The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 13, 2001 Decided April 27, 2001
No. 00-1325
Halle Enterprises, Inc. and COMAR Management, Inc.,
Petitioners
v.
National Labor Relations Board,
Respondent
Fidel Perez, et al.,
Intervenors
On Petition for Review and Cross-Application for
Enforcement of an Order of the National
Labor Relations Board
Fred S. Sommer argued the cause and filed the briefs for
petitioner. James E. McCollum, Jr. entered an appearance.
Ruth E. Burdick, Attorney, National Labor Relations
Board, argued the cause for respondent. With her on the
brief were Leonard R. Page, General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong,
Deputy Associate General Counsel, and Margaret A. Gaines,
Supervisory Attorney.
James E. McCollum, Jr. was on the brief for intervenors
Fidel Perez, et al.
Before: Sentelle, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: The National Labor Relations
Board issued an order requiring Halle Enterprises, Inc. to
reinstate and make whole eleven employees whom the compa-
ny had fired for complaining about wages, hours, and working
conditions. The question before us is whether the company's
voluntary offer of reinstatement to four of the employees
tolled their right to backpay. The Board held that it did not,
because the offer was not firm, clear, and unconditional.
Substantial evidence supports the Board's finding, and we
therefore deny the company's petition for review and grant
the Board's cross-application for enforcement of its order.
I
Halle Enterprises is in the business of building homes and
managing apartment complexes. On the morning of Novem-
ber 4, 1997, eleven of the company's maintenance technicians
complained to their supervisor about wages, hours, and work-
ing conditions, including the unavailability of safety equip-
ment. Not long thereafter, Wayne Ellis, the company's
property manager, arrived on the scene and fired all eleven
workers. The next day, November 5, Ellis told the employ-
ees that they could have their jobs back if they filled out new
applications. When the employees learned that Ellis' offer
did not include their current benefits and seniority, they
refused.
The National Labor Relations Board (NLRB) held that
Halle Enterprises violated section 8(a)(1) of the National
Labor Relations Act by firing the eleven employees on No-
vember 4. Halle Enters., Inc., 330 N.L.R.B. No. 163, 2000
WL 363063, at *1, 4 (March 31, 2000).1 The Board also found
that on or about November 7, Warren Halle, the company's
president, told Israel Flores, the employees' spokesman, that
he wanted the four most senior technicians to come back to
work without any conditions. The Board further determined,
however, that when the four attempted to return to work on
or about November 10, they were met by Ellis, who told them
they could retain their current benefits and seniority only if
they signed a waiver agreeing not to participate in legal
action against the company. When the four senior employees
refused to sign the waiver, Ellis told them they could not
return to work.
The NLRB's Administrative Law Judge (ALJ) had deter-
mined that Warren Halle's unconditional offer tolled the
company's obligation to pay the four employees backpay as of
November 7, despite Ellis' subsequent insistence that they
sign a waiver as a condition of reinstatement. The Board
disagreed with the ALJ. It held that Ellis' subsequent
demand superseded Halle's initial offer and rendered the
company's offer conditional. Halle Enters., 2000 WL 363063,
at *2 & n.8. The Board found that at the time the employees
reported for reinstatement, they had "every reason to con-
clude" that Ellis was stating the full terms of the company's
offer, "including any amendments that might have been made
to Halle's offer since it was originally made." Id. at *2 n.8.
The Board ordered reinstatement and full backpay for all
eleven discharged workers.
II
When the NLRB determines that an employer has unlaw-
fully discharged an employee, its normal course is to issue a
make-whole order requiring reinstatement and backpay. See
Darr v. NLRB, 801 F.2d 1404, 1407 (D.C. Cir. 1986); Roma
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1 Section 8(a)(1), 29 U.S.C. s 158(a)(1), makes it an unfair labor
practice "to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed" in section 7 of the Act, which
include the right to engage in concerted activities for the purpose of
"mutual aid or protection," 29 U.S.C. s 157.
One Enters., 325 N.L.R.B. 851, 852, 853 (1998); F.W. Wool-
worth Co., 90 N.L.R.B. 289, 291 (1950); see also Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 902 (1984). An employer's offer
of reinstatement tolls the accrual of backpay, but only if the
offer is "firm, clear, and unconditional." Consol. Freightways
v. NLRB, 892 F.2d 1052, 1056 (D.C. Cir. 1989) (quoting
Lipman Bros., Inc., 164 N.L.R.B. 850, 853 (1967)); accord
Krist Oil Co., 328 N.L.R.B. No. 108, 1999 WL 448441, at *5
(June 28, 1999). "It is the employer's burden to establish
that it made a valid offer of reinstatement." Roma One
Enters., 325 N.L.R.B. at 852.
Halle Enterprises concedes that it committed an unfair
labor practice by discharging the eleven employees. It chal-
lenges neither the Board's order requiring their reinstate-
ment, nor the mandate to provide full backpay for the seven
junior technicians. The company attacks the order only to
the extent that it awards backpay to the four senior employ-
ees subsequent to the date of Halle's reinstatement offer.
The company does not dispute that Ellis' offer was condition-
al, and that if his was the last offer received by the four
senior technicians, it would have superseded Halle's offer and
prevented tolling of their backpay. The company contends,
however, that it was Halle's offer that came last.
According to company counsel, the only issue in this case is
whether the Board was correct in finding that Ellis' condition-
al offer was the last one communicated to the employees. We
adopt this formulation of the issue on appeal with one caveat.
Our role is not to determine de novo whether the Board's
factual finding was correct. Rather, we are limited to deter-
mining whether it is "supported by substantial evidence on
the record considered as a whole." 29 U.S.C. s 160(e); see
Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 488
(1951). To that end, we ask only "whether on this record it
would have been possible for a reasonable jury to reach the
Board's conclusion." Capital Cleaning Contractors, Inc. v.
NLRB, 147 F.3d 999, 1004 (D.C. Cir. 1998) (quoting Allen-
town Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359, 366-67
(1998)). And in making that determination, we give "substan-
tial deference to the inferences drawn by the NLRB from the
facts." Time Warner Cable v. NLRB, 160 F.3d 1, 3 (D.C.
Cir. 1998).
We conclude that there is substantial evidence to support
the Board's finding. Israel Flores testified that Ellis' No-
vember 10 offer of reinstatement, which included the waiver
condition, was the last offer the employees received from the
company. J.A. 66, 68-69. Warren Halle himself testified
that he "probably" made his unconditional offer two or three
days after the November 4 incident, J.A. 187, which the ALJ
concluded put it on or about November 7--several days
before Ellis' conditional offer of November 10. Halle Enters.,
2000 WL 363063, at *5.
The company's only response is that, notwithstanding
Halle's testimony, it was logically impossible for him to have
made his unconditional offer until after Ellis insisted upon a
waiver on November 10. The company notes that Halle
testified he told Flores that the employees would not have to
sign anything in order to return to work, and that the ALJ
credited that testimony. Id. at *5. It would not have been
logical for Halle to have referred to the signing of a docu-
ment, the company argues, unless Ellis' insistence upon a
waiver had come before.
This purported inconsistency within the testimony of the
employer's own president is a weak reed upon which to base a
claim that the NLRB lacks substantial evidence to support its
factual finding. In any event, there is no logical conundrum
here. The company's argument assumes that November 10
was the first time Ellis told the employees they would have to
sign a waiver in order to regain their jobs. But one of the
fired employees, Jose Alfaro, testified that Ellis first made
that demand the day after the firings--November 5--when
he offered all eleven employees reinstatement, but without
benefits or seniority. See J.A. 93 (Alfaro Tr.) ("[H]e told us
... that we were going to lose all of our benefits, and that he
wanted us to sign a note stating that there was nothing that
we could do against the company."). The company did not
cross-examine Alfaro on the point, and offered no rebuttal.
Moreover, Halle did not testify as to how or when he learned
of the waiver requirement, nor even expressly associate it
with Ellis.
In light of the above, Halle's testimony plainly does not
render it impossible "for a reasonable jury to reach the
Board's conclusion" that Ellis' conditional offer of November
10 was the last one the employees received. Allentown
Mack, 522 U.S. at 367. Accordingly, we have no cause to
displace this finding of fact. Indeed, that is particularly so
since it is undisputed that "the burden is on the [employer] to
communicate to its employees an offer that is firm, clear, and
unconditional." Halle Enters., 2000 WL 363063, at *2.
III
One final loose end remains to be secured. In addition to
Halle and Ellis, a third manager--Vice President Joe Dod-
son--also made an offer of reinstatement to the four senior
employees. The ALJ found, however, that Dodson's offer
was conditional, and was made after Halle's unconditional
offer and before Ellis' conditional one. Halle Enters., 2000
WL 363063, at *4, 5 & n.7. The Board affirmed. Id. at *1, 2.
The company disputes the ALJ's findings on both counts,
contending that Dodson's offer was unconditional and that it
came after Ellis'. But even if Dodson intended his offer to be
unconditional, its wording hardly met the employer's burden
of communicating an offer that was "firm, clear, and uncondi-
tional." Consol. Freightways, 892 F.2d at 1056; Roma One
Enters., 325 N.L.R.B. at 852.2 We need not belabor the
point, however, as there is substantial evidence to support the
Board's finding that Ellis' offer was the last one the employ-
ees received.3 Since it is undisputed that under Ellis' offer,
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2 According to Dodson, he told the employees: "You would
return under the same conditions that you left insofar as salary,
benefits. The only thing that they would not receive is any money
for time away from their job. No other conditions were made."
J.A. 177 (emphasis added).
3 See J.A. 65-69 (Flores Tr.) (testifying that, although Dodson
said the four senior employees should go back to work, when they
arrived Ellis insisted upon a waiver, and that thereafter the compa-
ny did not again offer reinstatement); J.A. 162 (Medina Tr.)
(testifying that, although Dodson said he wanted the four to go back
reinstatement was improperly conditioned upon the signing of
a waiver, Dodson's earlier offer simply does not affect the
employees' right to backpay.
IV
Substantial evidence supports the NLRB's determination
that the ultimate offer of reinstatement made by Halle Enter-
prises to its unlawfully discharged employees was conditional.
As a consequence, that offer did not toll the employees'
entitlement to backpay. We therefore deny the petition for
review and grant the Board's cross-application for enforce-
ment.
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to work, when they came to the office Ellis required them to sign
the waiver document before starting).