Aneco Inc. v. N.L.R.B.
| Decision Date | 29 March 2002 |
| Docket Number | No. 01-1681.,No. 01-1572.,01-1572.,01-1681. |
| Citation | 285 F.3d 326 |
| Parties | ANECO INCORPORATED, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Region 12, Respondent, International Brotherhood of Electrical Workers Local 606, Intervenor. International Brotherhood of Electrical Workers, AFL-CIO, Amicus Curiae. National Labor Relations Board, Petitioner, v. Aneco Incorporated, Respondent, International Brotherhood of Electrical Workers Local 606, Intervenor. International Brotherhood of Electrical Workers, AFL-CIO, Amicus Curiae. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William E. Sizemore, Thompson, Sizemore & Gonzalez, P.A., Tampa, Florida, for Aneco. Anne Marie Lofaso, Office of the General Counsel, National Labor Relations Board, Washington, D.C., for Board. Joseph Egan, Jr., Egan, Lev & Siwica, P.A., Orlando, Florida, for Intervenor.
ON BRIEF:
John W. Bencivenga, Thompson, Sizemore & Gonzalez, P.A., Tampa, Florida, for Aneco. Arthur F. Rosenfeld, General Counsel, John E. Higgins, Jr., Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Robert J. Englehart, Supervisory Attorney, Rachel Gartner Lennie, Office of the General Counsel, National Labor Relations Board, Washington, D.C., for Board. Tobe Lev, Egan, Lev & Siwica, P.A., Orlando, Florida, for Intervenor. Nora H. Leyland, Sherman Dunn, Cohen, Leifer & Yellig, P.C., Washington, D.C., for Amicus Curiae.
Before WIDENER and LUTTIG, Circuit Judges, and JOSEPH R. GOODWIN, United States District Judge for the Southern District of West Virginia, sitting by designation.
Petition granted in part and denied in part, cross-petition granted in part and denied in part, and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Judge WIDENER joined. Judge GOODWIN wrote an opinion concurring in part and dissenting in part.
On July 12, 1993, Winson Cox applied for a job as an electrician with Aneco, Inc., a non-union contractor. J.A. 1222. Cox was a paid, full-time union organizer for the International Brotherhood of Electrical Workers, Local Union Number 606 ("the Union"), J.A. 1226, and he sought employment with Aneco to help organize Aneco's workers. J.A. 779. This process, where union organizers seek to become employees of a company targeted by the union, is known as "salting." Typically, union "salts" only work for an employer as long as there is a prospect of success at organizing its workers, and they are trained to leave an employer by striking rather than resigning, so as to preserve their rights to reinstatement. J.A. 648-49, 838, 1554.
Cox disclosed his motives during his job interview, and Aneco refused to hire him. Id. Five years later, on February 27, 1998, the National Labor Relations Board ("the Board") held that Aneco's refusal to hire Cox violated sections 8(a)(1) and (a)(3) of the National Labor Relations Act ("NLRA"). The Board ordered that Cox be made "whole for any loss of earnings and other benefits he may have suffered ... from the date he applied for employment to the date Respondent makes him a valid offer of employment." Aneco, Inc., 325 NLRB 400, 401, 1998 WL 95462 (1998).
In response to the Board's ruling, Aneco offered Cox employment on April 1, 1998. J.A. 1219. Cox accepted the offer and worked for Aneco for about five weeks, leaving during an unfair labor practice strike called by a Local from Tampa. J.A. 932. Cox never made an offer to return to work for Aneco nor did he request reinstatement. J.A. 932.
Paid union organizers who seek employment with other companies are protected by the National Labor Relations Act. See NLRB v. Town & Country Electric, Inc., 516 U.S. 85, 116 S.Ct. 450, 133 L.Ed.2d 371 (1995). Aneco conceded that its refusal to hire Cox in 1993 was an unfair labor practice, J.A. 1029, however, Aneco and the General Counsel were unable to agree on the appropriate amount of backpay owed to Cox. The General Counsel sought backpay in the amount of $47,349.29, for ten of the nineteen quarters between July 12, 1993 (the date Aneco unlawfully refused to hire Cox) and April 1, 1998 (the date Aneco hired Cox). J.A. 910.1 Aneco opposed this, arguing that Cox did not conduct a reasonable search for interim employment during those ten quarters and, hence, did not fulfill his duty to mitigate his income loss. In the alternative, Aneco contended that the period of Cox's backpay award should be far shorter than the ten quarters sought by the Board because it is wrong to assume that Cox, had he been hired by Aneco in July of 1993, would have continued working at Aneco through April 1, 1998. Aneco argued that Cox, as a union "salt," would have left Aneco when his employment there no longer served the Union's organizational interests; hence, Cox would not have worked ten quarters for Aneco and should not be awarded $47,349.29 in backpay.
After a compliance hearing, the Administrative Law Judge rejected Aneco's argument that Cox failed to mitigate his income loss. J.A. 1050-51. However, the ALJ refused to award Cox the full $47,349.29 in backpay sought by the General Counsel, and instead awarded Cox five weeks of back pay in the amount of $1,461.15. J.A. 1052. Noting that Cox, as a union "salt," "would have spent no more time working for [Aneco] than necessary to organize its employees or conclude that such organizing would not be practical," J.A. 1040, the ALJ concluded that, had Aneco hired Cox in July of 1993, he would have only worked five weeks for Aneco. J.A. 1051. In so concluding, the ALJ relied on the fact that Cox, when finally hired by Aneco in April of 1998, worked only for five weeks before leaving.
The Board reversed the ALJ's finding that Cox would have only worked five weeks for Aneco had he been hired in 1993, stating that Aneco failed to present "specific evidence" on this issue. J.A. 1050. Relying on the "well-established principle that `[t]he Board resolves compliance-related uncertainties or ambiguities against the wrong-doer,'" the Board ordered that Aneco pay Cox the full $47,349.29 in backpay sought by the General Counsel. J.A. 1050 (citations omitted). The Board also found, as did the ALJ, that Cox fulfilled his duty to mitigate. J.A. 1050 n. 3.
Aneco petitions this court for review, and the Board cross-petitions for enforcement of its order. For the reasons that follow, we grant enforcement in part, deny enforcement in part, and remand.
I.
Title 29, U.S.C. § 160(c) authorizes the Board to award backpay in response to an unfair labor practice. However, a backpay order may only serve as a compensatory, make-whole remedy, not a punitive sanction or deterrent. See NLRB v. Pepsi Cola Bottling Co. of Fayetteville, Inc., 258 F.3d 305, 314 (4th Cir.2001). A backpay order is a means to "restore the situation `as nearly as possible, to that which would have obtained but for the illegal discrimination.'" Coronet Foods, Inc. v. National Labor Relations Board, 158 F.3d 782, 798 (4th Cir.1998) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194, 61 S.Ct. 845, 85 L.Ed. 1271 (1941)).
Aneco raises two challenges to the Board's award of backpay, and we address each for abuse of discretion. See Coronet Foods, 158 F.3d at 798 (4th Cir.1998).
Aneco first argues that Cox did not conduct a reasonable job search between July 12, 1993 and April 1, 1998 and, therefore, failed to mitigate his income loss. After Aneco refused Cox employment in 1993, Cox did not embark on the type of thorough job search one would expect from one who is unemployed. There were several reasons for this failure, all related to Cox's role as a union "salt." First, Cox already had a full-time job with the Union, which dampened his financial incentives to obtain additional employment. J.A. 716. Moreover, because Cox's purpose in seeking a second job was to organize the workers of that company on behalf of the Union, Cox only applied to companies where there was a realistic chance to organize their workers. The Union forbade Cox from applying to work for companies that were already unionized, including all companies that hired through the Union's hiring hall. J.A. 1042. In addition, Cox could not work for small companies with too few employees to be of organizing interest to the Union, J.A. 579, 1004, nor large companies with so many employees that organizing them would be difficult, J.A. 576, 1036. Given these restrictions, Cox visited a total of only 50 companies during the ten quarters for which the Board awarded backpay. J.A. 1469.
Finally, in addition to the narrow scope of his job search, Cox further hurt his chances of finding employment by bringing other electricians with him when he applied for a job, some of whom were better qualified than he. J.A. 860-61, 1232.2 Apparently, Cox brought his friends along to serve as potential witnesses at an unfair labor practice hearing, and also to increase the number of union organizers working for the non-union company.
Not surprisingly, although he maintained his full-time employment with the Union, Cox never found another job to "salt" until Aneco offered him employment in 1998.
Despite the limited nature of Cox's job search, the Board held that Cox fulfilled his duty to mitigate his income loss. According to the Board, an employer seeking to prove a failure to mitigate by a union "salt" must show that "the Union's policies unreasonably limited [the discriminatee's] job search." J.A. 1050 n. 3. Rejecting the notion that "the mere existence of any union restrictions was per se unreasonable," the Board held that Aneco failed to show that any specific restrictions on Cox's job search imposed by the Union were unreasonable. J.A. 1050 n. 3.
Employees who lose their jobs as a result of an unfair labor practice must mitigate their damages by making a "reasonable effort to obtain interim employment," and the burden of proving a failure to...
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