J. J. Hagerty, Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1969

174 N.L.R.B. 147 (N.L.R.B. 1969)

J. J. HAGERTY
J. J. Hagerty , Inc. and Peter Batalias
Nassau and Suffolk Contractors ' Association, Inc.
and Garnett Nagle and Employer-Members of
Nassau and Suffolk Contractors ' Association, Inc.
listed in Appendix A of the Complaint , Parties in
Interest
J. J. Hagerty , Inc. and Thomas Eichacker
John C. Peterson Construction Co. and William
Herbert Wilkens
Nassau and Suffolk Contractors' Association, Inc.
and its Employer-Members Listed in Appendix A
of the Complaint ; Welfare Fund of Local 138,
International Union of Operating Engineers,
AFL-CIO, and Trustees William C. DeKoning,
Girard Douglas, John Gunning, Verner Sofield,
John Buchanan , Edwin Regnell , Jr., Paul Roche
and Herman Switzer and Robert Christensen and
Local 138 , International Union of Operating
Engineers, AFL-CIO; Building Trades Employers
Association of Long Island , Inc., and its
Employer-Members Listed in Appendix B of the
Complaint , Parties in Interest
Local 138, International Union of Operating
Engineers, AFL-CIO and Peter Batalias and
Garrett Nagle and Thomas Eichacker and William
Herbert Wilkens and Nassau and Suffolk
Contractors' Association , Inc. and its
Employer-Members listed in Appendix A of the
Complaint ; Building Trades Employers Association
of Long Island , Inc., and its Employer-Members
Listed in Appendix B of the Complaint , Parties in
Interest
Local 138 , International Union of Operating
Engineers , AFL-CIO and Robert Christensen and
Nassau and Suffolk Contractors ' Association, Inc.,
and its Employer-Members listed in Appendix A of
the Complaint ; and Building Trades Employers
Association of Long Island , Inc., and its Employer
Members listed in Appendix B of the Complaint,
Parties in Interest
Local 138, International Union of Operating
Engineers, AFL-CIO; and Welfare Fund of Local
138, International Union of Operating Engineers,
AFL-CIO, and its Trustees William C. DeKoning,
Girard Douglas, John Gunning, Verner Sofield,
John Buchanan , Edwin Regnell, Jr., Paul Roche
and Herman Switzer and Robert Christensen and
Nassau and Suffolk Contractors' Association, Inc.,
and its Employer-Members Listed in Appendix A
of the Complaint and Building Trades Employers
Association of Long Island, Inc., and its
Employer-Members Listed in Appendix B of the
Complaint, Parties in Interest . Cases 29-CA-6
(formerly 2-CA-6301), 29-CA-7 (formerly
2-CA-6302), 29-CA-8 (formerly 2-CA-6323),
29-CA-9 (formerly 2-CA-6376), 29-CA-16
(formerly 2-CA-7474), 29-CB-5 (formerly
2-CB-2423), 29-CB-6 (formerly 2-CB-2424),
29-CB-7 (formerly 2-CB-2440), 29-CB-8 (formerly
2-CB-2472), 29-CB-9 (formerly 2-CB-2931), and
29-CB-10 (formerly 2-CB-2948)
February 28, 1969
147
ORDER REMANDING BACKPAY
PROCEEDING FOR FURTHER HEARING
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On October 31, 1962, the National Labor
Relations Board issued a Decision and Order in the
above-entitled case,' directing, inter alia, that
Respondent make whole certain discriminatees for
losses suffered as a result of discrimination against
them. Thereafter the Board's Order was enforced, as
modified, by the United States Court of Appeals for
the Second Circuit.2 Following the issuance of a
Backpay Specification a hearing was held before
Trial Examiner George L. Powell who issued a
Supplemental Decision on October 31, 1966. Upon
a motion duly made by the General Counsel, and
granted by the Board, the case was reopened on
October 12, 1967. The Trial Examiner continued a
further hearing on this case, herein called J. J.
Hagerty, pending completion of the remanded
supplemental proceeding in a related case, herein
called Nassau-Suffolk.3
In the course of the hearing in Nassau-Suffolk,
Respondent Union, Local 138, made a settlement
offer in the two backpay proceedings The offer, in
essence, contemplated the payment of $95,000 to be
distributed to the discriminatees as settlement for all
backpay claims, contingent upon the Board
withdrawing a civil contempt proceeding it had
initiated, through the General Counsel, against
Respondent Union, Local 138, on August 8, 1967,
in the United States Court of Appeals for the
Second Circuit. Thereafter, as more particularly set
out in the companion case, Local 138, International
Union of Operating Engineers, AFL-CIO (Nassau
and Suffolk Contractors' Association, Inc. )4 the
Trial Examiner, closed the record in the instant case
and in Nassau-Suffolk, and indicated his intention
of recommending that the Board accept the
proposed settlement.
On May 16, 1968, the Trial Examiner issued his
Second Supplemental Decision and Recommended
Order, in which he recommended that the Board
approve the settlement of the J. J. Hagerty and
Nassau-Suffolk cases for the sum of $95,000
distributed pro rata to the discriminatees in
proportion to their interests, as set out in his
Decision, and he further recommended the Board
move for the withdrawal of the pending civil
contempt proceedings. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent,
'139 NLRB 633.
'321 F 2d 130
'Local 138, International Union of Operating Engineers, AFL-CIO,
Cases 29-CB-1, 2, 3, and 4-,29-CA-1, 2, 3, 4, and 5
4174 NLRB No. 111.
174 NLRB No. 112
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 138, filed an answering brief in opposition to
the General Counsel's exceptions.5
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
In his exceptions and brief the General Counsel
requests the Board to reject the proposed settlement, 6
and remand the cases herein to the Trial Examiner
with direction to reopen the record for the purpose
of permitting General Counsel to complete
presentation of evidence on the backpay
specification and the Respondent to present its
defense.
For the reasons set forth in the Nassau-Suffolk
decision? the Board finds merit in the General
Counsel's excpetions. Accordingly, we shall remand
this case for the purpose of taking evidence pursuant
to our order of October 12, 1967.
IT IS HEREBY ORDERED that the record in this
proceeding be, and it hereby is, reopened, and a
further hearing be held before Trial Examiner
George L. Powell for the purpose of taking evidence
pursuant to the Board Order of October 12, 1967.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 29 for the purpose of arranging such
further hearing, and that the said Regional Director
be, and he hereby is, authorized to issue notice
thereof; and
IT IS FURTHER ORDERED that, upon conclusion of
the hearing, the Trial Examiner shall prepare and
serve upon the parties a Third Supplemental
Decision and Recommended Order, and that
following the service of such Third Supplemental
Decision and Recommended Order upon the parties,
the provisions of Section 102.46 of the Board Rules
and Regulations, as amended, shall be applicable.
'The Charging Parties filed no formal exceptions or briefs to the Trial
Examiner ' s Decision. See fn . 7, Local 138, International Union of
Operating Engineers , AFL-CIO (Nassau and Suffolk Contractors'
Association, Inc), 174 NLRB No. I1 1 .
'The General Counsel does not oppose a settlement limited to the
payment of $95,000 to the discriminatees , but objects to conditioning this
with a withdrawal of the contempt proceeding which he avers should be
settled independently.
'Fn. 4, supra.
TRIAL EXAMINER'S SECOND =
SUPPLEMENTAL DECISION AND
RECOMMENDED ORDER
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner. The issue
involved in these cases, herein called J. J. Hagerty, at this
time is whether the Board should accept a money
settlement including the withdrawal of a pending civil
contempt proceeding,' which withdrawal is opposed by the
General Counsel. For the reasons hereinafter set forth, I
recommend Board approval of the proposed settlement
including a petition to withdraw the pending civil
contempt matter.
Also involved in the same settlement is a series of other
backpay cases herein called Nassau-Suffolk,z pending
before this Trial Examiner for which a separate Trial
Examiner's Second Supplemental Decision and
Recommended Order is issuing simultaneously with this
Decision.
Background
The decision of the National Labor Relations Board,
herein called the Board, in which the unfair labor
practices were found and for which the remedy therefor
gave rise to this proceeding, is reported at 139 NLRB 633
(October 31, 1962).
The United States Court of Appeals for the Second
Circuit, herein called the Court, enforced the Boards'
Order in a decision reported at 321 F.2d 130. Chief Judge
Lumbard summarized the cases as follows:
III. DISCRIMINATION AGAINST PARTICULAR MEN
The trial examiner [Ralph Winkler] found that Local
138 violated Sec. 8(b)(1)(A) and (2) of the act by failing
to refer employees Batalias, Nagle, Eichacker, and
Christensen on the same basis as other men, and
further violated Sec. 8(b)(1)(A) by threatening
employees Nagle, Christensen and Wilkens that they
would be denied referrals.' The Board sustained these
findings. All of the above employees are identified in
the union as members of a Reform Group; each has
participated in one fashion or another in previous
congressional or board proceedings against the union.
All except Christensen are members of the union;
Christensen was a "permit man" until July 1959, when
he stopped paying the permit fee. The union does not
deny that these men were not referred to jobs during
the periods in question. It asserts, however, that they
were not discriminated against and that their failure to
secure jobs was due to nonpayment of dues or (in the
case of Christensen) permit fees, failure to file
out-of-work cards, lack of qualifications for the jobs
available, and so forth. Against this is the testimony of
the men that they had done everything required of them
and were otherwise qualified to obtain jobs and would
have done so but for the union's discrimination against
them. All but one of the men testified to conversations
with union officials, who were reported to have said in
blunt language that the men would not be given jobs so
long as their reform activities continued. The union
officials who testified denied that these conversations
took place.
[12-15] We cannot overturn reasonable -credibility
determinations made by the trial examiner and accepted
by the Board. The union's argument that it offends
common sense to assert "that union officials, knowing
of the propensity of these men for filing charges with
the Board would repeat in almost identical language the
very acts condemned by the Board," Brief p. 9, would
have more force if Local 138 did not have a history of
persistent violations. We grant enforcement of the
IN L R.B v. Local 138, IUOE, 71 LRRM 2335, before the United
States Court of Appeals for the Second Circuit.
'Local 138, International Union of Operating Engineers , AFL-CIO,
(Nassau and Suffolk Contractors ' Assn J, Cases 29-CB-1, 2, 3, and 4, and
29-CA-1, 2, 3, 4, and 5.
'The trial examiner found that the evidence did not sustain the charge
that Wilkens had in fact been denied referrals by the union
J. J. HAGERTY 149
Board's order that the union cease and desist from
discrimination or threatening to discriminate against
these men, and that it give appropriate notice to that
effect. In addition, we grant enforcement of the order
that the union, as directed by the Board, make Batalias, °
Nagle, Eichacker, and Christensen' whole for any loss
of pay rising from the discrimination against them.
'Batahas was transferred in December 1958 from one construction job
for the Peterson Construction Co. to another job of shorter duration The
Board found on substantial evidence that the transfer was due to his
reform activities and found , contrary to the trial examiner that Peterson
rather than the union was responsible Peterson has not appeared in this
appeal . We grant enforcement of the Board ' s order directed against
Peterson , including the provision that Peterson make Batalias whole for
any loss resulting from the discriminatory transfer We grant enforcement
also of the provisions requiring the union and Peterson , jointly and
severally with the union primarily liable, to make Batalias whole for any
loss caused by Peterson ' s failure to re-employ him later, this being
primarily the responsibility of the union as was the union's attendant
failure to refer him to other jobs
'In the case of Christensen , his failure to pay permit fees were excessive
and, in any event, there was discrimination against permit men,
Christensen ' s nonpayment of fees does not absolve the union of
responsibility for his failure to find work.
On October 31, 1966, Trial Examiner George L. Powell
issued his Supplemental Decision (TXD-646-66) following
a five-day trial between May 2 and 6, 1966, instituted by
the filing of a Backpay Specification on August 20, 1965
This decision was pending before the Board on exceptions
duly filed at the time the Court remanded the said
Nassau-Suffolk case to the Board. Upon motion duly
made by the General Counsel, and granted by the Board,
this case was reopened on October 12, 1967 and was
continued until the completion of the case of
Nassau-Suffolk.
On January 9, 1968, while testifying in the remanded
Nassau-Suffolk case, William Wilkins made the following
extemporaneous statement.'
THE WITNESS [Wilkins]: May I say something for
the record, and I hope I'm not out of order in saying
this, and I hope I can control myself without breaking
down.
I would like to say, I am a union man for over
twenty years, and this fight has been going on for
thirteen years, and here about five weeks ago we had
what we felt was the opportunity of settling.
You were gracious enough to let a committee of the
union, and a committee headed by me to sit down and
work this out. We were more than -willing to settle it.
Now we were informed money was no object. Don't
you smile and laugh at me, you did that for ten years.
TRIAL EXAMINER: You are referring to Mr.
Corcoran?
THE WITNESS: To Mr. Kutner [attorney for Welfare
Fund, Local 138] I am referring to. We had a golden
opportunity to settle this. I think this is a disgrace, that
a case like this can go on year after year after year,
with lawyers asking us these questions one hundred
times over and getting the same answers.
My book is an open book. The members of my
group was an open group. We felt like it was time to
settle it, stop fighting, and we still feel that way, but all
I can say in all honesty is what you are doing here is
creating an atmosphere of ill feeling.
We are not creating a good atmosphere here. I have
a counsel here, he's a learned man, he's a learned man.
'Transcript pp. 1848-50 . At this point of time in the trial, about two
more weeks were estimated to complete the testimony in Nassau-Suffolk
and commence the testimony in the instant case of J. J Hagerty
Aren't we big enough, grown enough to sit down with
you and with Mr. Bernie and my committee to sit down
and work this out? Before we have to go through
Supreme Court and'contempt actions and thousands of
dollars being wasted. Why is the why is this
necessary? What are you looking for? What are you
people looking for? You keep us working, we are the
happiest guys in the world, we couldn't care less what
you have, a million dollars or a penny. Why are we at
this stage of the game?
I am 45 years old, I am the youngest of the group,
so it doesn't matter to me if we take another ten years,
twenty years, where's it going to go?
Records, you speak of records We have nothing to
hide. You keep saying you have nothing to hide. Where
are we going to go, to another court, another avenue, to
the NLRB for the next ten years?
TRIAL EXAMINER: We hope this is the last case
before the NLRB on this.
Whereupon the parties again discussed settlement
during the luncheon recess and when the trial resumed
thereafter the Trial Examiner summarized the settlement
package as follows:
TRIAL EXAMINER: On the record.
Let the record note that since we recessed for lunch
the parties have been together discussing settlement and
not only among themselves but with their principals,
and at the present time it seems that they are in
agreement on a full package deal, which means that
this case and the J. J. Haggerty [sic] case, and the
present pending contempt case is a package to be all
wound up in one complete settlement on compliance.
At this point the sum of $95,000 had been agreed upon
by the Charging Parties and the Union to settle the two
backpay cases of Nassau-Suffolk and J. J. Hagerty and
the pending contempt case in a package deal in order to
"bury the hatchet." The last obstacle toward settlement
had been removed. The Trial Examiner, under these
settlement circumstances, found it inadvisable to continue
the examination of Wilkins and of the other two witnesses
and recessed the case until January 30, 1968, to permit the
settlement to be reduced to writing. Mr. Fitzpatrick,
counsel for the Charging Parties, advised that Mr.
Wagman, the attorney for the General Counsel handling
the contempt matter, would arrive from Washington, D C.
the following day for the purpose of working out the
necessary stipulation as to the contempt matter. He also
agreed to join the Union in requesting a withdrawal of the
contempt matter in order to settle the three proceedings.
Mr. Berry, Counsel for the General Counsel objected to
any recess saying,
Although the parties may have, agreed upon the
amount of money which will be paid to discriminatees
to settle this case, the Nassau and Suffolk Contractors
Association case and the J. J. Haggerty case, this
settlement, in my understanding, is basically made
contingent upon a package of a settlement of these two
cases along with the outstanding contempt proceeding
now pending over in District Court.
His objections were overruled by the Trial Examiner. The
Trial Examiner, Mr. Corcoran, Union's counsel, and Mr.
Fitzpatrick, Charging Parties' counsel, agreed to hold
themselves available ... "to try to iron out any possible
hurdles that may [yet] be involved . in this matter."
Mr. Fitzpatrick, Mr. Corcoran (and officials of the
Union), and the Trial Examiner did hold themselves in
readiness the following day but were not called to assist
the General Counsel.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 30, 1968, the Nassau-Suffolk case reopened The Instant J. J. Hagerty Case and Nassau
-Suffolk
with all counsel of the cases of J. J. Hagerty present Inasmuch as the proposed settlement between the
pursuant to advance notice given . No witnesses were Charging Parties and the Union involved not only a joint
called as the Trial Examiner wished to see how the attempt to cause the withdrawal of the pending contempt
settlement had progressed . It turned out that virtually matter but provided for the settlement of the
nothing had happened between the date of recess on Nassau-Suffolk and the J. J. Hagerty cases for the sum,
January 9 , 1968, until January 30 , insofar as writing up of $95,000 , it is necessary at this point to outline the
the settlement terms which had been agreed upon on backpay awards made in the proceedings in J. J. Hagerty
January 9 . The General Counsel refused to seek a and Nassau-Suffolk Three of the same employeeswithdrawal of the contempt proceeding from the United involved in Nassau-Suffolk, that is Batalias , Eichacker,
Stateswhere Circuit at Appeals for the Second
u he e Walter
Circu it and Nagle, are involved in backpay in the J. J. Hagerty
s case , plus an additional employee Robert Christensen. Thewhere
Bruckhausen, Unite
d awaitingwas process ing
D York, although st as noted
Judge
under for r
above the
J dge
istrict of New
riot of Nited States District amounts of backpay found to be due each discriminatee in
thist was to
to
J T. Hagerty and the liability therefore is as follows:wo oldh tsettling t efbe part of the package o
(Nassau-Suffolk was 14 years old) cases for $95,000. And
indeed the General Counsel had served on the Union, a
stipulation of four pages (plus a seven page Appendix plus
a two page notice to be posted) in which in essence: (1)
the Union was to admit its guilt of civil contempt of the
two Circuit Court decrees involved; (2) post the said
notice; (3) notify the Charging Party, Peter Batalias (the
same Peter Batalias involved in the two backpay cases,
who brought the charge which led to the civil contempt
proceeding); (4) pay Batalias $500 to make him whole for
the matter involved in the Civil Contempt proceeding; (5)
pay the Board $1,500 for costs and expenditures in the
civil contempt proceedings; (6) make hiring and referral
system records available (at the request, of the Regional
Director of the Board ) for inspection, copying,
Name Amount
Payable
Payable
by whom
Batalias $ 307.06 Peterson4 Jointly
Batalias $ 4,503.23 and
Union
with
severally by
and Peterson
the Union
Primarily liable.
Batalias $22,551.01 Union
Christensen 4,737.45 Union
Eichacker 8,757.00 Union
Nagle 4,787.00 Union
photographing, or microfilming; (7) also upon request of
the Regional Director of the Board, make available for The amounts of backpay found to be due each
interview and depositions the three named dispatchers and discriminatee, with the Union primarily liable, in
all who acted under them; and to take the certain Nassau-Suffolk is as follows:
affirmative actions set forth in the seven page appendix
being, apparently, a complete blueprint of the way the
Regional Director of the Board wanted the hiring hall to
be run by the Union.
A second, entirely separate stipulation having no
reference to the contempt proceedings but involving only
the two backpay cases was also served on the Union by
the General Counsel. Both stipulations were sent counsel
for the Union with a transmittal slip dated January 18;
1968, asking counsel to contact Mr. Kaynard (Regional
Director) or Mr. Richman (Regional Attorney). The
Union immediately informed the Regional Director that
the settlement proposed by him of the contempt case
Peter Batalias $16,123.00
Albert J. Bruder 13,266.00
John H. Dekoning 3,194.85
Thomas Eichacker 12,490.00
Walter W, Miller 9,277.20
Garrett Nagle 9,666.00
Charles Skura 13,069.00
William H, Wilkens 7,987.54
Frank Ziegelbauer (now deceased) 10,612.00
Total net backpay $95,685.59
could not be accepted as it called for the Union to admit The following chart , is prepared to consolidate the net
to a wrong which it did not do. Thus the situation was at backpay of both J J. Hagerty and Nassau-Suffolk
this impasse when the trial reopened on January 30, 1968. payable by the Union as the one primarily liable.
Name Net backpay
awarded Nassau
Suffolk
Net backpay
awarded J. J.
Hagerty
Total award' Percent total
award
Batalias 16,123.00 27,054.24 43,177.24 30.6
Bruder 13,266.00 13,266.00 9.4
DeKoning 3,194.85 3,194.85 2.3
Eichacker 12,490.00 8,757.00 21,247.00 15.1
Miller 9,277.20 9,277.20 6.6
Nagle 9,666.00 4,787.00 14,453.00 10.2
Skura 13,069.00 13,06900 9.2
Wilkens 7,987.54 7,987.54 5.7
Christensen 4,737.45 4,737.45 3.4
Ziegelbauer 612.0010 10 612.00 7.,
Grand total net backpay: 141,021.28 100.0
'This sum of $307 06 has not been included in the sum due by the Union and will be set out in the recommended order as payable by Peterson
J. J. HAGERTY 151
The Settlement History
The first settlement offer in Nassau-Suffolk and J. J.
Hagerty was made by Mr. Corcoran shortly after he
became counsel for the Union in these matters. The
amount offered at that time was $50,000. Subsequently,
the offer was increased to $65,000, but negotiations broke
down over the Charging Parties' request for a shop
steward or a master mechanic. By November 30, 1967,
the Charging Parties were willing to accept the sum of
$85,000 if the Union would make union membership cards
available for Batalias and Christensen (The Trial
Examiner and counsel for Charging Parties and counsel
for the Union worked long into the night to no avail.)
Finally following the outburst of Wilkens on January 9,
1968, with the offer of $95,000, the Charging Parties
withdrew the request for membership cards, thus clearing
the last hurdle in the settlement negotiations. It was at
this point that counsel for the Charging Parties agreed to
join the Union in seeking awithdrawal of the contempt
proceedings and settling all three cases for the sum of
$95,000 with the money to be divided among the
discriminatees in the percentage of the previous awards.
Just before the trial was closed on January 30, 1968, the
Trial Examiner summarized the settlement as follows:
As I understand it, the offer of Respondent union is
to settle the three cases, the present pending civil
contempt case; the Nassau-Suffolk case, and the J. J.
Hagerty case, for the $95,000, and what we are talking
about, of course, is that your union membership will
have to approve such a settlement. A moment ago you
said that you would present it to them, and urge their
adoption of it. Can you assure us that there is a very
good chance of it being approved?
MR. CORCORAN: I have been informed, Mr. Trial
Examiner by the administration, that if the contempt
proceeding is withdrawn, a special meeting of the
membership of the Respondent union will be
immediately called and it will be recommended to
them, and I will urge, as counsel, its acceptance, and I
have reason that the settlement will be approved and
ratified.
The Pending Contempt Proceeding
The pending civil contempt proceeding is in its initial
stages. It arose out of charges filed by Peter Batalias
involving, according to the statement of Mr. Corcoran, ".. .
four or five charges of violation of the seniority rule of
some 19,950 referrals made before the contempt
proceeding was initiated." Following the investigation of
the charges, civil contempt proceedings were instigated
rather than the issuance of an unfair labor practice
complaint According to the stipulation prepared by the
General Counsel as his first and last offer to settle the
contempt case, $500 was the amount of money involved to
make Batalias whole. Another of the discriminatees,
Wilkens, charged that another was preferred over him in a
union referral but after investigation of the Region, the
case was dismissed for lack of merit. In its initial stages,
the contempt matter is at the beginning of a long and
tortuous journey having only been referred to a special
master, Judge Walter Bruchhausen. A records' inspection
and a discovery proceedings had been sought by the Board
under Federal Rule 34 and the Union served notice it will
move under the same rule for an examination of persons
and documents necessary for the defense of its position
which defense is ". . . that the Respondent Union never
knowingly, intentionally or otherwise, violated [the
decrees] of the Court of Appeals."
Closing the Record
On January 30, 1968, the Trial Examiner opened the J.
J. Hagerty case and closed the record in both it and
Nassau-Suffolk stating that it would serve no useful
purpose to take additional testimony having to do with the
establishment of the amount of backpay due the
discriminatees in the cases of Nassau-Suffolk and J. J.
Hagerty when the parties themselves were satisfied with
the amount of money offered in full settlement of these
two cases with a withdrawal of the contempt case. The
policy of the Act was stated in the record .' The Trial
Examiner referred to the severe budget cut of the agency
and stating that although that was not the only reason for
his decision , he noted on the record the tremendous cost
to the Government of the present proceedings so far and
the cost it would entail if it were to continue . He pointed
out to the parties his responsibility to the Board to use
imagination , initiative and judicial ability to adjust these
disputes , particularly those having to do with backpay,
and he closed the hearing by telling the parties that he
would recommend that the Board accept the settlement
terms as offered and move the Honorable Judge Walter
Bruchhausen to close the contempt proceeding on the
basis of the settlement noting that the same person
involved in the contempt case was also involved in the
backpay proceedings , and was satisfied with the
settlement.
Present Operation of the Hiring Hall
As represented by Mr. Corcoran, an attorney at law
and hence an officer of the court, the Board has powers of
inspection of the hiring hall procedures under the two
decisions of the United States Circuit Court of Appeals.
The Board has inspected and has recommended certain
changes and practices which have been adopted by the
Union and put into effect. In addition, Mr. Corcoran has
made good-faith representations, with respect to the
discriminatees, that the Union wants to bury the hatchet
and get on with the work in a new atmosphere. These
considerations should suffice in a petition of Judge
Bruchhausen for a withdrawal of the civil contempt
matter, particularly when two very old cases also settle.
The Union, on the other hand, must be fully aware of
the ever present danger of losing its right to control and
operate the hiring hall in this industry, where no other
sensible method has yet been devised to furnish qualified
operators of heavy construction equipment, if it does not
operate the hiring hall fairly. It is possible that some
public authority could be created to make referrals on a
nondiscriminatory basis and it is also possible that the
Union could be barred from operating a hiring hall upon
a proper showing of lack of or a failure of public
responsibility. The Union now is providing a service both
"`It is the purpose and policy of this Act , in order to promote the full
flow of commerce , to prescribe the legitimate rights of both employees and
employers in their relations affecting commerce, to provide orderly and
peaceful procedures for preventing the interference by either with the
legitimate rights of the other , to protect the rights of individual employees
in their relations with labor organizations whose activities affect
commerce, to define and prescribe practices on the part of labor and
management which affect commerce and are inimical to the general
welfare, and to protect the rights of the public in connection with labor
disputes affecting commerce."
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to its members and to employees in this industry. It wants
to stay in business and it should be given this opportunity.
Analysis and Conclusions
To recapitulate , the two backpay cases of
Nassau-Suffolk and J . J. Hagerty involve backpay
beginning as far back as 1954 or some 14 years ago. The
backpay case of Nassau-Suffolk had been heard and
decided not only by the Trial Examiner and the Board but
by the United States Court of Appeals for the Second
Circuit which remanded it for further proceedings. These
additional proceedings took in a 3-month period. The
instant backpay case of J. J. Hagerty had been heard and
the Trial Examiner's decision was pending before the
Board when it was remanded by the Board for the same
type of testimony as was involved in the Nassau-Suffolk
case. Sometime after the decisions in the two backpay
cases had been made , additional charges had been brought
by one of the discriminatees , Batalias, upon which a
proceeding was brought involving alleged civil contempt of
the United States Circuit Court of Appeals ' decrees
enforcing the unfair labor practices , referred to earlier.
The total net backpay award found by the Trial
Examiner to be due the discriminatee in both cases was
$141,021.28. The settlement sum agreed upon by the
Charging Parties and the Union was $95,000, or
approximately 68 percent of the total net award. Given
the normal risks of litigation in the present cases and, the
certainty of years of delay in payment to the
discriminatees if the hearings went to conclusion, the
amount proposed in the settlement , by any standards, is a
fair compromise and reasonable under all the
circumstances , and certainly the representations by the
parties of their desires to put an end to this protracted
litigation and bury the hatchet are of great weight.
Industrial peace is the aim of the Act The United States
Court of Appeals for the Sixth Circuit recently has said,
"The Board concedes that [settlement ] agreements are
most often prompted by a desire to reach an amicable
disposition of the matter without the need for expensive
and time-consuming hearings and court review. Such
agreements are not an admission of past liability; but
serve to regulate future responsibilities of the parties."
N.L.R.B. v. Bangor Plastics , Inc., 392 F.2d 772 (C.A. 6).
Inextricably involved in this settlement, is the desire of
the Charging Parties and the Respondent Union to seek a
withdrawal of the contempt matter in order to "bury the
hatchet" and restore industrial harmony. The public
interest to be benefited by the approval by the Board of
such a settlement agreement lies in the restoration of
industrial harmony in this vital industry and in the
conservation of the Board's resources.
The Board has summarized certain principles and
practices which guide it in the difficult area of settling
unfair labor practice cases where less than the full
amounts of backpay are arrived at . In the case of
Farmers' Co-Operative Gin Association , 168 NLRB No.
64, the Board said,
The Board has long had the policy of encouraging
settlements which effectuate the policies of the Act.
Wallace Corp . v. N.L.R. B. U.S. 248 323 , 253-254. In
considering settlements, the Board must weigh such
factors as the risks involved in protracted litigation
which may be lost in whole or in part, the early
restoration of industrial harmony by making
concessions , and the conservation of the Board's
resources . Moreover , the Board must evaluate the legal
and factual merits disclosed by the administrative
investigation to determine whether the allegations of
violations in the complaint can be so clearly proved
that no remedy, less than the maximum, can be
accepted. In arriving at this decision, the discretion of
the Board is recognized as broad.
It is understood that I know nothing of the merits of
the pending civil contempt proceeding. But I do know that
insofar as the Charging Party, Batalias, is concerned, he
could be made whole by the payment of some $500. It
makes no sense to the Trial Examiner to refuse to bring
to a close these two old (14 years) cases for the sake of a
present civil contempt case worth $500 to a discriminatee.
This civil contempt case is now the stumbling block to a
settlement urged by the same. Batalias and the other men
who are willing to give up a possible greater amount of
money due under the Board's make-whole order in order
to bury the hatchet and heal old animosities - and get on
with the job of living and working together. The Charging
Parties are familiar with the present method of operation
of the hiring hall and obviously believe they can live under
it because they are willing to quash the civil contempt
proceedings which might lead to reforms. Surely as much
weight should be given them as should be given a
Regional Director who does not owe his living to a hiring
hall. It is my distinct impression that Respondent Union
and the Charging Parties truly wish to bury the hatchet,
the only obstacle to this being the problem of how to get
the General Counsel's hands off the hatchet's handle. To
continue these cases any longer is an unjustifiable sapping
of strength not only of the Union but in the future, of the
Board and of the persons whose rights are protected under
the Act. If the Respondent Union violates the Courts'
decrees, civil contempt would then be available.
Accordingly, I will recommend that the cases be closed on
compliance upon satisfaction of the terms of the
settlement agreement set out above. To pursue rights to
the bitter end can only terminate in a bitter end.
The Board has the power necessary to do that which I
recommend. There may be some who say the Board has
not given me the necessary authority to bring this matter
to its attention in this fashion. Even if true, which I deny,
this is to ignore the substance for the form - a result
inimical to the great equitable purposes and policies of the
Act as applied to these particular cases at this particular
point in history.6
RECOMMENDED ORDER
1. Upon the basis of the above analysis and conclusions
it is recommended that the Board approve the settlement
of the Nassau-Suffolk case and the J J. Hagerty case for
the sum of $95,000 to be distributed pro rata to the
discriminatees in proportion of their interest in the total
backpay award set out above and,
2. That the Board move the Honorable Walter
Bruchhausen United States District Judge for the Eastern
District of New York for a withdrawal of the present civil
contempt proceedings for the reasons that the settlement
agreement will effectuate the policies of the Act;
3. That no action be taken by Respondent Union or the
Charging Parties pursuant to this Recommended Order
'Cf. N L R. B. v. Tennessee Packers, Inc., 390 F 2d 787 (C A. 6),
wherein the United States Court of Appeals in St. Louis, likewise was of
thee opinion that the Board should first pass upon a proposed settlement,
which had not been approved by the General Counsel before petitioning for
enforcement of the backpay order.
J. J. HAGERTY
until the Board has granted its approval thereof. If this
Recommended Order is approved by the Board,
Respondent Union should take the necessary steps to
approve the settlement and pay over to the Regional
Director of Region 29 of the Board the sum of $95,000
within 20 days. Following this action, the General Counsel
should move the court for a withdrawal of the civil
contempt proceeding. Upon its withdrawal, the Regional
153
Director for Region 29 of the Board shall distribute the
said $95,000 pro rata as the interest of each discriminatee
is set out in the table above, and issue a notice of full
compliance to all of the parties; and
4. Respondent Peterson be ordered to pay Batalias
$307.06 compliance therewith to be made by sending the
money by check to the Regional Director, Region 29,
Brooklyn, New York