Jamison Dupuy v. NLRB ( 2015 )


Menu:
  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued November 17, 2014             Decided July 17, 2015
    Amended August 7, 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
    3
    end, Congress empowered the National Labor Relations
    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 some of his computer expenses. See
    Northeastern Land Services, Ltd., 
    352 NLRB 744
    , 744–745
    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 NLRB 744
    , 744, 747–748 (2008).
    5
    (2008). Northeastern terminated 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 National Labor Relations 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 NLRB 1154
     (2010) (enforced by Northeastern Land Services,
    
    645 F.3d at 484
    , and incorporating the terms of Northeastern
    Land Services, Ltd., 
    352 NLRB 744
    , 746 (2008)). In the
    “Remedy” section of its Order, the Board was explicit that the
    6
    backpay was to be accompanied by “interest as computed in
    New Horizons for the Retarded, 
    283 NLRB 1173
     (1987).”
    Northeastern Land Services, 352 NLRB 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
    NLRB 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
    7
    withholding taxes, and that it would issue IRS Forms W-2 and
    1099 to Dupuy for the payments. 
    Id.
     ¶¶ 10–12, J.A. 56.
    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
    8
    interested in returning to work for The NLS Group and this
    offer will automatically expire.” J.A. 23.
    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
    9
    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.
    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
    10
    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.
    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 NLRB 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
    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 NLRB 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
    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
    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
    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
    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.
    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
    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
    of the unlawful action taken against him, in the manner set
    forth in the remedy section of this decision.” Northeastern
    Land Services, 352 NLRB 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
    NLRB 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 NLRB at 746 (incorporated by Northeastern
    Land Services, 
    355 NLRB 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,
    14
    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
    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
    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 NLRB 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
    States upon writ of certiorari or certification as provided in section
    1254 of Title 28.”
    5
    See also, e.g., D.L. Baker, Inc., 351 NLRB 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 NLRB 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 NLRB 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 NLRB 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 NLRB 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
    payment-period interest did not modify the enforced Order,
    because the Order “did not liquidate the amount of backpay
    owed[.]” Board Br. 27.
    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
    17
    woefully insufficient excuse for the Board backhanding
    almost four decades of its own precedent insisting that it
    cannot do exactly what it did.
    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 NLRB 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
    18
    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.
    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
    19
    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
    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 NLRB 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.
    20
    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
    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 NLRB 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
    21
    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
    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
    22
    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.
    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.
    

Document Info

Docket Number: 14-1001

Filed Date: 8/7/2015

Precedential Status: Precedential

Modified Date: 8/11/2015

Authorities (20)

Amalgamated Utility Workers v. Consolidated Edison Co. , 60 S. Ct. 561 ( 1940 )

Phelps Dodge Corp. v. National Labor Relations Board , 61 S. Ct. 845 ( 1941 )

concrete-materials-of-georgia-inc-v-national-labor-relations-board , 440 F.2d 61 ( 1971 )

oil-chemical-and-atomic-workers-international-union-afl-cio-v-national , 806 F.2d 269 ( 1986 )

Miles T. Jackman v. National Labor Relations Board , 784 F.2d 759 ( 1986 )

International Ladies' Garment Workers Union, Local 415-475, ... , 501 F.2d 823 ( 1974 )

Carpenters & Millwrights, Local Union 2471 v. National ... , 481 F.3d 804 ( 2007 )

George Ryan Co., Inc., Municipal Engineering and ... , 609 F.2d 1249 ( 1979 )

National Labor Relations Board v. Mastro Plastics ... , 261 F.2d 147 ( 1958 )

W. B. Johnston Grain Company and Johnston Seed Company v. ... , 365 F.2d 582 ( 1966 )

Scepter, Inc. v. National Labor Relations Board , 448 F.3d 388 ( 2006 )

textile-workers-union-of-america-afl-cio-v-national-labor-relations , 294 F.2d 738 ( 1961 )

Oshkosh Truck Corporation v. National Labor Relations Board , 530 F.2d 744 ( 1976 )

containair-systems-corporation-v-national-labor-relations-board-national , 521 F.2d 1166 ( 1975 )

local-282-international-brotherhood-of-teamsters-chauffeurs-warehousemen , 339 F.2d 795 ( 1964 )

fed-sec-l-rep-p-95258-meyers-l-girsh-v-robert-s-jepson-jr-lynn , 521 F.2d 153 ( 1975 )

National Labor Relations Board v. Northeastern Land ... , 645 F.3d 475 ( 2011 )

Air Line Pilots Ass'n v. O'Neill , 111 S. Ct. 1127 ( 1991 )

Northeastern Land Services, Ltd. v. National Labor ... , 560 F.3d 36 ( 2009 )

textile-workers-union-of-america-afl-cio-v-national-labor-relations , 315 F.2d 41 ( 1963 )

View All Authorities »