N.L.R.B. v. Overseas Motors, Inc.
| Decision Date | 11 May 1987 |
| Docket Number | No. 86-5225,86-5225 |
| Citation | 818 F.2d 517 |
| Parties | 125 L.R.R.M. (BNA) 2361, 106 Lab.Cas. P 12,382 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. OVERSEAS MOTORS, INC., Respondent. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., Nancy Hunt (argued), Peter Winkler, Bernard Gottfried, Director Region 7, N.L.R.B., Patrick McNamara, Detroit, Mich., for petitioner.
J. Laevin Weiner (argued), C. Robert Wartell, William E. Sigler, Maddin, Weiner, Hauser, Wartell and Roth, Southfield, Mich., for respondent.
Before KENNEDY, JONES and NORRIS, Circuit Judges.
Petitioner National Labor Relations Board ("NLRB" or "Board") seeks enforcement of its supplemental order requiring respondent Overseas Motors, Inc. ("Overseas") to give back pay to an employee, Miroljub Mitkovski, who was unlawfully discharged from his job as an automobile mechanic. Overseas argues that: (1) its due process rights were violated; (2) the administrative law judge ("ALJ") behaved in a biased or prejudiced manner; (3) the back pay formula used by the General Counsel was inappropriate considering the alternatives available, the mitigating circumstances, and Mitkovski's interim earnings; and (4) Mitkovski was not entitled to any back pay or, in the alternative, that Overseas' back pay formula should have been adopted. We find that the ALJ impermissibly restricted Overseas' cross-examination of Mitkovski regarding his interim earnings, thereby depriving Overseas of a fair hearing. Accordingly, we DENY enforcement of the present back pay award.
On November 23, 1983, this Court enforced the Board's original decision and order in this case. See NLRB v. Overseas Motor, Inc., 721 F.2d 570 (6th Cir.1983). The Board had found that Overseas had unlawfully threatened, suspended, and ultimately discharged Mitkovski in violation of 29 U.S.C. Sec. 158(a)(4), because he had contacted the NLRB and had filed a charge against Overseas. See Overseas Motors, Inc., 260 N.L.R.B. 810, 109 L.R.R.M. 1225 (1982). The Board ordered, inter alia, that Overseas offer Mitkovski full reinstatement and make him whole for any loss of pay he may have suffered as a result of being unlawfully suspended and discharged.
Despite the order of enforcement, Overseas refused to reinstate Mitkovski. After this Court issued an order to show cause why Overseas should not be held in civil contempt, Overseas agreed to reinstate Mitkovski on July 11, 1984. The contempt proceeding was dismissed without prejudice.
The parties were unable to agree on the amount of back pay due Mitkovski and so a back pay proceeding was begun. On November 7, 1984, the Board's Regional Director for Region 7 issued a back pay specification and a notice of hearing. A back pay hearing was held before an ALJ between February 13 and March 12, 1985. During the hearing, the Board filed an amended back pay specification.
On July 3, 1985, the ALJ issued his supplemental decision fixing the amount of back pay. The ALJ adopted the General Counsel's formula--a projection based on a "representative employee" whose wages were similar to Mitkovski's prior to his discharge. The ALJ agreed with Overseas that the "base period" for comparison advocated by the General Counsel was inappropriate and instead chose a shorter period during which the two employees' wages were equivalent. The ALJ accepted the amount of interim earnings discovered by the General Counsel and determined that Mitkovski was entitled to $93,648.73 in back pay, plus interest. The Board issued a Supplemental Decision and Order affirming the ALJ's rulings, findings, and conclusions, and directed Overseas to make Mitkovski whole in the amount determined by the ALJ. See Overseas Motors, Inc., 277 N.L.R.B. No. 61, 121 L.R.R.M. 1309 (1985).
Overseas argues first that the ALJ was biased or prejudiced against it and that as a result Overseas was denied due process. Overseas complains that the ALJ
inserted himself, warped the orderly presentation of the case of [Overseas], encouraged the General Counsel, assisted in the making of objections, lead [sic] the inquiry into areas where counsel for [Overseas] had been precluded from making inquiry, displayed frustration and impatience with witnesses including the principal of [Overseas], allowed General Counsel to impeach his own witness, made unilateral determinations without foundation as to the credibility of witnesses, allowed testimony which could only have qualified as rebuttal but which came through in the hearing as outside the scope of rebuttal, and in every way inserted himself into the proceedings to the point where even the pretense of impartiality had disappeared.
Although we cannot approve of the ALJ's conduct of the hearing, there was no due process violation. It appears that the ALJ was dealing with a very difficult situation. At least one of the major witnesses, Mr. Demrovsky, an officer of Overseas, was a difficult witness. His testimony was confusing, at best, and sometimes inconsistent. Moreover, the attorneys themselves were contentious and argumentative. The transcript of the hearing to set back pay for a single employee is 957 pages plus 38 exhibits.
Although the ALJ did participate actively in the questioning, much of that participation was necessary to clarify the record. An ALJ can interrupt or question witnesses in order to clarify testimony. See NLRB v. Honaker Mills, 789 F.2d 262, 265 (4th Cir.1986); NLRB v. Air Flow Sheet Metal, Inc., 396 F.2d 506, 508 (7th Cir.1968); Bethlehem Steel Co. v. NLRB, 120 F.2d 641, 652 (D.C.Cir.1941). Although the ALJ did on one instance encourage the General Counsel to make an objection, see Joint Appendix at 75-76, he did the same for Overseas' counsel at another point. See Joint Appendix at 11-12. The ALJ also rebuked the General Counsel on occasion. See, e.g., Joint Appendix at 116. In short, the ALJ appeared to treat each side the same. We see no evidence that the ALJ was biased or prejudiced.
Overseas next argues that the back pay formula used by the Compliance Officer and the ALJ was inappropriate, given the alternatives available, the mitigating circumstances, and Mitkovski's interim earnings. The Board calculated Mitkovski's back pay using the "representative employee" method. Under this method, the earnings of the discriminatee and some other, representative, employee are compared during some base period when both were working. The resulting ratio is multiplied by the representative employee's earnings during the period in which the discriminatee was unlawfully deprived of work. This "gross back pay" figure is then reduced by the amount of the discriminatee's interim earnings or other deductions established at trial by the employer, resulting in the "net back pay" figure, subject to the employer's other defenses. The Sixth Circuit has approved the use of the "representative employee" approach in the past, see, e.g., NLRB v. S.E. Nichols of Ohio, Inc., 704 F.2d 921, 924 (6th Cir.), cert. denied, 464 U.S. 914, 104 S.Ct. 275, 78 L.Ed.2d 256 (1983), and we find it to be a reasonable means of calculating back pay in this instance as well.
We reject Overseas' contentions that Mitkovski is not entitled to any back pay. Overseas is attempting to relitigate issues previously decided against it in the unfair labor practices proceeding, and it is not permitted to do so now. We also reject Overseas' contention that the ALJ should have adopted its back pay formula, which would have resulted in a lower back pay award than that determined by the Board. The Board has broad discretion in fashioning the back pay remedy, and its order cannot be disturbed "unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies...
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