National Labor Relations Board v. Consolidated Bus Transit, Inc.

08-0856-ag (Lead), 08-1094-ag (XAP)

NLRB v. Consolidated Bus Transit, Inc.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: December 16, 2008 Decided: August 20, 2009)

Docket Nos. 08-0856-ag (Lead), 08-1094-ag (XAP)

_____________________________________________

NATIONAL LABOR RELATIONS BOARD,

Petitioner-Cross-Respondent,

– v. –

CONSOLIDATED BUS TRANSIT, INC.,

Respondent-Cross-Petitioner,

LOCAL 854, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

Respondent.

____________________________________________

Before POOLER and KATZMANN, Circuit Judges.*

____________________________________________

Petitioner National Labor Relations Board (“Board”) petitions for enforcement of its August 31,

2007 Decision and Order (“Order”) finding Respondent Consolidated Bus Transit, Inc. (“CBT”)

to have committed various unfair labor practices in violation of the National Labor Relations Act

(“Act”), 29 U.S.C. § 151 et seq. CBT cross-petitions for review of the Order and contends that

the Board wrongly concluded that the company discharged employee Juan Carlos Rodriguez, in

violation of sections 8(a)(1) and (3) of the Act. CBT asserts also that, even if Rodriguez was

discharged, the Act’s policies and Board and Circuit precedent preclude the award of back pay as

a remedy because Rodriguez was unlicensed to drive a school bus during the back pay period.

We disagree, enforce the Order in full, and deny the cross-petition for review.

*

The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the

Supreme Court on August 8, 2009. The two remaining members of the panel, who are in

agreement, have determined the matter. See 28 U.S.C. § 46(b); Local Rule 0.14(2); United States

v. Desimone, 140 F.3d 457 (2d Cir. 1998).

JOAN E. HOYTE, Attorney (Ronald Meisburg,

General Counsel, John E. Higgins, Jr., Deputy

General Counsel, John H. Ferguson, Associate

General Counsel, Linda Dreeben, Deputy Associate

General Counsel, and Fred B. Jacob, Supervisory

Attorney, on the brief), Washington, D.C., for

Petitioner-Cross-Respondent.

MICHAEL J. MAURO (Richard I. Milman, on the

brief), Milman Labuda Law Group PLLC, Lake

Success, N.Y., for Respondent-Cross-Petitioner.

PER CURIAM:

Petitioner-Cross-Respondent National Labor Relations Board (“Board”) petitions this

Court for enforcement of its August 31, 2007 Decision and Order (“Order”) finding Respondent-

Cross-Petitioner Consolidated Bus Transit, Inc. (“CBT”) to have committed various unfair labor

practices in violation of the National Labor Relations Act (“Act”), 29 U.S.C. § 151 et seq. CBT

cross-petitions for review of the Order, contending that substantial evidence does not support the

Board’s finding that CBT discharged, instead of temporarily disqualified, employee Juan Carlos

Rodriguez from employment as a school bus driver, in violation of sections 8(a)(1) and (3) of the

Act, 29 U.S.C. § 158(a)(1), (3). CBT asserts also that the Act’s remedial policies, this Circuit’s

decision in NLRB v. Future Ambulette, Inc., 903 F.2d 140 (2d Cir. 1990), and the Board’s

decision in Anheuser-Busch, Inc., 351 N.L.R.B. No. 40 (Sept. 29, 2007), preclude imposition of a

back pay remedy as Rodriguez was not licensed to drive a school bus during the period covered

by the back pay award.

Because we defer to the Board’s discretion under its own rules and regulations to credit

CBT’s admission, through its answer, that the company discharged Rodriguez, and because we

find that (1) the Act’s remedial policies are not contravened by the back pay award in the

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circumstances of this case, and (2) Future Ambulette and Anheuser-Busch do not compel a

contrary result, we deny CBT’s petition for review and grant the Board’s application for

enforcement of its Order in full.

BACKGROUND

A. Facts

1. Consolidated Bus Transit, Inc. and the 19A Test

CBT provides bus transportation services to the New York City Department of Education

and to private schools throughout the New York City area. CBT’s approximately 2000 bus

drivers and escorts are represented by two different unions, Local 854, International Brotherhood

of Teamsters, AFL-CIO (“Local 854”), and Local 1181, Amalgamated Transit Union (“Local

1181”).

Under New York State law, bus companies like CBT must administer a driving skills

examination known as the “19A test” to each of their school bus drivers, once when the driver is

first hired, and every two years thereafter. See N.Y. Veh. & Traf. Law § 509-g(4). The relevant

statute also allows employers to administer the 19A test more frequently.

The 19A test consists of two parts: (1) a pre-trip safety inspection of the inside and

outside of the bus; and (2) a road test. Each mistake made by a driver results in a pre-set number

of penalty points, and drivers who accumulate thirty points fail the test. Moreover, some

mistakes result in automatic failure of the test. The parties agree that drivers who fail the 19A

test may not operate a school bus for at least five days thereafter, but during that time the driver

can receive additional training and schedule a retest, which is administered by a different

examiner. Drivers who fail a second test are disqualified from driving a school bus until they are

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retested and re-certified by the New York State Department of Motor Vehicles (“DMV”) in

Albany, New York.

In February 2003, one of CBT’s drivers was involved in a fatal bus accident. This

incident prompted the company to implement a new policy requiring that any driver involved in a

bus accident be given a 19A test whether or not that driver had been tested in the previous two

years. Furthermore, any driver involved in a bus accident in the year preceding February 2003

also had to be newly tested.

2. Juan Carlos Rodriguez and Teamsters for a Democratic Union

From January 1993 to March 27, 2003, Juan Carlos Rodriguez worked as a CBT bus

driver. During the last year of his employment, he worked at the Zerega Avenue bus yard in the

Bronx, New York. In early 2002, Rodriguez began to organize discussions with some of his

Local 854-represented co-workers regarding his concern that CBT paid lower wages and benefits

under Local 854’s collective-bargaining agreement (“CBA”) than it paid under the Local 1181

CBA. Rodriguez also contacted, sought assistance from, and joined the Teamsters for a

Democratic Union (“TDU”), an internal caucus of International Brotherhood of Teamsters

members pushing for reform within that union.

Rodriguez became heavily involved in TDU’s efforts. In March and April of 2002, he

arranged and led four to six TDU meetings, and Rodriguez and others began collecting signatures

for a shop steward election scheduled for June 19. Rodriguez campaigned actively for Jona

Fleurimont, distributing and posting numerous flyers in support of Fleurimont’s candidacy.

Much of this activity occurred in full view of CBT management, who accused the activists of

“causing trouble” and “trying to hurt” the company. CBT management showed its opposition to

4

Fleurimont’s candidacy by removing many of his campaign flyers but leaving the incumbent

candidate’s flyers untouched.

Fleurimont won the election, and by mid-September 2002, Rodriguez and the other TDU

activist employees were openly distributing and posting flyers at the Zerega yard that addressed a

range of workplace issues, including wages, work assignments, and an upcoming TDU

conference. In response, CBT removed the flyers and replaced them with a notice announcing a

new policy barring all postings absent CBT’s express consent. On September 30, 2002,

Fleurimont and assistant shop steward Jose Guzman received one-day suspensions for posting

flyers on the wall of the drivers’ break-room. At a grievance hearing over the suspensions, CBT

admitted the suspensions were “unjust,” issued an apology, and reversed the punishment.

Between December 10, 2002, and January 20, 2003, Rodriguez and others continued

openly to distribute flyers at the Zerega yard. The flyers criticized CBT management, praised the

leadership of Fleurimont and Guzman, and urged employees to join in TDU’s organizing efforts.

Rodriguez was also a signatory to an article in TDU’s bi-monthly newsletter that accused CBT of

“retaliation, sometimes violent” against TDU activists, an apparent reference to a recent incident

in which Fleurimont’s car had been vandalized.

3. CBT’s Surveillance of Rodriguez

On February 14, 2003, CBT’s Bronx safety director, Vito Mecca, followed and

videotaped Rodriguez on his morning bus route, the first time Rodriguez had ever been

monitored by the company in this way. Rodriguez testified that Mecca told him at the end of the

drive that Rodriguez had “done a very good job” but that he had made a “small mistake.” Later

that day, Rodriguez viewed the tape in Mecca’s office, which showed that the right tire of

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Rodriguez’s bus had touched a line marking a safety zone on the roadway. According to

Rodriguez, Mecca told him that he did not consider this to be a serious violation but that “he had

orders from the top to penalize [Rodriguez].” Rodriguez was subsequently issued a written

warning for a safety violation.

4. Rodriguez’s Failure of Two 19A Tests

On March 19, 2003, CBT summoned Rodriguez to take a 19A test following his morning

route. Rodriguez had recently taken a 19A test on October 31, 2002, and thus was not scheduled

to take another one before October 31, 2004. He failed the March 19 test and was immediately

suspended.

After the test, Rodriguez asked CBT Safety Director Joe Antoci why he had been retested

before the usual two-year testing period had expired. Antoci explained that under New York

State law, CBT could test an employee as frequently as it considered necessary. When Local

854’s Secretary-Treasurer Ann Stankowitz questioned Antoci about the March 19 test, Antoci

explained that Rodriguez’s February 14, 2003, written safety violation, in combination with an

accident Rodriguez had been involved in on June 21, 2002 – four months prior to his last

successful 19A test – led to CBT’s decision to administer the 19A test off-schedule.

On March 21, 2003, Rodriguez filed a grievance with Local 854 alleging that the March

19 testing was in retaliation for his protected concerted activities in support of TDU. That same

day, Rodriguez went with a group of twelve other TDU activist employees to the New York State

Department of Education’s office to complain about CBT’s retaliatory surveillance, work

assignments, 19A testing, and their view that Local 854 was effectively controlled by CBT

management. Rodriguez personally requested that a representative from the Department of

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Education witness his upcoming 19A retest.

On March 27, 2003, Rodriguez retook the 19A test, which he again failed. Rodriguez

was then ordered to report to Antoci. Rodriguez testified that Antoci told him that he was

“disqualified from driving a school bus” and that he “had to take the road test again at the

Department of Motor Vehicles” in order to obtain recertification. Rodriguez’s co-worker,

Raymond Figueroa, who was also tested that afternoon and went with Rodriguez to meet with

Antoci, corroborated Rodriguez’s account of the conversation. In addition, Stankowitz testified

that she had told Rodriguez that failing the 19A test a second time “disqualified” him from

driving a school bus, pursuant to New York State regulations.

Rodriguez testified that Antoci called him the next morning – March 28, 2003 – to say

that if Rodriguez “would present [him]self at any other bus company,” he could “take and pass

the road test” and again become “qualified or certified.” In response, Rodriguez told Antoci that

he planned to call the DMV office in Albany to “find out what [his] situation was.” A few days

later, Rodriguez called the office and was told by DMV officials that CBT “had let [Rodriguez]

go,” but the company had not offered the DMV any explanation why.

B. Procedural History

On August 29, 2003, Board Region 2 issued a complaint alleging, inter alia, that CBT

had discouraged Rodriguez from, and disciplined and discharged Rodriguez in retaliation for,

engaging in protected concerted activity, in violation of sections 8(a)(1) and (3) of the Act, 29

U.S.C. § 158(a)(1), (3).1 On September 3, 2003, CBT filed an answer admitting, inter alia, that

1

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer “to interfere

with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157” of the

Act. 29 U.S.C. § 158(a)(1). Section 7 of the Act, 29 U.S.C. § 157, in relevant part, provides:

7

it had disciplined, suspended, and discharged Rodriguez, but denying that it had done so in

retaliation for Rodriguez’s union activity.

On July 21, 2005, following a fifteen-day trial, the administrative law judge (“ALJ”)

found, inter alia, that CBT had violated section 8(a)(1) of the Act by coercively interrogating and

unlawfully following and videotaping Rodriguez in February 2003, and sections 8(a)(1) and (3)

by issuing Rodriguez a written safety warning on February 14, 2003. The ALJ found also that

CBT had singled out Rodriguez for testing on March 19, 2003, because of his union activities, in

violation of sections 8(a)(1) and (3).

Despite CBT’s admission that it had “discharged” Rodriguez “[o]n or about” the date of

his second failed 19A test, the ALJ found that Rodriguez had merely been “disqualified.” Had

Rodriguez taken appropriate steps to “regain his ability to drive a school bus,” the ALJ concluded

that CBT would have rehired him. Further, the ALJ explained that because Rodriguez had a duty

to mitigate damages by becoming reemployed as a bus driver, the fact that he made no effort to

retake the 19A test made back pay an inappropriate remedy. The ALJ also denied Rodriguez

reinstatement because CBT could not legally employ him as a driver while he was unauthorized

to operate a bus.

On review, a three-member panel of the Board, inter alia, unanimously adopted the ALJ’s

“Employees shall have the right to self-organization, to form, join, or assist labor organizations,

to bargain collectively through representatives of their own choosing, and to engage in other

concerted activities for the purpose of collective bargaining or other mutual aid or

protection . . . .”

Section 8(a)(3) of the Act prohibits employer “discrimination in regard to hire or tenure

of employment or any term or condition of employment to encourage or discourage membership

in any labor organization.” Id. § 158(a)(3).

8

findings that CBT had committed unfair labor practices through coercive interrogation and

videotaped surveillance, and by singling Rodriguez out for testing and issuing him a written

safety warning. The Board, however, declined to adopt the ALJ’s finding that CBT had only

temporarily disqualified Rodriguez following the failure of his second 19A test. On this issue,

CBT argued that although it admitted in its answer that it had discharged Rodriguez, the Board

was required to invoke Federal Rule of Civil Procedure 15(b) (“Rule 15(b)”), which allows a

pleading admission to be implicitly amended. CBT alleged that the failure of the Board’s

General Counsel (the “General Counsel”) to object to testimony regarding Rodriguez’s

disqualification, combined with the lack of testimony suggesting that Rodriguez was actually

discharged, satisfied Rule 15(b)’s requirements.

The Board rejected this reasoning and, citing agency precedent, deemed CBT’s admission

“a confessionary pleading . . . conclusive upon the party making it.” The Board further stated,

again under its precedent, that the existence of conflicting record evidence “does not negate the

binding effect of the [pleading] admission.” The Board then analyzed the discharge under the

burden-shifting framework used by the agency in cases of discrimination, concluding that CBT

could not prove – as required to rebut the General Counsel’s prima facie showing of CBT’s

union animus – that Rodriguez would have been discharged even absent his union activity.

While the Board agreed with the ALJ that the results of the 19A tests had not been unfairly

manipulated, “[b]y unlawfully singling out Rodriguez for testing, [CBT] orchestrated the

circumstances leading to Rodriguez’s premature disqualification from driving.” In turn, CBT’s

“basis for the discharge was a direct result of its unlawful actions against him.”

As a remedy, the Board, inter alia, ordered Rodriguez reinstated to his previous position

9

upon proof that he reestablished his 19A certification within a reasonable time of CBT’s

reinstatement offer. Because the Board also found that Rodriguez would not have failed the 19A

tests or been required to seek recertification, but for CBT’s unlawful discrimination, the Board

reasoned that Rodriguez’s failure to seek immediate recertification did not, as the ALJ suggested,

preclude back pay as an additional remedy. The Board acknowledged, however, that even absent

CBT’s unlawful conduct, Rodriguez would have been required to take a 19A test on October 31,

2004. The Board therefore directed back pay from the date of Rodriguez’s discharge, March 27,

2003, to October 31, 2004, the date of his next regularly scheduled 19A test.

On August 31, 2007, the Board filed a petition for enforcement of its Order with this

Court, and on March 5, 2008, CBT filed a cross-petition for review of that Order.

On appeal, CBT presents two issues for review: (1) whether substantial evidence

supports the Board’s conclusion that CBT discharged Rodriguez in violation of sections 8(a)(1)

and (3) of the Act; and (2) whether the Board’s back pay remedy contravenes the policies of the

Act, as well as Board and Circuit precedent.

DISCUSSION

A. Discharge

1. Standard of Review

The Board’s findings of fact are conclusive if “supported by substantial evidence on the

record considered as a whole.” 29 U.S.C. § 160(e). “We may not ‘displace the Board’s choice

between two fairly conflicting views, even though we would justifiably have made a different

choice had the matter been before us de novo.’” NLRB v. G&T Terminal Packaging Co., 246

F.3d 103, 114 (2d Cir. 2001) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

10

(1951) (brackets omitted)).

We will reverse a factual finding “only . . . if, after looking at the record as a whole, we

are left with the impression that no rational trier of fact could reach the conclusion drawn by the

Board.” NLRB v. Katz’s Delicatessen of Houston St., Inc., 80 F.3d 755, 763 (2d Cir. 1996)

(internal quotation marks omitted). We will uphold the Board’s legal determinations “if not

arbitrary and capricious.” Cibao Meat Prods., Inc. v. NLRB, 547 F.3d 336, 339 (2d Cir. 2008)

(internal quotation marks omitted).

2. Analysis

Substantial evidence supports the Board’s finding that Rodriguez was discharged and not,

as CBT argues again on appeal, merely temporarily disqualified until he passed another 19A test

and sought reemployment with the company.2

We have held repeatedly that “[f]acts admitted in an answer, as in any pleading, are

judicial admissions that bind the defendant throughout [the] litigation.” Gibbs ex rel. Estate of

2

On appeal to this Court, CBT did not contest, inter alia, the Board’s findings that it

violated sections 8(a)(1) and (3) of the Act by following Rodriguez on his bus route, issuing him

a written warning on February 14, 2003, and singling him out for testing on March 19, 2003.

Further, CBT did not contest the Board’s finding that it violated section 8(a)(1) of the Act by

interrogating, threatening, and surveilling Rodriguez and other employees for complaints made to

the Department of Education. CBT also does not challenge the Board’s remedies related to these

violations.

The Board is entitled to summary affirmance of portions of its order identifying or

remedying these and all other uncontested violations of the Act, including those relating to CBT

employees Jose Estevez, Jona Fleurimont, Jose Guzman, and Raymond Figueroa. See

Torrington Extend-A-Care Employee Ass’n v. NLRB, 17 F.3d 580, 590 (2d Cir. 1994). To the

extent CBT failed to file exceptions to any of the ALJ’s findings, we “lack[] jurisdiction to

review objections that were not urged before the Board.” Woelke & Romero Framing, Inc. v.

NLRB, 456 U.S. 645, 666 (1982); see also KBI Sec. Serv., Inc. v. NLRB, 91 F.3d 291, 294 (2d

Cir. 1996).

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Gibbs v. Cigna Corp., 440 F.3d 571, 578 (2d Cir. 2006). This principle is clearly established

under Board precedent, see, e.g., C.P. Assocs., Inc., 336 N.L.R.B. 167, 167 (2001) (“[A]n

admission is in effect a confessory pleading, and it is conclusive upon the party making it.”), and

we have previously approved the Board’s decision to treat a party’s admission as confessionary

and conclusive, see Nat’l Marine Eng’rs Beneficial Ass’n v. NLRB, 274 F.2d 167, 172 (2d Cir.

1960) (“The issue whether [respondents] were ‘labor organizations’ was not discussed, for the

excellent reason that they had filed an answer admitting they were[,] and the . . . Board . . . took

them at their word.”); see also United Steelworkers of Am. v. NLRB, 983 F.2d 240, 247 (D.C.

Cir. 1993) (“The Company admitted the accuracy of this allegation in its answer to the

complaint. In so doing, the Company took this issue out of the case.” (citation omitted)). We

have even suggested that a party’s admission in a Board proceeding may carry evidentiary weight

in future cases brought before the Board. See Nat’l Marine Eng’rs Beneficial Ass’n, 274 F.2d at

172 (“To be sure since the answer was not limited to the particular case, the admission was

evidence against [the respondents] elsewhere, and this was not deprived of evidential force by the

subsequent unsuccessful attempt to withdraw it.”).

CBT admitted in its answer that Rodriguez was discharged following his second 19A test.

It argues before this Court, as it did before the Board, that its admission must be deemed

amended, pursuant to Rule 15(b), because the record evidence proves that Rodriguez was merely

disqualified, not discharged, by CBT, and the Board’s General Counsel failed to object to, and

even personally entered, such evidence.3 See Ostano Commerzanstalt v. Telewide Sys., Inc., 880

3

Rule 15(b)(2) provides: “When an issue not raised by the pleadings is tried by the

parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.

A party may move—at any time, even after judgment—to amend the pleadings to conform them

12

F.2d 642, 646 (2d Cir. 1989) (“Rule 15(b) is ‘mandatory, not merely permissive,’ in requiring

that issues that are tried, though not raised in the pleadings, be treated as if they were raised in

the pleadings.” (quoting SEC v. Rapp, 304 F.2d 786, 790 (2d Cir. 1962))).

CBT, however, misapprehends the Board’s obligation to apply the Federal Rules of Civil

Procedure. With respect to the standards and procedures to be applied at hearings, section

101.10(a) of the Board’s Rules and Regulations states that: “The rules of evidence applicable in

the district courts of the United States under the Rules of Civil Procedure adopted by the

Supreme Court are, so far as practicable, controlling.” 29 C.F.R. § 101.10(a); see also 29 U.S.C.

§ 160(b). We have interpreted this Rule to mean that the Board’s procedures are to be controlled

by the Federal Rules of Civil Procedure “‘as far as practicable.’” NLRB v. Local 138, Int’l Union

of Operating Eng’rs, 380 F.2d 244, 253 (2d Cir. 1967) (quoting Frito Co., W. Div. v. NLRB, 330

F.2d 458, 465 (9th Cir. 1964)).

In this context, the Board has opted, through its Rules and Regulations, to make a number

of allowances for parties to amend pleadings prior to, during, and after hearings. Section 102.23

of the Board’s Rules and Regulations states that a respondent may amend his or her answer

(1) “at any time prior to the hearing,” (2) “[d]uring the hearing or subsequent thereto . . . where

the complaint has been amended,” or (3) “upon motion.” 29 C.F.R. § 102.23. Section 102.24(a)

states that pre-hearing motions “shall be filed in writing”; however, motions, including motions

to amend an answer, may be made “at the hearing . . . [if] made in writing . . . or stated orally on

the record.” Id. § 102.24(a). “All motions filed subsequent to the hearing, but before the transfer

of the case to the Board,” must be in writing. Id.

to the evidence and to raise an unpleaded issue.” Fed. R. Civ. P. 15(b)(2).

13

Here, CBT did not move to amend its answer before, during, or after the ALJ proceeding.

Though it urges us to reject the Board’s decision to decline to consider CBT’s answer implicitly

amended pursuant to Rule 15(b), the Board has consistently limited its acceptance of post-

hearing amendments to amendments predicated upon a written motion. See, e.g., C.P. Assocs.,

Inc., 336 N.L.R.B. at 167 (“Nor do we find that the introduction of potentially conflicting

evidence negates the binding effect of the admission. Both the Board and the courts have held

that admissions contained in pleadings are binding even where the admitting party later produces

contrary evidence.”); Boydston Elec., Inc., 331 N.L.R.B. 1450, 1451 (2000) (“[T]he

Respondent’s introduction of evidence potentially in conflict with its admission [in its answer]

does not negate the binding effect of the admission.”).

The Board’s procedures and practices with respect to pleading amendments deserve

deference. See KBI Sec. Serv., Inc., 91 F.3d at 295 (“The Board is vested with broad discretion

in interpreting and applying its own rules.” (citing Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 613

(1991))). We will “set aside the Board’s construction of its own rules only where the Board has

acted in a fashion so arbitrary as to defeat justice,” id. (internal quotation marks omitted), and in

the sole prior case of which we are aware in which we compelled the Board to accept an implied

amendment under Rule 15(b), the appellant had properly moved to amend its answer, but the

Board had denied the motion, see Local 138, Int’l Union of Operating Eng’rs, 380 F.2d at

253–54.

Given CBT’s failure to avail itself of the various opportunities provided and required by

the Board’s Rules and Regulations to amend its answer through a written or oral motion, we

conclude that the Board did not act arbitrarily in holding CBT to the Board’s procedural

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requirements. Substantial evidence therefore supports the Board’s conclusion that CBT

discharged Rodriguez instead of merely disqualifying him.4 As CBT does not dispute that it

unlawfully singled Rodriguez out for testing, we additionally affirm the Board’s conclusion that

the discharge was a violation of sections 8(a)(1) and (3) of the Act.

B. Back Pay

1. Standard of Review

The Board’s “unique expertise in labor disputes” leads us to entrust the agency with

“broad discretionary powers to fashion remedies for violations of the Act.” NLRB v. Ferguson

Elec. Co., 242 F.3d 426, 431 (2d Cir. 2001). We therefore grant the Board’s “choice of remedy

. . . special respect.” NLRB v. Gissel Packing Co., 395 U.S. 575, 612 n.32 (1969). Where a

remedial provision in a Board’s order is challenged, we will not disturb it “unless it can be shown

that the order is a patent attempt to achieve ends other than those which can fairly be said to

effectuate the policies of the Act.” Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943);

see also 29 U.S.C. § 160(c) (empowering the Board to issue an order requiring a person who has

committed an unfair labor practice “to cease and desist from such unfair labor practice, and to

take such affirmative action including reinstatement of employees with or without back pay, as

4

We note that we are not convinced that, as CBT asserts, the record is entirely devoid of

evidence regarding Rodriguez’s discharge. For instance, Rodriguez testified that when he called

the Department of Motor Vehicles in Albany to ascertain his status with CBT, he was “informed

. . . that the company had let [him] go.” We also note that, contrary to CBT’s suggestion, the fact

that the General Counsel asked questions or failed to object to testimony about the events

surrounding Rodriguez’s disqualification does not, on its face, constitute evidence that Rodriguez

was not also discharged by the company. See Grand Light & Supply Co. v. Honeywell, Inc., 771

F.2d 672, 680 (2d Cir. 1985) (“The purpose of Rule 15(b) is to allow the pleadings to conform to

issues actually tried, not to extend the pleadings to introduce issues inferentially suggested by

incidental evidence in the record.” (internal quotation marks omitted)).

15

will effectuate the policies of [the Act]”); KBI Sec. Serv., Inc., 91 F.3d at 295.

2. Analysis

As already noted, the Board ordered, inter alia, that Rodriguez be made whole through

back pay computed from the date of his unlawful discharge to the date of his next regularly

scheduled 19A test. CBT broadly contends that this back pay remedy fails to effectuate the

policies of the Act, even if Rodriguez was unlawfully fired, because it requires CBT to pay

Rodriguez during a period in which he was not legally authorized to be employed as a bus driver.

CBT additionally argues that the facts and reasoning set forth by our decision in NLRB v. Future

Ambulette, Inc., 903 F.2d 140 (2d Cir. 1990), and the Board’s decision in Anheuser-Busch, Inc.,

351 N.L.R.B. No. 40 (Sept. 29, 2007), preclude a back pay remedy in this case as a matter of law.

We disagree.

“The finding of an unfair labor practice and discriminatory discharge is presumptive

proof that some back pay is owed by the employer.” NLRB v. Mastro Plastics Corp., 354 F.2d

170, 178 (2d Cir. 1965). Furthermore, where a worker has been the victim of unlawful

discrimination under the Act, as is the case here, the Board is empowered to grant the amount of

“gross backpay” that will “restore the situation as nearly as possible, to that which would have

obtained but for the illegal discrimination.” NLRB v. Coca-Cola Bottling Co. of Buffalo, Inc.,

191 F.3d 316, 325 (2d Cir. 1999) (internal quotation marks omitted); see also Franks v. Bowman

Transp. Co., 424 U.S. 747, 769 (1976) (“The task of the NLRB in applying § 10(c) is ‘to take

measures designed to recreate the conditions and relationships that would have been had there

been no unfair labor practice.’” (quoting Carpenters v. NLRB, 365 U.S. 651, 657 (1961) (Harlan,

J., concurring))). A back pay award is therefore “an approximation, necessitated by the

16

employer’s wrongful conduct,” which attempts to make a victim of discrimination as close to

economically whole as possible. NLRB v. Aeronautical Indus. Dist. Lodge No. 91, 934 F.2d

1288, 1297 (2d Cir. 1991) (internal quotation marks omitted); see also Phelps Dodge Corp. v.

NLRB, 313 U.S. 177, 194 (1941) (stating that “the effectuation of [the Act’s] policy generally

requires . . . compensation for the loss of wages. . . . Only thus can there be a restoration of the

situation, as nearly as possible, to that which would have obtained but for the illegal

discrimination.”).

In Rodriguez’s case, the Board’s back pay remedy draws directly from these principles:

But for the discrimination, Rodriguez would not have been required to

take the tests on March 19 and 27. He therefore would not have failed

those tests. And, but for these failures, there would have been no need to

seek a new certification. . . . We therefore find that the appropriate remedy

for this 8(a)(1) violation, and the additional 8(a)(1) and (3) discharge

violation we have found, includes back pay.

The remedy is crafted to consider Rodriguez’s employment status had he not been singled

out for off-schedule testing. Absent the unlawful targeting, Rodriguez presumably would have

remained licensed at least between March 27, 2003, the date of the second failed test, and

October 31, 2004, the date of his next regularly-scheduled test. He therefore would have retained

his salary for that approximately nineteen-month period. This is the very time-frame for which

the Board awarded Rodriguez back pay, thus restoring, “as nearly as possible,” the economic

conditions that “would have obtained but for the illegal discrimination.” Coca-Cola Bottling

Co., 191 F.3d at 325.

We hold that the policies underpinning the Board’s authority to redress discrimination

through back pay are not contravened simply because this pay period covers time for which

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Rodriguez was not licensed to drive a bus. Rather, the remedy effectuates those policies by

restoring Rodriguez to the economic status quo absent CBT’s wrongful acts.5 Cf. Future

Ambulette, 903 F.2d at 145 (modifying a remedial order to grant an unlicensed ambulance driver

back pay from the day he was unlawfully fired until the “earlier of his actual reinstatement, his

refusal of reinstatement, or his failure to timely present his driver’s license”); NLRB v. Fugazy

Cont’l Corp., 817 F.2d 979, 982 (2d Cir. 1987) (“Remedies under the Act are designed to

vindicate the public policy of the statute by making the employees whole for losses suffered on

account of an unfair labor practice and to guard against rewarding an employer for his own

misconduct.” (citations and internal quotation marks omitted)).

The cases cited by CBT do not compel a different result. For example, in Future

Ambulette, the Board ordered back pay to accrue from the date an unlicensed van driver was

unlawfully discharged until the earliest of three possible future dates: (1) once the driver had

first obtained a valid license, the date the company then offered the driver reinstatement to his

former driving position; (2) if the driver failed to obtain a valid license within a reasonable time,

the date the company offered the driver a “substantially equivalent position”; or (3) if a

“substantially equivalent position” did not exist at the company, the date the driver successfully

obtained “substantially equivalent employment elsewhere.” Future Ambulette, 903 F.2d at

144–45. We modified the order because its “open-ended” nature – which required back pay to

“accrue so long as [the driver was] out of work” – both “encourage[d] illegal hiring” by

pressuring the company to rehire the driver even if he lacked a license, and empowered the driver

5

We note that the Board properly dealt with the fact that it is illegal under New York

State law for Rodriguez to work at CBT without a license by conditioning reinstatement upon

proof that Rodriguez had reestablished his 19A certification.

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to decide “whether to seek reinstatement and whether to seek equivalent employment elsewhere”

while back pay amassed indefinitely. Id. at 145. We also criticized the order’s implication that it

would be reasonable to require the company to consider hiring the driver for a position the driver

had never held. Id.

The back pay remedy in this case suffers from none of these problems. As an initial

matter, the back pay period is finite, not open-ended; it expressly runs from March 27, 2003,

until October 31, 2004, a range crafted only to restore to Rodriguez the income he would have

received absent the illegal activity. Nor does the back pay remedy pressure CBT to illegally re-

hire Rodriguez – especially as the company conceded at oral argument that it had yet to offer

Rodriguez reinstatement, in violation of the Board’s Order.6 Furthermore, the finite period of the

remedy ensures that CBT’s back pay liability is tightly controlled, regardless of whether

Rodriguez opts to retake the 19A test, applies to work at another bus company, or enters a new

line of work entirely. Finally, because the Order does not require CBT to offer Rodriguez a

“substantially equivalent position” with the company, it need not place Rodriguez in a job other

than the one he had held for over ten years.

CBT alternatively relies on Anheuser-Busch, Inc., 351 N.L.R.B. No. 40 (Sept. 29, 2007),

to contend that the Board’s back pay Order must be rejected. In Anheuser-Busch, the Board held

that it lacked the authority, pursuant to section 10(c) of the Act, to order remedial back pay to

employees disciplined “for cause,” even if the employees’ misconduct was detected through the

employer’s “unilaterally and unlawfully implemented means.” Id. at *4; see 29 U.S.C. § 160(c)

6

The Board’s Order states: “Therefore, we shall order the Respondent Employer to offer

Rodriguez reinstatement contingent upon his demonstrating that he reestablished his 19A

certification within a reasonable time of the offer.” (emphasis added).

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(“No order of the Board shall require . . . the payment . . . of any back pay, if such individual was

suspended or discharged for cause.”). Thus, employees discharged for work-site drug use were

not entitled to back pay even though the employer discovered the misconduct only through

hidden video cameras installed without first giving the union prior notice and an opportunity to

bargain, in violation of section 8(a)(5) of the Act.7 Anheuser-Busch, Inc., 351 N.L.R.B. at *2.

Anheuser-Busch, however, is easily distinguishable from this case. First, in Anheuser-

Busch there was no suggestion that the employees were targeted because of their participation in

protected concerted activities. Id. at *6. Rather, the employees were terminated “for cause”

because they had engaged in “serious, admitted violations of lawfully established work rules.”

Id. at *7. By contrast, the Board explained that “[a] termination of employment that is motivated

by protected activity is unlawful under Section 8(a)(1) and/or (3), and is not ‘for cause.’” Id. In

this case, CBT concedes that union animus motivated its decision to single Rodriguez out for

testing. Thus, his failure of the 19A tests was not a “for cause” reason for discharge.

Second, even assuming arguendo that Rodriguez’s two failed tests constituted “for cause”

misconduct, Anheuser-Busch nonetheless is inapposite. In that case, the employees’ “for cause”

misconduct – workplace drug use – was entirely independent from the employer’s illegal

installation of cameras. Here, however, CBT actually created the allegedly “for cause” basis for

discharge by unlawfully targeting Rodriguez for engaging in protected union activity. It is this

nexus that distinguishes the instant case from Anheuser-Busch.

In sum, our consideration of the policies underlying the Board’s authority to issue back

7

Section 8(a)(5) makes it “an unfair labor practice for an employer . . . to refuse to

bargain collectively with the representatives of [its] employees.” 29 U.S.C. § 158(a)(5).

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pay to redress discrimination suggests that the Board’s remedy was appropriate, even though

CBT must pay Rodriguez for a period in which he was not licensed to operate a bus. Restoring

the economic status quo upset by violations of the Act is the very purpose of the back pay

remedy, see Phelps Dodge Corp., 313 U.S. at 194, and allowing CBT to escape the financial

consequences of its discriminatory acts because those acts additionally caused Rodriguez to lose

his license would not further this policy.

CONCLUSION

For the foregoing reasons, the Board’s application for enforcement of its Order is

GRANTED. CBT’s petition for review of the Board’s Order is DENIED.

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