In May, 1978, the National Labor Relations Board found that
respondent union had violated the National Labor Relations Act by
discriminating against nonmembers in its hiring hall referral
practices. The Board ordered the union to compensate the five
charging parties and other "similarly situated" employees for lost
earnings, to be calculated according to a formula established by
the Board. In May, 1979, the Court of Appeals granted enforcement
of the Board's order. The Board then began preparation of a backpay
specification, to identify employees who had been subjected to
discrimination and to determine the amount of backpay due to each
employee. However, for various reasons, preparation of the backpay
specification was delayed, and in 1982, the Court of Appeals
ordered the Board to enter the specification by December 31, 1982.
On December 21, 1982, the Board submitted its specification, but it
later revised the specification to incorporate more complete
information. Ultimately, in July, 1983, the Court of Appeals
modified the Board's order to require that the union tender backpay
only to the charging parties and only as calculated by the backpay
specification of December 21, 1982. The court gave as its
justification for modifying the Board's order "the length of time
that elapsed since the entry of [the court's] original
The Court of Appeals may not refuse to enforce
the backpay order merely because of the Board's delay subsequent to
that order in formulating a backpay specification. NLRB v.
Rutter-Rex Mfg. Co., 396 U. S. 258
"[T]he Board is not required to place the consequences of its own
delay, even if inordinate, upon wronged employees." Id.
396 U. S. 265
By restricting the beneficiaries of the Board's remedy and
abridging procedures lawfully established by the Board for
determining the amount of backpay, the Court of Appeals' order
under review punishes employees for the Board's nonfeasance.
Certiorari granted; 598 F.2d 611, reversed and remanded.
Page 466 U. S. 721
This case presents the question whether the Court of Appeals may
modify an award of backpay by the National Labor Relations Board on
the grounds that the Board failed promptly to specify the amounts
of the award. As the decision of the Court of Appeals apparently is
inconsistent with this Court's precedents, we grant the petition
for writ of certiorari and reverse.
Respondent, Local 480 of the International Association of
Bridge, Structural & Ornamental Ironworkers, AFL-CIO, operates
a hiring hall for construction workers in northern New Jersey. The
lengthy procedural history of the present case begins in May, 1978,
with the Board's finding that the Local had violated §§ 8(b)(1)(A)
and (2) of the National Labor Relations Act, 29 U.S.C. §§
158(b)(1)(A) and (2), by discriminating against nonmembers in its
hiring hall referral practices. [Footnote 1
] The Board ordered the Local to compensate
Page 466 U. S. 722
five charging parties and other "similarly situated" employees
for earnings lost because of discrimination. Ironworkers, Local
235 N.L.R.B. 1511 (1978). The lost earnings were to be
calculated according to a formula established by the Board.
] On May 11, 1979,
the Court of Appeals for the Third Circuit granted enforcement of
the Board's order. 598 F.2d 611.
The Board then began preparation of a backpay specification.
] To identify
employees who had been subject to discrimination, the Board's
Regional Office employed the General Services Administration to
conduct a computer analysis of respondent's records. The computer
was to perform the laborious task of comparing the sign-up dates
and qualifications of nonunion members with those of all union
members who had been referred ahead of them. [Footnote 4
] Until October, 1980, the union slowed
the process by refusing to permit photocopying of relevant records.
Preparation of the backpay specification was further delayed when
the Regional Office, in February, 1981, discovered a substantial
computer error that would require that the entire analysis be
performed again at great expense to the Board. After settlement
negotiations proved fruitless, the Board authorized reanalysis of
the computer data.
Page 466 U. S. 723
In April, 1982, as no backpay specification yet had issued, the
Local filed a motion seeking relief from that part of the Court of
Appeals order of May 11, 1979, that directed backpay for nonmember
applicants "similarly situated" to the five charging parties. The
Local urged that the lengthy delay in issuance of the specification
demonstrated that the Board's order would be impossible to
implement. Further, the Local contended that it had ceased
discriminatory activity, that no "similarly situated" workers had
come forward to allege discrimination, and that the Board's delay
in resolving the case had impaired the Local's operations. The
Court of Appeals, on May 13, 1982, denied the motion "without
prejudice to renew such motion after 90 days." App. to Pet. for
The Local renewed the motion on September 29, 1982. The General
Counsel at that time estimated that the backpay specifications for
similarly situated discriminatees would be completed by April,
1983. The Court of Appeals, however, ordered the Board to enter its
formal backpay specification by December 31, 1982.
To comply with this order, the Board set about preparing a
separate list of employees who had suffered discrimination at
respondent's hiring hall. In estimating the amount of backpay due
to each employee, it was necessary for the Board to obtain
information as to earnings that was available only from the
Ironworkers Pension and Welfare Fund. The Fund refused to provide
the Board with this information without a subpoena or court order.
Uncertain that such litigation successfully could be concluded in
time to meet the deadline set by court order, the Board prepared a
specification based upon projections from records of earnings that
it had available. The Board submitted its Specification and Notice
of Hearing on December 21, 1982, and set the case for May 16, 1983.
The Board later obtained the Fund's earnings records pursuant to an
investigatory subpoena and revised its specification to incorporate
complete information on actual earnings. The revision decreased by
one-fourth the Local's liability.
Page 466 U. S. 724
On February 25, 1983, respondent filed its third motion for
relief from the original backpay judgment, requesting the court to
require backpay only for named parties, or to terminate the
proceedings altogether. The Local contended that the Board's
specification of December 21, 1982, because it was not based upon
actual earnings, was inconsistent with the Board's rules and with
the Board's original backpay order. Further, the Local argued that
the specification was "punitive" because the total liability
exceeded the Local's ability to pay. On July 27, 1983, the Court of
Appeals modified the Board's order to require that the Local tender
backpay only to the charging parties and only as calculated by the
backpay specification of December 21, 1982. [Footnote 5
The Court of Appeals gave as its justification for modifying the
Board's order "the length of time that elapsed since the entry of
[the court's] original judgment." App. to Pet. for Cert. 1a. It is
well established, however, that the Court of Appeals may not refuse
to enforce a backpay order merely because of the Board's delay
subsequent to that order in formulating a backpay specification.
NLRB v. Rutter-Rex Mfg. Co., 396 U.
The present case in some respects differs from
the Court of Appeals
cut off the accrual of backpay at an earlier date than had the
at 396 U. S. 263
In the present case, the Court of Appeals has limited the
Page 466 U. S. 725
class of employees to whom backpay may be awarded, and has
prohibited the Board from amending its backpay specification as the
Board's regulations would permit, see
29 CFR § 102.57
(1983). Nonetheless, the principle of Rutter-Rex
applicable: "[T]he Board is not required to place the consequences
of its own delay, even if inordinate, upon wronged employees. . .
." 396 U.S. at 396 U. S. 265
By restricting the beneficiaries of the Board's remedy and
abridging procedures lawfully established by the Board for
determining the amount of backpay, the order under review punishes
employees for the Board's nonfeasance.6 [Footnote 6
] This Rutter-Rex
forbids. [Footnote 7
It is not entirely clear that the order of the Court of Appeals
was premised simply upon the Board's delay. The text of the order
only hints at the court's reasoning. Respondent had argued before
the Court of Appeals that the Board's long delay further
demonstrated the impossibility of identifying the employees who had
been subject to discrimination and of performing the calculations
required by the Board's backpay formula. Respondent also had
contended that the Board's specification of December 21, 1982,
showed that the Board's order was "punitive" and "confiscatory."
App. to Pet. for
Page 466 U. S. 726
Cert. 63a. We do not consider whether the Court of Appeals on
these grounds may modify its original judgment enforcing the
Board's order. Nor do we foreclose challenges that might be raised
to the conduct or outcome of the supplemental backpay
But as it appears that the Court of Appeals may have rested the
judgment under review simply upon the failure of the Board to act
promptly, that judgment must be reversed and the case remanded for
further proceedings consistent with this opinion.
It s so ordered.
JUSTICE MARSHALL dissents from this opinion deciding this case
without briefing on the merits or oral argument.
Section 158(b) prohibits various unfair labor practices by labor
organizations. That subsection provides in pertinent part:
"It shall be an unfair labor practice for a labor organization
or its agents --"
"(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 157 of this title. . . ."
"(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) of this
section or to discriminate against an employee with respect to whom
membership in such organization has been denied or terminated on
some ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring
or retaining membership."
Section 158(a)(3) prohibits
"discrimination in regard to hire or tenure of employment or any
term or condition of employment to encourage or discourage
membership in any labor organization."
"Section 157, as relevant here, protects the right to refrain
from union activity."
A 1972 consent decree generally obligates respondent Local to
refer applicants to jobs in order of registration at the hiring
hall. The Local unlawfully discriminated in favor of its own
members by referring them for steward positions instead of equally
qualified and previously registered nonmembers.
Under the formula,
"the overall earnings of all applicants, members and nonmembers,
seeking employment through [the] referral system would be divided
by the total number of ironworkers who worked out of the hiring
hall, taking into account the net earnings of the individual
discriminatees during the relevant period."
App. to Pet. for Cert. 21a-22a.
The Board prepares a backpay specification after issuance of an
unfair labor practice order that awards backpay. The specification
shows in detail how backpay is computed, and serves to initiate
supplemental administrative proceedings by giving notice of the
amount allegedly due. See generally
29 CFR §§
The analysis was further complicated by the Board's decision to
consolidate the backpay specification for the present case with
those for four similar cases of discrimination by other New Jersey
locals of the International Ironworkers Association.
The court's order stated:
"[A]fter a review of the various orders entered in this matter,
and the length of time that elapsed since the entry of the original
judgment of this Court, it is ordered that:"
"1. Any backpay specifications not made by December 31, 1982,
are hereby barred, and are not to be considered. See
of court dated December 1, 1982."
"2. Payment in full by the Union of any claims asserted on
behalf of [the charging parties] shall be considered compliance
with paragraph 1 of this order."
App. to Pet. for Cert. 1a-2a.
Such a result is anomalous where there is some suggestion, as in
the present case, that the wrongdoing union or employer itself
contributed to delay by obstructing the Board's processes. Yet, we
must acknowledge that one must be sympathetic to respondent union's
loss of patience with what appears to be the Board's serious
This case also differs from Rutter-Rex
in that the
Court of Appeals here had issued an order that set a deadline for
entry of a formal backpay specification. Rutter-Rex
recognized the power of the courts of appeals to compel Board
action that has been "unreasonably delayed." 396 U.S. at
396 U. S. 266
and n. 3. Cf. Silverman v. NLRB,
543 F.2d 428 (CA2 1976)
(order mandating timely completion of backpay proceedings). In the
present case, however, the Board complied with the court's
deadline. Nor does it appear that the Board, by subsequently
amending the specification, came into noncompliance. The Court of
Appeals order of December 1, 1982, did not limit in any way the
authority of the Board to amend the specifications during the
course of backpay proceedings. It was sufficient that the
specification initiated these proceedings.