508 F.3d 418 (7th Cir. 2007), 06-2836, National Labor Relations Board v. Midwestern Personnel Services, Inc.

Docket Nº:06-2836.
Citation:508 F.3d 418
Party Name:NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWESTERN PERSONNEL SERVICES, INC., Respondent.
Case Date:November 08, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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508 F.3d 418 (7th Cir. 2007)

NATIONAL LABOR RELATIONS BOARD, Petitioner,

v.

MIDWESTERN PERSONNEL SERVICES, INC., Respondent.

No. 06-2836.

United States Court of Appeals, Seventh Circuit.

November 8, 2007

Argued January 11, 2007.

On Petition for Enforcement of an Order of the National Labor Relations Board. Nos. 25-CA-25503-2, 25-CA-25823-3 & 25-CA-25978-5

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Rik Lineback, National Labor Relations Board, Indianapolis, IN, Linda J. Dreeben, Jewel L. Fox (argued), National Labor Relations Board, Office of the General Counsel, Washington, DC, for Petitioner.

James U. Smith, III (argued), Smith & Smith, Louisville, KY, for Respondent.

Before Bauer, Flaum and Rovner, Circuit Judges.

Rovner, Circuit Judge.

After finding that Midwestern Personnel Services, Inc. ("Midwestern") violated the National Labor Relations Act ("NLRA"), the National Labor Relations Board ("Board") ordered Midwestern to reinstate striking employees and to make each of them whole. The Board calculated the amount of back-pay Midwestern owed to each employee, and Midwestern disputed some of the findings. Midwestern also contended that it was denied due process during the compliance hearing. For the reasons stated below, we affirm the Board's findings in all respects and grant the Board's petition for enforcement of its order.

The facts of this case are set out in detail in our opinion enforcing the Board's original order regarding reinstatement and back-pay. NLRB v. Midwestern Pers. Servs., Inc., 322 F.3d 969, 971-76 (7th Cir. 2003). Midwestern leased cement and transport truck drivers to various businesses from its locations in Indiana and Kentucky. The Board found that Midwestern violated Section 8(a)(1) of the NLRA, see 29 U.S.C. § 158(a)(1), by instructing employees to designate Chauffeurs, Teamsters, and Helpers Local Union No. 836 ("Local 836") as their collective-bargaining representative and threatening them with discharge if they did not. See Midwestern Pers. Servs., Inc., 331 N.L.R.B. 348 (2000). In addition, the Board found that Midwestern violated Section 8(a)(2) of the NLRA, see 29 U.S.C. § 158(a)(2), by assisting and supporting Local 836 and by recognizing it in the absence of the uncoerced support of a majority of employees. Thereafter, a majority of Midwestern's employees expressed support for Chauffeurs, Teamsters, and Helpers Local Union No. 215 ("the Union") as their collective-bargaining representative. After Midwestern refused

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to recognize and bargain with the Union, the employees engaged in a strike.

The Board subsequently found that Midwestern violated Section 8(a)(1) of the NLRA again by threatening employees with discipline, loss of employment, and legal action if they engaged in a strike. It also found that Midwestern violated Sections 8(a)(3) and (1) of the NLRA by failing and refusing to reinstate the strikers immediately upon their unconditional offer to return to work. The Board directed Midwestern to offer reinstatement to all of the striking employees and to make each whole for any loss of earnings suffered as a result of Midwestern's unlawful conduct. We entered judgment enforcing the Board's order in full. Midwestern, 322 F.3d at 972. The Board then instituted compliance proceedings to determine the amount of back-pay due and to consider Midwestern's other contentions regarding compliance with the enforced order. See 29 C.F.R. §§ 102.52-102.59. The Board issued a compliance specification alleging the amount of back-pay due to twenty-six discriminatees.

The Board held a three-day hearing before an administrative law judge ("ALJ"). The ALJ determined the specific amount of back-pay due each of the strikers, considering the nature of any interim employment secured and whether the employee had engaged in a reasonably diligent job search during periods of unemployment. The ALJ found that all affected discriminatees had met this standard for the back-pay periods. The ALJ tolled back-pay for periods in which particular discriminatees were unavailable for work or employed. Midwestern filed exceptions to the ALJ's findings and conclusions. After considering Midwestern's exceptions, the Board issued its Supplemental Decision and Order affirming the ALJ's supplemental decision and adopting the ALJ's order regarding the amount of back-pay due to the twenty-six discriminatees.

Midwestern now contends that the Board's Supplemental Decision and Order should not be enforced as to eleven particular discriminatees. According to Midwestern, those eleven strikers did not satisfy their duty to mitigate their wage losses by making a reasonably diligent effort to secure interim employment, and the ALJ's findings are not supported by substantial evidence. Midwestern also argues that it was denied due process during the administrative hearing. In the administrative proceedings, Midwestern did not challenge the ALJ's findings with respect to fourteen of the twenty-six employees, and it has since conceded that one other employee, Wade Carter, made a good faith effort to secure other employment. Therefore, we summarily affirm the Board's order with respect to the fifteen employees whose back-pay awards are unchallenged, see 29 U.S.C. § 160(e); Masiongale Elec.-Mech., Inc. v. NLRB, 323 F.3d 546, 557 (7th Cir. 2003), and address the other eleven employees in turn. For the reasons given below, we find that the factual findings made by the ALJ and the Board are supported by...

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