Lou DeYoung's Market Basket, Inc.

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lou DeYoung's Market Basket, Inc. and Retail Store Employees Union, Local 20, Retail Clerks Interna- tional Association, AFL-CIO. Case 7-CA-4994 June 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND PENELLO On November 24, 1971, Trial Examiner Eugene F. Frey issued the attached Decision in this backpay proceeding. Thereafter, counsel for the General Counsel filed exceptions' and a supporting brief, and Respondent filed an answering brief. The Board has considered the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, only to the extent consist- ent herewith. On June 21, 1966, the Board found Respondent violated Section 8(a)(5), (3), and (1) of the Act, and inter alia ordered Respondent to offer John Albin, Jr., James Breedlove, and John Boosamra, Jr., reinstatement with backpay. Thereafter, following protracted litigation of the Board's Order in the United States Court of Appeals for the Sixth Circuit,2 in the Supreme Court, which directed remand of the case in light of N.L.R.B. v. Gissel Packing Company,3 in further review by the Board resulting in a Supplemental Decision and Order,4 and in enforcement thereof by the Sixth Circuit,5 a backpay specification concerning the three afore- mentioned discriminatees issued on June 22, 1971,6 which was amended on August 22. Respondent filed an answer and amended answer. A hearing was held on September 15 and 16. Although served with a notice of hearing, no counsel or representative of the Charging Party (the Union) appeared or took part in the proceeding. During the trial, on September 15, Respondent made specific offers of reinstatement to Breedlove and Boosamra. Breedlove accepted the offer and Boosamra indicat- ed that he was willing to accept reinstatement but wanted 2 weeks to think about it. On September 16, before all the evidence was presented, Respondent was permitted, over the objections of the counsel for General Counsel, to make direct settlement offers to the three discrimina- tees in the presence of the counsel for General Counsel. The counsel for General Counsel indicated I We have treated the counsel for General Counsel's "exceptions" as a request for leave to appeal to the Board within the meaning of Sec. 101.9(d) and Sec 102 26 of the Board's Rules and Regulations and Statements of Procedure, and have considered his appeal The counsel for General Counsel's request for an interim hearing solely on the course of the settlement discussions is hereby denied in light of our decision herein. willingness to discuss settlement directly with Re- spondent's counsel but objected to any offer to, or discussion directly with, any of the claimants, on the theory that this amounted to a "bypass" of the counsel for General Counsel. The Trial Examiner overruled the objection on the ground that the counsel for General Counsel was raising an obstacle to possible settlement, contrary to Board policy favoring settlements, by not permitting "the parties" to get together to settle. The Trial Examiner construed the position of the counsel for General Counsel, that he would be freely willing to talk settlement but only with Respondent's counsel, as meaning that the counsel for General Counsel "doesn't think there ought to be any talk about settlement at all." The Trial Examiner refused to hold up the proceeding to enable the counsel for General Counsel to consult with the Regional Director as to whether he should participate in any discussions between Respondent and the three discriminatees as to do so in his view would mean that the Trial Examiner would be bound to a decision or opinion of the Regional Director, contrary to the Act and the Board's Rules and Regulations. The counsel for General Counsel made no further objection at this point. The Trial Examiner called a recess for a conference between Respondent's counsel and his clients, the counsel for General Counsel, and the three discrimi- natees to conclude a settlement. Respondent's counsel requested that there be three separate discussions, one with each discriminatee, as there were three separate cases. The Trial Examiner commented that whatever was said in these individu- al sessions would be bound to get back to all three anyhow as the counsel for General Counsel "will have the right to discuss it with them, and they'll have the right to seek his advice. Since they don't have separate counsel of their own." At this point the counsel for General Counsel stated that he had no objections to an individual discussion with each discriminatee with the counsel for General Counsel present. After settlement discussions during an approxi- mately 70-minute recess, Respondent's counsel on the record advised the Trial Examiner that the claimants had agreed to accept specified amounts of money in settlement of the backpay claim and to waive their rights to reinstatement. The counsel for General Counsel then announced that his participa- tion in the settlement conferences, however it may 2 406 F.2d 17. 3 395 U.S.575 181 NLRB 35. S 430 F.2d 912. 6 All dates hereafter are in 1971 unless otherwise stated. 197 NLRB No. 116 LOU DEYOUNG'S MARKET BASKET 747 have been, was not a waiver of his objection to that procedure. Next the counsel for General Counsel stated that, although he had sat in on the settlement discussions, he had refused to advise the claimants of his position on the offers and "let them make up their own minds." The Trial Examiner proceeded to ask each claimant if the settlement as announced by Respondent's counsel was acceptable to him. Each answered affirmatively. The counsel for General Counsel then objected to the settlement procedure and the settlements them- selves without stating any reasons. He also said that he would not recommend that the Regional Director or the Board approve the settlement. He took no position when questioned by the Trial Examiner on whether consummation of the settlement would still leave Respondent in possible contempt of the Board's original and supplemental orders. The Trial Examiner, over the objection of the counsel for General Counsel, granted Respondent's motion to dismiss the backpay specification, stating that a formal memorandum decision would issue recommending that the Board approve the settlement and dismiss the backpay specification upon consum- mation of the settlement by payment of the agreed amounts to the claimants and notice thereof to the Trial Examiner. On October 4, Respondent advised the Trial Examiner that on September 16 each of the claimants had received the agreed-upon amount and formally waived all rights to reinstatement. Subsequently, in his brief to the Trial Examiner, the counsel for General Counsel for the first time put his view of the terms and nature of Respondent's offers in affidavit form, contending that Respondent in fact had presented its settlement offer in such terms as to coerce the claimants into waiving reinstatement. The Trial Examiner in his decision again approved the settlement and recommended that the Board approve it and enter an order dismissing the backpay specification herein. Notwithstanding the Board's traditional policy of encouraging amicable settlements, in the circum- stances of this case we cannot approve the settlement which the Trial Examiner accepted, for the record discloses fatal flaws. In the first instance, the counsel for General Counsel improvidently insisted on dealing only with Respondent's counsel, outside the presence of the discriminatees. We see nothing wrong with the claimants being present in working out a settlement so long as the counsel for General Counsel or Charging Party is present to protect their 7 Although the point was not preserved by exception, we believe the Trial Examiner would have acted more prudently if he had allowed the counsel for General Counsel to seek advice from the Regional Director, as the Regional Director is the supervisor of the counsel for General Counsel and is a party to the proceeding. See Sec 102.8 of the Board's Rules and interests, since they are the only parties entitled to any affirmative relief in a backpay proceeding.? However, the counsel for General Counsel erred by then joining in the discussions but refusing to give the discriminatees the benefit of his views and, according to his own account, sitting idly by while the discriminatees were allegedly coerced into waiv- ing their statutory right to reinstatement. Nor did the counsel for General Counsel raise this very serious charge of alleged coercion to the Trial Examiner at the time that the settlements were announced to give the Trial Examiner and the Board, by means of an interlocutory appeal from an adverse ruling by the Trial Examiner, a chance to evaluate his objection before the settlements were actually consummated. Finally, the Trial Examiner committed error by ordering a consummation of the settlements in the face of the General Counsel's objection, before he issued his Decision and before the Board could approve the settlement. That action had the tendency to limit our effective review of the settlement because the parties have acted in reliance on the Trial Examiner's approval, thereby complicating any reversion to the status quo ante. For that reason, particularly, we regret that we must order the record reopened and the proceeding remanded for further hearing on the merits of the backpay specification and we are well aware that this decision might result in inequities to the claimants and Respondent. However, in light of the described failure of the counsel for General Counsel and the Trial Examiner to protect the interests of the discriminatees and the Board we conclude that the public interest requires it. ORDER It is hereby ordered that the backpay specification be, and it hereby is, reinstated. IT IS FURTHER ORDERED that the record in the proceeding be, and it hereby is, reopened and that a further hearing be held before Trial Examiner Eugene F. Frey to continue receiving evidence on the merits of the backpay specification. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Region 7 for the purpose of arranging such further hearing, and that said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS FURTHER ORDERED that, upon conclusion of such further hearing, the Trial Examiner shall prepare and serve upon the parties a Supplemental Regulations, Series 8, as amended. Had the Trial Examiner granted the request of the counsel for General Counsel for a short recess, we are confident that the Regional Director would have instructed him to participate actively in the settlement discussions with the three claimants and Respondent's counsel 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision containing finding of facts upon the evidence received pursuant to this Order, and such conclusions of law and recommendations as he may deem appropriate; and that, following the service of such Supplemental Decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applica- ble. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE F. FREY, Trial Examiner: This is a backpay proceeding which was heard before me on September 15 and 16, 1971, at Grand Rapids, Michigan, with Respon- dent and General Counsel of the Board appearing by counsel, and three former employees, John Albin, Jr., James L. Breedlove, and John F. Boosamra, Jr. (herein called claimants or discriminatees), appearing in person.' The broad issue was the total amount of backpay due to each claimant under an Order of the Board issued June 21, 1966, herein (159 NLRB 854), finding that Respondent had engaged in violations of Section 8(a)(1), (3), and (5) of the Act, and providing that Respondent offer reinstatement to each of said discriminatees and make them whole for loss of pay resulting from the discrimination against them. The issue arose on a backpay specification issued June 22, 1971, by the Board's Regional Director for Region 7, following protracted litigation of the Board's Order of June 21, 1966, in the United States Court of Appeals for the Sixth Circuit and in the Supreme Court of the United States, which directed remand of the case to the Board for further proceedings in light of its decision in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. It was further reviewed by the Board, resulting in a Supplemental Decision and Order on February 9, 1970, and in enforcement thereof by decree of said court of appeals dated September 8, 1970. The answer of Respondent to the backpay specification, as amended, sharply defined specific issues on the proper length of the backpay period for Albin and Boosamra, whether one or more of the claimants had made proper efforts to seek full employment during the periods involved or had been guilty of willful loss of interim earnings. At the trial on September 15 and morning of September 16, the issues were vigorously litigated by extensive examination of the three former employees by Respondent and General Counsel and, in the course thereof, sharp issues of credibility as well as arguable points of law were raised on all issues. During the trial on September 15, Respondent made specific offers of reinstatement on the record to two of the claimants, both of whom indicated willingness to accept reinstatement. During luncheon recess on September 16, counsel for Respondent advised the Trial Examiner of Respondent's past unsuccessful efforts to settle the backpay issue and that it was still interested in making firm settlement offers to the claimants. When the trial resumed, the Trial Examiner adverted to the Board's policy encouraging settlement of contested unfair labor practice cases, and stated that he would give Respondent an opportunity to make its offer to the claimants, and discuss it with each of them individually, in the presence of counsel for General Counsel. That official indicated willingness to discuss settlement directly with Respondent's counsel, but object- ed to any offer to, or discussion directly with, any of the claimants, on the theory that this amounted to a "bypass" of the General Counsel. The Trial Examiner overruled this objection, making it clear, as Respondent suggested, that any discussion with the claimant would be in the presence of counsel for General Counsel, who would be present to present his views and advise them about the propriety of any offers made. In outlining this procedure, the Trial Examiner refused to hold up the proceeding to enable counsel for General Counsel to ascertain and present the views of the Regional Director on whether General Counsel should .participate in the proceedings, on the theory that as the agent of the General Counsel he should be present to present the views of General Counsel and also advise the three men privately, since they had no individual or separate counsel.2 Counsel for General Counsel finally agreed to this procedure. After discussions during a recess between the parties as outlined above, Respondent advised the Trial Examiner that the claimants had agreed to accept the following amounts of money in settlement of the backpay claim: John A. Albin, Jr. $1,500 John F. Boosamra, Jr. 1,000 James L. Breedlove 4,500 Each of the three at the same time waived reinstatement. Counsel for General Counsel then announced that, while sitting in on the general discussions and also having private talks with each man, he had refused to advise them of the position of General Counsel on the offers, and that their decisions to accept were solely their own. Upon query of the Trial Examiner, each claimant stated on the record that the settlement was satisfactory to him. Counsel for General Counsel then stated his objection to the settlement procedure on the ground that it amounted to a bypass of the General Counsel and, on that basis, he would not recommend to the Regional Director that that official approve the settlement or recommend such approval by the Board. He took no position on whether consummation of the settlement would still leave Respon- dent in possible contempt of the Board's original and I For reasons stated hereafter, I consider each claimant as a "party" to 2 No counsel or other representative of the Union appeared or took any this proceeding in the circumstances of this case part in this proceeding. LOU DEYOUNG'S MARKET BASKET 749 supplemental Orders. The Trial Examiner questioned whether it would effectuate the purposes of the Act to subject an employer to possible charges of contempt after he and the discriminatees had fully settled the issues of reinstatement and backpay following frank and open discussions and compromise, all after long and protracted litigation. The Trial Examiner then adjourned the trial without delay to permit Respondent to consummate the settlement by payment of the agreed amounts to the claimants. He also took under advisement, subject to objection of General Counsel, a motion of Respondent to dismiss the backpay specification upon submission of letter advice of consummation of the settlement. On October 4, 1971, Respondent advised the Trial Examiner by letter (with copy to counsel for General Counsel) that on September 16, 1971, each of said claimants had received the amount of money agreed upon in settlement of his backpay and also formally waived all right of reinstatement. In view of the nature of the questions raised by the settlement procedure, and the effect thereof in effectuating the purposes of the Act, as well as the Board policy of encouraging settlement of litigation,3 the parties agreed that the proceedings herein, the result thereof, and the action of the Trial Examiner thereon, should be set forth in a formal Decision of the Trial Examiner. The parties were granted until October 1, 1971, to file briefs on the issues. Written briefs duly filed by Respondent and General Counsel have been considered in preparation of this Decision, which is signed and released by the Trial Examiner on November 19, 1971, for distribution to all parties in the usual course. Contentions of the Parties and Conclusions Thereon' The basic contention of General Counsel, as amplified in his brief, is that Respondent has no right to talk "at all" to the claimants or work out a settlement on the backpay with anyone but General Counsel, because the three discrimina- tees are not "interested parties" in the case and, since General Counsel did not approve the settlement and the Union did not participate in it, it was in fact "no settlement at all," because it involved only one party, the Respondent, hence the Trial Examiner had no right to permit the discussions or approve a one-party settlement.4 He also contends that the amounts of money offered and accepted, with coincident waiver of reinstatement by the three, were "ludicrous," because these sums were only about 35 percent of the total claimed in the backpay specification, and statements of Respondent in tendering the sums to the 3 In the "Summary of Standard Procedures in Formal Hearings held before the National Labor Relations Board in Unfair Labor Practices" which was attached to the Backpay Specification served on all parties, including the claimants, the Board informed all parties that "Adjustments or settlements consistent with the policies of the Act reduce government expenditures and promote amity in labor relations Upon request, the Trial Examiner will afford reasonable opportunity during the hearing for discussions between the parties if adjustment appears possible, and may himself suggest it " 4 He concedes that the Trial Examiner has authority to accept a settlement between two or more "parties " over the objection of the three indicated the payments were unlawfully conditioned on their waiver of reinstatement. However, there are serious deficiencies in General Counsel's position, which will be considered in order. At the outset, it appears that the present arguments of General Counsel are second thoughts. His only objection to the settlement procedure stated on the record was that he was being "by-passed." He refused to make any statement about the amount or fairness of the settlement, aside from his general objection to the whole proceeding. Although statement of a bare objection without reasons therefor is usually of little or no help to the trial court, and is worthy of no more than outright rejection under basic trial practice in the States and the Federal Rules of Civil Procedure, and appears to fall short of the requirements of Board Rule 102.41 requiring that a short statement of the grounds of the objection accompany the objection itself, I will still consider the merits of specific arguments in the brief of General Counsel, solely because of the importance of settlements and settlement procedures in accomplishing the broad and fundamental purpose of the Act to avoid or minimize industrial strife and promote industrial peace. The argument of "by-passing" is without merit in fact. Respondent specifically requested, and the Trial Examiner stipulated, that General Counsel should be present in any discussions between Respondent and the claimants with opportunity to express his views and advise the three, since they were not represented by counsel or otherwise.5 He acquiesced in this procedure on the record, and in fact was present in all the discussions between Respondent and the claimants, in addition to talking privately with each of the claimants, before the settlement was announced on the record. Hence, the Trial Examiner had a right to assume that he would actively state his views in the discussions on the fairness and validity of the settlement offers and give the claimants the benefit of his views and advice. The fact that he did not, which became clear only after the settlement was announced by Respondent and accepted by the claimants, in light of his prior request to get instructions from the Regional Director, indicates that he may have had a misconceived idea that counsel for General Counsel and the Regional Director were entitled to control, or at least "supervise," proceedings before a Trial Examiner (which would be contrary to the Act and the Administrative Procedure Act of 1946),6 and does not alter the fact that he was given the opportunity to participate in the settlement talks, and did so, albeit negatively. It is General Counsel's responsibility, not that of Respondent or the Trial Examiner, to justify to the claimants, the Union, and the Board the question whether he performed his official duty and responsibility by physically entering the negotiations, but refusing to take remaining parties. This authority is clearly established by Board decision in Local 638, United Association of Plumbers (Nepco Terminal Corp), 158 NLRB 1747, 1750; Local 201, Intl. Union (General Electric Company), 188 NLRB No 125 5 The Union did not appear or take any part in the backpay hearing 6 In backpay cases, the General Counsel has the initial burden of presenting proofs to show the gross amount of backpay due, and the formulae or bases on which it was computed. American Mfg Co of Texas, 167 NLRB 520, United States Air Conditioning Corp, 141 NLRB 1278, 1280, enfd. 336 F.2d 275 (C.A. 6). He is merely one "party," as in the usual unfair labor practice trials. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any affirmative part therein, or advising the claimants, unknown to the Trial Examiner. I find that he was in fact one of the parties to the settlement negotiations. The physical absence of the Union therefrom (contrary to its appearance in earlier stases of the case) cannot deprive the settlement of validity; it was still a party entitled to participate in the proceeding, and General Counsel cannot rely on its failure to appear. Hence, it was an actual three- party, and potential four-party, settlement. The argument that the three claimants, in the backpay stage of the case, were not "interested parties" entitled to take part in any settlement discussions is patently without merit. It flies in the face of the fundamental purpose of the Act, stated in its preamble, statement of policies, and throughout its provisions, and long recognized by the Board and the courts, to avoid or minimize industrial strife by insuring that employers, employees, and labor organiza- tions recognize under law the legitimate rights of each in their relations to each other, and to protect the rights of employees stated in Section 7 of the Act in their relations with employers and with labor organizations.? In fashion- ing remedies to protect these rights of employees as individuals, the Board with specific approval of the courts has repeatedly indicated that its remedial action is based on the theory that it is required by the Act to consider employees as individuals with specified rights to be protected. In a long line of judicial pronouncements of this principle, the United States Supreme Court has often emphasized that the broad purpose of Section 8(a)(1) of the Act is to protect employees in their right to organize for mutual aid and protection without employer mterference.8 The Board has long recognized, with court approval, that broad remedial orders are justified in cases of discrimina- tory discharge of employees, since such violations of their rights under the Act go "to the very heart of the Act" 9 and "strike at the root of employee rights safeguarded by the Act." 10 The Board has also long recognized that reinstate- ment orders in discharge cases serve a dual function of making whole specific employees subjected to discharge or other detrimental change in their wages and employment status, as well as assuring other employees that the Act is effective to prevent discrimination.11 In recent years, the Board has emphasized the importance of the employee and the need for personal assurance of his rights, by requiring that, where his Section 7 rights have been violated, the remedial notice posted by the employer must advise employees in simple and readily understandable language (as contrasted with the legalistic phraseology formerly copied from Secs. 7 and 8(a)(1) and (3) of the Act) what their protected rights are, how they were violated, and what the employer must do to remedy violations of those rights and protect them in the future.12 The Board and the courts have also recognized the Board's responsibility to recognize, consider, and adjudi- cate employee rights and status in representation proceed- ings under the Act, where employers and unions have made private agreements purporting to regulate their right Sec 1(a), Title I, Sec 101, and Sec 7 of the Act 8 Early and recent statements are in N LR B v Jones & Laughlin Steel Corp, 301 U S 1, 42-43, and N L R B v. Exchange Parts, Inc, 375 U S 405, 409 9 N L R B v Entwistle Mfg Co, 120 F.2d 532,1536!(C A 4). to vote in Board elections. In Shoreline Enterprises of America, Inc., 117 NLRB 1619, a refusal-to-bargain case, where the votes of four employees in a Board election were not counted on the basis of an agreement of employer and union to exclude them from the eligibility list, these employees were allowed to intervene personally in the unfair labor practice case to preserve their rights to object to a report of the Regional Director on objections relating to their exclusion from the election. The Trial Examiner and the Board found the employees' objections without merit, and the Board issued, inter alia, the usual bargaining order against the employer. When the case came before the United States Court of Appeals for the Fifth Circuit on cross-petitions for enforcement and review,13 that court took occasion to analyze in detail the discussion and negotiations between Board agents, employer, and union before the election on the eligibility of the four employees, saying "the most serious question in this case concerns the right of individual employees to have a say in their own economic life." The court noted that a Board agent had accepted a preelection resolution on the eligibility of the four after employer and union had argued over their status, without giving the four any chance to be heard on their disenfranchisement. While the court recognized the policy considerations which usually lead the Board to give finality to consent elections and unit agreements therein, it also said, "Stronger, considerations impel this Court to recognize' Ithatl the interests of the Intervenors as four individual rank-and-file employees, caught in the middle of company- union maneuvering, should have been better protected by the Board." It held that the Board's blessing of the parties' agreement on the nature of the unit which exclude the four "disregards an important party in interest under the Act and beyond the Act-the rank-and-file employee." It concluded that it could not accept the view that a company-union agreement to exclude certain employees from their right to select their bargaining agent must bind the Board, saying "The National Labor Relations Board is not just an umpire to referee a game between an employer and a union. It is also a guardian of individual employees. Their voice, though still and small, commands a hearing." In this respect, the court equated rights of individual employees to select a bargaining agent with those of a citizen to select a political representative. It held that the Board abused its discretion when it knowingly allowed eligible employees to be disenfranchised or failed to investigate their eligibility, particularly where their votes might have changed the result of the election. After review of the facts, it held that the Board should have been alert and active to investigate and decide the eligibility of the four where its agents had reason to believe that these employees by definition were properly part of the unit. In denying enforcement of the Board Order and remanding the case, the court said "Individual rank-and-file employ- ees, caught in the toils of selfish company-umon machina- tions or in the complexities of honest company-union to Brads Machine Products, Inc, 191 NLRB No 15; Houston Shell & Concrete Co, 193 NLRB No 171. 11 Atlantic Co, 79 NLRB 820. 12 Terrell Machine Co, 173 NLRB 1480, 1482, and cases cited in In. 12 13 262 F 2d 933 LOU DEYOUNG'S MARKET BASKET 751 negotiations, are entitled to look to the Board, for protection of their rights." The Board has recognized these principles in review of employee eligibility to vote in similar cases, despite consent election agreements which stipulated the nature and composition of the bargaining unit. Udaco Mfg. Co., 164 NLRB 700; and cf. American Printers & Lithographers, Inc., 174 NLRB 1179. The same principle was applied in deciding the supervisory status of employees in Aerovox Corporation of Myrtle Beach, 172 NLRB 1011. In an earlier case, Bonwit Teller, Inc., 96 NLRB 608,14 the Board recognized the special status of employees and the need of protection of their rights from actions of both employer and union, when it held that an employer could make antiumon speeches to a "captive audience" of its employees, but violated the Act when it refused to allow the Union a chance to address the same audience under the same conditions. In basing its decision on the right of employees to hear both sides in a preelection campaign under approximately equal circumstances, the Board adopted without specific comment the observations of its Trial Examiner that "if employees are protected from compulsory propaganda they are protected from both ends of the scale. They have as much right to be free of union as employer argument, if they are free of either. The Act does not conceive employees as pawns in a struggle between employer and union, to be shunted about at the will of the contestants. In the rush to capture his allegiance, the dignity of the principal should not be forgotten." Aside from the substantive emphasis on rights of individual employees, the Board has evolved procedural safeguards as well as duties for individual employees in its administration of the Act. Thus, it has long recognized that employees named in unfair labor practice complaints as discriminatees are entitled to be present during the taking of all testimony in the trial of such complaints (as contrasted with ordinary witnesses who may be seques- tered and excluded during the trial upon motion of any party), even though such employees are only called as witnesses, because they are more than mere witnesses but occupy the position and status of complainants in the case.15 The Board has also noted that where a union files a charge naming an employee as being subjected to a layoff in violation of Section 8(a)(4) of the Act, the charge is in reality that of the employee, as it directly affected his employee interests.16 In like manner, the Board recognizes that individual employees whose rights may have been violated by personal discrimination, such as discharge while engaged in strikes during labor disputes, also have individual responsibilities to assist the Government in vindication of such rights by giving testimony in com- plaints issued under the Act for that purpose, for when they do not so appear, the Trial Examiner has the right on motion to dismiss the complaint as to them.17 The same action may be taken where a named discriminatee advises 14 Enforced 197 F 2d 640 (C A 2), cert denied 345 US 905 15 Jacques Power Saw Co, 85 NLRB 440, 443, Walsh-Lumpkin Wholesale Drug Co, 129 NLRB 294, 295, T I L Sportswear Corp, 131 NLRB 176 16 Frank Miller's Sons, 164 NLRB 192, 199 17 John S Barnes Corp, 92 NLRB 589, 590; Celanese Corporation of America, 95 NLRB 664, 680 the General Counsel before trial that he does not desire the Board to proceed in his individual case. On these authorities, I must conclude that the three claimants were entitled to special consideration as com- plainants, although not termed formal "parties," at the stages of this case involving resolution of the grave issues of unfair labor practices. As a logical consequence, I must also conclude that they are entitled to be considered, a fortiori, as "parties in interest" on basically the same plane as Respondent, the Umon, and General Counsel, in this final backpay segment of the compliance stage of the case. At this late point, the fundamental objectives and policies of the Act affected by the violations of Section 8(a)(1), (3), and (5) of the Act have been effectuated by final enforcement by the court in September 1970 of the Board's Supplemental Decision and Order of February 9, 1970; 18 hence, only the mechanical computation of backpay remains. In resolution of this issue, the function of counsel for General Counsel is mainly to present the backpay specification and the computations of the Regional Director supporting the total backpay claimed.19 Neither General Counsel nor the Umon have any real interest in the money to be paid by Respondent, for neither receives any part of it (except that the Government gets taxes from the final amounts the claimants receive in lieu of earnings). On the other hand, Respondent has the burden of proving that the total claimed should be reduced, or even canceled out, to the extent that the claimants have failed to mitigate damages by willful loss of earnings during the backpay penod.20 The employer usually tries to do this, in part by examination of the claimants and in part through other pertinent proof; 21 General Counsel usually tries to sustain the total claimed through their testimony. Hence, they have a real and overriding interest in supporting the total claim, which is in most cases made up largely from Board investigation of their conduct after the discrimination against them. In this situation, I am of the opinion that real and fruitful efforts to settle and compromise the backpay claim can best be achieved by direct discussions between the employer and the claimants, and I think this is particularly true in this case, where there has been protracted litigation lasting over 5 years, during which the claimants knew they had to await the outcome before their backpay claims could be considered. They also knew that, even then, their right to backpay, and the amount of it, would depend on resolution of the questions of the exact backpay period for each, which would be affected by the date and effective- ness of any prior offers of reinstatement, and the sincerity of their own efforts to secure employment since the discrimination against them. After 1 1 /2 days of their testimony on these issues, and before Respondent pro- duced its own testimony on them, they knew these issues were contested and unresolved. They were also entitled to advice from General Counsel (as well as from the Union, if it had been present or available), as to the probabilities of 18 Lacking proof or argument otherwise, it can be presumed that Respondent has complied with the order of the court 19 See cases in fn. 6 above 20 Brown & Root, Inc, 132 NLRB 486, enfd. 311 F 2d 477 (C A 8) 21 Arduini Mfg Corp, 162 NLRB 972 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resolution of these issues for or against their claims, and the chance that any decision of the Trial Examiner and the Board might be litigated further by Respondent. In consideration of all these factors and the risks involved, they were the only persons in a position to decide in the last analysis whether they would be serving their own best interests by making a "clean break" with Respondent in accepting a compromise offer and waiving reinstatement after open discussion and negotiation with Respondent, with counsel for General Counsel present to give them advice if requested. The General Counsel could only have a derivative and abstract interest in this problem, as the rights of other employees under the Act had presumably been protected by enforcement of other portions of the Board's Orders herein. In all the circumstances, I must conclude that the procedure I outlined to the parties, which was followed by Respondent, the complainants, and at the outset by counsel for General Counsel, was not inconsistent with the basic statutory policy of minimizing industrial strife, while protecting rights of employees, and the Board's ancillary policy of encouraging settlements for the reasons stated to the parties in its Summary Statement of Procedures. On the terms of the settlement, General Counsel argues that payment of 36.7 percent of the total backpay claimed, contingent upon waiver of reinstatement, is "patently inadequate" and also amounts to a coercive settlement insofar as it was conditioned upon the waiver of reinstate- ment. It must be noted that the figure of 36.7 percent is an average for the three, and that the percentage for the individuals varied widely: Albin accepted 17.6 percent of the total claimed for him, Boosamra accepted 58 percent, and Breedlove accepted 38.8 percent. I must assume that the varying amounts were offered by Respondent, and accepted by each of the claimants, with some knowledge and appreciation of the respective strength or weakness of the total claim made for each. In light of the protracted litigation, the uncertainties of proof and arguable issues entering into the final decision of the backpay issue, and possibility of further litigation of that issue, of which the claimants were aware or should have been apprised by counsel for General Counsel, and assuming that both Respondent and the claimants were naturally desirous of closing out the long and protracted litigation, and that their settlement discussions off-the-record had this end in view, I am not prepared to say arbitrarily that offer and acceptance of the amounts stated, as a means of "wiping the slate clean" after long litigation, was not adequate or did not serve to effectuate the purposes of the Act and the settlement policies of the Board.22 Regarding the alleged conditional and coercive nature of the settlement, if Respondent in fact had presented his compromise offer in the presence of General Counsel in such terms as to coerce the claimants into waiving 22 When Respondent announced the settlement on the record, General Counsel did not state that a 36 .7 percent settlement with waiver of reinstatement was inadequate, or support his present claim with any facts or argument, as the basis for his overall objection of the settlement, so that the Trial Examiner had nothing on which he could assume or find at that time that he did not consider the total or individual offers adequate 23 This procedure would have served the salutary purpose of perpetuat- ing on the record for future review the fresh memory of all participants as reinstatement, it was the duty of counsel for General Counsel, who heard the offers, to apprise the Trial Examiner of the fact the moment the settlement was stated on the record, so that he could have ascertained prima facie by questioning of counsel and the claimants immediately on the record whether Respondent had engaged in improper conduct during the negotiations.23 Counsel for General Counsel already knew how the offers had been presented and needed no recess to consult the Regional Director, if Respondent had indulged in further coercion of former employees so as to taint the settlement with illegality. The failure to raise this serious reason for his objection promptly raises grave doubt in my mind as to whether the claimants were in fact misled or coerced by the terms of Respondent's offers, as well as whether Respon- dent's counsel would take the risk at this late date of indulging in coercion which might work against it in future, in light of its past unfair labor practices. It is also significant that the three claimants, who had had the benefit of the presence and possible advice of counsel for General Counsel,24 did not claim coercion when asked if the settlement terms were satisfactory. General Counsel has for the first time put his version of the terms and nature of Respondent's offer in affidavit form, as an appendix to his brief, hence I naturally have no response from Respondent or its counsel. If I granted the request of General Counsel for an interim hearing solely on the course of the settlement talks, as now recalled by counsel for General Counsel, another trial and convoca- tion of the parties and witnesses would be necessary, with its attendant expense and passage of time, followed by the usual opportunity for oral argument and written briefs before a Decision of the Trial Examiner. As the interim claim would directly involve and impugn the conduct and integrity of counsel for Respondent, I can fairly assume the issue would be fully and vigorously litigated, both before me and the Board, and probably the courts, if the decision went against Respondent. Aside from the time and expense this would consume, the backpay hearing might have to be resumed, with a decision of Trial Examiner and Board, and possibility of court review. In light of the length of past litigation herein, it is far from speculation to say that this additional and dual litigation might well consume a further untold amount of time and expense on all sides, and might seriously increase the chances of industrial strife between Respondent and the Union, and possibly nullify any purposes of collective bargaining involved in Respondent's compliance with the Board's Supplemental Decision and Order of February 9, 1970.25 Even accepting as true the version of Respondent's remarks in the negotiations as stated in the affidavit of General Counsel, it is clear that much of what Respondent's counsel said about past and possible future litigation was but a paraphrase of what the Trial Examiner said on the record to all parties before he what hadjust been said and done in the negotiations. 24 One claimant, Boosamra, also had the benefit of consultation with his father and sister, who were present at the hearing, though excluded from the actual discussions of Respondent with Boosamra. 25 I have received no advice from General Counsel or the Board that Respondent has done other than comply with the Board's latest Supplemen- tal Order, except for payment of backpay. LOU DEYOUNG'S MARKET BASKET 753 outlined the settlement procedure to be followed, hence these remarks, counsel's opinion about the possibility of more litigation, and his remarks about waiver of reinstate- ment, all stated in the presence of counsel for General Counsel, can hardly be characterized as coercive, particu- larly where that official was at hand to make instant objection to any improper conduct and advise the claimants to ignore or resist it, or reject the offers. Considering all the circumstances, treating the request of counsel for General Counsel as a formal motion, and feeling that this course of action would not effectuate the purposes and policies of the Act or the settlement policy of the Board, I am constrained to deny the request.26 RECOMMENDATION After careful consideration of all the circumstances affecting the settlement, and the arguments of counsel pro and con, I find that the settlement reached by Respondent and complainants, Breedlove, Albin, and Boosamra at the hearing of September 16, 1971, as set forth above, appears to be a fair compromise of the limited issues created by the backpay specification and answer of Respondent thereto, which will protect the public interest by minimizing industrial strife and promoting collective bargaining, protect rights of said claimants and other employees guaranteed by Section 7 of the Act, and effectuate the purpose and policies of the Act. I therefore approve the settlement and recommend to the Board that it approve the settlement and enter an Order dismissing the backpay specification herein. All parties are hereby given 20 days from the date of receipt of this Decision and Recommendation to take whatever action they may deem appropriate or necessary in accordance with the Board's Statement of Procedures, Section 101(d) and the Board's Rule 102.26. 26 In reaching this conclusion, I have carefully considered cases cited by General Counsel where the Board had refused to approve settlements accepted by Trial Examiners, but consider them inapposite and not controlling because of the different factual situations involved