945 F.3d 1012
6th Cir.2019Background
- Michael Hershey, a union truck driver for Lou’s Transport, was discharged in March 2013 after engaging in protected/concerted activity; the NLRB found the discharge unlawful and the Sixth Circuit affirmed liability in 2016.
- The NLRB’s Regional Director issued successive Compliance Specifications (finalized August 2017) and an ALJ held a damages hearing on September 18, 2017; the Board affirmed the ALJ’s back-pay calculations.
- NLRB witness Daniel Molenda calculated total back pay of $49,817 across four categories: adjusted net back pay, foregone bonuses, interim-employment expenses, and lost retirement (401(k)) value.
- Lou’s challenged multiple aspects of the calculations (end date for accrual, choice of comparator employees and wage rates, deductions including excess overtime, interim expenses baseline, retirement growth assumptions, and constitutional claims).
- The Sixth Circuit applied deferential review: Board’s remedial discretion, permissible approximations in back-pay formulas, and substantial-evidence review of underlying factual findings; it denied Lou’s petition and enforced the Board’s order.
Issues
| Issue | Plaintiff's Argument (Lou's) | Defendant's Argument (NLRB / General Counsel) | Held |
|---|---|---|---|
| End date for accrual of back pay / sufficiency of reinstatement offer | Hershey’s 2014 statement rejecting reinstatement tolled Lou’s duty to make an offer; back pay should stop earlier | A genuine, specific, unconditional offer is required; the 2014 colloquy was not an employer reinstatement offer | Court upheld Board: back pay accrual ran through Aug 22, 2016 — Lou’s failed to show the 2014 exchange was a sufficient offer |
| Comparator selection for projecting hours | Lou’s: should use Kevin Moore (more similar hire date) | GC used Ronny Smith and Gary Forsyth as closest seniority/type matches and without unexplained gaps | Court: substantial evidence supports Board’s choice of Smith & Forsyth; no abuse of discretion |
| Wage-rate assumptions (contractual steps vs. alleged training premiums) | Lou’s: pay bumps were training bonuses, not prevailing-wage work; therefore GC overstated wages | GC: pay records and testimony support treating higher pay as prevailing-wage instances (and contractual steps were used otherwise) | Court credited ALJ’s credibility findings and upheld the Board’s wage-rate approach as supported by substantial evidence |
| Deductions: uniform/dues/unemployment and interim overtime calculation frame | Lou’s: should deduct uniform fees, union dues, unemployment; excess overtime should be calculated quarterly rather than weekly | GC: uniform/dues not deductible because discharge prevented benefit receipt; unemployment need not be deducted; weekly calculation avoids understating excess overtime | Court: rejected Lou’s on uniform/dues and unemployment (applying Gullett Gin); upheld weekly excess-overtime method as non-arbitrary and beneficiary-favoring |
| Interim-employment expenses and baseline (Pontiac v. Flat Rock) | Lou’s: baseline should be Flat Rock (farther from home), producing zero interim expense; expenses should be offset against interim earnings | GC: Board followed King Soopers (award expenses separately) and credited Hershey’s testimony about reporting/commute baseline (Pontiac) | Court upheld Board: followed King Soopers approach and credited claimant’s testimony as substantial evidence |
| Lost retirement (401(k)) contribution and growth model | Lou’s: contribution rate and chosen fund-growth model were erroneous | GC: used historic 5% contribution rate shown in payroll and used a reasonable proxy fund when original fund data were unavailable | Court: Board’s assumptions reasonable in context; no workable alternative offered by Lou’s, so award sustained |
| Constitutional claims (due process, equal protection, separation of powers) | Lou’s: agency proceedings violated due process/equal protection/separation of powers | GC: claims forfeited or unsupported | Court: due process/equal protection claims forfeited for not raising before Board; separation-of-powers argument forfeited/undeveloped and rejected on precedent |
Key Cases Cited
- NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258 (U.S. 1969) (describing NLRB remedial authority and purposes of back pay)
- Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203 (U.S. 1964) (limits on judicial review of Board discretion)
- NLRB v. Overseas Motors, Inc., 818 F.2d 517 (6th Cir. 1987) (Board has discretion in back-pay computation methods)
- NLRB v. Jackson Hosp. Corp., 557 F.3d 301 (6th Cir. 2009) (standard for reviewing Board remedies)
- Biestek v. Berryhill, 139 S. Ct. 1148 (U.S. 2019) (definition and deference of substantial-evidence standard)
- NLRB v. Gullett Gin Co., 340 U.S. 361 (U.S. 1951) (Board may refuse to deduct unemployment compensation from back pay)
- King Soopers, Inc. v. NLRB, 859 F.3d 23 (D.C. Cir. 2017) (approving Board’s treatment of interim/search-for-work expenses)
- Amalgamated Util. Workers v. Consol. Edison Co., 309 U.S. 261 (U.S. 1940) (Congress’s conferral of adjudicatory authority to the NLRB)