National Labor Relations Board v. KSM Industries, Inc., 682 F.3d 537

This case involves enforcing an NLRB backpay order against KSM Industries for 42 former strikers deemed eligible for backpay.
The Board found KSM violated 8(a)(3) and (1) by denying or delaying recalls after a strike and ordered backpay.
KSM challenged 11 employees’ backpay findings for lack of substantial evidence; 31 others were defended by the union and enforced.
Remand and timing issues arose due to New Process Steel, which required a three-member Board to act, delaying proceedings.
The court applies deferential review and enforces the Board’s order where supported by substantial evidence and proper legal standards.
The Appendix lists the affected workers and their backpay amounts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether five 401(k) quits were properly found to not be permanent abandonments	KSM	Board	Enforce Board; findings substantial
Whether Jung, Eusch, and Malson validly earned backpay for interim searches	KSM	Board	Enforce Board; searches reasonable and supported by record
Whether Cooper, Wetzel, and Curtis reasonably justified interim quit losses	KSM	Board	Enforce Board; reasons deemed reasonable under law
Whether Wiedeman’s backpay stands despite alleged misconduct and non-unit replacement	KSM	Board	Enforce Board; no clear misconduct undermining backpay
Whether seniority recall was proper over merit-based recall	KSM	Board	Enforce Board; seniority chosen as most accurate status quo restoration

Augusta Bakery Corp., 298 N.L.R.B. 58 (NLRB 1990) (defining 401(k) quits standard for abandonment in backpay cases)
L.B.&B. Assoc., Inc., 346 N.L.R.B. 1025 (NLRB 2006) (affirming factors for determining abandonment in 401(k) quits)
Grovner Orlando Assoc., 350 N.L.R.B. 1197 (NLRB 2007) (reasonableness of job searches when recall remains plausible)
NLRB v. Midwestern Pers. Serv., Inc., 508 F.3d 418 (7th Cir. 2007) (burden to prove reasonable interim employment search)