the other
acts of compliance, will be performed promptly but at a later date Here, the
General Counsel and the parties, in settling the issues raised by the charge and the
complaint, first accomplished the reinstatement of Grant, and then executed the
settlement agreement, providing for such other remedial action as the General
Counsel requested. At the time that Grant returned to employment as a carpenter,
,back pay ceased to accrue. This is clear from the fact that the settlement stipulation
carries no provision for reinstatement of Grant by the Company, and the unequivocal
language of Weil's letter of June 1, 1954. The settlement stipulation also carried
no provision that the Union notify Grant that it withdrew its objection to his
employment by Pomeroy. It is obvious, and I find, that the parties tailored the
remedial provisions of the stipulation to fit the facts, and their knowledge of the
situation. The provision for reinstatement was omitted because Grant had been
reinstated. Notice to Grant of the Union's withdrawal of objection to his employ-
ment was omitted because he was already at work with the consent of the Union,
and was a party to the settlement stipulation which was express notice by Pomeroy
to the Union, by the Union to Pomeroy, and by both Respondents to Grant, that
he was to be employed without discrimination.
The General Counsel concedes that after his reinstatement as a carpenter Grant
was employed by the Company until his job was terminated without discrimination
at the end of the construction season.
At that point, Grant's employment relationship with the Company and the Union
was the same as that of all other men employed on the project. It is not disputed
that the hiring of men on construction jobs in Alaska proceeded on a day-to-day or
seasonal basis; there was no seniority system maintained by either the Company or
Union which gave Grant or any other employee a preference or priority to a job at
the start of work in the spring of 1954. When Grant finished the season of 1953,
he and all other men on the job were in the same position; their job for 1953 had
come to its normal conclusion and no one had any preferential rights to a job in
1954. But. Grant and all other men similarly situated were protected in the 1954
season by the court's decree to the extent that when any of them rea""ested dispatch
in 1954 the Union was required to dispatch them without discrimination.
It is at this point that Respondents charge that the General Counsel has repudiated
the settlement stipulation- and modified the court's decree. The General Counsel
denies the charge but asserts that "by operation of law" additional terms must be
read into the court's decree which required that the Union (1) send copies of its
letters withdrawing objection to Grant's employment to Grant; and (2) notify the
dispatcher at Kenai to dispatch Grant without discrimination, and actually dispatch
him, even without a request by Grant for such dispatch. Accord,*ng to the General
Counsel's theory. Grant was not required in 1954 to ask either the Union for
dispatch, or the Company for employment. In 1955. after it was apprised of the
General Counsel's claim for back pay for 1954, the Union "diligently sought out"
Grant and dispatched him, and Pomeroy hired him. Only then, under the General
Counsel's theory, did back pay cease to accrue against the Union.
I can find no leeal basis for any such continuous liability in the court's decree.
The General Counsel has cited cases 20 to support his theory that by "operation of
law" the Respondents were required to do more than comply with the express
written terms of the court's decree. The cases are inapposite for they deal with
efforts of unions to toll the running of back pay, absent reinstatement of the discrimi-
2OLocal Union 595. International Association of Bridge. Structural and Ornamental
Ironworkers , 109 NLRB 73 ; Roadway Empress . Inc., 108 NLRB 874; N. L. R. B. v. Inter-
national Brotherhood of Teamsters . Local 182, 228 P . 2d 83 (C. A. 2).
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
natee, and prior to a hearing by the Board. Here, Grant had been reinstated, and,
the Board and the court had specifically stated what Respondents were required to
do. After that, there was no legal authority anywhere, except in the court, to
amend, modify, or alter the terms of the court's decree. The decree did not require
copies of letters be sent to Grant, nor did it require that he be diligently sought out
by the Union and, absent a request for dispatch, be dispatched nevertheless, or that
Pomeroy reinstate Grant in 1953, or hire him again in 1954. Therefore, the Re-
spondents were required to do none of those acts. The terms of the court's decree
were clear and final. If Respondents complied in good faith with those terms, that
was all they had to do. And on the evidence here presented, I find that the General
Counsel has failed to prove that the Respondents did not comply with the decree of
the court in any particular. However, as I have pointed out, in my opinion, the
court is the only tribunal which can judge whether or not the Respondents have
complied with its decree. All of the above discussion merely demonstrates how far
from a mathematical computation of back pay we have wandered in this proceeding.
The fallacy in the General Counsel's position is illustrated by his computation as,
to Pomeroy. He holds Pomeroy liable for back pay until May 19, 1954. The decree-
of the court was entered on April 30, 1954, and served on Pomeroy on May 4, 1954.
Yet, the General Counsel charges Pomeroy for back pay for a period prior to the
court's decree beginning January 11, 1954. In other words, the Company is charged
with the time it took the General Counsel to obtain a final decree from the court.
Fifteen days after receipt of the court decree Pomeroy had complied with all pro-
visions of the decree except back pay, even according to the General Counsel's present
contention. That appears to me to be prompt compliance. Yet the General Counsel
would charge Pomeroy for back pay from January 11, 1954, to the date on which it
notified the General Counsel of its compliance.
One other consideration need be mentioned here. It is undisputed that in 1954
Grant never applied to the Union for dispatch until his letter of September 29. It
is also undisputed that the General Counsel in all his correspondence with the
Respondents up to October 14, 1954, never informed the Respondents that a further
dispatch or further hiring of Grant was necessary under the General Counsel's inter-
pretation of the court decree. The Regional Director's letter of that date states
"that inasmuch as he was discriminatorily refused such dispatch, that a further back
pay period covering the entire season exists." In this record there is no evidence
that the Union ever refused to dispatch Grant in 1954. If the letter of September
29, and the Union's failure to answer it, is considered a refusal, it took place at a
date subsequent to September 29, 1954. By what logic then can this alleged refusal
start back pay running as of January 11, 1954?
In conclusion, it appears to me that this controversy arose because of Grant's
peculiar conduct in 1954. He had received jobs in 1952 and 1953 by going to the
Pomeroy project and applying for work. After he was reinstated as a carpenter,
he finished the 1953 season for Pomeroy, and apparently he was not disturbed in
that employment by the Union. Furthermore, he also understood that the Union
had to dispatch him without discrimination if he applied for dispatch. Yet, accord-
ing to his testimony, he did not go out to the office of Pomeroy at the project, or
go near any union official. According to his testimony, during 1954 he sought
employment far and wide on the Kenai Peninsula, but he did not go to the two places
where he could reasonably expect to obtain employment. In his testimony he
explained that he did not seek out any union representative because he did not
know where they could be found, and because the Union had no office in Kenai.
He said that he did not go to the office of Pomeroy because there were security
guards at the gate and it was not easy to gain entrance to the project. He did not
say that he was refused admittance. Grant's reasons for not seeking out the repre-
sentative of the Union and for not going out to the project are not credited by me.
Grant's only effort to obtain employment was his chance conversation with
Chumbley in the Inlet Bar, and his chance conversation with Williams, superintendent
of truckdrivers, while hitching a ride with Williams. Viewing these conversations in
the light of the circumstances in which they occurred, I am not persuaded that they
constitute an application for employment by Grant, and a discriminatory refusal of
employment by Pomeroy. The casual, offhand quality of these remarks prevents
such a finding, especially in view of Grant's failure to seek out the Union's representa-
tives, or to go to the offices of Pomeroy at the project. On September 29, he ad-
dressed a letter to the union representative at the Wildwood project, and the Union
received it. The record does not disclose why Grant waited so long to write this
letter, or indeed why he wrote it when he did. In point of time it followed closely
upon the "investigation" into compliance referred to in Walker's letter of January
ROYAL McBEE CORPORATION 741
11, 1956.21 But the fact that it was written at all was a tacid acknowledgment that
-Grant realized that he could not expect the Union to dispatch him until he made
himself available for dispatch, and asked for dispatch.
In 1955 the Union, faced with a back-pay claim for the entire season of 1954,
requested Grant to make himself available, and instructed its steward to diligently
seek out Grant, and dispatch him to the first available job. That conduct of the
Union was clearly not required by the court's decree, and contrasts sharply with
Grant's inactivity in 1954.
I find that Grant did not make a diligent search for employment in 1954, because
he did not seek employment either through the Union or at the Pomeroy project.
From this record, which shows that the Respondents at all times were acting in good
faith, no inference can be drawn that Grant's application to either Respondent would
have been futile. On the contrary, the correspondence between the parties exhibits a
desire on the part of counsel for the Respondents, and the Respondents themselves,
to abide by their stipulation and obey the order of the Board and the decree of
the court Furthermore, it appears to me that if the General Counsel had informed
the Respondents at the beginning of the 1954 season that, in his opinion, the decree
required the Union to diligently seek out Grant and dispatch him to a job, and
required Pomeroy to hire Grant for the 1954 season, the Respondents at that time
would have complied with that requirement, just as they did a year later. But the
General Counsel did not advise the Respondents of his interpretation of the decree
until October 1954, a time near the end of the construction season. I think it would
be inequitable and, unjust to impose back pay of $7,115.61 against these Respondents
under those circumstances.
I find that the General Counsel has failed to establish by a preponderance of the
evidence that either of the Respondents owes Grant any back pay for the year 1954.
Since the back pay for 1953 has been computed correctly, agreed upon by the
parties, and tendered by the Respondents, I hereby dismiss this proceeding, for all of
the reasons stated above.
21 Union's Exhibit No. 10
Royal McBee Corporation and Athens Bindery Workers Union,
Local No. 181 , International Brotherhood of Bookbinders,
AFL-CIO , Petitioner . Case No. 9-RC-2912. March 22,1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF ELECTION
On December 20, 1956, the Board issued its Decision and Order
herein.' The Board found, among other things, that the contract be-
tween the Employer and Athens Printing Pressmen & Assistants'
Union No. 269, International Printing Pressmen & Assistants' Union
of North America, AFL-CIO, the Intervenor, was effective from
November 1, 1954, to October 31, 1956, and thereafter from year to
year in the absence of a 60-day notice; that apparently no such notice
was given and that the contract was thus automatically renewed in
accordance with its terms; and that the petition herein was filed on
September 25,1956. The Board also found, substantially in accordance
with the Intervenor's contention at the hearing, that the contract cov-
ered the categories sought herein by the Petitioner-the papercutters,
both journeymen and apprentices, employed by the Employer at its
I Not reported in printed volumes of Board Decisions and Orders
117 NLRB No. 111.