Lou's Transport, Inc.; T.K.M.S., Inc., Petitioners/Cross-Respondents,
National Labor Relations Board, Respondent/Cross-Petitioner.
Argued: June 20, 2019
Petition for Review and Cross-Application for Enforcement of
an Order of the National Labor Relations Board; No.
A. Wright, STEVEN A. WRIGHT, P.C., Shelby Township, Michigan,
Bieszczat, NATIONAL LABOR RELATIONS BOARD, Washington, D.C.,
A. Wright, Sandra L. Wright, Amy D. Comito, STEVEN A. WRIGHT,
P.C., Shelby Township, Michigan, for
Bieszczat, Elizabeth Heaney, Linda Dreeben, NATIONAL LABOR
RELATIONS BOARD, Washington, D.C., for
Before: BOGGS, MOORE, and STRANCH, Circuit Judges.
B. STRANCH, CIRCUIT JUDGE
2016, we held that Petitioners Lou's Transport, Inc. and
T.K.M.S., Inc. (collectively, Lou's or the Company)
violated the National Labor Relations Act (NLRA or the Act)
by terminating Michael Hershey. See Lou's Transp.,
Inc. v. NLRB, 644 Fed.Appx. 690 (6th Cir. 2016). More
than three years after that decision (and more than six years
after the wrongful termination), Lou's continues to
dispute the amount of back pay that Hershey is owed.
administrative law judge (ALJ) entered a back pay order
against Lou's, and the National Labor Relations Board
(NLRB or the Board) upheld the order in its entirety.
Lou's petitions for review, raising numerous challenges
to the NLRB's calculations and order. The Board has broad
discretion to resolve factual disputes and to select formulas
to calculate uncertain figures such as back pay. Because the
Board did not abuse that discretion, we DENY
the Company's petition for review and
GRANT the General Counsel's
cross-petition for enforcement.
prior decision sets out the facts, which are briefly
summarized here. Michael Hershey worked as a truck driver for
Lou's under a collective bargaining agreement (CBA) from
July 2012 until he was fired in March 2013. Lou's
Transp., 644 Fed.Appx. at 691-92. In January 2013,
Hershey used a company radio to "discuss the poor
working conditions" at Lou's with another driver.
Id. at 691. Thereafter, "Hershey began
displaying hand-written signs in his truck regarding the
working conditions and other unrelated matters."
Id. at 692. At a safety meeting in March, Hershey
"stated that the drivers were upset because of the
dangerous road conditions." Id. Two days later,
Lou's managers searched Hershey's truck, found 16
signs, and fired him. Id. We upheld the Board's
finding that Hershey was terminated at least in part because
of the January radio conversation. Id. at 697. We
also "conclude[d], without deciding, that the radio
conversation was concerted protected activity" under the
NLRA, citing the Company's failure to contest that
argument in administrative proceedings. Id. at 695.
November 2015, while the appeal before our court was pending,
the NLRB Regional Director issued an initial Compliance
Specification, laying out the methodology for calculating the
back pay award. For over a year after the appeal was decided,
the parties went back and forth, with Lou's filing
answers and raising objections, and the Director requesting
further documentation and amending its calculations. All in
all, the Director issued four amended specifications, the
last of which was dated August 14, 2017. A damages hearing
was scheduled for September 18, 2017. Citing the addition of
retirement benefits to the Third Amended Compliance
Specification (dated August 3, 2017), Lou's moved to
postpone the hearing and requested extra time to file its
answer. The Chief ALJ granted Lou's a three-day extension
but rejected the motion to reschedule, explaining that the
"time has long past" to resolve the issue of
damages suffered by Mr. Hershey because of the Company's
the hearing began on September 18, the ALJ granted the
General Counsel's motion to correct mathematical errors
in the Fourth Amended Compliance Specification, without
objection from Lou's. Lou's amended its answer, also
without objection. The ALJ then heard testimony from three
witnesses: Hershey; a Company general manager, David Laming;
and an NLRB field examiner, Daniel Molenda, who had performed
the back pay calculations. Molenda testified that Lou's
owed Hershey a total of $49, 817. That figure was based on
four categories: (1) Hershey's "adjusted net back
pay," the projected earnings at Lou's had Hershey
not been fired, less his interim earnings at other positions
and an assumed contribution to his retirement account; (2)
foregone bonuses awarded to Lou's employees; (3) expenses
incurred at Hershey's interim employment; and (4) the
lost value of Hershey's retirement account.
January 2018, the ALJ issued a decision adopting
Molenda's calculations. Lou's appealed, and the NLRB
affirmed on all grounds. Lou's petitions for review,
raising each of the arguments considered and rejected by the
ALJ and the Board. The General Counsel cross-petitions for
enforcement of the Board's order.
NLRA includes a "broad command" that, "upon
finding that an unfair labor practice has been committed, the
Board shall order the violator 'to take such affirmative
action including reinstatement of employees with or without
back pay, as will effectuate the policies' of the
Act." NLRB v. J.H. Rutter-Rex Mfg. Co., 396
U.S. 258, 262 (1969) (quoting 29 U.S.C. § 160(c)). The
remedial power the NLRB derives from this NLRA provision is
"a broad, discretionary one, subject to limited judicial
review." NLRB v. Jackson Hosp. Corp., 557 F.3d
301, 306 (6th Cir. 2009) (quoting Fibreboard Paper Prods.
Corp. v. NLRB, 379 U.S. 203, 216 (1964)). We may not
disturb the Board's back pay order "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." NLRB v. Overseas Motors,
Inc., 818 F.2d 517, 520 (6th Cir. 1987) (quoting
Fibreboard, 379 U.S. at 216).
Supreme Court has identified "ends" that effectuate
the Act. Back pay is both "a remedy designed to restore,
so far as possible, the status quo that would have obtained
but for the wrongful act" and also a "punishment
for an unfair labor practice." Rutter-Rex Mfg.,
396 U.S. at 265; see also NLRB v. Mastro Plastics
Corp., 354 F.2d 170, 175 (2d Cir. 1965) ("The back
pay remedy has the twofold purpose of reimbursing employees
for actual losses suffered as a result of a discriminatory
discharge and of furthering the public interest in deterring
such discharges."). Though back pay awards
"somewhat resemble compensation for private injury, . .
. it must be constantly remembered that [the back pay remedy
is] created by statute . . . to aid in achieving the
elimination of industrial conflict. [It] vindicate[s] public,
not private rights." Va. Elec. & Power Co. v.
NLRB, 319 U.S. 533, 543 (1943).
choice of a calculation method is likewise committed to the
NLRB's sound discretion. Because "[a] back pay award
is only an approximation, necessitated by the employer's
wrongful conduct[, ] . . . there may be several equally valid
methods of computation, each yielding a somewhat different
result." Overseas Motors, 818 F.2d at 520
(quoting Bagel Bakers Council of Greater N.Y. v.
NLRB, 555 F.2d 304, 305 (2d Cir. 1977) (per curiam)).
The Board "is required only to adopt a formula which
will give a close approximation of the amount due," and
choosing "to proceed by one method rather than another
hardly makes out a case of abuse of discretion."
Id. at 520-21 (second quote quoting Bagel Bakers
Council, 555 F.2d at 305). "Any formula which
approximates what discriminatees would have earned had they
not been discriminated against is acceptable if it is not
unreasonable or arbitrary in the circumstances." La
Favorita, Inc., 313 N.L.R.B. 902, 902 (1994).
factual findings underpinning those calculations must be
upheld "as long as those findings are supported by
substantial evidence in the record as a whole." NLRB
v. S.E. Nichols of Ohio, Inc., 704 F.2d 921, 923 (6th
Cir. 1983) (per curiam); see also Airgas USA, LLC v.
NLRB, 916 F.3d 555, 560 (6th Cir. 2019). This threshold
"is not high." Biestek v. Berryhill, 139
S.Ct. 1148, 1154 (2019). Substantial evidence "means-and
means only-'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'"
Id. (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
consider Lou's objections in light of these standards.
Gross Back Pay
first step in calculating a back pay award is determining the
gross back pay, "the amount of money that the employee
would have earned had the employer not violated the National
Labor Relations Act." Jackson Hosp., 557 F.3d
at 307. The burden of establishing the amount of gross back