United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 23, 2002 Decided July 23, 2002
No. 01-1259
Cobb Mechanical Contractors, Inc.,
Petitioner
v.
National Labor Relations Board,
Respondent
United Association of Plumbers and Pipefitters,
Local Union No. 196, AFL-CIO,
Intervenor
On Petition for Review and Cross-Application
for Enforcement of an Order of the
National Labor Relations Board
Walter V. Siebert argued the cause for the petitioner.
David A. Fleischer, Attorney, National Labor Relations
Board, argued the cause for the respondent. Arthur F.
Rosenfeld, General Counsel, John H. Ferguson, Associate
General Counsel, Aileen A. Armstrong, Deputy Associate
General Counsel, and Fred L. Cornnell Jr., Attorney, Nation-
al Labor Relations Board were on brief.
Brian A. Powers argued the cause for the intervenor.
Keith R. Bolek was on brief.
Before: Ginsburg, Chief Judge, and Sentelle and
Henderson, Circuit Judges.
Opinion for the court filed by Circuit Judge Henderson.
Karen LeCraft Henderson, Circuit Judge: Cobb Mechani-
cal Contractors, Inc. (Cobb) petitions for review and the
National Labor Relations Board (NLRB or Board) cross-
petitions for enforcement of the Board's imposition of instate-
ment1 and backpay awards resulting from Cobb's unlawful
refusal to hire nineteen job applicants in violation of sections
8(a)(1) and (3) of the National Labor Relations Act (Act), 29
U.S.C. ss 151 et seq. In particular, Cobb argues that the
remedies are not warranted under the Act absent a determi-
nation that Cobb refused to hire, rather than merely failed to
consider for hire, nineteen applicants who were members of
Local Union No. 196 of the United Association of Plumbers
and Pipefitters, AFL-CIO (Union). Because the United
States Court of Appeals for the Fifth Circuit affirmed the
liability determination, this appeal deals solely with issues
arising from the compliance proceeding, namely how much
backpay Cobb is required to pay and what other relief, if any,
is appropriate. In limiting our inquiry to the compliance
proceeding, like the Board, we reject Cobb's invitation to
reconsider whether Cobb would have hired the Union appli-
__________
1 As used by the Board, "instatement" refers to the employer's
obligation to offer union applicants the "positions to which they
applied or, if those positions no longer exist, to substantially equiva-
lent positions." See FES (a Division of Thermo Power) & Plumb-
ers & Pipefitters Local 520, 331 NLRB No. 20, 2000 WL 627640, at
*6 (2000).
cants in the first instance absent union animus because that
issue was decided at the liability stage. We nonetheless
remand to the Board for it to recalculate the amount of
backpay owed based on our conclusion that Cobb may have
had a non-discriminatory policy of not hiring plumbers for
plumber helper positions and that the end date for the
backpay periods should take into account each Union appli-
cant's likelihood of transferring to another Cobb project. In
all other respects, we deny Cobb's petition for review.
I.
Cobb, a Colorado corporation, is a mechanical contractor
engaged in the business of plumbing, pipefitting and sheetme-
tal construction. See April 26, 1995 Decision of Administra-
tive Law Judge Frederick Herzog at 2 (Cobb Mech. Contrac-
tors, Inc., Case No. 16-CA-1643) (Herzog Decision). In
September 1993 Cobb entered into a thirteen-month contract
to perform all mechanical contracting work at two federal
prison construction sites, one in Amarillo and one in Dalhart,
Texas. The Union represents plumbers, pipefitters and
plumber helpers in the Amarillo and Dalhart areas. Id.
Cobb initially arranged with the Texas Employment Commis-
sion (TEC) to handle, on Cobb's behalf, all of the project's
employment applications for welder, sheet metal worker,
pipefitter, plumber and laborer positions. TEC accepted
applications for Cobb from November 10 through November
21, 1993, when Cobb's project superintendent David Sandlin
terminated the agreement. Id. Sandlin then informed TEC
that Cobb no longer required TEC's services because it had
hired everyone needed for the project. Id. Even though
several Union members applied for the various positions
available and all had "commercial experience relevant to the
Amarillo/Dalhart jobs," none was hired. Id. at 3.
On May 31, 1994 the NLRB Regional Director for Region
16 issued a complaint against Cobb based on a charge filed by
the Union. Id. at 1. Specifically, the complaint alleged that
Cobb violated section 8(a)(1) and (3) of the Act by refusing to
employ or consider for employment twenty-four applicants
because of their Union membership. After a hearing, Admin-
istrative Law Judge (ALJ) Herzog issued a decision on April
26, 1995. He found, inter alia, that Cobb "refused to hire
Union applicants in violation of sections 8(a)(1) and (3) of the
Act." Herzog Decision at 11. The ALJ ordered Cobb to
cease and desist from "refusing to consider for employment
and/or refusing to employ" twenty-two of the applicants. Id.
at 21. In addition, he required Cobb to offer them "employ-
ment in positions for which they applied or, if such positions
no longer exist, to substantially equivalent positions, and to
make them whole for any loss of earnings and other benefits
that they may have suffered as a result of the discrimination
against them." Id. at 21. Cobb failed to timely except to the
ALJ's decision. On June 23, 1995 the Board adopted by
order the ALJ's decision and ordered Cobb to comply there-
with. See June 23, 1995 Order at 1. On June 6, 1996 the
United States Court of Appeals for the Fifth Circuit enforced
the Board's order, concluding that the Board did not abuse its
discretion in rejecting Cobb's exceptions as untimely. See
NLRB v. Cobb Mech. Contractors, Inc., 91 F.3d 139 (5th Cir.
1996) (unpublished opinion).
The General Counsel and Cobb could not agree on the
amount of backpay and benefits due under the Board's June
23, 1995 order. On June 20, 1997 the Regional Director
issued a compliance specification and notice of hearing laying
out a formula to determine the amount of backpay each
discriminatee was entitled to receive. See June 20, 1997
Compliance Specification and Notice of Hearing at 1-5. Be-
cause, according to Cobb, the Board failed to find that Cobb
unlawfully refused to hire any Union applicant, Cobb contend-
ed that the backpay remedy was punitive and thus barred by
the Act. See Cobb's July 23, 1997 Answer to Compliance
Specification and Notice of Hearing at 1. Following a compli-
ance proceeding, ALJ Keltner Locke issued a supplemental
decision finding, inter alia, that nineteen discriminatees were
entitled to backpay totaling $672,890 plus interest and that
Cobb had a continuing obligation to offer employment to
eighteen of them. See May 13, 1998 Supplemental Decision,
1998 WL 1984978 (NLRB Div. of Judges, 1998), reprinted in
In re Cobb Mech. Contractors, Inc., 333 NLRB No. 142, 2001
WL 473984, at *3 (Locke Decision). Cobb filed exceptions to
the supplemental decision. Upon review, the NLRB adopted
ALJ Locke's findings and conclusions and required Cobb to
make the discriminatees "whole" by paying them the amounts
specified, plus interest. See In re Cobb Mech. Contractors,
Inc., 333 NLRB No. 142, 2001 WL 473984, at *2 (2001).
Cobb filed a timely petition for review and the Board cross-
applied for enforcement.
II.
We must uphold the Board's factual findings if supported
by substantial evidence in the record. See Williams Enters.,
Inc. v. NLRB, 956 F.2d 1226, 1232 (D.C. Cir. 1992). Further-
more, the ALJ's credibility determinations, as adopted by the
Board, will be upheld unless patently insupportable. See id.
If the Board finds an unfair labor practice, its choice of
remedies is given "special respect." Id. We examine the
remedy selected, however, to "assure that the Board has
considered the factors which are relevant to its choice of
remedy, selected a course which is remedial rather than
punitive, and chosen a remedy which can fairly be said to
effectuate the purposes of the Act." Id. (quotations omitted).
A. Refusal to Hire/Refusal to Consider
Section 8(a)(3) of the Act makes it an unfair labor practice
for an employer "by discrimination in regard to hire or tenure
of employment or any term or condition of employment to
encourage or discourage membership in any labor organiza-
tion." 29 U.S.C. s 158(a)(3). Section 8(a)(1) makes it an
unfair labor practice "to interfere with, restrain, or coerce in
the exercise of rights guaranteed" in the Act. 29 U.S.C.
s 158(a)(1). An employer violates section 8(a)(3), and there-
by section 8(a)(1), if it refuses to hire or consider for hire an
applicant because of his union membership or activity. See
Southwest Merch. Corp. v. NLRB, 53 F.3d 1334, 1339 (D.C.
Cir. 1995). In determining whether an employer has commit-
ted a violation, the Board uses the Wright Line test. See
Wright Line, 251 NLRB 1083, 1980 WL 12312, enf'd, 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
Under Wright Line, the General Counsel must make a prima
facie showing sufficient to support an inference that the
applicant's protected conduct was a "motivating factor" in the
employer's decision. The burden then shifts to the employer
to demonstrate it would have made the same decision irre-
spective of the applicant's protected union activities. See
Southwest Merch. Corp., 53 F.3d at 1339; Wright Line, 251
NLRB at 1089.
As noted above, the Board is accorded broad discretion in
fashioning an appropriate remedy. Nonetheless, a proposed
remedy must "be tailored to the unfair labor practice it is
intended to redress." Sure-Tan, Inc. v. NLRB, 467 U.S. 883,
900 (1984). With regard to a backpay award in particular, "it
remains a cardinal, albeit frequently unarticulated assump-
tion, that a backpay remedy must be sufficiently tailored to
expunge only the actual, and not merely speculative, conse-
quences of the unfair labor practices." Id. at 900-01 (citing
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941)
("[O]nly actual losses should be made good....")); see also
Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999,
1009 (D.C. Cir. 1998) (Board's remedy must be "truly remedi-
al and not punitive"). Consistent with these admonitions, the
Board has held that instatement and backpay awards, like
those at issue here, are appropriate remedies only if an
employer actually refuses to hire a union applicant. See FES
(a Division of Thermo Power) & Plumbers & Pipefitters
Local 520, 331 NLRB No. 20, 2000 WL 627640, at *7 (2000).
In contrast, "the appropriate remedy for [a refusal to consid-
er] violation is a cease-and-desist order; an order to place the
discriminatees in the position they would have been in, absent
discrimination, for consideration for future openings and to
consider them for the openings in accord with nondiscrimina-
tory criteria." Id. at *10. The distinction makes sense
because the NRLB's remedial aim is to "restore the economic
status quo that would have obtained but for the company's
wrongful action." Geiger Ready-Mix Co. v. NLRB, 87 F.3d
1363, 1371 (D.C. Cir. 1995) (quotations omitted and emphasis
added). If an employer merely refuses to consider a union
applicant, an award of backpay and instatement without proof
that the applicant would have been hired absent union animus
does not "effectuate the purposes of the Act." Williams
Enters., supra.2 The thrust of Cobb's argument is that the
Board erred in fashioning an instatement and backpay reme-
dy because, contrary to ALJ Locke's interpretation, ALJ
Herzog did not determine that Cobb refused to hire the
discriminatees but instead that Cobb refused to consider
them for hire. See Cobb Br. 14-26.
The critical issue is whether ALJ Locke's supplemental
decision, affirmed by the Board, correctly concluded that ALJ
Herzog had determined that Cobb refused to hire, rather
than refused to consider for hire, the Union applicants.
While acknowledging that "certain statements in ALJ Her-
zog's decision would appear to support [Cobb's] position,"
Locke nonetheless concluded that Herzog's decision plainly
"embodie[d] a finding that [Cobb] unlawfully refused to hire."
Locke Decision, 2001 WL 473984, at *4-5. We agree with
ALJ Locke's assessment. In the "Findings and Conclusions"
section of the Herzog decision, under the first subheading
entitled "Unlawful Refusal to Hire Allegations," ALJ Herzog
stated:
The General Counsel contends, and I find, that [Cobb]
refused to hire Union applicants in violation of section
8(a)(1) and (3) of the Act. [Cobb's] refusal to hire took
place both directly and indirectly as [Cobb] utilized [the
Texas Employment Commission] as an effective "grave-
yard" for Union applicants and refused to hire or consid-
er the Union applicants who directly applied or inter-
viewed with [Cobb].
__________
2 Cobb reads the Board's declaration that "[i]t is axiomatic ...
that the finding of an unfair labor practice is presumptive proof that
some back pay is owed" to be erroneous as a matter of law because
not all unfair labor practice findings warrant backpay. Cobb Br. at
16-17. But the Board's statement, when read in conjunction with
its adoption of ALJ Locke's conclusion that ALJ Herzog had, in
fact, determined that Cobb refused to hire the union applicants, is a
correct statement of the law.
Herzog Decision at 11 (emphasis added).3 While Herzog's
decision is at times imprecise, he referred more than once to
Cobb's "refusal to hire" the Union applicants. See, e.g.,
Herzog Decision at 11-13. Moreover, his individual treat-
ment of each Union applicant, rather than a general review of
the applicants as a group, further indicates that he considered
each applicant's circumstances in finding a refusal to hire.
See id. at 15-17. In addition, Herzog ordered instatement
and backpay awards, remedies that follow from a refusal to
hire finding. Id. at 21.4
Even if ALJ Herzog did not explicitly determine that all of
the Union applicants would have been hired, Cobb was re-
quired to file a timely exception to the remedy imposed. In
__________
3 The "refused to hire or consider" language used here suggests
Herzog found both types of violations, not only an unlawful refusal
to consider.
4 Cobb responds by citing Board authority and circuit precedent
which, it claims, support its right to raise the suitability for hire
issue in the compliance proceeding. See Cobb Br. at 19-20 (citing
Southwest Merch. Corp. v. NLRB, 53 F.3d 1334 (D.C. Cir. 1995),
and Great Lakes Chem. Corp. v. NLRB, 967 F.2d 624 (D.C. Cir.
1992)). At the outset, we agree with Cobb that if ALJ Locke or the
Board had thought that the issue was unresolved, it could have
been considered at the compliance proceeding. The cited cases
indicate that ALJs have sometimes reserved the question whether
an employer would have hired particular discriminatees for the
compliance proceeding. This does not mean, however, that an
employer is entitled to raise a discriminatee's suitability for hire
whether or not the ALJ reserved the issue at the liability stage.
Moreover, the procedural posture of both Southwest Merch. and
Great Lakes Chem. materially differs. Having concluded that the
Southwest Merch. and Great Lakes Chem. employers had not had
the opportunity to challenge whether particular employees would
have been hired, we further concluded, based on Board policy, that
the employers would have the opportunity in subsequent compliance
proceedings. See Southwest Merch., 53 F.3d at 1345; Great Lakes
Chem., 967 F.2d at 629-30. In Southwest Merch. and Great Lakes
Chem., the Board had issued reinstatement orders to broad classes
of employees without considering the suitability of individual em-
ployees, reserving that issue for the compliance proceeding.
failing to do so, Cobb waived its right to raise the suitability
for hire issue. See Board's Rules and Regulations, 29 C.F.R.
s 102.48(a) ("[I]f no exceptions are filed ..., the findings,
conclusions, and recommend[ed] order shall ... be adopted
by the Board and all objections to them shall be deemed
waived for all purposes."); see also 29 C.F.R. 102.46(g) ("No
matter not included in exceptions or cross-exceptions may
thereafter be urged before the Board, or in any further
proceeding."). The fact that ALJ Herzog reserved for the
compliance proceeding only the amount of backpay question
also put Cobb on notice that the suitability issue had been
decided, requiring Cobb to except thereto or risk waiver. See
Herzog Decision at 20-21.
Cobb additionally claims that the Board itself should have
reanalyzed the case, or remanded to the ALJ to so analyze, in
light of the FES decision, which clarified the elements of
refusal to hire and refusal to consider cases. See FES,
supra. In essence, Cobb seeks yet another route by which to
reintroduce the question whether it would have hired the
Union applicants. Again, however, Cobb failed to properly
raise the issue before the Board; accordingly, it is precluded
from raising it here. Section 10(e) of the Act provides, in
pertinent part, that "no objection that has not been urged
before the Board ... shall be considered by the court, unless
the failure or neglect to urge such objection shall be excused
because of extraordinary circumstances." 29 U.S.C. s 160(e).
There are no extraordinary circumstances here. Even
though FES postdated ALJ Locke's decision by two years,
the Board issued its decision in this case one year after FES.
Moreover, section 102.48(d)(1) and (2) of the Board's Rules
and Regulations, 29 C.F.R. 102.48(d)(1) and (2), provides that
any material error included in a Board decision can be
contested by a motion for "reconsideration, rehearing, or
reopening of the record." Even if Cobb could not have made
a FES argument before issuance of the Board decision, its
failure to move to reconsider (or reopen the record) bars it
from raising the issue on appeal. See Int'l Ladies' Garment
Workers v. Quality Mfg. Co., 420 U.S. 276, 281 n.3 (1975);
Epilepsy Found. v. NLRB, 268 F.3d 1095, 1102 (D.C. Cir.
2001) (failure to move to reconsider issue precludes judicial
review of issue); Glaziers Local 558 v. NLRB, 408 F.3d 197,
203 (D.C. Cir. 1969) (alleged misstatement of fact not brought
to Board's attention by motion for reconsideration waived on
appeal).
B. Amount of Backpay Award
Cobb makes a variety of arguments challenging the amount
of the backpay award. First, Cobb contends that the start
date used to calculate backpay relies on the first day any
employee was hired for the prison construction project rather
than the first day a "newly-hired" employee was hired. See
Cobb Br. at 33-34. It contends this was error because it had
a policy of preferring current employees to new applicants
and thus the Union applicants' start day for backpay pur-
poses should be the date the new-hires began. Cobb's posi-
tion, however, relies on hiring policies that ALJ Herzog
conclusively determined "systematically exclude Union mem-
bers from consideration for employment," Herzog Decision at
17.
Cobb also argues that the Board's calculation of backpay
for pipefitter Union applicants is flawed because it should
have used the date(s) on which Cobb hired pipefitters as the
benchmark rather than the date(s) on which it hired plumb-
ers. While it appears Cobb is correct that pipefitters may, at
times, perform different services from plumbers, we agree
with ALJ Locke's determination that Cobb did not meet its
burden of demonstrating that pipefitter applicants would not
have been hired as plumbers. Locke Decision, 2001 WL
473984, at *4-5. That employees in these positions per-
formed roughly the same work at the Amarillo and Dalhart
sites, that the apprenticeship programs for both positions are
the same and that several requirements listed in Cobb's job
descriptions for the positions are the same, see Cobb Position
Description for "Plumber" and "Pipefitter," all suggest that
the Board reasonably concluded that the backpay periods for
the pipefitter discriminatees should begin when Cobb hired
non-Union applicants as plumbers.
On the other hand, Cobb's argument that the plumber
discriminatees would not have been hired on the dates that
plumber helpers were hired because Cobb had a policy of not
hiring plumbers to be plumber helpers has merit. In reject-
ing the argument, the Board relied on testimony that plumb-
er applicants would have taken plumber helper jobs had those
positions been offered to them, see In re Cobb Mechanical
Contractors, Inc., 333 NLRB No. 142, 2001 WL 473984, at
*1. But Cobb contends that the plumber applicants would
not have been offered the plumber helper jobs on those dates
based on company policy. Several Cobb officials testified
that the policy was long-standing and was intended to prevent
overqualified plumbers from leaving plumber helper positions
as soon as they were offered a higher paying plumber posi-
tion elsewhere. See, e.g., Testimony of Paula McKinney, Tr.
101 p 12-23; Testimony of Jerry Bitner, Tr. 141-42. ALJ
Locke concluded that Cobb's policy seemed "disingenuous"
because, in light of Cobb's anti-union animus, it would wel-
come the turnover of Union employees. Locke Decision, 2001
WL 473984, at *9. In computing the backpay amount, how-
ever, Locke had to determine when the Union applicants
would have been hired had Cobb had no anti-union animus.
We remand this issue to the Board to reconsider Cobb's
argument.
The final question involves the correct end date of the
backpay periods. In Dean General Contractors, 285 NLRB
573, 1987 WL 89852 (1987), the Board employed a rebuttable
presumption that an unlawfully discharged employee in the
construction industry would have been transferred to a new
project upon the termination of the project for which he had
been employed initially. We too have recognized that the
employer has the burden to rebut the presumption that an
employee will be transferred to another project. See Tuala-
tin Electric, Inc. v. NLRB, 253 F.3d 714, 718 (D.C. Cir. 2001)
(Board properly applied Dean presumption to discharged
employees' backpay award calculations). In Tualatin, we
also iterated the principle that "the party who has acted
unlawfully should bear the burden of producing evidence for
the purpose of limiting its damages." Id. ALJ Locke ap-
plied the Dean presumption and determined that Cobb had
"not met its burden of proving that the discriminatees would
not have been transferred to its other jobs." See Locke
Decision, 2001 WL 473984, at *13. Locke considered wheth-
er Cobb's policy of favoring transferees over "new hires"
rebutted the presumption and reasonably concluded that the
policy "would support the opposite conclusion." Id. Cobb,
however, faults Locke for failing to consider evidence that
only two newly-hired journeymen plumbers and pipefitters at
the Amarillo and Dalhart sites transferred to other projects.
Absent discrimination, the Union applicants would have been
similarly situated to the newly-hired journeymen plumber and
pipefitters because both groups would have been first time
Cobb employees. In its brief the Board contends that Cobb
is comparing the discriminatees to the wrong group of Cobb
employees and that reliance upon generalized factors such as
high turnover is impermissible. See Board Br. at 41-44.
ALJ Locke, however, failed completely to address Cobb's
evidence. We therefore conclude that Cobb's evidence that
only two newly-hired employees on the Amarillo and Dalhart
projects transferred to another Cobb project merits remand
for the Board to reconsider which, if any, of the Union
applicants would have transferred to a new Cobb project.
For the foregoing reasons, we deny Cobb's petition and
grant the Board's cross-application for enforcement excepting
the two issues we remand to the Board for reconsideration
consistent with this opinion.
So ordered.