NATIONAL LABOR RELATIONS BOARD, PETITIONER V. INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL & ORNAMENTAL IRONWORKERS, LOCAL 480, AFL-CIO No. 83-1202 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statute and regulations involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The orders of the court of appeals (App., infra, 1a-2a, 5a-6a, 7a-8a, 9a-10a) are not reported. The decision and order of the National Labor Relations Board, together with the decision of the administrative law judge (App., infra, 11a-52a), is reported at 235 N.L.R.B. 1511. JURISDICTION The judgment of the court of appeals (App., infra, 1a-2a) was entered on July 27, 1983. A petition for rehearing was denied on August 24, 1983 (App., infra, 3a-4a). Justice Brennan extended the time for filing a petition for a writ of certiorari to and including January 21, 1984. The jurisdiction of this Court invoked under 28 U.S.C. 1254(1). STATUTE AND REGULATIONS INVOLVED The relevant provisions of the National Labor Relations Act, 29 U.S.C. (& Supp. V) 151 et seq., and of the Board's rules and regulations, 29 C.F.R. 101.1 et seq., are set forth at App., infra, 106a-110a. QUESTIONS PRESENTED 1. Whether the court of appeals acted contrary to this Court's decision in NLRB v. J. J. Rutter-Rex Manufacturing Co., 396 U.S. 258 (1969), in denying backpay to an entire class of employees covered by the Board's order because of the length of time required to determine the amounts of backpay due those employees. 2. Whether the court of appeals abused its discretion in precluding the Board from amending its December 1982 backpay specification, with the result that four named discriminatees were denied backpay to which they were otherwise entitled under the Board's order. STATEMENT Respondent, Local 480 of the International Association of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, operates an exclusive hiring hall in the construction industry in northern New Jersey pursuant to a collective agreement with the Building Contractors Association of New Jersey. The Board found that respondent violated Section 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 (App., infra, 11a-52a). /1/ Finding a widespread pattern of discrimination against nonmember applicants, the Board directed respondent to make whole five named charging party employees and all "similarly situated" employees who suffered loss of earnings as a result of respondent's referral practices (id. at 21a). The Board's order directed that backpay be determined "under a formula whereby the overall earnings of all applicants, members and nonmembers, seeking employment through its referral system would be divided by the total number of ironworkers who worked out of the hiring hall * * * " (id. at 21a-22a). The court of appeals enforced the Board's order in full on May 11, 1979 (App., infra, 9a-10a). Thereafter, the Board's Regional Office began the task of identifying all similarly situated employees and computing backpay amounts. This task was complicated by the fact that the instant case was one of five similar cases in which the Regional Office was required to compute backpay due to discriminatory referral practices against named and "similarly situated" job applicants by member locals of the District Council of Ironworkers for Northern New Jersey. /2/ In an effort to treat all of the claimants equally and to organize the Region's compliance efforts more efficiently, the Regional Office sought at the outset to prepare a consolidated backpay specification covering all of the locals (App., infra, 77a). The only central source of wage data for respondent and the other locals was the employee wage records maintained by the Ironworkers Pension and Welfare Fund. Because of the manner in which these records were kept, it was necessary, in order to identify all "similarly situated" employees, for the Regional Office to make a detailed computer analysis of respondent's referral registers covering a period of three years (App., infra, 66a-67a, 74a-76a). /3/ This analysis required a line-by-line inspection of several thousand pages of referral records in order to determine an employee's sign-up date, qualifications and union affiliation, and to compare the information on nonmember employees with that on member employees who were referred ahead of nonmembers. Respondent refused to permit the Region to photocopy its referral registers for use in the computer analysis until October 1980, after the Board had instituted contempt proceedings against two other locals that also had refused to permit photocopying of relevant records (id. at 74a-75a). Thus, during the early stages of compliance, the Board's agents were forced to copy the referral records by hand. The Region contracted with the General Services Administration (GSA) to perform the computer analysis, and by February 1981 the analysis had identified all of the nonmembers who had applied for work through respondent's hiring hall during the relevant period (App., infra, 83a, 88a-89a). Upon receiving the data from GSA, however, the Region discovered that GSA's subcontractor had made a major keypunching error that caused GSA's analysis to overlook as many as half of the incidents of discriminatory referrals required to identify all nonmember discriminatees and to determine the amounts due them (id. at 83a). Correcting the GSA error required that new data cards be keypunched and reprocessed (id. at 85a). GSA refused to correct the error and complete the project, however, unless the Board paid an additional $10,000 (id. at 83a-84a). The Region called a meeting in October 1981 with respondent's attorney and other representatives of locals involved in the Ironworkers cases to discuss a more expeditious resolution of the backpay remedy. The Region suggested that possible settlement proposals might include a lump sum payment to be divided among discriminatees, installment payments or possibly waiver of dues and fees for discriminatees over a period of time. Noting that settlement proposals should be based on the locals' ability to pay, the Region requested that respondent provide it with financial data reflecting its ability to meet the terms of a possible settlement (App., infra, 79a; Exhibit E to Respondent's Second Motion for Relief 1). Respondent's attorney stated that he would discuss settlement methods with his client and, on that basis, further work on the computer analysis was held in abeyance (App., infra, 84a). Having received no response by January 1982, the Region again communicated with respondent regarding settlement (Exhibit E to Respondent's Second Motion for Relief 1). Respondent replied by letter of January 27, 1982 that "(i)t has long been (respondent's) position that the broad provisions of the present (backpay) orders render them, in effect, unenforceable * * * . It should also be noted that, at least from (respondent's) perspective, no immediate resolution of this issue is even remotely in sight" (Exhibit F to Respondent's Second Motion for Relief 2). Respondent did not agree to any of the proposed settlement methods and refused to provide financial information, suggesting instead that the Region consult documents on file with the Department of Labor (id. at 3; App., infra, 79a). The Board thereafter authorized expenditure of the additional funds required to complete the computer analysis and calculate backpay. On April 21, 1982, respondent filed a motion in the court of appeals seeking relief from the court's May 1979 order insofar as it enforced that portion of the Board's remedial order directing backpay for "all other nonmember applicants who were similarly situated." Respondent contended that the Board's delay in determining backpay for those individuals rendered that portion of the order "unenforceable." The court of appeals summarily denied the motion on May 13, 1982, "without prejudice to renew such motion after 90 days if the situation is not clarified by then" (App., infra, 8a). /4/ Shortly before the court issued this order, GSA informed the Region that, because priority had been given to another program over the Board's backpay program, work on the Board's program would be delayed until July. GSA's data processing subcontractor then told the Region that a planned change in computer systems would delay resumption of the analysis until October 1982 (id. at 90a). The Region, after considering the additional cost and start-up time of using another contractor, decided to keep the work with GSA. On September 29, 1982, respondent filed a renewed motion for relief from the "similarly situated" portion of the backpay order, again on the ground of the continuing delay. In opposing respondent's motion for relief, the Board's General Counsel summarized for the court the history of the Region's efforts to identify all discriminatees and compute backpay amounts, including the delays caused by GSA and its subcontractors. The General Counsel explained those steps still to be performed and estimated that a backpay specification based upon actual earnings information for all named and similarly situated discriminatees would be completed by April 1983 (NLRB Memorandum in Opposition to Respondent's Second Motion for Relief 4-8). On December 1, 1982, the court of appeals issued an amended order setting a "termination date of December 31, 1982, for entering a formal back pay specification in connection with the proceedings to obtain back pay" (App., infra, 5a-6a(. /5/ In response to the court's order, the Region distilled from the consolidated ironworkers' data (intended for use in the consolidated backpay specification that the Region had planned to issue in April 1983) a separate list of Local 480 discriminatees as well as other employees who used the hiring hall during the relevant period. The Region then contacted the Pension and Welfare Fund, explained the necessity and urgency of obtaining access to the Fund's wage records in view of the court's deadline, and requested the relevant records (App., infra, 66a-67a). On December 9, the Fund changed its prior position with respect to providing earnings information (see note 3, supra) and refused to produce any records without a subpoena or court order, notwithstanding the lack of objection to production of the records by respondent (id. at 67a-69a). Faced with the possibility of protracted litigation to enforce a subpoena for the Fund's records in the face of the court's deadline, the Region prepared a backpay specification based on the actual earnings information that it had available and projections of the earnings of those whose records the Fund refused to provide. On December 21, 1982, in compliance with the court's deadline, the Region issued a formal Backpay Specification and Notice of Hearing covering the named charging parties and 131 similarly situated discriminatees (App., infra, 94a-99a). Pursuant to the Board's rules and regulations, the hearing in the backpay proceeding was set for May 16, 1983 (id. at 99a). Subsequently, pursuant to an investigatory subpoena issued by the Board, the Region obtained the Fund's earnings records and recomputed respondent's backpay liability based on that information. On February 18, 1983, the Region met with counsel for respondent and informed him that the Region planned to issue an amended specification based on the complete earnings records it had obtained (App., infra, 71a). On February 25, respondent filed a third motion for relief from the original backpay judgment (id. at 53a-55a). In support of its motion, responent contended that the December specification failed to comply with the Board's original backpay order and the Board's rules and regulations because it did not include complete actual earnings data, and that "'any backpay specification which is not in full accord with Board Rules and Regulations (is) contamacious of the outstanding Third Circuit Order'" (id. at 62a (citation omitted)). Respondent also contended that the December specification was "punitive" because the total estimated liability exceeded its ability to pay (id. at 63a). Responent requested that the court either terminate the backpay proceedings or modify its enforcement order to exclude any requirement of backpay to the similarly situated employees. The Region issued an amended specification on March 11, 1983, alleging total liability for backpay and interest of approximately $900,000 (App., infra, 100a-105a). /6/ In opposing respondent's third motion for relief, the Board again summarized its efforts to identify and compute backpay for all similarly situated individuals, and the resistance it encountered from respondent and the Fund. The Board explained the steps it took to prepare both the December 1982 specification and the amended specification, /7/ and noted that, under the Board's rules and regulations, respondent's objections to the specification would properly be addressed in the formal backpay proceeding. The Board contended that a decision by the court to modify its outstanding backpay order based on respondent's objections to the specification "would be * * * premature and would result in a misallocation of the respective functions of the Board and the reviewing court" (NLRB Memorandum in Opposition to Respondent's Third Motion for Relief 17). On April 18, 1983, while respondent's motion for relief was pending, the parties began settlement discussions after a conference called by Circuit Judge Adams. Settlement efforts proved unsuccessful and counsel so informed Judge Adams at a conference on June 30, 1983. On July 27, 1983, the court of appeals issued an order relieving respondent from backpay liability for all "similarly situated" discriminatees and striking the Board's amended specification (App., infra, 1a-2a). The order states (ibid.): (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 order of court dated December 1, 1982. 2. Payment in full by the Union of any claims asserted on behalf of Ronald Cron, Robert Dailey, Daniel Dietz, and Watler Serafin /8/ shall be considered compliance with paragraph 1 of this order. The Board filed a petition for rehearing en banc of the court of appeals' order. In its petition, the Board argued that the court's order is contrary to this Court's decision in NLRB v. J. H. Rutter-Rex Manufacturing Co., 396 U.S. 258 (1969), because it effectively penalizes the injured employees on account of the Board's delay in issuing the amended backpay specification. /9/ The petition for rehearing en banc was denied (App., infra, 3a-4a). REASONS FOR GRANTING THE PETITION 1. The decision of the court of appeals denying backpay to all similarly situated discriminatees because of the length of time required to determine the amounts due them is directly contrary to this Court's decision in NLRB v. J. H. Rutter-Rex Manufacturing Co., 396 U.S. 258 (1969). Accordingly, we believe that summary reversal is warranted. In Rutter-Rex, the Court held that a court of appeals' decision eliminating or limiting backpay for employees otherwise entitled to it because of delay in issuing a backpay specification improperly penalized the innocent employees and "exceeded the narrow scope of review provided for the Board's remedial orders" (396 U.S. at 266). There, because of the complexity of the task and the heavy caseload of the Board's Regional Office, more than four years had elapsed from the time the court of appeals enforced the Board's remedial order until issuance of the backpay specification (id. at 260-261). The court of appeals found that the delay was "inordinate" and modified the Board's order to provide an earlier cutoff date for backpay, thereby reducing the awards to a number of employees (id. at 262). In reversing the court of appeals, this Court stated that, "(a)s with the Board's other remedies, the power to order back pay 'is for the Board to wield, not for the courts.'" 396 U.S. at 263 (quoting NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (1953)). The Court added that "the Board is not required to place the consequences of its own delay, even if inordinate, upon wronged employees to the benefit of wrongdoing employers" (396 U.S. at 265). Although not condoning the alleged delay in the administrative process, the Court concluded that "(i)t is even more deplorable if, as seems clear, innocent employees had to live for some years on reduced incomes as a combined result of the delay and the company's (unfair labor practice conduct)" (id. at 265-266). Here, due to its complexity, respondent's recalcitrance, and other factors beyond the Board's control, the task of computing backpay took three and a half years to complete. Despite the teaching of Rutter-Rex, the court of appeals, by excluding the similarly situated discriminatees from the Board's backpay order, in effect held that innocent employees who suffered losses from responent's unlawful conduct must bear the cost of the delay. Accordingly, here, as in Rutter-Rex, the court of appeals' action plainly "exceeded the narrow scope of review provided for the Board's remedial orders." 396 U.S. at 266. Indeed, since an entire class of discriminatees was denied backpay, the lower court's error was even more egregious than that in Rutter-Rex, which merely involved a reduction in the amount of backpay awarded to each discriminatee. 2. In addition, under the circumstances of this case, the court of appeals' decision to forbid amendment of the December 1982 backpay specification, with the result that four named discriminatees received less backpay than they would have been entitled to under the Board's order (see note 7, supra), was "an unwarranted interference with the Board's remedial power to implement the policies of the * * * Act" (Rutter-Rex, 396 U.S. at 259). The court of appeals' December 1, 1982 order required only that formal backpay proceedings commence with the issuance of a specification by December 31, 1982. Despite the unwarranted failure of the Pension and Welfare Fund to cooperate in the face of the court's deadline, the Board complied with the court's order by issuing a specification on December 21, 1982. As the court of appeals recognized, however, a backpay specification merely begins supplemental backpay proceedings by giving notice to the respondent of the amount allegedly due. /10/ 29 C.F.R. 102.53. The specification serves the same purpose as does a complaint in civil litigation, and normally can be amended in order to correct amounts claimed without prejudice to the respondent in the backpay proceeding. 29 C.F.R. 102.57. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-331 (1971); United States v. Hougham, 364 U.S. 310, 316-317 (1960); Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.), cert. dismissed, 448 U.S. 911 (1980); Howey v. United States, 481 F.2d 1187, 1190-1191 (9th Cir. 1973). Having complied with the court of appeals' deadline, the Board amended the specification based on the complete actual earnings data that it later obtained under subpoena from the Fund, with no delay to the proceedings and no prejudice to respondent. Indeed, the amended specification preserved the May 16, 1983 hearing date and, while increasing the amounts of backpay due four named discriminatees, actually reduced respondent's total alleged liability. Moreover, it served to refine and sharpen the backpay issues for hearing based on amounts that are not accurate in all cases, and at no greater speed than if the amendment were permitted. In these circumstances, while a court of appeals may have power to compel Board action unreasonably delayed, /11/ the court's decision to prohibit the amendment of the December 21, 1982 backpay specification was an abuse of discretion and an unwarranted interference with the Board's exclusive authority to compute and award backpay. See Rutter-Rex, 396 U.S. at 259; Nathanson v. NLRB, 344 U.S. 25, 29 (1952); NLRB v. Seven-Up Bottling Co., 344 U.S. at 346. /12/ 3. If left standing, the court of appeals' decision modifying the Board's backpay remedy is likely to have a substantial and harmful effect on the administration of the National Labor Relations Act. The determination of a make-whole remedy for large classes of employees is frequently a complex process, and in many cases the wrongdoing union or employer is the only available source of the data required to identify all discriminatees and calculate backpay. Despite the need for cooperation, respondents are often recalcitrant in complying with Board remedial orders, but the realization that they ultimately will be required to pay backpay acts as an incentive to cooperate. Eliminating liability to a substantial number of innocent employees on the basis of delays due to difficulties in determining amounts owed, and precluding the Board from making reasonable amendments to a previously issued backpay specification, only encourages respondents to be more recalcitrant. Thus, unless reversed, the probable effect of the decision here will be to diminish voluntary compliance with Board orders and exacerbate the delay and difficulty in securing compliance generally, thereby disrupting the remedial scheme Congress has fashioned. In addition, as we have shown, this case is only one of several involving discrimination against ironworkers by hiring halls in northern New Jersey. These cases involve nearly a thousand ironworkers who have lost several million dollars as a result of these unfair labor practices. The court's decision, if allowed to stand, will only encourage greater resistance to the difficult task the Region faces in making these employees whole. /13/ CONCLUSION The petition for a writ of certiorari should be granted, and the judgment of the court of appeals should be reversed summarily on the authority of this Court's decision in Rutter-Rex. Respectfully submitted. REX E. LEE Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel ROBERT C. BELL, JR. Attorney National Labor Relations Board JANUARY 1984 /1/ Under a 1972 consent decree, respondent is required to refer qualified applicants in the chronological order of their registration with the hiring hall. One exception allows more experienced applicants to be referred out of order to act as stewards at a job site "'as may be deemed necessary or proper by the union official in charge of referrals'" (App., infra, 12a). The Board found that resondent had used the steward exception consistently to favor members over nonmembers in the order of job referrals without a legitimate justification for doing so (id. at 12a-17a). /2/ See Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 373, 232 N.L.R.B. 504 (1977) and 235 N.L.R.B. 232, enforced, 586 F.2d 835 (3d Cir. 1978) (table); Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 45, 232 N.L.R.B. 520 (1977) and 235 N.L.R.B. 211, enforced, 586 F.2d 834 and 835 (3d Cir. 1978) (table). /3/ In a letter to the Region in February 1979, counsel for the Fund stated that the Fund would produce the necessary wage information without a subpoena as long as the local unions did not object. Counsel for the Fund explained (App., infra, 68a (emphasis omitted)): "our problem is in identifying the specific ironworkers with respect to whom wage information is requested. Our records do not show what local union member affiliation a particular ironworker may have nor do we know from what Union hiring hall he may have been referred for a given job. However, if you will provide us with names and time periods we will make available whatever information you may request, provided no objection has been registered with respect to such disclosures from the attorneys representing the local unions in these cases. Should there be objections, we request that our instructions be embodied in an Order of the Court. In letters to the Region on January 18, 1980 and December 21, 1982, respondent stated that it had no objection to the production of Fund records (Exhibit B to Respondent's Second Motion for Relief 2; Exhibit E to Respondent's Third Motion for Relief 1-2). /4/ Neither the Board's General Counsel nor the Regional Office has any record of having received notice of the court's May 13, 1982 order. The Board was not made aware of it until it was attached as an exhibit to respondent's renewed motion for relief, filed in September 1982 (App., infra, 92a; Exhibit D to NLRB Memorandum in Opposition to Respondent's Second Motion for Relief). /5/ The court originally issued an order on November 12, 1982, placing "a termination date of December 31, 1982 on the proceedings to obtain back pay." Upon the General Counsel's motion to clarify the order, the court issued its amended order directing only that the formal backpay specification be entered by the deadline. As set forth in the Board's Rules and Regulations governing backpay proceedings, 29 C.F.R. 102.52-102.59 (App., infra, 106a-110a), a backpay specification is merely the formal commencement of the administrative backpay compliance proceeding. Under the Board's regulations, a respondent in such a proceeding is entitled through a formal hearing before an administrative law judge, to contest all amounts claimed to be due in the specification, and thereafter to seek full Board and court review of the final backpay determination. See NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2d Cir. 1965), cert. denied, 384 U.S. 972 (1966). /6/ In a supplemental affidavit in support of respondent's third motion for relief, counsel for respondent alleged that issuance of the amended specification "confirms * * * that the December 21, 1982, pleading totally failed to comply with the Board's own Rules and Regulations" and that "the December 21, 1982 pleading * * * was merely issued to circumvent the court-imposed deadline * * * " (Supplemental Affidavit in Support of Respondent's Third Motion for Relief 3). /7/ Because the Fund refused to provide complete actual earnings data for all employees who used respondent's hiring hall in time to prepare the December specification, the Region projected the overall earnings of all members and nonmembers based on the actual earnings information that it did have. Pursuant to the Board-prescribed backpay formula, the Region then divided the projected overall earnings by the total number of employees who worked out of the hiring hall to arrive at the amount the employees should have earned absent the discrimination. App., infra, 71a-72a. The amended specification, in addition to recomputing all figures using actual earnings, which resulted in an overall reduction of approximately 25% to 30% from the December specification, corrected a mathematical error in the original specification that resulted in an understatement of the amounts due the named charging parties. Their claims totaled only about $7,700 in the December specification (see id. at 63a), but, as now reflected in the amended specification, the charging parties are actually entitled to a total of approximately $17,300, excluding fringe benefits and interest (Appendix E to Amended Backpay Specification E-25, E-26, E-31 and E-105). /8/ These were four of the named charging parties; no backpay was due the fifth charging party. /9/ The Board had cited the Rutter-Rex decision in several of its previous filings in the court of appeals. See NLRB Supplemental Memorandum in Opposition to Respondent's Second Motion for Relief 1-2; NLRB Memorandum in Opposition to Respondent's Third Motion for Relief 13-14 n.6. /10/ Thus, the court of appeals clarified its order to require only that a specification issue, not that supplemental backpay proceedings be completed by December 31, 1982. See note 5, supra. /11/ The Administrative Procedure Act, 5 U.S.C. 706(1), empowers a reviewing court to "compel agency action unlawfully withheld or unreasonably delayed." See Rutter-Rex, 396 U.S. at 266 & n.3. However, the statute requires that, "(i)n making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error." 5 U.S.C. 706. This section has been interpreted by every court that has considered it to require a specific showing of prejudice before agency action can be compelled or set aside for lack of punctuality. See, e.g., Houseton v. Nimmo, 670 F.2d 1375, 1378 (9th Cir. 1982); National Beef Packing Co. v. Secretary of Agriculture, 605 F.2d 1167, 1169 (10th Cir. 1979); Estate of French v. FERC, 603 F.2d 1158, 1167 (5th Cir. 1979); EEOC v. Exchange Security Bank, 529 F.2d 1214, 1216 (5th Cir. 1972); Chromcraft Corp. v. EEOC, 465 F.2d 745, 747 (5th Cir. 1972). /12/ In its February 25 motion for relief, respondent contended that the December 21 specification did not comply with the Board's backpay order (see pages 9-10 & n.6, supra). Respondent is not foreclosed from raising this contention before the Board in the ongoing backpay proceeding. Thus, as show, (note 5, supra), respondent is entitled to contest all amounts claimed to be due in the specification and to present evidence in mitigation of the amounts due in the backpay proceedings before the Board, and thereafter to seek full judicial review of the Board's ultimate determination. With respect to respondent's assertions also made in the February 25 motion that it cannot afford to make whole those against whom it discriminated, the Board has explained that "a respondent's ability to pay (is not) a factor in determining what, if any, remedy to impose for violations of the Act." However, if a wrongdoer "is, in fact, unable to meet its backpay liabilities currently, that is a matter to be addressed in compliance. * * * (A)rrangements frequently are made to provide a schedule of payments for respondents that are able to demonstrate an inability to shoulder their backpay liabilities." Schnadig Corp., 265 N.L.R.B. No. 20, at 4-5 (Oct. 19, 1982). Moreover, the Board will enter into settlements at the contempt stage. See NLRB v. Sally Lyn Fashions, No. 81-1520 (3d Cir. Dec. 9, 1982) (order approving settlement). See also NLRB v. Sally Lyn Fashions, 112 L.R.R.M. (BNA) 3039, 3053 (3d Cir. 1982); NLRB v. Trans Ocean Export Packing, Inc., 473 F.2d 612, 616 (9th Cir. 1973). Thus, while the Board will entertain settlement proposals at any stage of its proceedings, inability to pay is not grounds for disturbing a remedial order. In this case the Board solicited settlement proposals as early as October 1981 (see pages 5-6, supra). However, it was not until May 1983 that respondent, at the request of Judge Adams, made available to the Board statements of its financial condition. Those statements revealed that respondent has liquid assets of approximately $86,000. While the Board was unwilling to agree to a judicially induced settlement at that stage of its compliance proceedings, this does not preclude the possibility of settlement at a future stage. /13/ Indeed, one of the respondent's sister locals has filed a similar motion for relief from judgment in a case involving more than 600 ironworkers. See Int'l Ass'n of Bridge, Structural & Ornamental Ironworkers, Local 373, supra (motion for relief pending). APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.