Dupuy v. Nat'l Labor Relations Bd.

• Decision Date: 17 July 2015
• Docket Number: No. 14–1001.,14–1001.
• Citation: 806 F.3d 556
• Parties: Jamison John DUPUY, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

806 F.3d 556

Jamison John DUPUY, Petitioner

v.NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 14–1001.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 17, 2014.

Decided July 17, 2015.

Amended Aug. 7, 2015.

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.

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

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.

IStatutory 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 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.” See29 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.

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.¹From 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. SeeNortheastern Land Services, Ltd., 352 NLRB 744, 744–45 (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, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010), because the two-member Board lacked the necessary quorum to act, see Northeastern Land Services, Ltd. v. NLRB,561 U.S. 1021, 130 S.Ct. 3498, 177 L.Ed.2d 1085 (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 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 Horizonsis 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. SeeSettlement 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. SeeLetter 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. SeeSettlement 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.

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...