National Labor Relations Board v. Local 138, International Union of Operating Engineers Afl-Cio

380 F.2d 244, 65 L.R.R.M. (BNA) 2938, 1967 U.S. App. LEXIS 5774
CourtCourt of Appeals for the Second Circuit
DecidedJune 29, 1967
Docket26562_1
StatusPublished
Cited by6 cases

This text of 380 F.2d 244 (National Labor Relations Board v. Local 138, International Union of Operating Engineers Afl-Cio) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Local 138, International Union of Operating Engineers Afl-Cio, 380 F.2d 244, 65 L.R.R.M. (BNA) 2938, 1967 U.S. App. LEXIS 5774 (2d Cir. 1967).

Opinion

MOORE, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its supplemental decision and order, 151 N. L. R. B. 972 (March 23, 1965), determining the amounts of back pay due to certain individuals. The Board had originally found in 1959, 123 N. L. R. B. 1393, that Local 138 of the International Union of Operating Engineers, AFL-CIO (hereafter Union) had violated §§ 8(b) (1) (A) and 8(b) (2) of the Taft-Hartley Act, 29 U.S.C. §§ 158(b) (1) (A) and 158(b) (2) and that various employers violated §§ 8 (a) (1) and 8(a) (3), 29 U.S.C. §§ 158 (a) (1) and 158(a) (3), by maintaining a closed shop and an illegal union hiring hall, and by discriminating against certain men so as to discourage activities protected by § 7, 29 U.S.C. § 157. This Court, on the Board’s petition, modified and enforced the resultant Board order, 2 Cir., 293 F.2d 187 (1961), 1 in an opinion fully setting out the facts surrounding the discriminations. We will not repeat those facts here.

Following this Court’s decision, the Union and the Board were unable to agree on the amounts of back pay due to the various discriminatees. Thereafter, in accordance with § 102.52 of the Board’s Rules and Regulations, 29 C.F.R. § 102.- *246 52, 2 the Board’s regional Director prepared a back pay specification which, together with a notice of hearing, was served on the Union on March 7, 1963. 3 Under the Board’s rules, the Union was required to file an answer putting in issue those parts of the back pay specification which it intended to contest; 4 a hearing would then have been held to resolve the contested issues. To faciliate a fuller understanding of the procedural difficulties that followed the initial service of the back pay specification, the contents of the specification will be briefly described.

The Back Pay Specification:

Paragraph I sets forth the scope of the back pay provisions of the Board’s order as enforced by this Court. Thus, the following individuals were to be compensated for losses resulting from the various Union acts of discrimination: (a) Walter W. Miller for discrimination against him on the East Meadow School project; (b) William H. Wilkens for the discrimination against him on the North-ville Dock project; (c) John J. DeKon-ing for the discrimination against him on the Roosevelt Field contract; (d) Albert J. Bruder for similar discrimination at Roosevelt Field; and (e) William H. Wilkens, Thomas Eichacker, Charles Skura, Peter Batalias, John J. DeKoning, Albert J. Bruder, Walter W. Miller and any other members of the reform group 5 for pay losses resulting from the Union’s discriminatory operation of its hiring hall. In addition, paragraph I stated that in all cases, back pay was to be computed in accordance with the Woolworth formula, i.e., back pay was to be calculated using each quarter of the year as a separate unit. See discussion of formula, infra.

Paragraphs II-V set out the computations of back pay for Miller, Wilkens, DeKoning and Bruder for losses on the several projects mentioned above, specifying awards of $65.20, $91.54; $3,194.85 and $-0-, respectively.

Paragraph VI sets forth the Regional Director’s computation of the net back pay due to the eight employees whose claims arose from the Union’s discriminatory operation of its hiring hall. The ninth member of this group, John J. De-Koning, received full back pay under paragraph IV of the specification and thus no additional claim was made on his behalf under paragraph VI. Paragraph *247 VI (a) sets forth the respective periods of discrimination for each of the eight while paragraph VI(b) sets forth in detail the formula used by the Regional Director to calculate the awards, the actual calculations being set forth in numerous appendices to the back pay specification. Finally, a summary at the end of the specification lists the awards for each discriminatee 6 which totaled $95,-685.59.

Procedural Developments:

The Union failed to file an answer to the specification within fifteen days of the date of service as required by the Board’s rule, but on April 17th, the Regional Director granted the Union’s request for an extension. Thereafter, the Union filed a general denial denying each and every allegation of the specification. On May 16th, the Board’s General Counsel moved before the Trial Examiner to strike the Union’s answer for failure to comply with the Board's pleading rule § 102.54(b), 29 C.F.R. § 102.54 (b), 7 for judgment on the pleadings and for issuance of a recommended order. The Union requested and received permission from the Trial Examiner to file an amended answer.

On June 4, 1963, the Union filed an amended answer in which it alleged (1) that the Woolworth quarterly formula was grossly inequitable and should not be used, (2) that the back pay period should end at the date of the Board’s interim order, (3) that the computation of back pay for William H. Wilkens under paragraph III of the specification was erroneous as the job to which Wilkens was referred terminated the day after he reported to work and was discriminated against, (4) that the computation of back pay for John J. DeKoning under paragraph IV was erroneous in that the employees he was compared to were men of superior skill to DeKoning, (5) that the formula used by the Regional Director to calculate back pay due to the reform discriminatees was erroneous and inaccurate for various reasons, (6) that the correct way to figure back pay was to compare the earnings of members of the Union of comparable skill and seniority to the discriminatees, and (7) that the computations under the formula were inaccurate as based upon “incorrect and misleading information furnished to the Board by the discriminatees.” The General Counsel’s response to this pleading was to file another motion to strike conceding only that the Union had put Wilk-ens’ back pay under paragraph III into issue. After the hearing had begun, the Trial Examiner granted the General *248 Counsel’s motion in its entirety. On the Union’s immediate appeal to the Board, however, the Trial Examiner was reversed and the Union was granted leave to file a second amended answer “showing with specificity the names and earnings of union members with seniority and ability comparable to those diseriminatees named in Paragraph VI(A) of the back pay specification.”

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380 F.2d 244, 65 L.R.R.M. (BNA) 2938, 1967 U.S. App. LEXIS 5774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-labor-relations-board-v-local-138-international-union-of-ca2-1967.