NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Jackson Hospital Corporation, d/b/a
February 29, 2008
SUPPLEMENTAL DECISION AND ORDER
By Members Liebman and Schaumber
On February 22, 2007, Administrative Law Judge Margaret G. Brakebusch issued the attached supplemental decision.[1] The Respondent filed exceptions and a supporting brief, and the General Counsel filed a cross-exception and a supporting brief.
The National Labor Relations Board has considered the decision and the record in light of the exceptions, cross-exception, and briefs, and has decided to affirm the judge’s rulings,[2] findings,[3] and conclusions and to adopt the recommended Order as modified.[4]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge and orders that the Respondent, Jackson
Hospital Corporation, d/b/a
1. Substitute the following awards for discriminatees Debra
Miller and Maxine Ritchie, respectively:
Debra Miller $39,854
Maxine Ritchie $88,524
Dated,
___________________________________
Wilma B. Liebman, Member
___________________________________
Peter C. Schaumber, Member
(Seal) National Labor Relations Board
Julius U. Emetu, II, Esq., for the General Counsel.
Don T. Carmody, Esq., Bryan T. Carmody, Esq., and Sam Braunstein, Esq. for the Respondent.
Randy Pidcock, District Organizing Coordinator,
for the Charging Party.1
SUPPLEMENTAL DECISION AND ORDER
Statement of the Case
Margaret G. Brakebusch,
Administrative Law Judge. A Decision and
Order of the National Labor Relations Board issued on September 30, 2003,
finding, among other things, that Jackson
Hospital Corporation, d/b/a Kentucky
River Medical Center, herein Respondent, discriminatorily discharged eight
employees in violation of Section 8(a)(3) of the National Labor Relations
Act. The Decision and Order further
provided that the unlawfully terminated employees be reinstated and made whole
for any loss of earnings or other benefits, computed on a quarterly basis, from
the date of their discharges until the dates of the Respondent’s offers of
reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950),
plus interest, as computed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). On June 3, 2005, the United States Court of
Appeals for the District of Columbia Circuit, herein the Court, entered its
Judgment enforcing the Board’s Order.
A controversy
having arisen over backpay due, the Regional Director for Region 9 of the
National Labor Relations Board, herein the Board, issued a compliance
specification and notice of hearing on August 18, 2006. While the Board’s Order, as enforced by the
Court, required reinstatement and a make whole remedy for all eight
discriminatees, the compliance specification dealt only with backpay for Eileene
Jewell, herein Jewell; Debra Miller, herein Miller; Lois Noble; herein Noble,
and Maxine Ritchie, herein Ritchie.2 Because Respondent has failed to reinstate
the remaining three discriminatees, the appropriate backpay amount cannot be
fully litigated. The Regional Director
has reserved the right to issue a compliance specification to determine the
correct amount owed to the remaining discriminatees once the issues regarding
their reinstatement have been resolved and the backpay is tolled.
A hearing was held
before me on multiple dates commencing October 18, 2006 and concluding on
November 28, 2006.3 The parties were given full opportunity to
participate, produce evidence, examine and cross-examine witnesses, argue
orally, and file briefs. Upon the entire
record, including my observation of the demeanor of the witnesses, I find the
following:
i. preliminary
and procedural matters
A. General Counsel’s Motion for Partial Summary Judgment
Section 102.56(b)
of the Board’s Rules and Regulations state in relevant part:
(b) Contents of answer to specification. The answer shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. Denials shall fairly meet the substance of the allegations of the specification at issue. When a respondent intends to deny only a part of an allegation, the respondent shall specify so much of it as is true and shall deny only the remainder. As to all matters within the knowledge of the respondent, including but not limited to, the various factors entering into the computation of gross backpay, a general denial shall not suffice. As to such matters, if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, the answer shall specifically state the basis for such disagreement, setting forth in detail the respondent’s position as to the applicable premises and furnishing the appropriate supporting figures.
At the opening of
the hearing, Counsel for the General Counsel moved for partial summary judgment
with respect to paragraphs one through four of the compliance specification. Counsel for the General Counsel asserted that
in its answer, Respondent had not complied with the Board’s Casehandling Manual
Part III4 that requires a respondent to specifically
state the basis for a denial and to furnish alternative figures and amounts.
Section 10652.2 of
the Board’s Casehandling Manual, Part III, herein Compliance Manual, provides
in pertinent part:
Section 102.56(b) of the Board’s Rules and Regulations provides that if the respondent disputes the accuracy of the backpay amount or the premises on which it is based as alleged in the compliance specification, its answer to the compliance specification shall specifically state the basis of the disagreement, setting forth in detail the respondent’s position as to applicable premises and furnishing appropriate alternative figures and amounts. General denials by the respondent to allegations regarding the calculation of backpay are not sufficient and do not comply with the requirements of Section 102.56(b) and (c) of the Rules and Regulations. Pursuant to a motion for summary judgment, the administrative law judge or the Board may deem these allegations to be admitted as true.
Accordingly,
General Counsel moved that Respondent be precluded from offering any evidence
to attack the gross backpay computation for “Appendix A,” sections one through
four. General Counsel further clarified
that while Respondent could offer evidence on interim earnings, Respondent
should be precluded from offering evidence concerning gross backpay.
Section 1 of the
compliance specification alleges that the backpay period for each discriminatee
begins on the date of the discriminatee’s discharge as set forth in the Board’s
Order and in Appendix A of the compliance specification and ends on August 5,
2005, the response date for Respondent’s valid offer of reinstatement. In its answer, Respondent denies the allegations
set forth in Paragraph 1 of the specification relative to the definition of the
“backpay period” and avers that the “backpay” period for each discriminatee
ends on July 19, 2005, the date of Respondent’s offer of reinstatement to each
respective discriminatee.
Section 2 of the
compliance specification alleges that gross backpay, interim earnings and net
backpay are computed on a quarterly basis with 13 weeks in a full calendar
year. The specification further alleges
that partial calendar quarters are based on the date of the discriminatee’s
discharge or the date the discriminatee’s backpay tolled as set forth in
Appendix A. In the answer to section 2,
Respondent admits the allegations relative to the specification’s definitions
of “gross backpay, interim earnings, and net backpay” being “computed on a quarterly
basis,” and relative to “13 weeks in a full calendar quarter” and relative to
“partial calendar quarters [being] based on the date of the discriminatee’s
discharge or the date of the discriminatee’s backpay [being] tolled.” Respondent thereafter adds: “except denies
the allegations that the foregoing are ‘as set forth in Appendix A.’”
Section 3 of the
Specification alleges that gross backpay are wages that discriminatees would
have earned during the backpay period but for Respondent’s unlawful discrimination
against them. The specification further
avers that quarterly gross backpay is based upon the weekly average of the
wages earned by each discriminatee while employed by Respondent during calendar
year 2000, plus subsequent wage increases, as set forth in Appendix A. In the answer, Respondent admits the
allegations of the specification relative to the definition of “gross backpay”
and relative to “quarterly gross backpay [being] based upon the weekly average
of the wages earned by each discriminatee while employed by [
Section 4 of the
specification alleges that wage increases for each discriminatee during the
backpay period are a percentage increase in the quarterly gross backpay based
on the increases in hourly wages granted by Respondent during the backpay
period, as set forth in Appendix A. The
Respondent admits the allegations of the specification with respect to the
definition of wage increases; however, Respondent adds a denial that the
allegations are as set forth in Appendix A.
Analysis and
Conclusions
In order to avoid
summary judgment, a respondent’s answer to the compliance specification must be
“sufficiently specific to raise a litigable issue of fact.” Aneco, Inc., 330 NLRB 969, 971 (2000). It is also well settled, however, that a respondent
may properly cure defects in its answer before a hearing either by an amended
answer or a response to a notice to show cause.
Mining Specialists, Inc., 330
NLRB 99, 101, fn. 12 (1999); Ellis
Electric, 321 NLRB 1205, 1206 (1996); Vibra-Screw,
Inc. 308 NLRB 151, 152 (1992).
Section 10652.2 of
the Compliance Manual provides that in the event the answer is defective, the
Region should file a motion at the compliance hearing that the administrative
law judge deem allegations not properly answered be admitted without taking
evidence in support of the allegations and precluding the respondent from
offering evidence to controvert them.
The section also provides:
Before filing either a motion with the Board or with the administrative law judge, the trial attorney should advise the respondent in writing that the answer is deficient and, following the procedures in Section 10652.1, allow the respondent a period of time, typically not to exceed 1 week, to file an amended answer.
There is no
dispute that prior to Counsel for the General Counsel’s motion for partial summary
judgment, there was no notice to Respondent that its answer was deficient and
there was no notice to Respondent that the Region intended to seek a motion for
summary judgment because of any perceived deficiency. At the beginning of the hearing, Counsel for
the General Counsel also amended paragraphs 5 and 6 of the compliance
specification to conform to the Compliance Manual and to conform to the
definitions in Respondent’s answer.
By the admissions
contained in paragraphs 2 through 4 of the answer, Respondent does not dispute
General Counsel’s process for computing gross backpay, including the provision
for wage increases. In paragraph 1 of
the answer, however, Respondent denies the backpay period and asserts that
backpay for the discriminatees is tolled on July 19, 2005 rather than August 5,
2005 as alleged in the compliance specification. Thus, Respondent’s answer appears to admit
all the pertinent allegations contained in paragraphs 1 through 4 of the complaint,
with the exception of the specific date for the tolling of backpay. Despite the admissions as described,
Respondent inserts a conclusionary phrase: “except denies the allegations that
the foregoing are ‘as set forth in appendix A’ “at the end of paragraphs 1
through 4.
The Respondent’s
answer to the compliance specification, considered in isolation, is arguably
deficient because of Respondent’s insertion of the blanket denial following the
admission of all other terms in paragraphs 2 through 4. Thus, Respondent has generally failed, as
required by the Board’s rules, to reveal with sufficient specificity, the basis
on which the Respondent disagrees with the specification’s allegations. The inserted denial phrase provides no specificity
and appears to be conclusionary only. In
determining whether a respondent has satisfied the Board’s requirements, the
Board will construe the pleadings “in the light most favorable” to the
nonmoving party. Eldeco, Inc., 336 NLRB 899, 900 (2001). Accordingly, in light of the Board’s tendency
to construe pleadings in this manner and inasmuch as Respondent was not given
notice of the deficiency of the answer, I denied General Counsel’s motion for
partial summary judgment. I further note
that while an answer may be insufficient as to matters within a respondent’s
knowledge and control, it is sufficient as to issues of interim earnings. Everman
Electric Co., Inc., 334 NLRB No. 6, slip op at 3, (2001); Dews Construction Corp., 246 NLRB 945,
946–947 (1979). While the denials in
Respondent’s answer in paragraph 2 through 4 may unclearly fail to refer to
interim earnings, it is apparent that it is interim earnings and net backpay
rather than the gross backpay that are in dispute with respect to these three
paragraphs. With respect to paragraph
one of the answer, Respondent specifically denies the date of the tolling of
the backpay period and submits the alternative date. Such specificity is sufficient to raise a
litigable issue of fact regarding the closing date of the backpay period and
thus defeat a motion for summary judgment.
See Aneco, Inc., 330 NLRB 969,
971 (2000).
Finally, I note
that even though I denied Counsel for the General Counsel’s motion for partial
summary judgment, Respondent did not present or attempt to present evidence to
rebut the computation of the gross backpay as defined in paragraphs two and
three of the compliance specification or the computation of wage increases as
outlined in paragraph four of the compliance specification. Respondent’s only evidence concerning the
correct date for the tolling of the backpay period as alleged in paragraph one
of the compliance specification and paragraph one of the answer was the
submission of Respondent’s written offers of reinstatement to the
discriminatees. These documents were
submitted into evidence as a joint exhibit by General Counsel and
Respondent. Accordingly, the record as a
whole supports the denial of Counsel for the General Counsel’s motion for
partial summary judgment.
B. Respondent’s Motions to Amend the Answer
Following Counsel
for the General Counsel’s motion for partial summary judgment and my ruling
thereon, and following the testimony of Eileene Jewell, Respondent moved to
amend the answer5 to allege a “lack of
knowledge” with respect to compliance specification paragraphs one, two, three,
five, and six. Respondent argues that by
asserting “lack of knowledge” with respect to the allegations in the enumerated
paragraphs, Respondent has satisfied the obligation of Section 102.56(b) of the
Board’s Rules and Regulations. Additionally,
having heard Jewell’s testimony, Respondent further moved to amend its answer
to conform to her testimony and to amend the answer to allege that there is no
net backpay for Jewell and that Jewel’s backpay period ended upon her initial
termination.
Section 102.56(e)
of the Board’s Rules and Regulations provides:
“Following the amendment of the specification by the Regional Director,
any respondent affected by the amendment may amend its answer thereto.” Counsel for the General Counsel opposed
Respondent’s motion to amend, asserting that there had been no amendment to the
compliance specification requiring a corresponding amendment to the
answer. The only amendment to the
compliance specification simply revised the specification definitions to
conform to those definitions included in Respondent’s answer. I agreed, finding that General Counsel’s
amendment added nothing that required a corresponding amendment to the
Respondent’s answer.
It is well-settled
that a respondent in a compliance proceeding may properly cure defects in its
answer before a hearing either by an amended answer or a response to a notice
to show cause. MFP Fire Protection Inc., 337 NLRB 984, 985 (2002); Ellis Electric, 321 NLRB 1205, 106
(1996). In this instance, however,
Respondent did not seek to amend its answer prior to the hearing. Respondent sought to do so only after my
denying General Counsel’s motion for partial summary judgment and after hearing
Jewell’s testimony. Accordingly,
inasmuch as there was no amendment to the compliance specification that
included any additional allegations, and in light of the fact that the motion
to amend the answer was made after Jewell’s testimony, there was no basis to
grant Respondent’s initial motion to amend the answer.
On November 20,
2006, and during a hiatus in the hearing proceeding, Respondent filed a Second
Amended Answer to Amended Compliance Specification. In the amended answer, Respondent adds a new
paragraph asserting that the Board is without statutory jurisdiction to issue
the relief sought in the specification for the benefit of discriminatee
Ritchie. Respondent asserts that at all
times material, Ritchie was a “supervisor” within the meaning of Section 2(11)
of the Act, within the standard adopted by the Board in Oakwood Healthcare, Inc., 348 NLRB No. 37 (September 29, 2006).
In brief,
Respondent argues that in its September 29, 2006 decision, the Board adopted
definitions for the terms “assign,” “responsibility to direct,” and
“independent judgment” as those terms are used in Section 2(11) of the
Act. Respondent asserts that while
Ritchie’s supervisory status could not have been argued in the underlying
unfair labor practice proceeding, Ritchie’s responsibilities could now arguably
meet the Board’s new standard for determining supervisory status.
Certainly, the
Board’s usual practice is to apply new policies and standards retroactively “to
all pending cases in whatever stage.” SNE Enterprises, Inc., 344 NLRB No. 81,
slip op. at 1, (May 17, 2005); Aramark
School Services, 337 NLRB 1063, fn. 1 (2002). The Board has also found, however, that it
will apply an arguably new rule retroactively to the parties in the case in
which the new rule is announced and to parties in other cases pending at the
time, so long as this does not work as a “manifest injustice.” SNE
Enterprises, Inc., above at 2. In
determining whether retroactive application will produce manifest injustice,
the Board looks to: (1) the reliance of
the parties on pre-existing law,6 (2) the
effect of retroactivity on accomplishment of the purposes of the underlying law
which the decision refines; and (3) any particular injustice to the losing
party under retroactive application of the change of law. Pattern
Makers (
The courts have
also applied a balancing of interests in analyzing the retroactivity of a
policy, standard, or rule. “In considering
the equities, courts generally balance the interests of the parties, taking
into account such factors as the degree of hardship they will experience, their
justifiable reliance on past practices, and the statutory interest in a
retroactive application of the new rule.”
Consolidated Freightways v. NLRB,
892 F.2d 1052, 1058 (D.C. Cir. 1989). In
an even earlier case, the D.C. Circuit Court of Appeals identified factors for
consideration as: (1) whether the
particular case is one of first impression; (2) whether the new rule represents
an abrupt departure from well-established practice or merely attempts to fill a
void in an unsettled area of law; (3) the extent to which the party against
whom the new rule is applied relied on the former rule; (4) the degree of the
burden which a retroactive order imposes on a party; and (5) the statutory
interest in applying a new rule despite the reliance of a party on the old
standard. Retail, Wholesale and Dept. Store
On September 30,
2003, the Board issued its decision in the underlying unfair labor practice
matter, requiring full reinstatement and a make whole remedy for Ritchie. It is undisputed that Ritchie’s supervisory
status was not in issue prior to the Board’s decision. The original charge, the resulting complaint,
and the government’s proof presented to the administrative law judge were
premised upon Ritchie’s status as a non-supervisory employee. The extent to which the charging parties and
the government relied upon her non-supervisory status is readily apparent. Accordingly, in light of the factors considered
by the Board and the courts, it is apparent that in this instance the inequity
of applying the Board’s new analysis for determining supervisory status far
outweighs the interests of its application in this case. Therefore, even if Respondent’s late-filed
amendment to add an additional affirmative defense were permissible, there is
no equitable basis to entertain such retroactive application of the Board’s new
standard for determining supervisory status.
Despite the
inequity of retroactive applicability as discussed above, Respondent’s
amendment is otherwise untimely. As discussed
above, Section 102.56(e) of the Board’s Rules and Regulations provides for a
respondent’s amendment to its answer when the respondent is affected by the
Regional Director’s amendment to the compliance specification. The Rules, however, do not provide for an
amendment to insert an additional affirmative defense. It is well settled that issues litigated and
decided in an unfair labor practice proceeding may not be relitigated in the
ensuing backpay proceeding. IMAC Energy, Inc., 322 NLRB 892, 894
(1997); Transport Service Co., 314
NLRB 458, 459 (1994). Furthermore,
matters litigated in an unfair labor practice case cannot be relitigated under
the guise of avoiding backpay. EDP Medical Computer Systems, 293 NLRB
857, 858 (1989).
Respondent argues
that because a question concerning Board statutory authority may be raised at
any time, its amendment is timely. Respondent requests the reopening of the
record to receive “evidence of Ritchie’s ‘supervisory’ status at all times to
the Compliance Specification.” The
Board, however, has not found that a respondent has carte blanche to assert
supervisory status at any juncture in the proceedings. In its decision in Yesterday’s Children, Inc. 321 NLRB 766, fn. 1(1996),7the Board found that the judge properly
denied the respondent’s motion to amend its answer and to supplement the record
and its brief to allege that a charge
nurse was a supervisor or manager rather than an employee. It is significant that the judge’s decision
issued on June 30, 1994. The respondent,
however, based its motion upon the Supreme Court’s May 23, 1994 decision8 that specifically involved the standard for
determining the supervisory status for nurses.
Based upon the
above, I find no basis for Respondent’s motion to amend its answer as asserted
or to reopen the record to receive evidence of Ritchie’s supervisory
status. In its recent decision in T. Steele Construction Inc., 348 NLRB
No. 79, slip op at 1, fn 1 (2006) the Board denied the respondent’s motion to
amend its answer in light of the Supreme Court’s decision in NLRB v. Kentucky River Community Care,
532 U.S. 706, (2001), and the Board’s decision in Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006).
C. Respondent’s Subpoenas Duces Tecum
On August 18,
2006, the Regional Director for Region 9 issued the Compliance Specification
and Notice of Hearing in this matter and set the hearing for October 18,
2006. On Friday, October 13, 2006,
Respondent served a subpoena duces tecum on Miller at 4:29 p.m. On Saturday,
October 14, 2006, Respondent served subpoenas on Jewell, Noble, and Ritchie.9 The subpoenas requested the production of a
number of documents including: (1)
Federal, state, and local income tax documents; (2) documents reflecting
efforts to obtain interim employment; (3) documents relating to
self-employment; (4) documents relating to retirement or termination from
interim employment; (5) documents relating to medical or other disability for
which the discriminatees were unavailable for interim employment; (6)
correspondence with the Union, the Board, the state unemployment office, and/or
the Respondent; and (7) documents showing education received during the backpay
period. Additionally, each subpoena
duces tecum requested the production of (1) bank and other financial institution
documents showing deposits and withdrawals from checking and savings accounts
during the backpay period; (2) documents reflecting indebtedness and
liabilities , including, but not limited to mortgage and lease commitments
during the backpay period; and (3) any and all documents relating to any
financial commitments, including formal agreements and/or court orders, with
respect to any dependents.
On the first day
of trial and only 4 to 5 days following the weekend receipt of the respective
subpoenas, the Charging Party Union, on behalf of each discriminatee, moved to
quash the subpoenas. The Charging Party
Union asserted that the subpoenas were overly broad in their scope and the
production of the requested documents was also overly burdensome to the
discriminatees. The Charging Party Union
further asserted that the documents sought by the subpoenas were especially
irrelevant in view of the fact that all of the discriminatees were present and
willing to testify under oath regarding the compliance issue to be litigated in
the proceeding. Counsel for the General
Counsel concurred with the Charging Party’s argument in support of its motion
and further asserted that the Respondent’s request for such documents relating
to the discriminatees’ mortgage and child support obligations was purely
harassment. The Charging Party Union also
asserted that certain of the subpoenaed documents related to joint checking
accounts and by their very nature did not relate to the discriminatees’ interim
earnings. Respondent, however, asserted
that the documents were relevant because production of the requested
information might lead to the need to subpoena additional documents to test the
accuracy of the reported interim earnings.
I denied the
petition to quash with respect to the request for the production of all
documents relating to interim earnings, search for work, supplemental
education, and the requested correspondence as described above. Certainly, the majority of these documents related
to information that the discriminatees provided to the Region to prepare the
compliance specification. I granted the
petition to quash the subpoena with respect Respondent’s request for the
production of documents pertaining to the discriminatees’ financial obligations,
liabilities, and net worth.
Respondent asserts
that it is “not only entitled to request and produce evidence of a
discriminatee’s ‘off the record’ interim earnings, it is also entitled to
inquire into a discriminatee’s living expenses during the backpay period, in
order to determine whether the individual’s expenses and standard of living are
beyond the amount of gross interim earnings disclosed.” In support of this argument, Respondent cites
NLRB v. Overseas Motors, Inc., 818
F.2d 517 (6th Cir. 1987). In Overseas Motors,
Inc., the Court found that the administrative law judge erred in prohibiting
the respondent from cross-examining the discriminatee regarding the
discriminatee’s expenditures and the source of almost $100,000 spent on living
expenses and oversea trips. While the discriminatee
asserted that he had interim earnings from only part-time work at an auto
repair shop and from auto repair work at his home, he kept no records of his
self-employment income. Although the discriminatee
alleged that he had no income from a wine-importing business, he admitted that
he was registered as a salesman for the company with the State of
As the Board
recently observed in its decision in Parts
Depot, Inc., 348 NLRB No. 9, slip op. at fn. 6 (2006), the Board’s Rules11
provide, in pertinent part, that a judge should “regulate the course of the
hearing” and “take any other action necessary.”
In that case, the respondent filed exceptions to the administrative law
judge’s failure to allow it to subpoena certain records from the backpay
claimants and from the Immigration and Naturalization Service. The Board found that the administrative law
judge acted within his broad discretion in balancing burdensome against probity
and by imposing a reasonable limitation on the respondent’s ability to
cross-examine claimants. While noting
that the respondent was free to question the backpay claimants about their
searches for work, the actual employment obtained, and their interim earnings,
the Board also determined that the respondent was properly precluded from
burdening the record with cumulative and superfluous questions and inquiry that
amounted to nothing more than a fishing expedition.
Clearly, the information
sought in paragraphs five, six, and seven of the respective subpoenas sought
documents which dealt with the discriminatees’ net worth and personal
liabilities. Respondent maintains that
such documents are relevant because they reflect the financial demands and
burdens imposed upon the discriminatees during the relevant time period. The subpoena is properly quashed in part,
however, as there is an absence of either claimed or apparent relevancy. Respondent’s a mere hope of possibly finding
a “smoking gun” is nothing more than a fishing expedition, rather than a
request for the valid production of reasonably anticipated probative evidence.
D. Lack of Discovery
During the course
of the hearing, Respondent argued that because of the unavailability of
pre-trial discovery, Respondent was denied due process. The record also reflects, however, that the
hearing was adjourned for 39 days to allow the Respondent the opportunity to
subpoena witnesses and documents necessary for the presentation of its case.
Additionally, it
is well settled that parties to judicial or quasi-judicial proceedings are not
entitled to discovery as a matter of a constitutional right. Starr
v. Commissioner of Internal Revenue, 226 F.2d 721, 722 (7th Cir. 1955),
cert. denied 350 U.S. 993 (1956).
Furthermore, the Administrative Procedure Act does not confer a right to
discovery in federal administrative proceedings. Frilette
v. Kimberlin, 508 F.2d 205, 208 (3d Cir. en banc 1974), cert. denied 421
U.S. 980 (1975). Moreover, the National
Labor Relations Act does not specifically authorize or require the Board to
adopt discovery procedures. NLRB v. Interboro Contractors, Inc., 432
F.2d 854, 858 (2d Cir. 1970), cert. denied 402 U.S. 915 (1971); NLRB v. Globe Wireless, Ltd., 193
F.2d 748, 751 (9th Cir. 1951). Accordingly,
there is no basis in fact or law to support a finding that Respondent was
denied due process.
E.
The Correct Date for Tolling Respondent’s
Backpay Obligation
The compliance
specification designates August 5, 2005 as the date when backpay tolls for
Miller and Ritchie. Backpay is tolled earlier
for Jewell and Noble, inasmuch as Jewell retired in March 2003 and Noble became
unavailable for work in December 2004.
In its answer, Respondent asserts, however, that backpay is tolled for
Miller and Ritchie on July 19, 2005; the date of Respondent’s unconditional
offer of reinstatement. There is no dispute
that the offer of reinstatement letters sent to Jewell, Noble, Miller and
Ritchie are dated July 19, 2005.12 Each
letter gives the discriminatee a deadline of August 5, 2005 to accept the
offer.
Generally, the
Board finds that backpay is tolled on the date of actual reinstatement, on the
date of rejection, or in the case of discriminatees who do not reply, on the
date of the last opportunity for the discriminatee to accept the offer of
reinstatement. Cliffstar Transportation Co., 311 NLRB 152, 154–155 (1993); American Mfg. Co. of
ii. applicable
legal principles and authority
It is settled law
that a finding by the Board that an unfair labor practice was committed is
presumptive proof that some backpay is owed.
Minette Mills, Inc., 316 NLRB
1009, 1010–1011 (1995); Arlington Hotel
Co., 287 NLRB 851, 855 (1987), enfd. 876 F.2d 678 (8th Cir. 1989); NLRB v. Mastro Plastics Corp., 354 F.2d
170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966). The General Counsel’s burden in a backpay proceeding
is limited to showing the gross backpay due each discriminatee. J. H.
Rutter Rex Mfg. Co. v. NLRB, 473 F.2d 223, 230–231 (5th Cir. 1973), cert.
denied 414 U.S. 822 (1973). The General
Counsel has discretion in selecting a formula that will closely approximate
backpay. The Region has the burden of
establishing only that the gross backpay amounts contained in a backpay
specification are reasonable and not an arbitrary approximation. Performance
Friction Corp., 335 NLRB 1117 (2001); Mastell
Trailer Corp., 273 NLRB 1190, 1190 (1984).
In its decision in Alaska Pulp
Corp., 326 NLRB 522, 523 (1998), the Board stated: “If, due to the variables involved, it is
impossible to reconstruct with certainty what would have happened in the
absence of a respondent’s unfair labor practices, we will resolve the
uncertainty against the respondent whose wrongdoing created the
uncertainty.” It should be noted that
with the exception of the disputed date for the tolling of backpay, Respondent
does not challenge the formula or the calculations used to arrive at the gross
backpay as set forth in the compliance specification. Accordingly, I find General Counsel’s gross
backpay formula appropriate and sufficient for recommendation to the
Board.
Once the General
Counsel has established gross backpay, the burden is on the Respondent to
establish facts that reduce the amount due for gross backpay. Atlantic
Limousine, 328 NLRB 257, 258 (1999); Florida
Tile Co., 310 NLRB 609 (1993); Hacienda
Hotel & Casino, 279 NLRB 601, 603 (1986). This burden cannot be satisfied, however, by
conclusionary or self-serving statements.
W. C. Nabors, 134 NLRB 1078,
1088 (1961), enfd. as modified on other grounds 323 F.2d 686 (5th Cir. 1963),
cert. denied 376 U.S. 911 (1964).
A discriminatee is
entitled to backpay if he makes a “reasonably diligent effort to obtain
substantially equivalent employment.” Moran Printing, 330 NLRB 376
(1999). In seeking to mitigate loss of
income, a backpay claimant is held only to reasonable exertions, not the
highest standard for diligence. The
principle of mitigation does not require success; it only requires an honest,
good faith effort. Fabi Fashions, 291 NLRB 586, 587 (1988); NLRB v. Arduni Mfg. Co., 394 F.2d 420, 422–423 (1st Cir. 1968); NLRB v.
It is
well-established that any doubt or uncertainty in the evidence must be resolved
in favor of the innocent employee claimant and not the respondent
wrongdoer. NLRB v. NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v.
iii. findings
and conclusions concerning individual
discriminatees
Based on the
entire record, including the Board’s Decision and Order, as affirmed; the
testimony of witnesses and my observation of their demeanor, and record
documents, I make the following findings of fact and conclusions of law.
A. Eileene Jewell
At the time of her
discharge from Respondent’s facility on August 17, 2000, Eileene Jewell was 60
years old and worked as a surgical technician.
Her duties included sterilizing surgical instruments, working with the
laundry to insure that a sufficient number of scrubs were available, and
keeping the surgical area and instruments clean. Prior to working as a surgical technician,
Jewell worked on the hospital floor as an aide.
Her work as an aide involved such duties as assisting patients, serving
lunch trays, and changing bed linens.
She recalled that
following her discharge, both the Region’s compliance officer and the
In December 2000,
Jewell cashed her 401K termination distribution check. The resulting distribution of $4,702.03 was
deposited into her bank account. During
the backpay period, she used funds from this distribution to meet monthly
expenses when necessary.
Compliance
Supervisor John Grove testified that Jewell’s backpay period runs from her date
of discharge until March 23, 2003, when she retired and ceased to seek active employment. Following her husband’s death in 2001 and prior
to March, 2003, she received Social Security widow’s benefits. In March 2003, Jewell filed for, and began
receiving retirement benefits based upon her own Social Security
contributions.
1. Respondent’s proof concerning interim earnings
When this matter
resumed on November 28, 2006, Respondent presented the testimony of Rite Aid
Regional Human Resource Manager Roy Terry, herein Terry. Through Terry’s testimony, Respondent
introduced a document from Jewell’s personnel file identified as a “termination
form.” The document references a
termination date of November 8, 2002 and the termination code is designated as
“PERSNL.” Terry testified that the form
is an electronic e-form that Rite Aid uses to identify the basis for an
employee’s termination. Terry admitted
that he was not familiar with the circumstances of Jewell’s leaving the
company. He asserted, however, that generally
a “personal” code indicates a voluntary resignation by the employee. Terry also identified a second electronic
e-form containing handwritten portions that had been contained in Jewell’s
personnel file. The form contains a
section categorized as “Availability Information,” with the typewritten instruction: “Please list this employee’s daily
availability.” The form further contains
a section showing the number of hours that the employee can work weekly with
the notation: “We recommend that you set the minimum hours for all part-time
employees to zero.” There is a
handwritten note setting Jewell’s minimum hours at “0” and maximum hours at
“24.” Despite the notation of maximum
availability for 24 hours, the form also contains the specific hours and days
of availability for Jewell. These hours
are shown to be a total of 31. Terry
testified that he had no knowledge as to who completed the handwritten portion
of this form. Terry acknowledged that he
had not hired Jewell and he had no personal knowledge of her employment
situation. He admitted that the form did
not reflect whether Jewell was a full-time or part-time employee. He further admitted that he was unaware of
any “personal” reason for Jewell’s leaving Rite Aid’s employment.
2. Conclusions concerning Jewell’s backpay
Jewell’s backpay
period covers the time between her unlawful discharge on August 17, 2000 and
March 2003 when she retired. During this
total backpay period, there are two separate periods when Jewell was
unemployed. The personnel document from
Rite Aid reflects that she was employed at Rite Aid from May 30, 2001 until
November 8, 2002. Thus, an analysis of
her search for work is geared primarily to the period of time between August
17, 2000 and May 30, 2001 and the period of time from November 8, 2002 until
the end of March 2003.
In assessing a
discriminatee’s search for interim employment, a respondent must affirmatively
establish that a discriminatee failed to make a reasonably diligent search for
equivalent interim employment. In
assessing the search for work, the Board has found that a discriminatee’s
efforts need not comport with the highest standards of diligence, but merely
demonstrate a good faith effort. See Lundy Packing Co., 286 NLRB 141
(1987). In NLRB v. Arduni Mfg. Corp., 394 F.2d 420 (1st Cir. 1968), the
employer was able to establish that a discriminatee could not show that he had
looked for jobs where he could use his specific skills and he was unable to
explain gaps in his job-search chronology.
Additionally, the discriminatee only went to the employment security
office to check on his unemployment benefits.
The Court even commented on the fact that the discriminatee’s records
were sketchy and his testimony was at times implausible and inconsistent. Despite indications that the discriminatee
failed to do all that he could have done to mitigate his loss of pay, the Court
nevertheless held that the NLRB could find that a reasonable search was conducted. Although Jewell did not have an extensive
recollection of where she searched for work and did not keep records of her
search for work, I find no evidence that she neglected to make an honest good
faith effort. NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955).
Additionally, in
determining the reasonableness of Jewell’s effort, I have also considered her
skills and qualifications, her age, and the labor conditions in her area. Mastro
Plastics Corp., 136 NLRB 1342, 1359, (1962). At the time of her discharge from
Respondent’s facility, Jewell was 60 years old and worked as a surgical
technician. Respondent’s CEO Okey David
Bevins, herein Bevins, identified a map showing the hospitals and other health
care providers within an eight county regional area. Bevins explained that the map depicted the
health care facilities where there was a concentration of physicians rendering
primary care. He identified these
facilities as primary care certified clinics or rural health clinics. Bevins acknowledged that while the hospitals
would have surgical technicians on staff, the clinics would not.14 In his testimony, Bevins did not discuss any
hospital facilities that were in the surrounding area of Respondent’s
facility. Respondent’s map, however,
reflects no other hospitals included in the areas designated as a primary
service area or a secondary service area for Respondent’s facility. Appalachian Regional Healthcare, herein ARH,
in Hazard,
Jewell
acknowledged that she did not keep a written record of where she searched for
work prior to finding employment with Rite Aid or following her employment with
Rite Aid. The fact that she could not
recall the names and dates of all the establishments she had contacted during
her search for work does not invalidate the conclusion that she made a
reasonable exertion to find employment. Airport Park Hotel, 306 NLRB 857, 861
(1992), enfd. 13 F.3d 1347 (9th Cir. 1994); The
Blue Note, 296 NLRB 997, 999 (1989).
Additionally, I note that the Board has held that employees are not
automatically disqualified from backpay because of their poor recordkeeping or
uncertainty as to memory. Pat Izzi Trucking Co., 162 NLRB 242, 245
(1966), enfd. 395 F.2d 241 (1st Cir. 1968).
Respondent argues
that because Jewell quit her employment with Rite Aid, she is not entitled to
any backpay following her employment with Rite Aid. In support of this argument, Respondent
relies upon Terry’s testimony. While
Terry identified a form from Jewell’s personnel file that reflected that there
was a personal reason for her termination from Rite Aid, he had no personal
knowledge of the circumstances of Jewell’s employment. While he also identified a document that purported
to show that Jewell was available for 31 hours each week, he also admitted that
he did not know whether she had been hired as a full-time or part-time employee
and he did not know who had completed the information on the personnel
documents. He acknowledged, however,
that the hours shown on the document would normally be considered part-time
employment with Rite Aid. Thus, neither
the personnel file documents nor Terry’s testimony rebuts Jewell’s testimony
that she was only hired as a part-time employee for Rite-Aid. Additionally, the document purporting to show
that Jewell voluntarily left her employment with Rite Aid does not rebut
Jewell’s testimony. Jewell acknowledged
that she left employment with Rite Aid and she credibly explained her basis for
doing so.
Certainly, under
established Board policy, a claimant is deemed to have willfully incurred loss
of income by voluntarily relinquishing interim employment “without compelling
or justifying means.” Knickerbocker Plastic Co., 32 NLRB 1209,
1212 (1961). A claimant, however, is
under no obligation to retain nonequivalent employment, once secured, regardless
of the conditions under which the employee is required to work. Churchill’s
Supermarkets, 301 NLRB 722, 725 (1991).
In fact, the Board has found that a skilled employee was justified in
quitting an unskilled job that was paying less than half his former weekly
wages. Lozano Enterprises, 152 NLRB 258 (1965). While the Board expects an employee to retain
an interim job, exceptions have been found when the interim employment was
unprestigious, annoying, or certain to create unacceptable disruption to the
discriminatee’s private life. Shell Oil Co., 218 NLRB 87, 89
(1975). In Tualatin Electric Inc., 331 NLRB 36, 40 (2000), a discriminatee’s
backpay was not reduced when he voluntarily quit an interim job that required
him to drive an additional 40 miles without the opportunity for overtime pay
that had been available when he worked for the respondent employer. Because the interim employment was not found
to be substantially equivalent to the position from which he had been
unlawfully discharged, his resignation was not found to be willful loss of
interim earnings. In the instant case,
Jewell had only been able to find interim employment in a part-time position
with considerably less pay15 than she had received in her job at
Respondent’s facility. While Terry
testified that a Rite Aid document reflects that Jewell left her interim
employment because of a “personal” reason, he does not dispute her testimony
that if she had continued her employment with Rite Aid, she would have been
required to transfer to another store, requiring her to drive 70 miles from her
home for part-time employment. Accordingly,
inasmuch as Jewell’s job with Rite Aid was not substantially equivalent to the
position from which she was unlawfully terminated, her backpay should not be
reduced because she was forced to cease her employment with Rite Aid. Additionally, Terry did not rebut Jewell’s
testimony that she asked to work at the McKee Kentucky store or to work in
other positions within the Beattyville store when her position was eliminated
as a pharmacy technician in the Beattyville store.
Additionally, I do
not find that Jewell’s backpay should be reduced because she initially accepted
a part-time position. There is no evidence
that Jewell rejected full-time employment in lieu of part-time employment. Moreover, Jewell should not be penalized
because she accepted part-time employment rather than waiting for a full-time
employment offer. See United Supermarkets, Inc., 287 NLRB 394,
398 (1987); Lundy Packing Co., 286
NLRB 141, 144 (1987). Respondent also
argues that during her employment with Rite Aid, Jewell did not make any effort
to locate another part-time job.
Although Respondent presented Rite Aid’s Regional Human Resource
Manager, there was no evidence that Rite Aid offered Jewell any work other than
part-time work. Additionally, Respondent
presented no evidence to show that any other part-time jobs were available to
Jewell or even known to Jewell.
Accordingly, inasmuch as there was no record evidence that Jewell was
offered or refused to accept additional part-time employment, there is no
evidence that Jewell failed to make a reasonable effort to mitigate her
losses. Be-Lo Stores, 336 NLRB 950, 950 fn. 1 (2001); United States Can Co., 328 NLRB 334, 338 (1999); enfd. 254 F.3d 626
(7th Cir. 2001). Furthermore, even
though Jewell accepted interim employment earning less than she had made at
Respondent’s facility, she was under no duty to continue to search for a more
lucrative job or to search for the most lucrative interim employment. F. E.
Hazard, Ltd., 303 NLRB 839 (1991); Fugazy
Continental Corp., 276 NLRB 1334, 1338 (1985), enfd. 817 F.2d 979 (2d Cir.
1987).
Appendix A of the compliance specification establishes Jewell’s gross backpay at $54,621. With interim earnings of $13,029, the resulting net backpay for Jewell is $41,592. For the reasons explained above and based upon the entire record,16 I find that Jewell is entitled to backpay in the amount of $41,592.
B. Lois Noble
Prior to her
termination from Respondent’s facility on August 28, 2000, Noble worked as a
phlebotomist. This work entailed drawing
blood from patients in the emergency room as well as in the hospital. A license or certification was not required
for her work. Prior to working at
Respondent’s facility, she was employed as a phlebotomist at the
In May 2002, Noble
became certified as a certified nurse’s aid.
In order to receive her certification, she attended weekly training
classes on Saturdays for approximately 3 months. Noble began working at the Hazard Nursing
Home, Inc. in June 2002 and continued her employment until December 2004. While working at the nursing home, Noble
worked 30 to 40 hours or more each week.
In January, 2005, Nobel became a full-time student in a Licensed
Practical Nursing program and has remained in that program.
1. Conclusions concerning Noble’s backpay
Bevin testified
that primary care clinics, home health agencies, and some physician’s offices
would need the services of a phlebotomist.
While Bevin estimated that there might be 35 or 40 facilities that would
be able to use the services of a phlebotomist, he did not identify specific
facilities or their proximity to Noble’s residence. Although he recalled that one of the clinic
physicians was looking for a nurse17approximately a year prior to the hearing, he
did not demonstrate any knowledge of whether there were specific openings for
phlebotomists or whether phlebotomists were hired at any of the clinics at the
time that Noble was looking for employment.
He opined that “phlebotomists are constantly in demand in hospitals in
the area.” He did not, however, identify
the specific hospitals nor indicate their proximity18
to Noble.
Noble’s testimony
regarding her search for interim employment was not contradicted. She credibly testified concerning her
attempts to secure interim employment.
Her lack of success in obtaining interim employment after her unlawful
termination and prior to her full-time employment in 2002 does not impeach her
testimony nor relieve Respondent of its burden of proving facts to mitigate
liability. Respondent has the burden of
establishing the amount of any interim earnings that are to be deducted from
the backpay amount due, and has the burden of establishing any claim of willful
loss of earnings. NLRB v. Mooney Aircraft, 366 F.2d 809, 812-813, (5th Cir.
1966). With respect to a discriminatee’s
search for interim employment, a respondent must affirmatively establish that
the discriminatee failed to make a reasonably diligent search for equivalent interim
employment. In evaluating the search for
interim employment, the Board has found that a discriminatee’s efforts need not
comport with the highest standards of diligence but merely demonstrate a good-faith
effort. Basin Frozen Foods, Inc.,
320 NLRB 1072, 1074 (1996); Canova v.
NLRB, 708 F.2d 1498, 1506 (9th Cir. 1983).
In posthearing brief, Respondent cites the Board’s decision in American Bottling Co., 116 NLRB 1303,
1307 (1956), for the principle that a discriminatee’s registering with the
state unemployment agency should not be given conclusive weight in determining
the adequacy of a discriminatee’s search for work. In keeping with its earlier decision in Southern Silk Mills, 116 NLRB 769
(1956), the Board in American Bottling Co.
went on to point out, however, that registering with the state agency is a
factor to be given such weight as it may
be entitled under all the circumstances of the case. In the instant case, Noble credibly testified
that she not only searched for work with the state agency, she looked for work,
even outside her field of training. Noble’s regular inquiry with the
unemployment agency is not indicative of a lack of motivation for seeking work
elsewhere and does not establish that she used it as a substitute for a
diligent search for work otherwise.
It is not enough
for a respondent to present evidence of low or no interim earnings; rather a
respondent must affirmatively demonstrate that the discriminatee neglected to
make reasonable efforts to find interim employment. Westin
Hotel, 267 NLRB 244, (1983), enfd. 758 F.2d 1126 (6th Cir. 1985); Smyth Mfg. Co., 277 NLRB 680
(1985). Respondent asserts that Noble
should have been able to find interim employment during the period between her
discharge on August 28, 2000 and when she began her employment with the Hazard
Nursing Home, Inc. Suspicion and
surmise, however, have not been found to be any more of a valid basis in a
backpay hearing than in an unfair labor practice hearing. See Laidlaw
Corp., 207 NLRB 591, 594 (1973); enfd. 507 F.2d 1381 (7th Cir. 1974), cert.
denied 422
Noble had no
interim earnings from August 28, 2000 until June 2002. Based upon her total record testimony, there
is no basis to find that her lack of success is indicative of a willful loss of
earnings or an unreasonable search for work.
In determining whether an individual claimant made a reasonable search,
the Board looks to whether the record as a whole establishes that the employee
has diligently sought other employment during the entire backpay period. Black
Magic Resources, Inc., 317 NLRB 721 (1995);
2. Respondent’s 2002 offer of reinstatement
On February 19,
2002, Respondent’s CEO Bevins sent a letter to Noble, offering interim or
temporary reinstatement. Bevins
explained in the letter that Respondent was offering temporary reinstatement
during the time that Respondent appealed the judge’s finding that Noble had
been unlawfully terminated. Bevins
further explained that if she returned to work and Respondent prevailed in its
appeal, Respondent would again terminate her employment. Bevins also explained that by declining his
offer of temporary reinstatement, Noble did not forfeit her right to “fight”
her termination through the legal process.
Noble testified that she declined the job because she needed a job that
was more stable and not temporary.
Respondent argues
that Noble’s rejection of Respondent’s February 2002 offer released Respondent
from any backpay obligation from the date the offer was rejected. Respondent cites Ford Motor Co. v. E.E.O.C., 458
Certainly,
Respondent’s 2002 letter to Noble does not constitute a valid offer of reinstatement. It is well settled that an offer of
employment must be specific, unequivocal, and unconditional to toll backpay and
satisfy a respondent’s remedial obligation.
Midwestern Personnel Services Inc.,
346 NLRB No. 58, slip op. at 1, (2006); L.A.
Water Treatment, 263 NLRB 244, 246-247 (1982); Standard Aggregate Corp., 213 NLRB 154 (1974). Even the very wording of Respondent’s letter
reflects that Noble was free to reject the offer of temporary employment and
that such rejection would not prejudice her later reinstatement upon Court
order. Thus, despite Respondent’s assurances
to Noble that she was free to reject the offer of interim employment,
Respondent now seeks to rely upon that rejection as a basis for tolling its
backpay obligation. Contrary to Respondent’s
argument, I do not find that Respondent tolled its backpay obligation by
offering temporary reinstatement to Noble in February 2002.
Appendix A of the compliance specification includes a total of $77,242 for Noble’s gross backpay. During the course of the hearing, it became apparent that the Region had erroneously included $934 in her interim earnings. When Noble clarified in her testimony that this income was received in 2000 prior to her employment with Respondent, Counsel for the General Counsel moved to amend the compliance specification to correct the error. With the amendment to the specification, Noble’s total interim earnings were corrected to $36,974. For the reasons that I have stated above, I do not find a basis to further reduce the backpay beyond the interim earnings described above. Accordingly, I find that the appropriate backpay owed to Noble is $40,268.
C. Debra Miller
Prior to her
discharge from Respondent’s facility on August 21, 2000, Debra Miller worked as
a phlebotomist. In this position, she collected
blood samples from hospital patients and prepared the accompanying paperwork. Miller testified that she began looking for
interim employment within days of her discharge. She asserted that she looked for laboratory
and medical positions by reviewing newspapers and the internet. She testified that she also applied for work
at the surrounding hospitals. In
approximately January 2001, she obtained interim employment with the