ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.
Aldisert, Gibbons and Higginbotham, Circuit Judges.
Michael M. Schaefer, an employer, petitions for review of an order of the National Labor Relations Board directing him to pay certain employees backpay. The Board cross-petitions for enforcement of its backpay order. We enforce the Board's order.
Schaefer is engaged in the recovery, sale and distribution of slag and other raw materials. His business has about 250 employees, represented by several different labor organizations. The unfair labor practice charges leading to this proceeding grew out of the efforts of the International Union of Operating Engineers, Local 66 (Operating Engineers or Union), in 1977, to organize a small unit of unorganized employees who repaired Schaefer's trucks. Schaefer preferred doing business with Laborers Local 1058 and attempted during the Operating Engineers' organizing effort, to assist Local 1058. In October of 1977 the Operating Engineers filed a representation petition and the Laborers Union intervened. An agreement for a Consent Election was executed and a Board supervised election held on December 15, 1977. Despite Schaefer's continued support for the Laborers Union, of ten eligible voters six voted for the Operating Engineers, which, on December 23, 1977, was certified as the exclusive collective bargaining representative for the truck repair unit.
Thereafter Schaefer engaged in conduct which resulted, on March 6, 1978, in the filing by the Operating Engineers of an unfair labor practice charge with the Board. On April 27, the General Counsel filed a complaint, subsequently amended, charging that Schaefer discharged or laid off six employees for engaging in protected activities, in violation of section 8(a) (1) of the National Labor Relations Act, 29 U.S.C. § 158(a) (1) (1976). A hearing on the complaint was held in October, 1978.
After the unfair labor practice charge was filed Schaefer and the Operating Engineers Union pursued collective bargaining, in which the question arose whether the Union would withdraw the charge. When informed of this the General Counsel filed an amendment to the complaint, charging an unlawful refusal to bargain in good faith in violation of section 8(a) (5), 29 U.S.C. § 158(a) (5) (1976), in that Schaefer conditioned a collective bargaining agreement on a promise to withdraw the charges. Schaefer denied that an agreement was so conditioned, but alleged as an affirmative defense that in consideration of other concessions the Operating Engineers did agree that the charges would be withdrawn.
The Administrative Law Judge found that Schaefer violated section 8(a) (1) in laying off or discharging six employees. He did not find a section 8(a) (5) violation, however, because the evidence did not support the allegation that withdrawal of the charges was a condition of agreement. The Administrative Law Judge also rejected Schaefer's affirmative defense. Assuming, arguendo, that there was an agreement to withdraw the charges, he ruled that the Union could not bind the General Counsel or the Board. A cease and desist order and a backpay order were recommended.
On consideration of exceptions by Schaefer and the General Counsel the Board modified the recommended order to require a more favorable offer of reinstatement to one employee, but otherwise affirmed. Thereafter Schaefer and the General Counsel executed a stipulation that the Regional Director for Region 6 could issue a notice of hearing on the amount of backpay due the six employees, and that "in the event judicial proceedings are thereafter necessary to enforce or to review the Board's backpay determination, the only issue before the court will be the validity of the backpay computations for the six discriminatees listed in paragraph 2 above, as [Schaefer] concedes that in all respects the Board's Order of October 22, 1979, is valid and proper."
The Regional Director issued a Backpay Specification, to which Schaefer filed an Answer, in which he reasserted that the Operating Engineers had in the collective bargaining agreement waived backpay for all discriminatees. He also alleged that four of the six discriminatees had accepted partial payments of backpay and executed releases for any balance. The General Counsel moved to strike both defenses. The Administrative Law Judge to whom the hearing on backpay liability was referred granted that motion, holding that he was bound by the prior ruling on waiver by the Union as law of the case. As to the releases, he ruled:
It is well settled that an individual may not waive, bargain away or compromise any backpay which might be due him (or her) since it is not a private right which attaches to the discriminatee, but is, indeed, a public right which only the Board or the Regional Director may settle.
A recommended order proposed backpay to six employees totaling $27,489.98. The Board summarily affirmed the Administrative Law Judge's backpay ...