Dupuy v. National Labor Relations Board , 806 F.3d 556 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 17, 2014 Decided July 17, 2015
No. 14-1001
JAMISON JOHN DUPUY,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
On Petition for Review of an Order
of the National Labor Relations Board
Jamison John Dupuy, pro se, argued the cause and filed
the briefs for petitioner.
Douglas Callahan, Attorney, National Labor Relations
Board, argued the cause for respondent. With him on the
brief were Richard F. Griffin, Jr., General Counsel, John H.
Ferguson, Associate General Counsel, Linda Dreeben,
Deputy Associate General Counsel, and Robert J. Englehart,
Supervisory Attorney.
Before: TATEL and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Eleven years is a long time to
wait for backpay; doubly so when no interest accrues over
those eleven years. Yet, after a federal court of appeals
entered judgment enforcing Jamison John Dupuy’s right to
reinstatement and backpay with interest for his unlawful
termination, the National Labor Relations Board entered into
a settlement agreement with Dupuy’s former employer under
which Dupuy’s backpay would be paid on those sparing terms
over Dupuy’s objection. The Board also ruled that
reinstatement to a position with reduced pay, benefits, and job
security satisfied the court’s judgment because it paralleled
what current employees received. As a matter of law, the
Board reasonably used current employees’ pay and benefits as
a reference point. But with the exception of the backpay
calculation, the Board provided only scant evidence to
corroborate its critical factual findings about comparable
employment terms. Because the Board failed adequately to
explain or to substantiate those aspects of its decision, we
grant the petition in part, vacate the Board’s ruling, and
remand.
I
Statutory Framework
Congress enacted the National Labor Relations Act in
1935 to “eliminate the causes of certain substantial
obstructions to the free flow of commerce * * * by
encouraging the practice and procedure of collective
bargaining and by protecting the exercise by workers of full
freedom of association, self-organization, and designation of
representatives of their own choosing, for the purpose of
negotiating the terms and conditions of their employment or
other mutual aid or protection.” 29 U.S.C. § 151. To that
end, Congress empowered the National Labor Relations
3
Board to “prevent any person from engaging in any unfair
labor practice * * * affecting commerce.” Id. § 160(a).
Oftentimes, the Board learns of a potential violation through
the filing of an unfair labor practice complaint by a “charging
party.” See 29 C.F.R. § 101.2.
If the Board finds, after notice and a hearing, that an
unfair labor practice has occurred, the Board “shall issue * * *
an order requiring” the person violating the Act “to cease and
desist from such unfair labor practice, and to take such
affirmative action including reinstatement of employees with
or without back pay, as will effectuate the policies of” the
Act. 29 U.S.C. § 160(c). The Board can then “petition any
court of appeals of the United States * * * within any circuit
* * * wherein the unfair labor practice in question occurred”
for enforcement of its order. Id. § 160(e). Once that petition
is filed, “the court * * * shall have jurisdiction of the
proceeding and of the question determined therein.” Id. The
jurisdiction of the court “shall be exclusive and its judgment
and decree shall be final,” except that the Supreme Court may
review it upon granting a writ of certiorari. Id.
After “the entry of a court judgment enforcing” Board-
ordered remedial action, 29 C.F.R. § 102.52, “the Board has
the responsibility [for] obtaining compliance with that
judgment,” id. § 101.15. To that end, “the Regional Director
shall seek compliance from all persons having obligations”
under the judgment, and “shall make a compliance
determination as appropriate.” Id. § 102.52. If the Regional
Director “finds that the respondent has failed to live up to the
terms of the court’s judgment, the General Counsel may, on
behalf of the Board, petition the court to hold the respondent
in contempt of court.” Id. § 101.15.
 4
A charging party who objects to the Regional Director’s
compliance determination may appeal the determination to
the Board’s General Counsel, 29 C.F.R. § 102.53(a), and if
still dissatisfied, may petition the Board for review, id.
§§ 102.53(c)–(d). The Board’s denial of review “will
constitute an affirmance of the decision of the General
Counsel.” Id. § 102.53(d).
If the charging party still remains “aggrieved” after “a
final order of the Board,” that party may petition for review of
the Board’s order in this circuit or in any other federal circuit
court of appeals in which the unfair labor practice occurred.
29 U.S.C. § 160(f). On review “the findings of the Board
with respect to questions of fact if supported by substantial
evidence on the record considered as a whole shall * * * be
conclusive.” Id.
Factual Background
Northeastern Land Services (“Northeastern”) is a
temporary employment agency that supplies right-of-way
agents for clients in the natural gas and fiber-optics
industries.1 From July to October 2001, Jamison John Dupuy
worked as a right-of-way agent for Northeastern on a project
for El Paso Energy, one of the company’s clients.
Dissatisfied with Northeastern’s policy for reimbursing work-
related expenses, Dupuy contacted El Paso in October 2001
asking it to reimburse his hotel and computer expenses.
When Northeastern got wind of that disclosure, it terminated
1
Right-of-way agents “perform various activities related to the
acquisition of land rights,” including “perform[ing] title research to
determine who owns the land, perform[ing] title abstracts, survey
permitting[,] and [] negotiat[ing] for land rights, whether easements
or fee properties.” Northeastern Land Services, Ltd., 352 N.L.R.B.
744, 744, 747–748 (2008).
5
Dupuy for violating a confidentiality agreement that
prohibited him from disclosing the terms of his compensation.
Dupuy filed an unfair labor practice charge with the
National Labor Relations Board in 2001. Seven years later, a
two-member panel of the Board issued a Decision and Order
finding that Northeastern’s ban on disclosing compensation
terms violated the Fair Labor Standards Act. The First Circuit
enforced the Board’s Order, see Northeastern Land Services,
Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009), but the Supreme
Court vacated that judgment in light of New Process Steel,
L.P. v. NLRB, 560 U.S. 674 (2010), because the two-member
Board lacked the necessary quorum to act, see Northeastern
Land Services, Ltd. v. NLRB, 561 U.S. 1021 (2010).
On remand from the Supreme Court, a three-member
panel of the Board reaffirmed the previous Decision and
Order, and the First Circuit again entered judgment enforcing
the Order. See NLRB v Northeastern Land Services, Ltd., 645
F.3d 475 (1st Cir. 2011).
As relevant here, the First Circuit’s judgment enforcing
the Board Order required Northeastern to offer Dupuy “full
reinstatement to his former job or, if that job no longer exists,
to a substantially equivalent job, without prejudice to his
seniority or any other rights or privileges previously enjoyed,”
and to “[m]ake Jamison Dupuy whole for any loss of earnings
and other benefits suffered as a result of the unlawful action
taken against him[.]” Northeastern Land Services, Ltd., 355
N.L.R.B. 1154 (2010) (enforced by Northeastern Land Services,
645 F.3d at 484, and incorporating the terms of Northeastern
Land Services, Ltd., 352 N.L.R.B. 744, 746 (2008)). In the
“Remedy” section of its Order, the Board was explicit that the
backpay was to be accompanied by “interest as computed in
New Horizons for the Retarded, 283 N.L.R.B. 1173 (1987).”
6
Northeastern Land Services, 352 N.L.R.B. at 746. As relevant
here, New Horizons is a longstanding Board precedent that
requires interest on backpay “to accrue commencing with the
last day of each calendar quarter of the backpay period for the
amount due and owing for each quarterly period and
continuing until compliance with the Order is achieved.” 283
N.L.R.B. at 1174 (emphasis added).
Following the First Circuit’s affirmance of the Board’s
Order, a Compliance Officer for the Board negotiated a
settlement agreement with Northeastern, without Dupuy’s
concurrence, under which Northeastern would offer Dupuy
reinstatement by December 30, 2011. See Settlement
Agreement ¶ 5, J.A. 55. The Settlement Agreement also
provided Dupuy $201,788.50 in compensation, comprising
$124,115.33 in backpay and $77,673.17 in accrued interest.
Id. ¶ 7. The Agreement called for monthly installment
payments of $1,500 over a period of more than eleven years,
from January 2012 to March 2023. See Letter from Deputy
Regional Attorney Scott Burson to Jamison John Dupuy, Feb.
28, 2012, at 3 (“Burson Letter”); Board Supp. App. 3.
Notwithstanding the Order’s direction that interest be
paid consistent with New Horizons, the Settlement Agreement
waived any claim to interest that would have accrued during
the payment period. That decision deprived Dupuy of
$41,906.78 in compensation. In exchange, Northeastern
agreed simply to comply with the terms of the Agreement.
See Settlement Agreement ¶ 14, J.A. 56–57. The Settlement
Agreement also provided that Northeastern would mail its
monthly installment payments to the Board in Boston,
payable to Dupuy, after deducting any Social Security and
withholding taxes, and that it would issue IRS Forms W-2 and
1099 to Dupuy for the payments. Id. ¶¶ 10–12, J.A. 56.
7
To ensure compliance, a Security Agreement appended to
the Settlement Agreement gave the Board a security interest
in:
“A. All real property, of which there is none
currently owned by [Northeastern];
B. All fixtures, equipment, machinery, vehicles,
inventory, accounts receivable, and bank accounts;
C. All proceeds from the above collateral; and,
D. All increases, substitutions, replacements,
additions and accessions to the above collateral.”
Security Agreement ¶ 1, J.A. 60–61.
On December 13, 2011, Dupuy emailed the Board’s
Compliance Officer to notify her that he would be unavailable
between December 21, 2011 and January 11, 2012. J.A. 20.
Nonetheless, on December 20, 2011, Northeastern President
and Chief Executive Officer Jeffrey Deuink emailed Dupuy
an “unconditional offer of reinstatement.” Email from
Northeastern to Jamison John Dupuy, Dec. 20, 2011, J.A. 22–
23 (“Reinstatement Letter”). That letter offered Dupuy a
position as a “land agent” for a project starting the week of
January 2, 2012 in eastern New York and northeastern
Pennsylvania. J.A. 22. The letter noted that “[y]our
participation on the project will, of course, be subject to the
approval of the client as is industry practice.” Id. The letter
also provided that, “[i]f we do not receive this form back from
you by January 3, 2012, we will assume that you are not
interested in returning to work for The NLS Group and this
offer will automatically expire.” J.A. 23.
8
Procedural History
Two weeks after the offer of reinstatement, Dupuy
informed Northeastern and the Board’s Regional Director that
he did not agree to the Settlement Agreement’s terms or
accept the offer of reinstatement. See Letter from Jamison
John Dupuy to Rosemary Pye, NLRB Regional Director –
Region 1, Jan. 3, 2012, J.A. 33; Letter from Jamison John
Dupuy to Jeffrey Deuink, Jan. 3, 2012, J.A. 42. He claimed
that the Board had unlawfully waived interest during the
payment period, had failed to impose personal liability for the
monetary award on Jeffrey Deuink, Northeastern’s CEO, and
had not followed its own regulations and case-handling
manual in its enforcement efforts. See Letter to Rosemary
Pye, J.A. 33–41. Dupuy also argued that Northeastern had
failed to make a valid offer of reinstatement because, in his
view, (i) the terms and conditions of reinstatement were out of
step with industry practice and with his previous employment
at Northeastern, (ii) the reinstatement offer failed to disclose
many of the material terms of employment, and (iii) the time
limits imposed on his acceptance were made in bad faith. See
Letter to Jeffrey Deuink, J.A. 42; Letter to Rosemary Pye,
J.A. 35–36.
In response, the Board’s Regional Director entered a
formal decision “unilaterally accept[ing]” the Settlement
Agreement. Regional Director’s Compliance Determination,
Feb. 28, 2012, J.A. 50. In so doing, the Regional Director
determined that “the position offered was within the scope of
your professional abilities and the terms and conditions
offered were consistent with those of other similarly situated
employees of Respondent – a valid offer of reinstatement
need offer no more.” Id., J.A. 51. The Regional Director
cited no evidence of the current terms and conditions of
employment of Northeastern’s right-of-way agents.
9
With respect to the forgone interest, the Regional
Director explained that “it is a compromise settlement of a
complex post-judgment backpay matter” that provides “a
better opportunity to obtain compensation for you[] than
litigation offers.” Compliance Determination, J.A. 51. What
was particularly complex about this single-employee backpay
remedy and why specifically the Board feared litigation over
such commonplace remedial terms were left unexplained.
Dupuy appealed the Compliance Determination to the
Board’s Acting General Counsel, who denied the appeal
“substantially for the reasons in the Regional Director’s
letter[.]” Letter from Lafe E. Solomon to Jamison John
Dupuy, March 26, 2013, J.A. 68.
Dupuy appealed to the Board. In a one-paragraph
opinion, the Board denied Dupuy’s appeal, stating that,
“under the circumstances, the Regional Director did not err in
accepting the [S]ettlement [A]greement.” Northeastern Land
Services, Ltd., 2013 WL 4761157, at *1 (NLRB Sept. 4,
2013). Dupuy petitioned the Board for reconsideration, which
the Board denied. Northeastern Land Services, Ltd., 2013
WL 6229182 (NLRB Dec. 2, 2013).
II
Analysis
Standard of Review
While our review grants substantial deference to the
Board, we will reverse if its decision “relied upon findings
that are not supported by substantial evidence, failed to apply
the proper legal standard, or departed from its precedent
without providing a reasoned justification for doing so.” E.I.
Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C.
10
Cir. 2012); accord, e.g., Carpenters and Millwrights, Local
Union 2471 v. NLRB, 481 F.3d 804, 808–809 (D.C. Cir.
2007).
The Board argues that we may only vacate its Order if we
find it to be an abuse of “the broad discretion the Board may
exercise in the settlement of unfair labor practice cases.”
Textile Workers Union of America v. NLRB, 315 F.2d 41, 42
(D.C. Cir. 1963). That might be true if the settlement had
been obtained in the course of the Board’s prosecution of an
unfair labor practice charge and the dispute arose prior to a
federal court judgment enforcing the Board Order. The
Board’s own precedent gives the Board wide latitude to settle
cases at that prosecutorial stage. See Independent Stave Co.,
287 N.L.R.B. 740, 743 (1987) (identifying standards for
approving settlement agreements). That is what almost all of
the cases the Board relies upon involved.2
2
See Oil, Chemical & Atomic Workers Int’l Union v. NLRB, 806
F.2d 269, 269 (D.C. Cir. 1986) (reversing as-yet unenforced Board
orders); Jackman v. NLRB, 784 F.2d 759, 764 (6th Cir. 1986)
(Board’s General Counsel may decline to prosecute unfair labor
practice charges prior to court enforcement); George Ryan Co. v.
NLRB, 609 F.2d 1249, 1250–1251 (7th Cir. 1979) (informal post-
complaint and pre-enforcement settlement); Oshkosh Truck Corp.
v. NLRB, 530 F.2d 744, 745 (7th Cir. 1976) (unenforced order);
Containair Systems Corp. v. NLRB, 521 F.2d 1166, 1174 (2d Cir.
1975) (same); International Ladies’ Garment Workers Union,
Local 415-475 v. NLRB, 501 F.2d 823, 824 (D.C. Cir. 1974)
(withdrawal of a complaint prior to Board hearing); NLRB v. Oil,
Chemical & Atomic Workers Int’l Union, 476 F.2d 1031, 1033 (1st
Cir. 1973) (petition for court enforcement); Concrete Materials of
Georgia, Inc. v. NLRB, 440 F.2d 61, 62 (5th Cir. 1971) (same);
W.B. Johnston Grain Co. v. NLRB, 365 F.2d 582, 587 (10th Cir.
1966) (same); Local 282, Int’l Brotherhood of Teamsters v. NLRB,
339 F.2d 795, 797 (2d Cir. 1964) (same); Textile Workers Union of
11
This case, however, arises in a materially different
procedural posture, implicating another strand of Board
precedent. A court judgment enforcing the Board’s Order has
issued, and Dupuy is challenging the Board’s determination
that Northeastern need only partially comply with that judicial
order. However broad the Board’s discretion may be to settle
its cases prior to their embodiment in a court order, once the
Board turns to the task of ensuring an employer’s compliance
with a final court judgment, the Board’s own precedent has
disclaimed any authority to modify the court’s order. See,
e.g., D.L. Baker, Inc., 351 N.L.R.B. 515, 525 n.31 (2007) (Board
is “not at liberty to modify an Order that has been enforced by
a court of appeals[.]”).
Accordingly, in enforcing compliance, the Board must
apply the correct legal standards, ground its factual findings in
substantial evidence, and give reasoned explanations for any
departure from precedent on the scope of its post-enforcement
authority to alter court orders. See Carpenters and
Millwrights, 481 F.3d at 808–809. Additionally, the Board’s
Compliance Manual provides that “Regions should strive to
America, 315 F.2d at 42 (same); Textile Workers Union of America
v. NLRB, 294 F.2d 738, 739 (D.C. Cir. 1961) (resolution prior to
Board hearing). Of course, even in that procedural posture, we will
not uphold an order that departs from the Board’s own settlement
standards without explanation. See Oil, Chemical & Atomic
Workers Int’l Union v. NLRB, 806 F.2d 269, 273–274 (D.C. Cir.
1986).
Two other cases cited by the Board do not involve Board
proceedings at all. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499
U.S. 65, 80 (1991) (“National Labor Relations Act cases are not
necessarily controlling in situations, such as this one, which are
governed by the Railway Labor Act.”); Girsh v. Jepson, 521 F.2d
153, 156 (3d Cir. 1975) (class action).
12
obtain 100 percent of * * * backpay,” and that “[a]ny
compromise from this standard must be warranted by the
facts, law, and circumstances of the case.” NLRB
Casehandling Manual, Part 3, Compliance Proceedings (Nov.
2013) § 10592.4. In sum, however broad the Board’s
enforcement discretion, it does not extend to turning its back
on its own precedent and policy without reasoned explanation
and substantial evidence undergirding its determinations.3
Applying that standard, the Board’s decision falls short in
two ways: It departs without any reasoned explanation from
longstanding Board precedent constraining the Board’s ability
to alter the terms of a judicially enforced Order, and it relies
on a finding of substantial equivalence between Dupuy’s old
job and his reinstatement offer that is not supported by
substantial—or, frankly, by any—evidence.
Waiver of payment-period interest
The First Circuit’s judgment enforced the Board’s Order
mandating that Northeastern “[m]ake Jamison Dupuy whole
for any loss of earnings and other benefits suffered as a result
3
The Board cited Amalgamated Utility Workers v. Consolidated
Edison Co., 309 U.S. 261 (1940), as support for its broad autonomy
to settle cases. That case did involve a judicially enforced Board
order. Unfortunately for the Board, the relevant similarities end
there. Amalgamated Utility held only that charging parties do not
have the right to enforce, through contempt proceedings, court-
enforced Board orders. Id. at 266. With respect to judicial review
of a Board enforcement order under 29 U.S.C. § 160(f), which is
what Dupuy seeks, the Supreme Court expressly acknowledged that
the Act does permit charging parties “to contest a final order of the
Board[.]” Id. (emphasis in original).
13
of the unlawful action taken against him, in the manner set
forth in the remedy section of this decision.” Northeastern
Land Services, 352 N.L.R.B. at 746 (enforced by Northeastern
Land Services, Ltd., 645 F.3d at 484). The remedy section, in
turn, was explicit that interest on backpay would be provided
consistent with New Horizons, which requires interest to
accrue “until compliance with the Order is achieved.” 283
N.L.R.B. at 1174.
The Board does not dispute that compliance will not be
achieved until Dupuy has been made whole. Nor does it
dispute that, to make Dupuy whole, the First Circuit’s
judgment requires that interest continue to accrue until the
backpay is distributed in full. See Northeastern Land
Services, Ltd., 645 F.3d at 484 (enforcing Northeastern Land
Services, 352 N.L.R.B. at 746 (incorporated by Northeastern
Land Services, 355 N.L.R.B. 1154) (ordering Northeastern to
“[m]ake Jamison Dupuy whole for any loss of earnings and
other benefits suffered as a result of the unlawful action taken
against him”)). In other words, interest throughout the
payment period is just as integral a part of the First Circuit’s
make-whole judgment as reinstatement and the backpay
requirement itself.
The Board does not dispute the content or legal effect of
the First Circuit’s judgment. It just asserts a unilateral right to
“waive[]” away portions of the judgment as it sees fit.
Northeastern Land Services, 2013 WL 4761157, at *1 n.1;
Board Br. 11, 17, 18, 26, 42. The Board never explains the
source of its authority to singlehandedly make such a waiver,
though. The Order does not so much as nod to statutory or
regulatory text or Board precedent. Far worse still, in past
cases the Board has repeatedly and expressly disclaimed any
right or ability to modify court-enforced remedial orders, and
14
it provides no explanation at all, let alone a reasoned one, for
its about-face here.
In Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C. Cir. 2006),
an employer petitioned the Board to alter a remedial order that
this court had enforced, arguing that modification was
necessary to prevent a windfall for the charging party. In
stark contradiction of its position here, the Board told this
court that it had “no authority to modify the remedy specified
in a court-enforced order unless it had in that order reserved
for later consideration a specific question pertaining to that
remedy.” Id. at 390. We held that “[t]he Board is correct”
because, under 29 U.S.C. § 160(e), it is “obvious[]” that the
Board “cannot modify an order over which the court has
‘exclusive’ jurisdiction or that the court has enforced in a final
judgment.” Scepter, 448 F.3d at 390–391; accord NLRB v.
Gimrock Construction, Inc., 695 F.3d 1188, 1193 (11th Cir.
2012) (once the court had enforced a Board order, “only th[at]
court had the power to modify its order”); NLRB v. Mastro
Plastics Corp., 261 F.2d 147, 148 (2d Cir. 1958) (“If
respondents believed that they had sufficient grounds to
justify [deviating from a court-enforced order], their only
proper recourse was in timely fashion to petition this court
for modification of its clear mandate.”) (emphasis added).4
4
Section 160(e), 29 U.S.C., provides, in relevant part, that “[u]pon
the filing of the record with it the jurisdiction of the court shall be
exclusive and its judgment and decree shall be final, except that the
same shall be subject to review by the appropriate United States
court of appeals if application was made to the district court as
hereinabove provided, and by the Supreme Court of the United
States upon writ of certiorari or certification as provided in section
1254 of Title 28.”
15
Scepter and those other appellate decisions have a lot of
company. For almost four decades, and in at least nine
separate decisions, the Board has taken the position that it
“has no jurisdiction to modify a court-enforced order.” Willis
Roof Consulting, Inc., 355 N.L.R.B. 280, 280 n.1 (2010).5 And
the Board reaffirmed that position just last month. See New
York Party Shuttle, LLC, 2015 WL 3732893, *1 n.3 (NLRB
June 12, 2013) (“[T]he Board has no jurisdiction to modify an
Order that has been enforced by a court of appeals because,
upon the filing of the record with the court of appeals, the
jurisdiction of that court is exclusive and its judgment and
decree are final, subject to review only by the Supreme
Court.”) (citing Scepter, 448 F.3d 388).
The Board’s decision blinks away Scepter and the large
body of like-minded precedent. No effort to explain its U-
turn is made. Instead, the Board argues that its waiver of
payment-period interest did not modify the enforced Order,
because the Order “did not liquidate the amount of backpay
owed[.]” Board Br. 27.
5
See also, e.g., D.L. Baker, Inc., 351 N.L.R.B. at 525 n.31 (Board is
“not at liberty to modify an Order that has been enforced by a court
of appeals[.]”); In re Grinnell Fire Protection Systems Co., 337
N.L.R.B. 141, 142 (2001) (“[T]he Board’s Order has already been
enforced by the Fourth Circuit, and the Supreme Court has denied
certiorari, [so] we no longer possess jurisdiction to modify that
Order.”); Regional Import and Export Trucking Co., 323 N.L.R.B.
1206, 1207 (1997) (“[T]he Board’s order has already been enforced
and accordingly we no longer have jurisdiction to modify that
Order.”); Traverse City Osteopathic Hospital, 260 N.L.R.B. 1060,
1060 (1982) (“[S]ince * * * the Board’s Order has already been
enforced, we no longer possess jurisdiction to modify that Order.”);
Royal Typewriter Co., 239 N.L.R.B. 1, 2 (1978) (“[Because] the
Board’s order has already been enforced and is now the subject of
contempt proceedings, we are of the view that we no longer possess
jurisdiction to either modify or clarify the Order.”).
16
That mixes apples and oranges. The argument confuses
the amount of backpay owed, which the Board’s Order
expressly reserved for later calculation, with the constituent
elements of the remedial judgment, which the First Circuit’s
order locked in. The Board’s reserved authority to undertake
the traditional steps for computing backpay does not give it
the power to eschew that task altogether and just declare that
enforcement would go over easier without any backpay.
Neither under Board precedent can it entirely erase payment-
period interest from the First Circuit’s judgment enforcing the
Order.
The Board also argues that the waiver of interest was
justified “by the immediate availability of relief and the
elimination of the substantial risk involved in litigating the
issues remaining in this case.” Board Br. 27. Eleven years
waiting for full payment is hardly “immediate,” and the
Board’s boilerplate litigation-risk claim is not backed up by
anything.
In any event, the Board’s theory would give it the
wholesale power to bowdlerize a court order for no reason
other than litigation efficiency. The source of such authority
and the justification for it appear nowhere in the Board’s
decision. After all, the terms of the remedial Order, including
the interest provision, were of the Board’s own choosing. The
First Circuit’s judgment simply enforced the remedial Order
that the Board itself fashioned and then twice pressed the
court to affirm. Buyer’s remorse at the enforcement stage,
particularly without any suggestion of a surprising change in
circumstances or any other reasoned justification, is a
woefully insufficient excuse for the Board backhanding
almost four decades of its own precedent insisting that it
cannot do exactly what it did.
17
When all is said and done, the Board might very well be
proven right that the deal on the table is the best Dupuy can
get out of Northeastern. But the Board can only make
bargains with chips that it possesses. If a court-enforced
remedial Order is beyond its jurisdiction to amend—as the
Board has said it is for the last thirty-seven years—then the
Board has no power to deal away particular elements of that
Order, even if it sincerely believes that deal-making would be
in the charging party’s best interest.
Reinstatement
The First Circuit’s judgment also required Northeastern
to “offer Jamison Dupuy full reinstatement to his former job
or, if that job no longer exists, to a substantially equivalent
job, without prejudice to his seniority or any other rights or
privileges previously enjoyed.” Northeastern Land Services,
352 N.L.R.B. at 746 (enforced by Northeastern Land Services,
Ltd., 645 F.3d at 484).
The Board determined that Northeastern met this
obligation when it offered Dupuy a “Temporary Employment
Agreement” to work as a land agent on a project in eastern
New York and northeastern Pennsylvania, with the exact date
and location of the project not yet settled. Reinstatement
Letter, J.A. 22. Dupuy was to be paid $250 a day “based on a
5 or 6 day contract to be determined.” Id. The per diem rate
was set at “the standard GSA rate of $132 a day,” with
mileage reimbursed at the then-IRS-approved rate of 55.5¢
per business mile. Id. Use of personal cell phones and
computers for project business was reimbursable at a rate of
$5.00 a day. Id. And the project allowed a “mobilization and
demobilization allowance” of “one travel day and a maximum
500 miles.” Id. Finally, Dupuy’s participation was “subject
to the approval of the client as is industry practice.” Id.
18
Dupuy argues that those conditions were substantially
worse than what he enjoyed when he last worked for
Northeastern. That may be true, but it is also beside the point.
Reinstatement aims to restore “the situation, as nearly as
possible, to that which would have obtained but for the illegal
discrimination.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
194 (1941). The relevant yardstick thus is not the job Dupuy
held over a decade ago, but the job he would have now if he
had stayed in Northeastern’s employ all that time. And,
unfortunately, employment conditions can change for the
worse as well as for the better. If Dupuy had stayed with
Northeastern, he would have endured both the ups and the
downs of a changing workplace. The Board thus quite
reasonably measured reinstatement by reference to “the terms
and conditions [Northeastern] offers those currently in the
position you occupied.” Burson Letter at 4–5, J.A. 47–48.
But asking the right question is only half of the Board’s
job. The Board also has to back up its answer with substantial
evidence. The Board did just that with respect to the wage
rate offered to Dupuy. By relying on the same records from
which it calculated backpay, the Board reasonably concluded
that the offered rate paralleled that paid to other similarly
situated land agents. See Burson Letter at 4, J.A. 47.
The Board, however, has more work to do with respect to
the other terms and conditions of employment. The most
anyone at the Board ever said about the non-wage terms and
conditions was the Deputy Regional Attorney’s unadorned
assertion that a “review of the Respondent’s records
establishes that the terms and wages are consistent with those
of other similarly situated employees of Respondent[.]”
Burson Letter at 4, J.A. 47. The “wages” part of that sentence
makes sense given the extensive analysis required to calculate
the backpay owed. But nothing in the record substantiates the
19
assertion that the other terms of employment are consistent
with what other similarly situated employees receive. The
Regional Director’s Compliance Determination simply
echoed that statement, J.A. 51, while the Acting General
Counsel was mum on the topic, other than to affirm the
compliance determination “substantially for the reasons in the
Regional Director’s letter[.]” Solomon Letter, J.A. 68. The
Board itself was even less forthcoming, with no mention of
the issue in its Order at all. See Northeastern Land Services,
2013 WL 4761157, at *1.
The Board’s task, remember, was to find “substantial
equivalence” between Dupuy’s terms and conditions of
employment and those of similarly positioned employees.
See Northeastern Land Services, 352 N.L.R.B. at 746. But it
takes two to compare. We cannot say that one thing is the
same as another without knowing what that other thing is.
Neither can the Board. The Board had no plausible basis for
finding that Dupuy’s terms and conditions were substantially
equivalent to those of similarly situated employees without at
least finding what the material terms and conditions of
employment were for those other employees. Accordingly,
on remand, the Board must consider all material terms and
conditions of employment, not just compensation, in deciding
whether Northeastern’s offer of reinstatement was sufficient.
Dupuy’s Remaining Challenges
Dupuy raises three further challenges to the Board’s
decision. The first argument fails; the remaining two are
better addressed by the Board on remand.
First, Dupuy argues that, rather than adopt an eleven-
year, interest-free payment period, the Board should have
pierced the corporate veil and imposed personal liability on
Northeastern’s Chief Executive Officer Jeffrey Deuink and
20
Northeastern’s Directors. The Board sensibly found no basis
for doing so. Under Board precedent (which Dupuy does not
challenge), the corporate veil may be pierced only when: “(1)
there is such unity of interest, and lack of respect given to the
separate identity of the corporation by its shareholders, that
the personalities and assets of the corporation and the
individuals are indistinct, and (2) adherence to the corporate
form would sanction a fraud, promote injustice, or lead to an
evasion of legal obligations.” White Oak Coal Co., 318
N.L.R.B. 732, 735 (1995). The Board decided those factors
were not met, and Dupuy points to nothing that casts doubt on
that conclusion.
For starters, Dupuy asserts that, during litigation before
the First Circuit, Northeastern terminated its 401K group
pension plan, leaving the corporation with title to enough
money in non-vested employer contributions to satisfy the
backpay award. That argument simply misreads
Northeastern’s 401K statement, which is explicit that “all plan
assets [were] either distributed to participants or beneficiaries,
transferred to another plan, or brought under the control of the
[Pension Benefit Guaranty Corporation].” Northeastern Land
Services Ltd. Group 401K Plan, Form 5500 Data, at 3 (March
13, 2012), J.A. 145. Termination of that plan thus did not free
up any money to pay Dupuy. The argument also
misunderstands the law. Even if the plan’s termination or
some other event had freed up corporate funds, that is no
argument for veil-piercing, at least in the absence of any
claim of improper dissipation.
Dupuy also notes that Northeastern reduced its number of
right-of-way agents in the years following the First Circuit’s
initial decision. It seems dubious that employees count as the
kind of asset that can be fraudulently dissipated. But in any
event, Dupuy cannot point to anything in the record that
21
suggests a fraudulent motivation for that workplace reduction
at all, let alone one designed to end-run the Board’s Order.
Dupuy’s last-ditch argument to pierce the corporate veil
asserts that Northeastern is organized as a Subchapter S
corporation, with its income passed through to Deuink for tax
purposes. Maybe. But even if true, that contention simply
describes how the Subchapter S corporate form works; it says
nothing about why the corporate form should be cast off.
Second, Dupuy challenges the enforcement provisions of
the Settlement Agreement as insufficient because
Northeastern is judgment proof. The Settlement Agreement
provides for “collection proceedings * * * in any court of
competent jurisdiction” if Northeastern defaults on its
payment obligations, and it further specifies that “[a]ll parties
waive all further and other proceedings to which the parties
may be entitled under the [National Labor Relations] Act or
the Board’s Rules and Regulations.” Settlement Agreement
¶¶ 16, 21, J.A. 57, 59. Because we must return this case to
the Board to modify its remedial terms, we leave it to the
Board in the first instance to determine whether, in its
judgment, any further enforcement guarantees will be needed.
Third, Dupuy argues that the Board should have
forwarded him the checks that Northeastern has been sending
to the Board since 2012. Again, because the Board must
revisit its remedial Order, we will allow the Board to
determine on remand the proper disposition of those funds in
light of our opinion and any further proceedings.
22
III
Conclusion
We grant the petition for review in part, vacate the
Board’s Order, and remand for further proceedings consistent
with this opinion.
So ordered.