665 F.3d 196
D.C. Cir.2011Background
- Hospital reduced respiratory department hours from 40 to 32–36 per week in 2004.
- NLRB ordered rescission, bargaining, and make-whole backpay in 2004 (Cmty. Health Servs., 342 NLRB 398).
- Tenth Circuit enforced the 2004 Order in 2007 (NLRB v. Cmty. Health Servs., Inc., 483 F.3d 683).
- ALJ later determined backpay of ~$105,000 for 13 employees, with specific rulings on interim earnings, hires after reduction, and tolling.
- Board adopted the ALJ’s findings in 2011 ( Cmty. Health Servs., 356 NLRB No. 103) and ordered payment.
- Court grants enforcement in part and remands on interim earnings for further explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether interim earnings must reduce backpay | Deming argues interim earnings must offset backpay per Ogle/Woolworth doctrine. | NLRB contends interim earnings should not reduce backpay in this nondischarge case. | Remand for fuller explanation on interim-earnings treatment. |
| Whether backpay extends to newly hired employees after the unlawful hours reduction | Deming asserts no backpay for employees hired after the unlawful change. | NLRB holds backpay applies to employees hired post-reduction because they suffer the same harm. | Backpay awarded to newly hired employees; upheld as proper under 2004 Order. |
| Whether backpay tolling during bargaining attempts is proper | Deming argues tolling should apply since union did not respond. | NLRB reasoned tolling not triggered because status quo not restored before bargaining. | Board’s tolling ruling sustained; except remand on interim earnings clarifications. |
Key Cases Cited
- Bufco Corp. v. NLRB, 147 F.3d 964 (D.C. Cir. 1998) (backpay framework under Woolworth and Ogle)
- F.W. Woolworth Co., 90 N.L.R.B. 289 (NLRB 1950) (quarterly backpay framework; windfall avoidance)
- Ogle Protection Service, 183 N.L.R.B. 682 (NLRB 1970) (backpay when interim earnings not involved)
- 88 Transit Lines, Inc., 314 N.L.R.B. 324 (NLRB 1994) (interim earnings considerations in nondischarge case)
- American Diamond Tool, Inc., 306 N.L.R.B. 570 (NLRB 1992) (waiver/context for bargaining and backpay)