N.L.R.B. v. International Broth. of Elec. Workers, Local Union 112, AFL-CIO

• Decision Date: 10 May 1993
• Docket Number: No. 91-70326,R,AFL-CI,91-70326
• Citation: 992 F.2d 990
• Parties: 143 L.R.R.M. (BNA) 2256, 125 Lab.Cas. P 10,704 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 112,espondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 990

992 F.2d 990

143 L.R.R.M. (BNA) 2256, 125 Lab.Cas. P 10,704

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION

112, AFL-CIO, Respondent.

No. 91-70326.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 6, 1992.

Decided May 10, 1993.

Magdalena Revuelta, N.L.R.B., Washington, DC, for petitioner.

Alex J. Skalbania, Critchlow, Williams, Schuster, Malone & Skalbania, Richland, WA, for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before HUG, FLETCHER and BRUNETTI, Circuit Judges.

PER CURIAM:

The National Labor Relations Board (the "Board") applies for enforcement of its second supplemental decision and order issued against the International Brotherhood of Electrical Workers, Local 112, AFL-CIO (the "Union"). The Board's order requires the Union to pay four journeymen electricians the sum of $241,830.15, to compensate them for losses of pay suffered because of the Union's discrimination against them in hiring hall dispatch decisions. We affirm.

Facts and Proceedings

The Union is located in the Tri-Cities area of Washington state (Richland, Kennewick, and Pasco). On May 23, 1984, the Board issued its decision and order in Fischbach/Lord Electric Co., 290 N.L.R.B. 856 (1983), finding that the Union had discriminated against four nonmembers of Local 112 in hiring hall dispatch decisions in violation of §§ 8(b)(2) and 8(b)(1)(A) of the National Labor Relations Act (the "Act"). The Board's order required the Union to make the four discriminatees whole for any loss of pay suffered as a result of those practices. We affirmed the Board's findings in N.L.R.B. v. International Bhd. of Elec. Workers, Local 112, 827 F.2d 530 (9th Cir.1987), and entered a judgment enforcing the Board's order.

Because the parties were unable to agree upon the amount of back pay owed by the Union to the discriminatees, the Board instituted a backpay proceeding pursuant to 29 C.F.R. § 102.52 to determine the backpay due. The Board's Regional Director issued an amended backpay specification on May 24, 1988 alleging that the Union owed the discriminatees a total of $241,830.15. The Union filed an answer to the amended backpay specification generally denying each of its allegations, but the Board subsequently granted the Board's General Counsel's motion for summary judgment on all issues except the discriminatees' interim earnings. The Board directed a hearing limited to the determination of these earnings.

Prior to the hearing, which was scheduled for January 10, 1989 before an Administrative Law Judge ("ALJ"), the parties discussed the possibility of a voluntary settlement. The Union proposed a payment of $125,000 to be divided among the discriminatees in any way they and the Board Region saw fit. On the first day of the hearing, each of the four discriminatees stated his acceptance of the offer. The Union requested that the ALJ direct acceptance of the settlement, but, after counsel for the General Counsel indicated that the settlement was not acceptable, the ALJ denied the Union's request. That night, the discriminatees reviewed the Union's financial position and concluded that it was stronger than they had realized. The next day, they withdrew their consent to the settlement. On January 25, the Board denied the Union's request for special permission to appeal the ALJ's refusal to approve the settlement.

The ALJ issued a supplemental decision on June 7, 1989, recommending that the discriminatees be awarded backpay as set forth in the Board's backpay specification of May 24, 1988 ($241,830.15), plus interest. On October 12, 1990 the Board issued its order upholding the ALJ's decision. The Union appeals the order on two grounds: first, that the ALJ and the Board erred in refusing to approve the settlement, and second, that the Union's backpay liability to the discriminatees should be reduced because the discriminatees did not make sufficient efforts to mitigate their damages.

Standard of Review

We uphold decisions of the Board if its findings of fact are supported by substantial evidence and if it has correctly applied the law. N.L.R.B. v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir.1989). Although we review questions of law de novo, we give considerable deference to the Board's expertise in construing and applying the labor laws. N.L.R.B. v. Hydro Conduit Corp., 813 F.2d 1002, 1005 (9th Cir.1987).

Discussion

1. The Board's refusal to approve the settlement.

The Board encourages the settlement of labor disputes. "The purpose of such attempted settlements has been to end labor disputes, and so far as possible to extinguish all the elements giving rise to them." Wallace Corp. v. N.L.R.B., 323 U.S. 248, 253-54, 65 S.Ct. 238, 241, 89 L.Ed. 216 (1944). However, the Board has no statutory obligation to defer to private settlement agreements; it may defer in its discretion. Airport Parking Management v. N.L.R.B., 720 F.2d 610, 614 (9th Cir.1983). In exercising its discretion, the Board will refuse to be bound by any settlement that is at odds with the Act or the Board's policies. Independent Stave Co., Inc., 287 N.L.R.B. 740, 741 (1987).

In evaluating a settlement to assess whether the purposes and policies underlying the Act would be effectuated by the Board's approving the agreement,

the Board will examine all the surrounding circumstances including, but not limited to, (1) whether the charging party(ies), the respondent(s), and any of the individual discriminatee(s) have agreed to be bound, and the position taken by the General Counsel regarding the settlement; (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation, and the stage of the litigation; (3) whether there has been any fraud, coercion, or duress by any of the parties in reaching the settlement; and (4) whether the respondent has engaged in a history of violations of the Act or has breached previous settlement agreements resolving unfair labor practice disputes.

Independent Stave, 287 N.L.R.B. at 743; American Pac. Concrete Pipe Co., Inc., 290 N.L.R.B. 623 (1988). We will apply these factors to the ALJ's decision not to accept the settlement.

The third and fourth factors weighed in favor of accepting the settlement. At the time the settlement agreement was reached, there was no evidence that the Union had a past history of violating the Act or breaching previous settlement agreements. The second factor was inconclusive. On the one hand, the settlement offer was less than half of the amount in the backpay specification, and the discriminatees' claim was strong. On the other hand, the hearings on this issue had not yet taken place, and "the risks inherent in litigation" might have gone against the discriminatees.

However, the first factor weighed strongly against the ALJ's approving the settlement. The General Counsel consistently and forcefully opposed the settlement. Furthermore, the discriminatees promptly retracted their initial acceptance after discovering the Union's true financial position. The Union contends that because the ALJ should have accepted the settlement following the Union's motion to do so on the first day of the hearing, any proceedings that took place after the ALJ's refusal should not be considered by this court and are without legal effect. In other words, the discriminatees' withdrawal of their acceptance should not be counted as a factor in the Independent Stave equation; only their initial acceptance should be considered.

However, the discriminatees withdrew their acceptance before they had signed or formally executed any settlement agreement. ¹ In his June 7, 1989 decision, the ALJ stated that "[the] circumstances of the 'settlement' so earnestly claimed by Respondent were in the nature of a continuum spanning both days of hearing." Thus, the discriminatees' initial verbal acceptance of the Union's offer was not determinative; the General Counsel's strong opposition to the settlement provided the ALJ with a ground to deny the Union's initial motion for acceptance, and the discriminatees then clearly and unequivocally rejected the Union's offer before the end of the "continuum." The discriminatees also gave a legitimate reason for the withdrawal: the evening of the first day of the hearing, they examined some Union financial statements, and concluded that the Union was in a far stronger financial position than it had represented during the settlement discussions.

Based on the discriminatees' and General Counsel's rejection of the settlement, and in light of the deference we accord the Board in construing and applying the labor laws, we hold that the Board correctly affirmed the ALJ's refusal to approve the settlement.

2. The adequacy of the discriminatees' damage mitigation efforts.

The purpose of awarding a discriminatee backpay is to restore him as nearly as possible to the situation he would have been in but for the illegal discrimination. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 194, 61 S.Ct. 845, 852, 85 L.Ed. 1271 (1941). In a backpay proceeding, once the gross amount of backpay due a claimant is established, the burden shifts to the opposing party (in this case, the Union) to establish facts that would reduce that amount. Kawasaki Motors Mfg. Corp. v. N.L.R.B., 850 F.2d 524, 527 (9th Cir.1988); M Restaurants, Inc. v. N.L.R.B., 621 F.2d 336, 337 (9th Cir.1980). Any doubts must be resolved against the party who committed the unfair labor practice (again, the Union). Kawasaki Motors, 850 F.2d at 527.

One way to reduce backpay liability to a discriminatee is to show that he did not try to mitigate his losses during the backpay period by finding another job. If a discriminatee "willfully incur[s]" certain losses because of a "clearly unjustifiable refusal to take desirable new employment," the amount of these losses will be...