# New York Party Shuttle v. NLRB

> Court of Appeals for the Fifth Circuit · November 22, 2021 · 18 F.4th 753

URL: https://www.frixlaw.com/law-library/cases/5128546

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 22, 2021
- **Citations:** 18 F.4th 753
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Agency
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5128546

## Opinion text

Case: 20-61072 Document: 00516103745 Page: 1 Date Filed: 11/22/2021

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

FILED
November 22, 2021
No. 20-61072 Lyle W. Cayce
Clerk

New York Party Shuttle, L.L.C., doing business as Onboard
Tours; Washington DC Party Shuttle, L.L.C., doing business
as Onboard Tours; OnBoard Las Vegas Tours, L.L.C., doing
business as Onboard Tours; NYC Guided Tours, L.L.C.;
Party Shuttle Tours, L.L.C.,

Petitioners/Cross-Respondents,

versus

National Labor Relations Board,

Respondent/Cross-Petitioner.

Petition for Review of an Order and Decision of the
National Labor Relations Board
NLRB No. 20-61072

Before Clement, Southwick, and Willett, Circuit Judges.
Edith Brown Clement, Circuit Judge:

After New York Party Shuttle, LLC (“NYPS”) fired Fred Pflantzer
for attempting to unionize, the NLRB held an unfair labor practice
proceeding. The Board concluded that NYPS committed an unfair labor
practice and ordered NYPS to reinstate Pflantzer and make him whole.
NYPS appealed the Board’s liability finding but failed to file an opening brief;
Case: 20-61072 Document: 00516103745 Page: 2 Date Filed: 11/22/2021

No. 20-61072

thus, we entered a default judgment against NYPS. The Board then held a
compliance proceeding to determine damages. At that proceeding, an ALJ
awarded some $91,000 in backpay to Pflantzer. Petitioners now appeal the
Board’s backpay award, arguing multiple grounds for reversal. We affirm in
part and reverse and remand in part.

I.
NYPS provided sightseeing bus tours in New York City. In October
2011, NYPS hired Fred Pflantzer to serve as a tour guide. As a tour guide,
Pflantzer conducted three to four tours a week, with each tour lasting five to
six hours. He was paid $20 an hour and approximately $35 in tips. Pflantzer
also created his own tour company, New York See Tours, which he operated
exclusively on Saturdays that he was not working for NYPS. In February
2012, NYPS terminated Pflantzer.

Following Pflantzer’s termination, the NLRB held an unfair labor
practice proceeding. According to NYPS, Pflantzer was an independent
contractor who was discharged after management learned that he was
operating a competing business. The NLRB rejected NYPS’ version of
events and instead determined that Pflantzer was an employee who was fired
for talking to fellow employees about unionizing in violation of 29 U.S.C.
§ 158(a)(3) and (1). Based on this finding, the Board ordered NYPS to
reinstate Pflantzer and make him whole. NYPS timely appealed.

On its unfair labor practices appeal, NYPS failed to file its opening
brief. The court consequently entered default judgment against NYPS,
thereby affirming the Board’s 2013 merits order. It then denied NYPS’

2
Case: 20-61072 Document: 00516103745 Page: 3 Date Filed: 11/22/2021

No. 20-61072

subsequent motion for reconsideration. With the 2013 merits order affirmed
and the mandate issued, the NLRB advanced to the compliance proceeding
phase to determine damages.

During the compliance proceeding phase, the Board’s regional
director issued a compliance specification. The specification calculated the
backpay NYPS owed Pflantzer. In the third amendment to the compliance
specification, the director asserted that New York City Guided Tours, LLC
(“NYCGT”), OnBoard Las Vegas Tours, LLC (“OBLV”), Party Shuttle
Tours, LLC (“PST”), and Washington DC Party Shuttle, LLC (“DCPS”)
(collectively, “non-NYPS petitioners”) were one single employer with
NYPS.1 In response, petitioners filed a motion challenging, among other
things: (1) the board’s jurisdiction over the non-NYPS petitioners; and (2)
the validity of the 2013 merits order given the holding in NLRB v. Noel
Canning, 573 U.S. 513, 519 (2014). The Board rejected petitioners’
challenge, dismissed petitioners’ attempts to relitigate the underlying merits,
and found that it lacked jurisdiction to modify the 2013 merits order. The
compliance proceeding then went to a hearing before an ALJ.

At the hearing, the ALJ found that the backpay calculation was
reasonable, petitioners constituted a single employer, and Pflantzer
reasonably mitigated his damages. The Board affirmed the ALJ’s rulings,

1
NYPS and the non-NYPS petitioners are hereinafter referred to jointly as
“petitioners.” When necessary, the companies are referred to separately as NYPS or non-
NYPS petitioners.

3
Case: 20-61072 Document: 00516103745 Page: 4 Date Filed: 11/22/2021

No. 20-61072

findings, and conclusions and adopted the recommended order. Petitioners
again appealed, asserting this time, among other things, that: (1) they are not
a single employer; (2) the Supreme Court’s decision in Noel Canning, 573
U.S. at 519, voids the 2013 merits order; and (3) the backpay award is
arbitrary, unreasonable, and without substantial evidence.

II.

Congress afforded the NLRB broad discretion, with limited judicial
review, when fashioning backpay awards. See Fibreboard Paper Prods. Corp. v.
NLRB, 379 U.S. 203, 216 (1964). As such, the court should not disturb an
order “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.” Id. (quoting Va. Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).
So long as the Board “was not arbitrary in the selection of [its backpay]
formula, its choice may not be rejected.” NLRB v. Charley Toppino & Sons,
Inc., 358 F.2d 94, 97 (5th Cir. 1966).

Despite the discretion afforded to the Board, it does not receive a
blank check. The court must ensure that the Board’s factual findings are
supported by “substantial evidence on the record considered as a whole.”
NLRB v. McCullough Env’t Servs., Inc., 5 F.3d 923, 927 (5th Cir. 1993) (citing
NLRB v. Delta Gas, Inc., 840 F.2d 309, 311 (5th Cir. 1988)). When findings
of fact concern credibility determinations, however, the court defers to the
Board and should only disregard a determination if it is contradictory, “based
on an inadequate reason, or no reason at all.” Id. at 928 (quoting NLRB v.
Moore Bus. Forms, Inc., 574 F.2d 835, 843 (5th Cir. 1978)).

4
Case: 20-61072 Document: 00516103745 Page: 5 Date Filed: 11/22/2021

No. 20-61072

III.
Because the Board’s single employer finding necessarily affects our
Noel Canning analysis, we review that finding first.2 We hold that substantial
evidence supports the Board’s single employer finding.

Several nominally separate business entities are considered “to be a
single employer where they comprise an integrated enterprise.” Alcoa, Inc.
v. NLRB, 849 F.3d 250, 255 (5th Cir. 2017) (quoting S. Prairie Constr. Co. v.
Loc. No. 627, Int’l Union of Operating Eng’rs, 425 U.S. 800, 802 n.3 (1976)
(per curiam)). “To determine whether several entities are a single employer
within the meaning of the Act, the Board looks to four factors: (1) common
ownership; (2) interrelation of operations; (3) common management; and (4)
centralized control of labor relations.” Id. (citing Radio & Television Broad.
Technicians Loc. Union 1264 v. Broad. Serv. of Mobile, Inc., 380 U.S. 255, 256
(1965) (per curiam)). No one factor is controlling, and all factors do not need
to be present, but the last three factors are considered the most important.
Id.; see also Oaktree Cap. Mgmt., L.P. v. NLRB, 452 F. App’x 433, 438 (5th
Cir. 2011) (per curiam) (citing Covanta Energy Corp., 356 NLRB 706, 726
(2011)) (same). Ultimately, single employer status “depends on ‘all the
circumstances of the case’ and is characterized as an absence of an ‘arm’s

2
The Board adopted the ALJ’s determination that NYPS, NYCGT, OBLV, PST,
and DCPS constitute a single employer, which can be held jointly and severally liable for
any unfair labor practices. It did not, however, adopt the ALJ’s cumulative holdings that
NYCGT is liable as an alter ego and as a Golden State successor to NYPS. Because the
Board did not consider the alter ego or Golden State issues, neither will we. See SEC v.
Chenery Corp., 318 U.S. 80, 87–88 (1943).

5
Case: 20-61072 Document: 00516103745 Page: 6 Date Filed: 11/22/2021

No. 20-61072

length relationship found among unintegrated companies.’” Alcoa, 849 F.3d
at 255 (quoting NLRB v. DMR Corp., 699 F.2d 788, 791 (5th Cir. 1983)).

A.

Substantial evidence supports the Board’s finding that there is
common ownership and financial control among petitioners. As the Board
found and the record confirms, PST owns 100% of OBLV and NYCGT;
92.46% of NYPS; and nearly 99% of DCPS. Furthermore, Charles Thomas
Schmidt—the CEO or former CEO of every involved company—owns
69.44% of Infinity Trade Capital, which respectively owns over 70% of PST.
The Board also found that Schmidt exercises “almost unfettered control over
the financial aspects of all five entities.” Records demonstrate hundreds of
banking transactions and expenditures through PST. Similarly, the Board
found a significant amount of outstanding monetary loans from PST to
DCPS, NYCGT, NYPS, and OBLV absent any formal loan agreements.

Government’s exhibit 73 confirms the Board’s finding of common
financial control—although the Board itself did not rely on such evidence. In
2012, for instance, PST had a total of $866,581.79 in outstanding loans to
petitioners. In 2013, those outstanding loans rose to $1,245,892.44. And, by
2016, PST’s outstanding loans rose to a total of $3,189,661.95. The Board
concluded that its findings evidenced a lack of an arm’s length relationship
between petitioners, which, in turn, evidenced common ownership and
financial control. Thus, notwithstanding petitioners’ claim that “no two
petitioners have common ownership,”—which Schmidt’s own testimony at
the compliance proceeding directly contradicted—the Board’s finding of

6
Case: 20-61072 Document: 00516103745 Page: 7 Date Filed: 11/22/2021

No. 20-61072

common ownership is supported by substantial evidence. See Spurlino
Materials, LLC v. NLRB, 805 F.3d 1131, 1142 (D.C. Cir. 2015) (noting that
common ownership need not be absolute, just substantial, and that no
particular corporate structure is required).

B.
The Board also found an interrelation of operations between all five
petitioners, which substantial evidence supports. To determine whether
there is an interrelation of operations, the Board considers, among other
things, “whether the subject entities hold themselves out to the public and
employees as a single business and whether the [entities] actually deal with
one another at arm’s length.” Alcoa, 849 F.3d at 256 (citations omitted).

In support of its determination that there is an interrelation of
operations between petitioners, the Board found that:

I. Company buses from NYPS, DCPS, and even OBLV were
transferred between companies during busy seasons;
II. A PST employee established a call center in Houston to ac-
cept calls from NYPS, DCPS, and OBLV customers;
III. The same call center was used to monitor sales agents and
provide training;
IV. The OnBoard website included information and promo-
tions for NYPS, DCPS, OBLV, and NYCGT;
V. Less than arm’s length loans were routinely transacted be-
tween petitioners;
VI. Policies, procedures, employee conduct guides, training,
and even uniforms overlapped between NYPS, DCPS, and
OBLV; and

7
Case: 20-61072 Document: 00516103745 Page: 8 Date Filed: 11/22/2021

No. 20-61072

VII. All petitioners shared the same bookkeeping company,
which was wholly owned by Schmidt.
The record substantiates these findings.

Petitioners disagree with the Board’s findings and argue that
“multiple witnesses consistently testified that there was no interrelation of
operations.” Petitioners’ arguments are unavailing. For one, petitioners
themselves stipulated that they “engaged in consistent, significant transfers
of funds of at least $50,000 per year.” And, though not discussed in the
Board’s order, there is a litany of additional evidence that supports the
Board’s conclusion. As general counsel argued, and the record confirms:
“Employees have onboardtours.com email addresses”; “Buses in New York
and Washington use the OnBoard Tours logo, as do documents setting out
employee policies and concierge commissions”; and “NYPS, [DCPS], and
[NYCGT] all use Schmidt’s Houston address as their business or mailing
address.” Contrary to petitioners’ arguments, substantial evidence supports
the Board’s finding.

C.
The Board similarly found that a common cast of characters, who
operate on a “readily fungible” team, manage the companies. The Board
made the following record-supported findings. Schmidt, the manager and
designated CEO of PST, is also the CEO of OBLV, DCPS, NYCGT, and the
former CEO of NYPS. Mengel, an investor in PST, worked in management
positions for OBLV and DCPS. Lockhart worked for DCPS and holds a
general power of attorney for NYCGT. Lockhart also served in a managerial

8
Case: 20-61072 Document: 00516103745 Page: 9 Date Filed: 11/22/2021

No. 20-61072

role at PST. June and White served as managing directors at NYPS, and both
aided, or were formerly employed by, DCPS. White also aided in the
development of training policies for all three cities. Abshire is the former vice
president of sales and marketing at PST and held various training roles—
along with Wilson—at NYPS, OBLV, and DCPS. And Moskowitz helped
establish the OBLV office. He is also the former NYPS president, the sole
manager and current president of NYCGT, and a frequent attendee of DCPS
management meetings.

Petitioners disagree with the Board’s findings and assert that
“voluminous” witness testimony—from the likes of White, Moskowitz,
Lockhart, Cook, and Schmidt—warrants a contrary finding. According to
petitioners, the witnesses testified that they were each responsible for
operations at their own companies; thus, there could not have been common
management. Not so. As we have previously held, “day-to-day control of
operations is not required to find that two entities are a single employer under
the NLRA.” Alcoa, 849 F.3d at 257 (citing Oaktree Cap., 452 F. App’x at
442). Thus, even if it is true that there is some unique day-to-day management
for each entity, petitioners cannot escape the otherwise overwhelming
evidence that there is a common team overseeing operations. See id. at 258
(“[O]verwhelming control is not required.”) (first citing Spurlino Materials,
357 NLRB at 1516 (holding that there were interrelated operations even
though the involved entities were “created and licensed separately, [were]
geographically removed and serv[ing] different markets in different states,
and ha[d] their own personnel and equipment”); then citing Royal Typewriter

9
Case: 20-61072 Document: 00516103745 Page: 10 Date Filed: 11/22/2021

No. 20-61072

Co., 209 NLRB 1006, 1010 (1974) (holding that there were interrelated
operations even though “day-to-day matters were of necessity left to the
separate divisions”)).

D.
While the aforementioned factors are relevant to determining whether
petitioners constitute a single employer, “centralized control of labor
relations is of particular importance.” Alcoa, 849 F.3d at 258 (quoting
Oaktree Cap., 452 F. App’x at 438). “The fundamental inquiry is whether
there exists overall control of critical matters at the policy level, not whether
there is control over day-to-day labor decisions.” Id. (citation and internal
quotation marks omitted). Substantial evidence once again supports the
Board’s findings that there is centralized control over critical policy matters.

According to petitioners, “[e]ach company recruited, hired, trained,
set salaries, disciplined, and fired its own employees with complete
autonomy from the other companies.” The record tells a different story.
For example, the record evinces that Schmidt was involved in hiring,
promoting, and reassigning managers at PST, DCPS, NYPS, OBLV, and
NYCGT, including Cook, Lockhart, and White. To be sure, the Board noted
that the local management teams generally hired tour guides and drivers. But
the record reflects that Schmidt was still involved in disciplining and rehiring
some of the same drivers and guides. Aside from Schmidt’s involvement, the
record reveals a centralized process for hiring, customer service, behavioral
policies and procedures, and even uniform requirements. The Board also
cited the Houston call center as evidence of centralized control of labor

10
Case: 20-61072 Document: 00516103745 Page: 11 Date Filed: 11/22/2021

No. 20-61072

relations, as the call center trained sales representatives to take calls for
NYPS, OBLV, and DCPS. Taken together, these findings support the
Board’s conclusion that petitioners constitute a single employer.3

IV.

Petitioners next argue that the underlying 2013 merits order is void ab
initio because of the Supreme Court’s holding in Noel Canning. We disagree.

On January 4, 2012, then-President Obama appointed three
individuals to the National Labor Relations Board, invoking the Recess
Appointments Clause. Noel Canning, 573 U.S. at 520. After the
appointment, a three-member panel of the newly configured Board found
that Noel Canning, a Pepsi-Cola distributor, committed an unfair labor
practice. Id. Noel Canning appealed, arguing that the three Board members
were unconstitutionally appointed because the Senate was convening every

3
Contrary to petitioners’ argument on appeal, the Board had jurisdiction over the
non-NYPS petitioners. The jurisdictional standard for retail businesses is $500,000 in
annual gross business volume. See Carolina Supplies & Cement Co., 122 NLRB 88, 89
(1958). For a nonretail enterprise, the standard is $50,000 across state lines annually. See
Siemons Mailing Serv., 122 NLRB 81, 85 (1958). Petitioners stipulated that they “engaged
in consistent, significant transfers of funds of at least $50,000 per year,” which necessarily
crossed state lines. Moreover, petitioners’ prospectus anticipated $10 million in collective
revenue in 2017. Petitioners argue that the Board erred in relying on a “draft,” yet they
never argued that the draft was incorrect. Because petitioners constitute a single employer,
the Board was correct to find that it had jurisdiction over the non-NYPS petitioners. See
373-381 S. Broadway Assocs., 304 NLRB 1108, 1108 (1991) (“[I]t is well established that the
commerce data of joint or single employers may appropriately be combined for
jurisdictional purposes.” (first citing Jacob Wirth Rest., 248 NLRB 191 (1980), enforced sub
nom. NLRB v. Pizza Pizzaz, Inc., 646 F.2d 706 (1st Cir. 1981) (per curiam); then citing
Normandy Square Food Basket, 163 NLRB 369 (1967); then citing Pac. Hosts, Inc., 156 NLRB
1467 (1966)).

11
Case: 20-61072 Document: 00516103745 Page: 12 Date Filed: 11/22/2021

No. 20-61072

three days in pro forma sessions when they were appointed. Id. The D.C.
Circuit agreed and held that the Board lacked the quorum necessary to act.
Id.; see also 29 U.S.C. § 153(a) (providing for a 5–member Board); § 153(b)
(providing for a 3–member quorum). The Solicitor General petitioned for
certiorari, and the Court granted cert.

After interpreting the scope of the phrases “the recess of the Senate”
and “vacancies that may happen during the recess of the Senate,” and
calculating the length of the Senate’s recess, the Court held that the
President appointed the three Board members during pro forma sessions, not
periods of recess. Id. at 550. The Court consequently concluded that the
President violated the Recess Appointments Clause and that the Board
lacked a quorum, nullifying its prior order. Id. at 557; see also New Process
Steel, L.P. v. NLRB, 560 U.S. 674, 687–88 (2010) (holding that the Board
cannot exercise its powers absent a lawfully appointed quorum).

Petitioners claim that Noel Canning necessarily invalidates the 2013
merits order because the same unconstitutionally appointed Board issued the
order. The Board issued its 2013 merits order on May 2, 2013. The court
granted default judgment against NYPS on November 19, 2013. See New
York Party Shuttle, LLC v. NLRB, No. 13-60364 (5th Cir. Nov. 19, 2013) (per
curiam). The Supreme Court handed down Noel Canning on June 26, 2014.
Thus, as an initial matter, petitioners are correct that the Board acted without
authority. The Board undoubtedly lacked a quorum with only two
constitutionally appointed members. See 29 U.S.C. § 153(a), (b). As such,

12
Case: 20-61072 Document: 00516103745 Page: 13 Date Filed: 11/22/2021

No. 20-61072

the Board could not validly exercise its power, just as the Supreme Court held
in Noel Canning.

Unlike the respondent in Noel Canning, however, petitioners did not
immediately assert this constitutional defect. Rather, petitioners waited until
the compliance phase of the bifurcated proceedings to challenge a procedural
issue with the liability findings. Now, some seven years later, petitioners
assert that this court acted without jurisdiction when entering default
judgment, that they did not waive their Appointments Clause objection, and
that they are not bound by res judicata. Thus, they (implicitly) argue that we
should recall our 2013 mandate. We decline to do so. See 5th Cir. R. 41.2
(stating that the court will only recall an issued mandate to “prevent
injustice”); see also Calderon v. Thompson, 523 U.S. 538, 550 (1998) (stating
that the power to recall a mandate is to be used only as a “last resort,” and
should be “held in reserve against grave, unforeseen contingencies”).

Petitioners’ arguments fly in the face of well-settled law. Take
petitioners’ jurisdictional argument first. While Noel Canning was pending
before the Supreme Court, we were tasked with determining whether we
needed to consider the constitutionality of a Board member’s appointment
for jurisdictional purposes. D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 351 (5th
Cir. 2013). We held that we did not. Id. Pursuant to 29 U.S.C. § 160(e), the
Board is imbued with the power to petition any court of appeals to enforce its
order. Section 160(e) goes on to say that, “[u]pon the filing of such petition,
the court . . . shall have jurisdiction of the proceeding.” We read this
provision to mean that our “jurisdiction is derived from the Board’s filing of

13
Case: 20-61072 Document: 00516103745 Page: 14 Date Filed: 11/22/2021

No. 20-61072

a petition, not from the validity of the Board’s underlying decision.” D.R.
Horton, 737 F.3d at 351. Thus, irrespective of the constitutional validity of
the Board members’ appointments, we held that we possessed appellate
jurisdiction to review the underlying merits. Id.

The same jurisdictional principle applies here, though for slightly
different reasons. Here, the Board did not file a petition to enforce an order
under § 160(e). Rather, NYPS filed a petition for review of the Board’s final
order pursuant to § 160(f). Section 160(f), like § 160(e), provides that “the
court shall proceed in the same manner as in the case of an application by the
Board under subsection (e), and shall have the same jurisdiction . . . .” Thus,
our jurisdiction was predicated on NYPS’ petition for review, not the validity
of the Board’s underlying decision or the constitutionality of the Board
members’ appointments. See D.R. Horton, 737 F.3d at 351.

Similarly, petitioners’ argument that they could not have waived an
Appointments Clause objection is without merit. In Freytag v. C.I.R., the
Supreme Court was asked “whether the authority that Congress has granted
the Chief Judge of the United States Tax Court to appoint special trial judges
transgresses our structure of separated powers.” 501 U.S. 868, 870 (1991).
Before holding that there was no separation of powers issue, the Court first
addressed whether the petitioners waived their right to challenge the
constitutional propriety of § 7443A—the relevant grant of appointment
power—by, among other things, failing to timely object. Id. at 878.

To answer this question, the Court began by considering the
structural and political roots of the Appointments Clause. The

14
Case: 20-61072 Document: 00516103745 Page: 15 Date Filed: 11/22/2021

No. 20-61072

Appointments Clause exists, the Court went on, to ensure that one branch
does not encroach upon the power of another coordinate branch. Id. (citing
Mistretta v. United States, 488 U.S. 361, 382 (1989)). The Court then
considered the nature of an Appointments Clause challenge. Citing Glidden
Co. v. Zdanok, 370 U.S. 530, 535–36 (1962), the Court held that
Appointments Clause objections are nonjurisdictional structural
constitutional objections. Freytag, 501 U.S. at 878–79; see also D.R. Horton,
737 F.3d at 351. Based on these conclusions, the Court determined that
federal courts possess “discretion to consider nonjurisdictional claims that
[were not] raised below.” Freytag, 501 U.S. at 878 (collecting cases).

NYPS filed its petition for review on May 31, 2013. After it failed to
file an opening brief, the court entered default judgment, affirming the
Board’s 2013 merits order on November 19, 2013. NYPS never raised an
Appointments Clause challenge before the court. In fact, in its December 20,
2013 proposed brief—which NYPS filed with its subsequent motion for
reconsideration—it made no mention of the Appointments Clause. There is
no excuse for NYPS’ failure to raise a constitutional defect argument at that
time.

As of December 3, 2013, the Board’s constitutionality was widely
disputed with multiple pending lawsuits alleging an Appointments Clause
violation. See, e.g., D.R. Horton, 737 F.3d at 351 (Dec. 3, 2013); NLRB v.
RELCO Locomotives, Inc., 734 F.3d 764, 793–96 (8th Cir. Aug. 20, 2013);
NLRB v. Enter. Leasing Co. Se., LLC, 722 F.3d 609, 632 n.14 (4th Cir. Jul. 17,
2013); GGNSC Springfield LLC v. NLRB, 721 F.3d 403, 406–07 (6th Cir. Jul.

15
Case: 20-61072 Document: 00516103745 Page: 16 Date Filed: 11/22/2021

No. 20-61072

2, 2013). What is more, the Supreme Court had already granted certiorari on
the subject. See Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), cert.
granted, 570 U.S. 916 (U.S. Jun. 24, 2013). Notwithstanding multiple
pending appeals, and a recent opinion from this court on the very subject, see
D.R. Horton, 737 F.3d at 351, NYPS decided not to challenge the
constitutionality of the recess appointments.

And, if D.R. Horton and Freytag were not enough, res judicata also
counsels us against entertaining petitioners’ Noel Canning challenge.
“[U]nder the doctrine of res judicata, a judgment ‘on the merits’ in a prior
suit involving the same parties or their privies bars a second suit based on the
same cause of action.” Lawlor v. Nat’l Screen Serv. Corp., 349 U.S. 322, 326
(1955); see also Nilsen v. City of Moss Point, 701 F.2d 556, 559 (5th Cir. 1983)
(en banc) (discussing the same preclusive effect). “[A] default judgment is a
judgment ‘on the merits’ for purposes of res judicata.” Jones v. U.S. ex rel.
Farmers Home Admin., No. 94-60391, 1995 WL 29363, at *1 (5th Cir. Jan. 20,
1995) (citing Moyer v. Mathas, 458 F.2d 431, 434 (5th Cir. 1972)). Four
conditions must be established for res judicata to apply: (1) the parties in the
present action must be the identical parties, or parties in privity with one
another, from the prior action; (2) a competent court must have rendered a
judgment in the prior action; (3) the prior action must have concluded with a
final judgment on the merits; and (4) the same claim or cause of action must
now be raised in the present action. Id.

The court already affirmed the Board’s 2013 merits order; thus,
petitioners are precluded from relitigating, even indirectly, the default

16
Case: 20-61072 Document: 00516103745 Page: 17 Date Filed: 11/22/2021

No. 20-61072

judgment and thereby the validity of the underlying order. First, petitioners
are the identical parties, or privies, from the 2013 default judgment. The
Board determined, and substantial evidence confirms, that petitioners are a
single employer. Given this single employer finding, NYPS—which Schmidt
owned—necessarily proffered arguments that would benefit and defend the
non-NYPS petitioners—which Schmidt indirectly owns. The non-NYPS
petitioners cannot now claim that they are “strangers to the cause.”
Montana v. United States, 440 U.S. 147, 154 (1979) (quoting Souffront v. La
Compagnie Des Sucreries De Porto Rico, 217 U.S. 475, 487 (1910)).

Further, this court, which had appellate jurisdiction over the 2013
merits order, rendered judgment. That judgment was final and on the merits.
Finally, the same claim is being asserted on appeal: namely, the claim that the
2013 merits order is unenforceable. This time, rather than attacking the
merits, petitioners allege that because the constitutional process for
appointing the Board members was disregarded, the order must be void. But
that is just another issue that is directly subsumed within their main cause:
nullifying the order. Petitioners cannot now litigate this issue when it could
have been raised on the initial appeal. See Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981).

V.

Finally, we consider the validity of the backpay award itself. The
Board ordered petitioners to pay Pflantzer $91,912 in backpay, plus interest
compounded daily, accrued to the date of payment, and minus tax
withholding required by law. We affirm the Board’s order, save the portion

17
Case: 20-61072 Document: 00516103745 Page: 18 Date Filed: 11/22/2021

No. 20-61072

of that order awarding backpay for the period of October 2014 to 2018. As to
that part of the order, we reverse and remand.4

A.

Pursuant to 29 U.S.C. § 160(c), the NLRB is authorized to award
backpay as a remedy for unfair labor practices. In awarding backpay, the
Board should aim to “restor[e] . . . the situation, as nearly as possible, to that
which would have [been] obtained but for the illegal discrimination.” Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941); see also Charley Toppino, 358
F.2d at 97 (stating that the Board is tasked with arriving at “the closest
approximation to the likely earnings” of the employee as possible). General
counsel bears the burden of proving the gross amount of backpay due to each
claimant. NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir.
1979). The burden then shifts to the employer to put on affirmative defenses
and to mitigate liability. Id. (citing NLRB v. Miami Coca-Cola Bottling Co.,
360 F.2d 569, 575 (5th Cir. 1966)).

4
Petitioners offer multiple unsupported or inappropriate arguments on appeal.
Petitioners claim, for instance, that NYPS lawfully discharged Pflantzer for operating a
competing business. Similarly, petitioners assert that because Pflantzer was a 1099
independent contractor, he is not entitled to excess taxes. Those arguments go to the
merits of the liability phase, which the Board and this court already resolved. Petitioners
may not turn their compliance proceeding appeal into another avenue to re-litigate the
underlying 2013 merits order. See NLRB v. Laredo Packing Co., 730 F.2d 405, 407 (5th Cir.
1984) (per curiam). Further, petitioners claim that because the compliance specification
was amended multiple times, it was necessarily unreliable. Petitioners fail to cite a single
authority supporting such a claim; thus, their argument is abandoned. See Dardar v.
Lafourche Realty Co., Inc., 985 F.2d 824, 831 (5th Cir. 1993) (“Questions posed for appellate
review but inadequately briefed are considered abandoned.” (citations omitted)).

18
Case: 20-61072 Document: 00516103745 Page: 19 Date Filed: 11/22/2021

No. 20-61072

The Board is entitled to broad discretion when settling on a backpay
formula to reach its decision, such that the court should only reject the
Board’s finding if it deems the finding arbitrary. Id.; see also Laredo Packing
Co., 730 F.2d at 407 (“Indeed, when the Board orders restoration by way of
back pay, the order will not be disturbed absent a showing that the order is an
obvious attempt to further ends other than those which can be fairly said to
effectuate the policies of the Act.” (citation omitted)).

B.

We turn first to petitioners’ argument that the Board abused its
discretion by selecting the comparator method as its backpay formula.
General counsel—through a compliance officer—consulted the Board’s
Compliance Casehandling Manual (“Compliance Manual”) and selected the
comparable-employee formula, or comparator method, to calculate gross
backpay. The officer chose this formula to account for the seasonal
considerations and fluctuating hours that characterize the tour business.
While the Board recognized that the comparator method produces an
average, “not an exact science,” it nonetheless accepted the method—one
of the three basic methods the Compliance Manual endorses—as a
reasonable means of approximating what petitioners owed Pflantzer. The
Board’s adoption of the comparator method was not arbitrary, and neither
was its choice of comparator.

When choosing a comparator, the compliance officer “looked at other
tour guides at NYPS with similar hours during the same period as Pflantzer
and concluded that Edwin Jorge [] had similar hours to Pflantzer in 2014.”

19
Case: 20-61072 Document: 00516103745 Page: 20 Date Filed: 11/22/2021

No. 20-61072

The Board accepted Jorge as a comparator given that he worked similar hours
throughout most of the relevant period. Dissatisfied with the Board’s
selection, petitioners claim that Jorge is not a proper comparator as he was a
senior, “star” tour guide who always worked more hours than Pflantzer. But
petitioners did not “offer [their] own set of comparable employees nor did
they calculate the earnings for such a set of comparators.” Thus, the Board
only considered the reasonability of the approach the compliance officer
proffered. After weighing competing testimony, rejecting speculation,
reviewing the officer’s calculations, and considering the record before it, the
Board agreed that Jorge was an adequate comparator. The Board’s selection
of the comparator method, and its choice of comparator, was not arbitrary to
the extent that the Board relied on Jorge for the hours that he actually worked.
But see infra Section V.D.

C.

Petitioners’ next argument concerns Pflantzer’s mitigation of
damages. Once general counsel proves a backpay calculation, the burden
shifts to the employer to mitigate damages, including proving that the
employee failed to make a good-faith effort to mitigate losses. See Miami
Coca-Cola Bottling Co., 360 F.2d at 575. If an employer can prove that the
employee incurred a willful loss of earnings, then the employee is not entitled
to backpay. See Phelps Dodge Corp., 313 U.S. at 198. Citing this burden-
shifting framework, the Board found that petitioners “failed to satisfy [their]
ultimate burden of showing that Pflantzer failed to mitigate damages.”
Petitioners appeal that finding, but we find no merit in their argument.

20
Case: 20-61072 Document: 00516103745 Page: 21 Date Filed: 11/22/2021

No. 20-61072

As the Board’s order and the record reflect, Pflantzer worked for
multiple tour companies throughout the backpay period. He worked for Go
NY Tours and his own company, New York See Tours, in 2014.5 He was
then briefly reinstated at NYPS. From 2015 to 2017, Pflantzer worked for
USA Guided Tours, High Quality, Uncle Sam’s, Open Loop/RSDL,
Maxim, Wall Street Experience, One on One Tours, and his own company.
The Board rejected petitioners’ claim that Pflantzer’s self-employment was
inadequate, finding that general counsel properly adjusted the models to
account for self-employment earnings. Based on these findings, the Board
did not err in rejecting petitioners’ mitigation argument.

D.

Next, petitioners argue that the Board abused its discretion when it
awarded Pflantzer backpay for the period of October 2014 through 2018.
Because we agree with petitioners that the Board engaged in impermissible
speculation when calculating backpay for this period, we reverse and remand
on this issue.

The facts here are straightforward. Faced with no tour guide hour
data after October 20, 2014, general counsel calculated Jorge’s hours from
October 2013 to September 2014 and then pasted those hours into the period

5
Go NY Tours fired Pflantzer in January 2015 for union activity. Pflantzer waived
reinstatement as part of his settlement. Petitioners take issue with Pflantzer’s waiver, but,
as the Board noted, Go NY Tours ceased operations shortly thereafter. So, even if
Pflantzer had been reinstated, he would have been terminated again almost immediately
after his reinstatement.

21
Case: 20-61072 Document: 00516103745 Page: 22 Date Filed: 11/22/2021

No. 20-61072

of October 2014 through 2018. The Board then entered its backpay award
predicated on this calculation.

While the Board is entitled to some discretion in calculating backpay,
it is not permitted to arbitrarily calculate backpay. Charley Toppino, 358 F.2d
at 97. But that is exactly what it did here. Consider the compliance officer’s
testimony in this case. The compliance officer was explicitly asked why it
was important to have comparator data that spanned the entirety of the
backpay period. Citing the Board’s Compliance Manual, she stated:

I reviewed the compliance manual first, regarding the specific
calculation method and it said specifically that it’s important
for the comparator employee to have data spanning the entire
backpay period and the reason is that you don’t want to project.
If your comparator stops working for some reason, part way
through the backpay period, then you’re guessing as to what that
comparator would have earned for the rest of the backpay period.
ROA.148 (emphasis added). By extrapolating a one-year period across a
four-year span, the Board openly disregarded its own Compliance Manual
and engaged in impermissible speculation. The arbitrariness of the Board’s
calculation is all the more apparent when the reasoning supporting the
selection of the comparator method is considered: seasonality and fluctuating
hours. The Board intentionally selected a formula that was meant to account
for an industry rife with inconsistent hours; yet, the same Board used that
formula to project across a four-year period.

The Board’s decision is also an “obvious attempt to further ends
other than those which can be fairly said to effectuate the policies of the Act.”

22
Case: 20-61072 Document: 00516103745 Page: 23 Date Filed: 11/22/2021

No. 20-61072

Laredo Packing Co., 730 F.2d at 407 (citation omitted). To defend its
calculation, the Board, through the ALJ, reasoned:

Second, while it seems unfair to Respondent NYPS that [the
compliance officer] used Jorge’s work hours for the last
complete year (October 2013-2014) and applied those earnings
through 2018 when NYPS was closing its operations by 2014,
it is reminded that it was Respondent NYPS that violated the
Act when it twice discharged Pflantzer and it is grossly more
unfair that Pflantzer has not been remedied for the unlawful
discharges.
ROA.4325. Congress authorized the NRLB to award backpay to restore the
discriminatee’s situation to “that which would have [been] obtained but for
the illegal discrimination.” Phelps Dodge, 313 U.S. at 194. Rather than aiming
to make Pflantzer whole, however, the Board relied on the retributive effect
of its “unfair” award as a defense. Such a rationale does not effectuate the
purposes of the Act.

E.

Lastly, we turn to petitioners’ evidentiary arguments. Petitioners
claim that the ALJ erred in his credibility determinations, his refusal to allow
petitioners to recall the compliance officer to testify, and his backpay, tax, tip,
and moonlighting calculations. The ALJ weighed Pflantzer’s testimony and
explicitly addressed his faulty memory and the inaccuracies in his tax returns.
After weighing these discrepancies against his demeanor, the fact that he was
under oath and could be prosecuted for perjury, and the fact that there was a

23
Case: 20-61072 Document: 00516103745 Page: 24 Date Filed: 11/22/2021

No. 20-61072

“significant lapse in time [due to] the Respondent’s refusal to comply with
Board orders,” the ALJ found Pflantzer to be a credible witness.

Moreover, the Board did not rely solely on Pflantzer’s tax returns in
calculating the backpay award as petitioners argue. Rather, the Board
considered findings from investigative interviews along with Pflantzer’s
testimony, 1099 forms, and tax returns. The Board made the same reasoned
finding when it came to the inclusion of an average tip amount for the backpay
calculation—a calculation based on testimony from Pflantzer that the ALJ
found to be credible. And it made the same reasoned findings when
calculating Pflantzer’s moonlighting earnings. The Board weighed
Pflantzer’s testimony, reviewed the tax records it possessed, accounted for
time he did not work, and then approximated his moonlighting earnings to
account for fluctuations and, at times, a lack of self-reporting.

Further, the ALJ did not abuse his discretion when he did not permit
petitioners to recall the compliance officer on these subjects. See Miami
Coca-Cola Bottling Co., 360 F.2d at 577. Petitioners were permitted to fully
cross examine the officer on each issue, and they did exactly that.

* * *
IT IS ORDERED that the Board’s backpay award for the period of
October 2014 to 2018 is REVERSED and the case is REMANDED for
recalculation of the backpay damages in keeping with this opinion.

IT IS FURTHER ORDERED that the remainder of Board’s
backpay award is AFFIRMED.

24

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5128546. Public record. Not legal advice.