Unpublished Disposition, 933 F.2d 1015 (9th Cir. 1984)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1015 (9th Cir. 1984) NATIONAL LABOR RELATIONS BOARD, Petitioner,andUnited Food & Commercial Workers Union Local 1179, UnitedFood & Commercial Workers, AFL-CIO, Intervenor,v.BRIDGEWAY OLDSMOBILE, INC., and Its Successor, Allan MotorCompany, Inc., Respondent

No. 90-70126.

United States Court of Appeals, Ninth Circuit.

Submitted May 14, 1991.* Decided May 23, 1991.

Before CHOY, GOODWIN and CANBY, Circuit Judges.


MEMORANDUM** 

Pursuant to 29 U.S.C. § 160(e), the National Labor Relations Board seeks to enforce its Second Supplemental Order, reported in Bridgeway Oldsmobile, Inc. and United Food & Commercial Workers Union Local 1179, 294 N.L.R.B. slip op. No. 77 (1989), against Bridgeway Oldsmobile, Inc. and its successor in interest Allan Motor Company, Inc. We grant enforcement.

To defeat unionization at its Hayward, California car dealership, Bridgeway engaged in unfair labor practices in violation of sections 8(a) (1), 8(a) (3), and 8(a) (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), 158(a) (3), and 158(a) (5). It hired three unnecessary salespersons and delayed the retirement of a fourth solely to secure votes against the intervenor Union in an April 10, 1984 election. Those unnecessary hires caused the other six salespersons to lose commissions. In its Second Supplemental Order, the Board ordered Bridgeway to make restitution of $28,692 in backpay.

Bridgeway argues that it cannot be held accountable for the financial harm which its illegal conduct produced after April 10, 1984, because (1) "after that date there was no longer any illegal motive in hiring or retaining employees, so the unlawful conduct was not the proximate cause of any wage loss," and (2) the post-election remedy was outside the scope of the Board's Supplemental Order, reported in Bridgeway Oldsmobile, Inc. and Automobile Salesmen's Union Local 1095, 290 N.L.R.B. slip op. No. 89 at 2 (1988).1 

Bridgeway's arguments are without merit.

ANALYSIS

Whereas 29 U.S.C. § 160(c) confers broad discretion upon the Board to exercise its remedial powers, we review the Board's award of backpay for an abuse of discretion. NLRB v. J.H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262-64 (1969). Accordingly, the Board enjoys broad discretion in selecting an appropriate backpay formula and calculating backpay. Alfred M. Lewis, Inc. v. NLRB, 681 F.2d 1154, 1156 (9th Cir. 1982); NLRB v. Dodson's Mkt., Inc., 553 F.2d 617, 619 (9th Cir. 1977).

In a backpay proceeding, the initial burden is on the Board's General Counsel to show the gross amount of backpay due the wronged employees. M Restaurants, Inc. v. NLRB, 621 F.2d 336, 337 (9th Cir. 1980). The burden then shifts to the discriminatory employer to establish facts that would negative or mitigate liability. Alfred M. Lewis, 681 F.2d at 1156.

The Board's findings of fact as to the gross amount of backpay due and the extent of mitigation are conclusive if supported by substantial evidence on the record considered as a whole. 29 U.S.C. § 160(e); NLRB v. United Bhd. of Carpenters Local 1913, 531 F.2d 424, 426 (9th Cir. 1976) (citing former 29 C.F.R. Sec. 102.53 (1975) which is currently incorporated in 29 C.F.R. Sec. 102.55 (1990)). Substantial evidence "is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951).

In many cases, an award of backpay is necessarily an approximation, intended to make whole the victim of discrimination. Nathanson v. NLRB, 344 U.S. 25, 27 (1952). In such cases, the Board need not determine precisely the amount due, but may adopt a formula "reasonably designed" to produce "as close approximations as possible." NLRB v. International Ass'n of Bridge, Structural & Reinforced Iron Workers Union Local 378, 532 F.2d 1241, 1242 (9th Cir. 1976) (quoting NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir. 1963)).

When an employer's unlawful discrimination produces uncertainties as to the amount of backpay owing, they should be resolved against the wrongdoer. Kawasaki Motors Corp., U.S.A. v. NLRB, 850 F.2d 524, 527 (9th Cir. 1988); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 628 (6th Cir. 1983), cert. denied, 466 U.S. 950 (1984).

Bridgeway argues that it is inconsistent for the Board to award lost wages for the post-election earnings of the illegal hires but not for their replacements. However, because neither the Board's General Counsel nor Bridgeway raised an exception to the ALJ's denial of replacements' commissions, this issue is deemed waived pursuant to 29 C.F.R. Secs. 102.46(b) (2) and 102.48(a) (1990), and we decline to review it for the General Counsel's failure to exhaust available administrative remedies. See Local 926, Int'l Union of Operating Eng'rs, 460 U.S. 669, 680 (1983).

The only issue properly before this court is whether the Board abused its discretion by awarding backpay based in part on the post-election earnings of the illegal hires. We find no abuse of discretion. The Board in its Supplemental Order did not limit, nor was it obligated by law or logic to so limit, the scope of its remedy to pre-election economic harms. Bridgeway perpetrated illegal acts before the election, but its employees suffered economic harms after the election. This was proximately caused by Bridgeway's hiring and retention of unnecessary salespersons.

Bridgeway's assertion that it harbored no illegal motive after the April 10, 1984 election is both factually suspect and logically irrelevant. The Board's original decision indicates that Bridgeway sought to hold a "fair" rerun election, hoping to stave off a harsher remedy. Bridgeway Oldsmobile, Inc. and Automobile Salesmen's Union Local 1095, 281 N.L.R.B. 1246, 1247 (No. 165, 1986). The Board refused this request and ordered Bridgeway to negotiate with the Union because Bridgeway's "violations-- [including] discharge, threats of discharge and store closure, interrogations, and creation of surveillance--are of a nature that employees are unlikely to forget. The total effect of these unfair labor practices necessarily serves as a long-lasting reminder to the current work force that if they renew union activity they too will suffer the same consequences as their predecessors. In this regard there is no evidence that [Bridgeway] has taken any subsequent remedial steps disavowing its unlawful acts or that its antiunion policy has changed." Id. (emphasis added).

Even if, after April 10, 1984, Bridgeway did turn over a new leaf and abandon it's illicit motive, that motive was present at the requisite time--when Bridgeway intentionally engaged in the illegal hiring. This hiring was the proximate cause of the employees' economic harms, both before and after the election.

ENFORCEMENT GRANTED. Bridgeway shall pay the costs on this petition of the Board and the Union.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

"We shall order the Respondent [Bridgeway], in addition to the relief prescribed in our original Order, to reimburse its employees for commissions lost as a result of its hire of employees Simpson, Decker, and DePolo on March 5, 1985, and the retention of employee Harper on March 28, 1985, to undermine support for the Union in the election held April 10, 1985. Loss of earnings shall be computed as prescribed in F.W. Woolworth Co., 90 N.L.R.B. 289 (1950), plus interest as computed in New Horizons for the Retarded [,283 N.L.R.B. No. 181 (1987) ]." (footnote omitted)