N.L.R.B. v. Jackson Hosp. Corp.

• Decision Date: 18 February 2009
• Docket Number: No. 08-1462.,08-1462.
• Citation: 557 F.3d 301
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JACKSON HOSPITAL CORPORATION, dba Kentucky River Medical Center, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

557 F.3d 301

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. JACKSON HOSPITAL CORPORATION, dba Kentucky River Medical Center, Respondent.

No. 08-1462.

United States Court of Appeals, Sixth Circuit.

Argued: January 22, 2009.

Decided and Filed: February 18, 2009.

ARGUED: Amy H. Ginn, National Labor Relations Board, Washington, D.C., for Petitioner. Bryan Tyler Carmody, Law Office, Stamford, Connecticut, for Respondent. ON BRIEF: Amy H. Ginn, Jill A. Griffin, National Labor Relations Board, Washington, D.C., for Petitioner. Bryan Tyler Carmody, LAW OFFICE, Stamford, Connecticut, Don T. Carmody, Brentwood, Tennessee, for Respondent.

Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

In a previous proceeding, the National Labor Relations Board found that respondent Jackson Hospital Corporation, which does business as Kentucky River Medical Center, fired eight employees because of their union support and participation in a lawful strike, in violation of sections 8(a)(1) and (3) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1), (3). Jackson Corp., 340 N.L.R.B. 536 (2003), enforced, No. 04-1018, 2005 U.S.App. LEXIS 10450 (D.C.Cir. June 3, 2005). The Board now seeks to enforce its supplemental decision and order directing Jackson Hospital to pay specific backpay amounts to four of the eight discriminatees: Eileen Jewell, Debbie Miller, Lois Noble, and Maxine Ritchie. We ENFORCE the Board's order.

I.

In 2000, before a collective-bargaining agreement could be reached between Jackson Hospital and the United Steelworkers, which represented this unit of Jackson Hospital's employees, the employees went on strike. Following reports of discrimination in retaliation to the strike, the National Labor Relations Board's General Counsel issued a complaint alleging that Jackson Hospital had engaged in unfair labor practices. An administrative law judge held that Jackson Hospital had unlawfully discharged eight employees because of their union support and participation in the strike. The Board affirmed those findings and the United States Court of Appeals for the District of Columbia Circuit enforced the order. Jackson Corp. 340 N.L.R.B. 536 (2003), enforced, No. 04-1018, 2005 U.S.App. LEXIS 10450 (D.C.Cir. June 3, 2005).

This dispute concerns the backpay amounts owed to four reinstated employees. After a hearing, an administrative law judge issued a supplemental decision ordering Jackson Hospital to pay specific backpay amounts. The Board then issued its own supplemental decision and order affirming the administrative law judge's findings and adopting her proposed order with slight modifications to the backpay awards for Maxine Ritchie and Debra Miller.¹

The Board filed its application for enforcement before this Court. The facts specific to each employee are discussed, as relevant, below, and the complete facts are recounted at length in Jackson Hosp. Corp., 352 N.L.R.B. No. 33 (2008).

II.

Before proceeding to Jackson Hospital's employee-specific contentions, we begin with its global argument encompassing all of the employees: namely, that the ALJ improperly ruled that Jackson Hospital was not entitled to certain personal banking and other records that may or may not have revealed that the discriminatees were hiding income. Before the ALJ, Jackson Hospital requested, in total, income tax records, documents showing job qualifications, self-employment information, and retirement, disability, education, and banking records. The ALJ enforced the subpoenas against the discriminatees for documents relating to interim earnings, search for work, supplemental education, and Union correspondence, but quashed Jackson Hospital's demands for personal banking records and records related to other private financial obligations. In denying Jackson Hospital's request, the ALJ characterized it as "speculative" and as part of a "fishing expedition." And Jackson Hospital admits that it has no particular reason to suspect that these employees hid any income, thus it necessarily argues that all employers are entitled to the sort of personal financial information that it was denied in every backpay case; otherwise, it asserts, the proceeding is so unfair that its due process rights were violated.

Generally, ALJs have broad authority over their hearings, and we review decisions to exclude evidence only for abuse of discretion. Ky. River Cmty. Care, Inc. v. NLRB, 193 F.3d 444, 452 (6th Cir.1999). Jackson Hospital heavily relies on NLRB v. Overseas Motors, Inc., 818 F.2d 517 (6th Cir.1987), which involved an ALJ who refused to allow an employer to even cross-examine a discriminatee who had kept no records regarding his self-employment as to the source of nearly $100,000 that he had spent on family trips and living expenses, id. at 521. But that situation was particularly egregious because the employee's estimates of his living expenses were so unrealistic—at one point he testified to only spending $2,000 a month but other records indicated yearly expenses of over $96,000. Id.

Nothing here is so severe, and thus the ALJ did not violate Jackson Hospital's due process rights when it denied its request for such private financial information. For an employer to show that it is entitled to the kind of private financial information that Jackson Hospital requests, it must establish some reasonable suspicion to believe that an employee is hiding income. See Overseas Motors, 818 F.2d at 521. Jackson Hospital was permitted to fully cross-examine the discriminatees (which gave rise to no reasonable suspicion that the employees were hiding income), had ample other evidence to adequately determine their appropriate backpay awards (including social security records), and the employees' testimony regarding their expenses and job-search efforts went unrebutted. And, at oral argument, Jackson Hospital's counsel admitted that it had no individualized basis to suspect that the employees here were hiding anything, and, instead argued for a blanket rule that employers were always entitled to such personal records in every case. This goes too far, and the ALJ did not abuse her discretion.

III.

Jackson Hospital also challenges the enforcement of the Board's order with respect to each employee, arguing that: (1) the record does not include substantial evidence to support the Board's conclusion that Eileen Jewell properly mitigated her damages; (2) Debbie Miller's backpay award was improper because the Board should have considered the income she received from the trucking business she owned; (3) Lois Noble's backpay award should have been tolled when she rejected Jackson Hospital's offer of temporary interim employment; and (4) Jackson Hospital should have been given the opportunity to litigate Maxine Ritchie's status as a supervisor via retroactive application of the Board's decision in Oakwood Healthcare, Inc., 348 N.L.R.B. No. 37 (2006).

When the Board finds that an employer has engaged in an unfair labor practice, section 10(c) of the National Labor Relations Act compels it "to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the [Act's] policies." 29 U.S.C. § 160(c). The Board's remedial power is "a broad, discretionary one, subject to limited judicial review." Fibreboard Paper Prods. Corps. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964). As a result, we may not disturb the Board's backpay orders "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 of the Act." Overseas Motors, 818 F.2d at 522 (quoting Fibreboard, 379 U.S. at 216, 85 S.Ct. 398). Thus, the question is "whether the Board has abused its discretion in fashioning its remedial order." NLRB v. Joyce W. Corp., 873 F.2d 126, 128 (6th Cir.1989) (quotations omitted).

Specifically, "[w]here the issue before the Board is the amount of an employer's liability to an employee for the unfair labor practice of discharge for engaging in protected activity, the burden on the General Counsel for the NLRB is limited to showing the gross amount of back pay due." Overseas Motors, 818 F.2d at 521. Once gross pay—the amount of money that the employee would have earned had the employer not violated the National Labor Relations Act, see id. at 521—has been established, "the burden is on the employer to establish facts which would negative the existence of liability to a given employee or which would mitigate that liability," id. (quoting NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir.1968)). "[T]he Board's conclusion as to whether an [employer has met this burden] will be overturned on appeal only if the record, considered in its entirety, does not disclose substantial evidence to support the Board's findings." NLRB v. Westin Hotel, 758 F.2d 1126, 1129-30 (6th Cir.1985); see also TNS, Inc., v. NLRB, 296 F.3d 384, 395 (6th Cir.2002); NLRB v. Velocity Express, Inc., 434 F.3d 1198, 1201 (10th Cir.2006) ("Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (quotations and internal citations omitted).

A. Eileen Jewell

Jackson Hospital argues that the record does not include substantial evidence to support the conclusion that Jewell properly mitigated her damages. Prior to firing her, Jackson Hospital employed Jewell— then sixty years old—as a surgical technician. Her duties included sterilizing surgical instruments, ensuring that scrubs and other equipment were available for the surgeons, and generally keeping surgical areas clean. As determined by the ALJ and affirmed by the Board, her backpay period began on August 17, 2000 (when she was fired), and concluded in the third quarter of 2003, when she retired and began to receive social security benefits.

The ALJ found that, after being fired, Jewell looked for...