N.L.R.B. v. Midwestern Personnel Services, Inc.

Citation508 F.3d 418
Decision Date08 November 2007
Docket NumberNo. 06-2836.,06-2836.
PartiesNATIONAL LABOR RELATIONS BOARD, Petitioner, v. MIDWESTERN PERSONNEL SERVICES, INC., Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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 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 substantial evidence and that the order for back-pay should be enforced.

A.

Midwestern first argues that the Board misapplied the law when it rejected Midwestern's mitigation defense. The Board's findings on this defense, Midwestern asserts, are not supported by substantial evidence. The NLRA authorizes the Board to fashion appropriate remedial orders to correct the effects of unfair labor practices. 29 U.S.C. § 160(c). The Board may order affirmative action including reinstatement, with or without back-pay, to effectuate the NLRA's policies. See Sure-Tan Inc. v. NLRB, 467 U.S. 883, 898-99, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984); NLRB v. United Contractors, Inc., 614 F.2d 134, 136 (7th Cir.1980). The Board's exercise of its discretion in formulating such remedies is subject to only limited judicial review. See Fibreboard Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964); J. Huizinga Cartage Co. v. NLRB, 941 F.2d 616, 622 (7th Cir. 1991). We will affirm and enforce the Board's findings if they are supported by substantial evidence and if the Board's conclusions have a reasonable basis in law. FedEx Freight E., Inc. v. NLRB, 431 F.3d 1019, 1025 (7th Cir.2005); Del Rey Tortilleria, Inc. v. NLRB, 976 F.2d 1115, 1118 (7th Cir.1992). The substantial evidence test "requires not the degree of evidence which satisfies the court that the requisite fact exists, but merely the degree that could satisfy the reasonable fact finder." FedEx, 431 F.3d at 1025-26 (quoting ATC Vancom of Cal. v. NLRB, 370 F.3d 692, 695 (7th Cir.2004)) (emphasis in original).

Discriminatees are required to mitigate their damages by seeking interim employment after an unlawful discharge. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198-200, 61 S.Ct. 845, 85 L.Ed. 1271 (1941). However, discriminatees are only required to make an "honest good faith effort" to seek other employment. Golay & Co. v. NLRB, 447 F.2d 290, 295 (7th Cir.1971); NLRB v. Int'l. Bhd. of Elec. Workers, 992 F.2d 990, 993 (9th Cir.1993). And discriminatees need only follow their customary method for obtaining work, and need only seek interim employment that is "substantially equivalent" to their previous positions. Ferguson Elec. Co., 330 N.L.R.B. 514, 518 (2000), overruled in irrelevant part by Oil Capitol Sheet Metal, Inc., No. 17-CA-19714, 2007 WL 1610437, 2007 N.L.R.B. LEXIS 203 (May 31, 2007). Midwestern has the burden of demonstrating that the challenged employees were not making adequate efforts to mitigate their damages by securing other employment. See Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1203 n. 3 (7th Cir.1989); Sprogis v. United Air Lines, Inc., 517 F.2d 387, 392 (7th Cir.1975). Moreover, the finding of an unfair labor practice is presumptive proof that some back-pay is owed. NLRB v. NHE/Freeway, Inc., 545 F.2d 592, 593 (7th Cir.1976).

The discriminatees commenced an unfair labor practices strike on January 17, 1998. The back-pay period began on March 27, 1998, when the Union made an unconditional offer to return to work on behalf of the strikers, and Midwestern refused to reinstate them. The back-pay period ended on December 31, 1999, when Midwestern ceased doing business in the area.

1. Henry Langdon

Midwestern contends that Langdon failed to mitigate his damages throughout the entire back-pay period and therefore is not entitled to any back-pay. Midwestern asserts that Langdon relied solely on the Union's looking-for-work list, which provided him with only brief and sporadic employment opportunities.

Most of the discriminatees used the Union's looking-for-work list as a way of finding other employment during the back-pay period. The Union provided listings of available opportunities to work as truck drivers in the construction industry. In order to use the list, the discriminatees were required to sign the list at least every 30 days.

Immediately after Midwestern refused to reinstate Langdon, he signed onto the list. He secured six jobs in 1998 through the list, one of which lasted six months. The record also shows that Langdon did not rely solely on the Union's list. Langdon did seek and obtained other work on his own, including one job that was more difficult than the one he held while employed by Midwestern because it required prolonged periods away from home. See Kawasaki Motors Mfg. Corp. v. NLRB, 850 F.2d 524, 528 (9th Cir.1988) (stating that discriminatee need only seek employment "substantially equivalent to" former job and is not required to "seek or retain a job more onerous than the job from which he or she was discharged"). Langdon also registered with the Indiana unemployment agency, and...

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