Local 138, Operating Engineers

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 830 (N.L.R.B. 1969)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 138, International Union of Operating
Engineers, AFL-CIO and Thomas A. Eichacker
and Nassau and Suffolk Contractors ' Association,
Inc., and its Members Listed in Appendix A of the
Complaint , Parties to the Contract
Local 138, International Union of Operating
Engineers, AFL-CIO and John J . DeKoning
Local 138 , International Union of Operating
Engineers , AFL-CIO and Walter W. Miller
Zara Contracting Co., Inc. and Walter W. Miller
Frank Marmorale , Inc. and Albert Bruder
Hendrickson Brothers , Inc. and Peter Batalias
Zara Contracting Co., Inc . and John J . DeKoning
Eastern Fireproofing Company , Inc. and Walter W.
Miller
Local 138, International Union of Operating
Engineers , AFL-CIO and Walter W. Miller. Cases
29-CB-1 (formerly 2-CB-1651), 29-CB-2 (formerly
2-C B- 1778), 29-CB- 3 (formerly 2-CB-1792),
29-CA-1 (formerly 2-CA-5015), 29-CA-2
(formerly 2-CA-5018), 29-CA-3 (formerly
2-CA-5019), 29-CA-4 (formerly 2-CA-5020),
29-CA-5 (formerly 2-CA-5256) and 29-CB-4
(formerly 2- CB-1895)
February 27, 1969
ORDER REMANDING BACKPAY
PROCEEDING FOR FURTHER HEARING
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, JENKINS, AND ZAGORIA
On June 1, 1959, the National Labor Relations
Board issued a Decision and Order in the
above-entitled case,' directing, inter alia, that
Respondent make whole certain employees for
losses suffered as a result of discrimination against
them. Thereafter, the Board's Order was modified
and enforced in part by the United States Court of
Appeals for the Second Circuit on July 25 and
November 9, 1961.1 Thereafter, on March 23, 1965,
the Board issued a Supplemental Decision and
Order3 determining the amounts of backpay due to
certain employees, totaling $95,685.00, plus 6
percent interest per annum from the date of its
Supplemental Decision. On June 29, 1967, the
United States Court of Appeals for the Second
Circuit entered an opinion and decree,4 in which it
remanded the case to the Board with direction to
permit the Union to examine any or all of the
discriminatees concerning their job availability and
interim earnings during the backpay period. On
September 14, 1967, the Board remanded the case
to Trial Examiner George L. Powell with direction
to reopen the record for the purpose of complying
with the remand of the Second Circuit.
'123 NLRB 1393
'293 F 2d 187
'151 NLRB 972
'380 F 2d 244
On January 9, 1968, in the course of the
reconvened hearing, Respondent Union, Local 138,
made a settlement offer in the instant backpay
proceeding herein called Nassau-Suffolk, and a
related backpay proceeding herein called J. J.
Hagerty.' 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's 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 The contempt
proceeding alleged violations of the decrees entered
by the Court of Appeals in the Nassau-Suffolk and
J. J. Hagerty, Inc., cases.6 Over the objection of the
General Counsel, the Trial Examiner recessed the
hearing to permit work on a settlement agreement.
When the hearing was reopened on January 30,
1968, the General Counsel indicated his willingness
to recommend approval of a settlement of $95,000
to the discriminatees in the Nassau-Suffolk and J. J.
Hagerty backpay proceedings which were before the
Trial Examiner, but rejected a settlement if made
contingent on the withdrawal of the contempt suit
pending in the United States Court of Appeals.
Although the taking of testimony from all the
discriminatees had not been completed, the Trial
Examiner, over the objection of General Counsel,
closed the record in both J. J. Hagerty and
Nassau-Suffolk cases and stated his intention of
recommending that the Board accept the proposed
settlement, including the withdrawal of the contempt
proceeding.
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 Nassau-Suffolk and
J. J. Hagerty cases for the sum of $95,000,
distributed pro-rata to the discriminatees in
proportion to their interests, as set forth in his
attached Decision, and he further recommended that
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,
Local 138, filed an answering brief in opposition to
the General Counsel's exceptions.'
'J J Hagerty, Inc , Cases 29-CA-6, 7, 8, 9, 16, and 29-CB-5, 6, 8, 7, 9,
and 10
'Fn 2, supra, and 321 F 2d 130
'The Charging Parties filed no formal exceptions or briefs to the Trial
Examiner's Decision However, subsequent to the closing of the hearing
record, but before the Trial Examiner's Decision was issued, the Charging
Parties had filed a Statement of Position in which they agreed to the terms
of the proposed money settlement but only if it did not affect the relief
sought by the contempt proceedings Although the Trial Examiner in his
Decision stated the Charging Parties joined Respondent Union in seeking a
withdrawal of the contempt proceeding, we find the Charging Parties'
position up to the time of the Trial Examiner's Decision was as stated in
its Statement of Position, i e , the position of the General Counsel, and
that it only supported the proposed settlement in so far as monetary
payment to the discriminatees was concerned Nevertheless, subsequent to
174 NLRB No. I l l
LOCAL 138, OPERATING ENGINEERS 831
In his exceptions and brief the General Counsel
requests the Board to reject the Trial Examiner's
proposed settlements and remand this case and the
J. J. Hagerty case to the Trial Examiner with
direction to reopen the record for the purpose of
taking evidence concerning interim earnings and job
availability of the discriminatees pursuant to the
decision of the Court of Appeals.' The Board finds
merit in the General Counsel's exceptions.
The instant case and the J. J. Hagerty case were
the sole matters before the Trial Examiner. The civil
contempt proceeding was and is in a different
forum. Although the Trial Examiner, over the
proper objection of General Counsel, permitted
Respondent's counsel to make certain
representations as to Respondent's compliance with
the Court of Appeals decrees, the fact is that these
issues were not, and indeed could not be,
appropriately litigated before this Trial Examiner' 0
whose authority under our Rules and Regulations,
Section 102.35, extended only to cases assigned to
him. Indeed, the Trial Examiner in his Decision
acknowledges he is unfamiliar with the merits of the
contempt proceeding.
While we are well aware of the long and tortuous
history of this and the J. J. Hagerty cases, and fully
desire the most expeditious resolution of the matters
of backpay for the discriminatees, we are also
cognizant of our responsibility to see that other
purposes of the Act, and of Court decrees enforcing
the Act, are not thwarted by a settlement approved
in ignorance. Such information as is before us in the
hearing record, the Trial Examiner's Decision, and
the briefs of the parties, show that besides a
relatively minor monetary payment to one of the
discriminatees, ` the civil contempt proceeding
involves important questions concerning compliance
with the earlier Board decisions and the decrees of
the Court of Appeals. These are not resolved by the
self serving statements of the Respondent,
the issuance of the Trial Examiner' s Decision , one of the Charging Parties,
Peter Batahas , by letters of June 26, and July 5, 1968 , indicated that under
certain conditions , he would withdraw objections to the settlement
proposed in the Trial Examiner ' s Decision . Thereafter , Batalias
transmitted a similar letter to Thomas Sheehan , Esq., who in the latter
stages of the hearing had acted as Counsel for the Charging Parties, and
Counsel wrote the Board stating the remaining discriminatees approved
this position. In view of our decision , although we note receipt of this
correspondence , we find it unnecessary to pass upon its contents or rule
whether its form and timeliness are within Board requirements for
consideration as briefs in support of the Trial Examiner ' s Decision.
'The General Counsel does not oppose a settlement limited to the
payment of $95,000 to the discriminatees , but objects to conditioning such
a settlement on the withdrawal of the contempt proceeding which he avers
should be settled independently.
'Fn 4, supra
"in addition to the Respondent ' s representation as to its compliance
with the decrees of the Court of Appeals, and its defenses to the contempt
proceeding , the Trial Examiner permitted , over objection of General
Counsel, a long and self- serving representation by Respondent as to the
history of settlement negotiations Both of these issues are extensively
discussed in the Decision of the Trial Examiner . 'While both matters should
have properly been excluded from the hearing record, we find it
unnecessary, in view of our decision , to determine whether these errors
were prejudicial
particularly when these are contested by the General
Counsel, who bears a public responsibility to see
that compliance is made with these decisions and
decrees. Under these circumstances, we deem it
inappropriate to approve a settlement the effect of
which we are unable to gauge, and which may, in
fact, negate much of the public policy purposes
which necessitated this protracted litigation through
the Board and the courts.
Accordingly, we shall remand this case for the
purpose of taking further evidence pursuant to the
decision of the United States Court of Appeals for
the Second Circuit.
ORDER
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 completing the
taking of evidence concerning interim earnings and
job availability of any or all the discriminatees
pursuant to the decision" of the United States Court
of Appeals for the Second Circuit.
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 supplemental 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.
"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 Nassau-Suffolk, at
this time is whether the Board should accept a money
settlement including the withdrawal of a 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 J. J. Hagerty,' pending before
this Trial Examiner for which a separate Trial Examiner's
Second Supplemental Decision and Recommended Order
is issuing simultaneously with this decision.
'N.L.R B v. Local 138 , IUOE , No 26,562, 27,914 ; and 27,947 , before
the United States Court of Appeals for the Second Circuit
2J J Hagerty , Inc., Cases 29-CA-6, 7, 8, 9 , 16, and 29-CB-5, 6, 7, 8, 9,
and 10
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The United States Court of Appeals for the Second
Circuit summarized the background of the unfair labor
practice cases following a finding by it that the Union was
an organization of operators of heavy construction
equipment - bulldozers, cranes, power shovels and the
like - in Nassau and Suffolk counties on Long Island.
Its summary was that,
Since about 1954 a small number of determined
members, perhaps 10 of a'total membership of some
twelve hundred, whom we shall call, without
implication, reformers, have waged an extensive
campaign to overturn Local President William
DeKoning, Jr., and other incumbent officers, for what
the reformers consider to be gross mismanagement and
improper administration of union affairs.
Following the abortive campaign to overturn the Union
officers, these members were discriminated against by the
Union and the employers because of their concerted
activities. This was the finding in a decision of Trial
Examiner Arthur E. Reyman, affirmed by the National
Labor Relations Board, hereinafter called Board, on June
1, 1959 (123 NLRB 1393), and enforced in the United
States Court of Appeals, Second Circuit, on July 25,
1961, in 293 F.2d 187.
The court order required that:
(1) "The Respondent Union shall make whole John
J. DeKoning, Albert Bruder, William Wilkens and
Walter W. Miller for any loss of pay these employees
may have suffered as the result of the discrimination
against them in the manner set forth in the section of
the Board's Decision and Order entitled "The Remedy"
and make whole William Wilkens, Thomas Eichacker,
Charles Skura, Peter Batalias, John J. DeKoning,
Albert Bruder, Walter Miller and any other member of
the reform group' for loss of pay resulting from the
discriminatory operation of its hiring hall as set forth in
the section of said Decision and Order entitled "The
Remedy," and
(2) Zara, Marmorale and Eastern shall make whole
John J. DeKoning, Walter W. Miller and Albert
Bruder, for any losses they may have suffered as the
result of the discrimination against them in the manner
set forth in the section of the Board's Decision and
Order entitled "The Remedy," provided that primary
liability for making the said employees whole shall rest
upon the Respondent Union, and the above-mentioned
Respondent Companies shall be liable to make them
whole only should the Respondent Union fail to do so.
'Garrett Nagle and Frank Ziegelbauer are included under this category.
In order to determine the loss of pay resulting from the
discriminatory operation by the Respondent Union of its
hiring hall, a supplementary backpay proceeding was held
before me on various dates from June 18 to December 10,
1963. The Trial Examiner issued his Supplemental
Decision on June 29, 1964, finding two separate types of
liability
As to the first type of net backpay due four individuals
on certain jobs, Walter Miller was due $65.20 on the East
Meadow School project, William Wilkens was due $91.54
on the Northville Dock project, John DeKoning was due
$3,194.85 on the Roosevelt Field project, and Albert
Bruder was due no backpay on the Roosevelt Field
project.
As to the second type of liability, the computation of
net backpay found to be due to members of the reformed
group as a result of the discriminatory operation of the
Union hiring hall, is set out in the tables below. The
backpay period was found to begin on July 1, 1955, for
all, but its terminal date varied by the individual. The
following table has been prepared to show the terminal
date of the backpay period as well as the net backpay
awarded each of the individuals by the Trial Examiner:
Name
Peter Batalias
Albert J. Bruder
John H. DeKoning
Thomas Eichacker
Walter W. Miller
Garrett Nagle
Charles Skura
William H. Wilkens
Frank Ziegelbauer
Net
Terminal Date Backpay
Backpay Period Awarded
February 26, 1962 $16,123.00
March 31, 1961 13,266.00
December 31, 1960
December 31, 1959
March 31, 1960
December 31, 1961
March 31, 1959
June 30, 1959
$95,685.59
3,194.85
12,490.00
9,277.20
9,666.00
13,069.00
7,987.54
10,612.00
The Board on March 23, 1965, 151 NLRB 972,
adopted the findings of the Trial Examiner but added a
provision that interest would be paid at the rate of 6
percent per annum on the perspective awards from March
23, 1965. The case went for enforcement to the United
States Court of Appeals, Second Circuit, where
enforcement was denied and the cause was remanded to
the Board by decision rendered June 29, 1967 (Docket
No. 26562. No. 319 - September term 1966). The court
stated, "On remand, the Union must be given the right to
examine any or all of the reform discriminatees (not
limited to the five present at the hearing below)
concerning their activities (relating to job availability and
interim earnings) during the backpay period."'
On September 14, 1967, the proceeding was remanded
by the Board to the Regional Director for Region 29 for
the purpose of arranging further hearings. Arrangements
were made and additional hearings were held on 10 dates
from November 28, 1967, to January 30, 1968, before
Trial Examiner George L. Powell. Some 1114 pages of
record transcript were made of testimony relating to job
availability and interim earnings of all the discriminatees
except Ziegelbauer, Wilkens, Miller, and Batalias, and
Ziegelbauer had died in the interval since the last hearing
in 1963.
On January 9, 1968, William Wilkens was the witness
and the time of day was just before the break for lunch.
About 2 more weeks of trial were estimated, i e. a few
more days for Wilkens and Miller and the remainder to
take the testimony of Peter Batalias ° It was at this point
in the case when the following extemporaneous outburst
by Wilkens was made:5
THE WITNESS [WILKENS]: 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
'Examination in these areas had been limited , in accordance with the
Board 's Rules, to issues fairly raised by the Union's answer to the backpay
specification
'T'here was also a question of whether Batalias could be located at the
time, but this factor has no bearing in the case.
'Tr. pp. 1848 to 1850 But no time was estimated to complete testimony
in the case of J. J Hagerty
LOCAL 138, OPERATING ENGINEERS 833
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 inforied 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 1381 1 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 fell 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.
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 Wilkens 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. Hagerty 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.
On January 30, 1968, the case reopened. No witnesses
were called as the Trial Examiner wished to see how the
settlement had progressed. It turned out that virtually
nothing had happened between the date of recess on
January 9, 1968, until January 30, insofar as writing up
the settlement terms which had been agreed upon on
January 9. The General Counsel refused to seek a
withdrawal of the contempt proceeding from the United
States Circuit Court of Appeals for the Second Circuit
where it was awaiting processing under Judge Walter
Bruckhausen, United States District Judge for the Eastern
District of New York, although as noted above this was to
be part of the package of settling the two 14-year 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, photographing, or microfilming; (7)
also, upon request of the Regional Director of the Board,
make available for interview and depositions the three
named dispatchers and all who acted under them; and to
take the certain 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
could not be accepted as it called for the Union to admit
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a wrong which it did not do. Thus the situation was at
this impasse when the trial reopened on January 30, 1968
The J. J. Hagerty Case
Inasmuch as the proposed settlement between the
Charging Parties and the Union involved not only a joint
attempt to cause the withdrawal of the pending contempt
matter but provided for the settlement of the
Nassau-Suffolk and the J. J. Hagerty cases for the sum of
$95,000, it is necessary at this point to outline the
backpay proceeding in the J. J. Hagerty case. Three of the
same employees involved in Nassau-Suffolk, that is
Batalias, Eichacker, and Nagle, are involved in backpay in
the J. J. Hagerty case, plus an additional employee
Robert Christensen The amounts found due and the
liability therefore is as follows:
Name Amount
Payable
Payable
By Whom
Batalias $ 307.06 Peterson' Jointly and
Batalias $ 4,503.23 severally by Union and
Peterson with the Union
primarily liable
Batalias $22,551.01 Union
Christensen $ 4,737.45 Union
Eichacker $ 8,757.00 Union
Nagle $ 4,787.00. Union
The following table was devised to show the total
amount of money awarded (without figuring the interest
at 6 percent) in both backpay cases and the percentage
each employee would have in the $95,000 money part of
the settlement.
Name Net backpay Net backpay
awarded Nassau- awarded J. J.
Suffolk 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 $ 8,757.00 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 13,069.00 9.2
Wilkens 7,987.54 7,987.54 5:7
Christensen 4,737.45 4,737.45 3.4
Ziegelbauer $10,612.00 10,612.00 7.5
Grand total net backpay: $141,021.28 100.00
The Settlement History
The first settlement offer 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 a withdrawal of the
contempt procee mgs and-settling aII 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
'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.
LOCAL 138, OPERATING ENGINEERS 835
adoption of it. Can you assure us that there is a very
good chance of it being approved?
MR. Coacoa N: 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 Civil 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 ieferred 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 closed the
record 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 to 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 the 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
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 10 more days in a 3-month
period. The 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 discriminatees was $141 , 021.28.
The settlement sum agreed upon by the Charging Parties
and the Union was $95,000 , or approximately 68 percent
'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
legitunate rights of the other , to protect the rights of individual employees
in their relations with labor organizations whose activities affect
commerce, to define the prescribe practices on the part of labor and
management which affect commerce and are inunical to the general
welfare, and to protect the rights of the public in connection with labor
disputes affecting commerce
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 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.
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:
of 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, in the future, the Respondent Union violates
the courts' decrees, civil contempt would 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.'
RECOMMENDED ORDER
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