National Labor Relations Board v. Velocity Express, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 17, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

NATIONAL LABOR RELATIONS
BOARD,

Petitioner, No. 04-9602

v.

VELOCITY EXPRESS, INC.,

Respondent.

ON APPLICATION FOR ENFORCEMENT OF AN ORDER
OF THE NATIONAL LABOR RELATIONS BOARD
(NLRB No. 17-CA-20076-1)
(342 NLRB No. 87)

Christopher W. Young, Attorney, (Arthur F. Rosenfeld, General Counsel, John E.
Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General
Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Meredith
L. Jason, Supervisory Attorney, with him on the brief), National Labor Relations
Board, Washington, D.C., for Petitioner.

Josef S. Glynias (and Terry L. Potter, on the briefs), Blackwell, Sanders, Peper,
and Martin, L.L.P.), St. Louis, Missouri, for Respondent.

Before KELLY, MURPHY, Circuit Judges and ARMIJO, * District Judge.

*
The Honorable M. Christina Armijo, District Judge, United States District
Court of New Mexico, sitting by designation.
KELLY, Circuit Judge.

This matter is before us on the Petitioner National Labor Relations Board’s

(“NLRB”) application for enforcement of its order against Respondent Velocity

Express Inc., f/k/a Corporate Express Delivery Systems (“Velocity”). Velocity

contests the calculation of backpay for wrongfully terminated employees. We

exercise jurisdiction pursuant to 29 U.S.C. § 160 (e), and enforce the order.

Background

Velocity is a company that provides same-day delivery and related services.

Edwin and Hildegard Kirk were both Velocity drivers. They owned the vehicles

they used for their delivery routes. They were paid flat salaries. From those

salaries, Velocity deducted amounts for vehicle insurance and pager service. The

Kirks were responsible for payment of any vehicle operating expenses they might

incur. Velocity discharged the Kirks in 1999 and each obtained interim

employment. Edwin Kirk was self-employed and subsequently obtained a job that

paid an hourly wage. Hildegard Kirk was employed during the interim period and

received an hourly wage. The NLRB determined that Velocity wrongfully

discharged the Kirks in retaliation for their union activities and ordered their

reinstatement. Corporate Express Delivery Systems, 332 NLRB 1522, 1532-33

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(2000). The NLRB also ordered Velocity to make the Kirks “whole” for any loss

of earnings. Id.

In 2002, the D.C. Circuit enforced the NLRB’s order and denied Velocity’s

petition for review. Corporate Express Delivery Sys. v. NLRB, 292 F.3d 777

(D.C. Cir. 2002). In doing so, the court held that the Kirks were employees,

rather than independent contractors. A supplemental compliance proceeding was

initiated to determine the amount of backpay that Velocity owed the Kirks. The

NLRB’s regional director issued a compliance specification. In it, the regional

director calculated each Kirk’s gross backpay, with deductions for vehicle

insurance and pager services, estimated vehicle operating expenses, severance

pay, and interim earnings. The specification calculated Edwin Kirk’s interim

earnings by subtracting his business expenses from gross receipts. It based

Hildegard’s gross backpay on her average base pay for 1999.

All parties objected to the specification. Specifically, the Union, the

charging party before the NLRB, argued that the specification should not have

reduced gross backpay by the operating expenses the Kirks presumably would

have incurred, had they continued to be employed at Velocity. Velocity contested

(1) the backpay formula’s determination of operating expenses, (2) the calculation

of Edwin’s interim earnings, and (3) the use of average pay rate to determine

Hildegard’s backpay. A hearing was held on July 22, 2003 before an

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Administrative Law Judge (“ALJ”). The ALJ issued a supplemental decision and

recommended order, dated September 30, 2003. The ALJ determined that the

Kirks’ gross backpay should be calculated without deduction for vehicle operating

expenses but found that the compliance specification was otherwise appropriate.

Velocity filed exceptions to the ALJ’s recommended order, which the NLRB

considered and overruled. In a split decision, the NLRB adopted the ALJ’s

recommended order on August 31, 2004. It directed Velocity to pay Edwin

$136,818.13 and Hildegard $12,000.27 plus interest, less appropriate tax

withholdings.

Velocity contends that enforcement of the NLRB’s order should be denied

because (1) the NLRB’s backpay formula was arbitrary and unreasonable and

does not approximate what the Kirks would have earned absent discharge, (2) the

most accurate backpay calculation is based upon the Kirks’ tax returns, (3) the

ALJ’s rulings at the hearing regarding the appropriate backpay formula and

subsequent reversal of those rulings denied Velocity the opportunity to present

evidence, and (4) the rate of pay the ALJ used to calculate Hildegard’s gross

backpay is without support in the evidence.

Discussion

Our standard of review over a NLRB order is well-settled: “We will grant

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enforcement of an NLRB order when the agency has correctly applied the law and

its findings are supported by substantial evidence in the record as a whole.”

NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1027 (10th Cir. 2003) (quoting

Miera v. NLRB, 982 F.2d 441, 444 (10th Cir. 1992)); see also 29 U.S.C. § 160(e);

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-90 (1951). Our scope of

review is a limited one and an NLRB decision will not be overturned just because

an appellate panel may have decided the matter differently. Interstate Builders,

351 F.3d at 1028; Ready Mixed Concrete Co. v. NLRB, 81 F.3d 1546, 1551 (10th

Cir. 1996 (review is “quite narrow”). We do not re-weigh the evidence or second

guess the NLRB’s factual inferences. Interior Alterations, Inc. v. NLRB, 738

F.2d 373, 376 (10th Cir. 1984); see also Universal Camera, 340 U.S. at 488.

Rather, we review only to ensure the NLRB acted within reasonable bounds and

substantial evidence supports the order. Interstate Builders, 351 F.3d at 1028

(quoting Ready Mixed Concrete Co., 81 F.3d at 1551). “Substantial evidence is

defined as such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.” Id. at 1027-28; see also Dickinson v. Zurko, 527 U.S.

150, 162 (1999); Allentown Mack Sales and Servs., Inc. v. NLRB, 522 U.S. 359,

366-67 (1998).

We must give “special respect” to the NLRB’s choice when we review a

remedy imposed for violation of the National Labor Relations Act (NLRA).

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Monfort v. NLRB, 965 F.2d 1538, 1546 (10th Cir. 1992) (citing NLRB v. Gissel

Packing Co., 395 U.S. 575, 612 n.32 (1969)). The NLRB’s power to order

backpay is “a broad, discretionary one, subject to limited judicial review.”

Fibreboard Corp. v. NLRB, 379 U.S. 203, 216 (1964); Monfort, 965 F.2d at 1546;

Angle v. NLRB, 683 F.2d 1296, 1301 (10th Cir. 1982). It is a “power for the

[NLRB], not this court, to wield.” Angle, 683 F.2d at 1301 (citing NLRB v.

Seven-Up Bottling Co., 344 U.S. 344, 346 (1953)). This deference, however,

ends when the order “is a patent attempt to achieve ends other than those which

can fairly be said to effectuate the policies of the [NLRA].” Monfort, 965 F.2d at

1546 (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).

It is against this deferential backdrop that we turn to Velocity’s arguments

against enforcement. We hold that the NLRB’s decision not to deduct presumed

operating expenses from gross backpay was reasonable. A backpay award is

“only an approximation” and the NLRB “has considerable discretion in selecting a

method reasonably designed to approximate the amount of pay a wrongfully

discharged employee” is entitled to. Angle, 683 F.2d at 1302. Our sister circuits

have appropriately described this wide discretion, overturning a backpay order

only when the award is “arbitrary or unreasonable.” See NLRB v. International

Ass’n of Bridge, Structural & Reinforced Iron Wkrs., Local 378, 532 F.2d 1241,

1242-43 (9th Cir. 1976); Woodline Motor Freight, Inc. v. NLRB, 972 F.2d 222,

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225 (8th Cir. 1992).

The NLRB applied its standard formula in calculating the Kirks’ backpay–

it took the amount of gross pay each would have earned absent wrongful

discharge, then subtracted interim earnings and regular withholdings. As noted

above, Edwin was paid a flat salary and vehicle operating expenses were not

regularly withheld. Nevertheless, Velocity argues that the NLRB also should

have deducted vehicle operating expenses the Kirks would have incurred, had

they been employed by Velocity. Rejecting this argument, the NLRB relied on

settled law that it does not “deduct from the gross backpay those expenses that

employees would have incurred had they not been unlawfully discharged.”

Supplemental D&O at 2 (citing Laborers Local 38 (Hancock-Northwest), 268

NLRB 167 (1983), enf’d. in relevant part, 748 F.2d 1001 (5th Cir. 1984)

(declining to deduct expenses for transportation, lodging and meals that the

discriminatees would have incurred had they been employed during the backpay

period); Myerstown Hosiery Mills, 99 NLRB 630, 631 (1952)).

Like the dissent in the supplemental decision and order, Velocity argues

that the vehicle operating expenses in this case are direct expenses associated

with the work performed (driving the trucks) and should be treated like the

insurance and pager service deductions. See Supplemental D&O at 4 (Battista,

Chairman, dissenting). It distinguishes prior cases not allowing a deduction as

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involving an employee’s personal and domestic expenses (room, board,

transportation, or child care), not work-related expenses. The NLRB rejected this

distinction as unsupported by its precedent, and found the application of such a

principle, at least as to a reduction in gross backpay based upon interim expenses

being less than estimated actual expenses, as unsupported by the evidence.

Supplemental D&O at 2-3. The dissent would have compared the expenses in

relation to gross pay reported on Edwin’s 1998 tax return and reduced gross

backpay for all years by that percentage. Id. at 4 (Battista, J., dissenting). The

majority noted that it need not decide whether such reduction could be based upon

estimated expenses or whether tax returns (often containing a standard mileage

rate) are conclusive as Velocity contends. Id. at 3, n.8; Resp. Br. 14-20. The

majority correctly noted that Velocity had the burden of proof on mitigation of its

backpay obligation. Supplemental D&O at 3; see Hansen Bros. Enterprises, 313

NLRB 599, 600 (1993) (respondent has burden of proving all facts to mitigate his

backpay liability); Ryder System, 302 NLRB 608 (1991) (same).

The NLRB’s majority decision was reasonable given the aim of liquidating

the amounts that the employees would have realized from the employer had they

not been discharged wrongfully. Despite the ALJ’s observations that the Kirks

were “very much like self-employed individuals,” Tr. 34-35, the D.C. Circuit

(affirming the NLRB) has already determined their status as employees, not

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independent contractors. Corporate Express, 292 F.3d at 780-81. Expenses

incurred permitting an employee to work (transportation and child care) seem just

as essential as an employee’s vehicle operating expenses. We think the NLRB

could permissibly decline to differentiate on this basis, particularly given that the

goal of a backpay proceeding is to replicate what the employees would have

earned absent the discrimination. We agree with the ALJ that a profit and loss

approach to gross backpay (taking receipts less estimated cash expenses) is

inconsistent with the complete lack of entrepreneurial opportunity for gain or loss

inherent in this arrangement. See Supplemental D&O at 6; see also Corporate

Express, 292 F.3d at 780-781. 1 And even though the NLRB calculated Edwin’s

net interim earnings by subtracting interim expenses from interim gross receipts,

it did so when he was self-employed (not an employee) with identified expenses

and consistent with its precedent. See Cliffstar Transportation Co., 311 NLRB

152, 169-70 (1993); A.P.A. Warehouses, Inc., 307 NLRB 838, 841 (1992).

Because we find that the NLRB’s backpay calculation was reasonable on

this record, we need not address what the “most accurate formula” is. The NLRB

has suggested that given competing formulations of backpay, an ALJ must choose

the most accurate formula for Board review. See Regional Import and Export

1
Moreover, it is inconsistent with what actually would have occurred in
this case because the only deductions Velocity took were for insurance, pager
expenses, uniforms, drug tests and physical exams. Supplemental D&O at 6.

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Trucking Co., Inc., 318 NLRB 816, 820 (1995); Woodline Motor Freight, Inc.,

305 NLRB 6, n.4 (1991), enforced, 972 F.2d 222, 226 (8th Cir. 1992); American

Mfg. Co., 167 NLRB 520 (1970); see also NLRB v. Pepsi Cola Bottling Co., 258

F.3d 305, 314-15 (4th Cir. 2001). In this case, the ALJ determined that the

method of computing gross backpay ultimately rejected was not reasonable

because it was inconsistent with the Kirks’ true status as employees, and the

NLRB majority rejected it as inconsistent with precedent. The “most accurate”

formula surely does not include formulas based upon an incorrect legal standard.

Aneco Inc. v. NLRB, 285 F.3d 326, 336 (4th Cir. 2002) (Goodwin, J., concurring

in part and dissenting in part). Rather, the NLRB’s formula was sufficient for a

“close approximation.” A close approximation, not the “most accurate formula,”

is what we require. 2 Angle, 683 F.2d at 1302.

The dissent suggests that “economic reality” requires that some estimate of

operating expenses must be deducted from gross backpay for these employees

because such expenses are incurred in the performance of the work itself, and are

deductible for tax purposes as business expenses. The dissent distinguishes

2
In NLRB v. Pepsi Cola Bottling Co., 258 F.3d 315, 314-15 (4th Cir.
2001), the ALJ rejected the General Counsel’s approach to backpay, but the
NLRB reversed without rejecting any of the underlying factual determinations of
the ALJ. The Fourth Circuit noted that NLRB did not address accuracy of the
respective methods. We do not read this case as altering our standard of review
of NLRB orders.

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between personal, incidental expenses such as commuting and child care expenses

which it would not require to be deducted from gross backpay. Though

recognizing that tax information may be helpful in determining backpay amounts,

we do not require that a remedial award follow what might be deductible were the

employee an independent contractor. Moreover, the line between personal

expenses and ordinary business expenses is not where the dissent places it; after

all, unreimbursed employee business expenses are an itemized deduction to the

extent they exceed two percent of adjusted gross income, and there is a credit for

child care expenses for certain taxpayers. See I.R.C. §§ 21, 67, 162(a), 274(d).

And although commuting expenses generally are non-deductible personal

expenses, there are exceptions. See I.R.C. § 262(a); Rev. Rul. 99-7; 1999-5

I.R.B. 4; Walker v. Commissioner, 101 T.C. 537, 545 (1993) (transportation

expenses between business locations). In essence, the dissent’s position is that

Edwin was in fact an independent contractor (not an employee) and as such, the

NLRB should deduct all of his expenses as an independent contractor from gross

pay, just as they would be deducted on Schedule C. Given the D.C. Circuit’s

decision to the contrary, we think that the ALJ and the NLRB majority had no

choice but to reject this position as well as the conceptual difficulty it portends

regarding the classification of expenses.

We also decline to hold that Velocity was denied “fundamental fairness” in

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the proceeding. Resp. Br. at 20-23; Reply Br. at 5-6. Velocity claims it was

deprived of an opportunity to present certain evidence because at the hearing the

ALJ rejected the standard employee calculation and then later adopted that same

formulation. Be that as it may, Velocity was not significantly deprived of the

opportunity to argue that issue.

It is clear from the transcript that the ALJ was inclined to utilize a “receipts

less expenses” formula, Tr. at 36, but the ALJ’s comments on this could not be

fairly characterized as a ruling. Specifically, the ALJ qualified the statements: “I

think that’s what we’re doing here;” “That’s my sense of the case. I don’t know,

again, without looking at the entire text of [a case cited].” Tr. at 36. In fact, the

ALJ specifically laid out that it was Velocity’s burden to show that the operating

expenses were deducted by Velocity in the ordinary course of business. Id. at 36-

37. It is clear that they were not. After reading the record, we do not find that

the ALJ’s statements constituted a ruling, nor do we find that those statements

denied Velocity the opportunity to present any evidence it desired.

Velocity argues that the NLRB’s calculation of Hildegard Kirk’s rate of pay

was unreasonable because there was insufficient evidence to base the rate of pay

on her average weekly salary rather than her salary on her last day of employment.

Resp. Br. at 24-27. This argument is unpersuasive in light of our deferential

standard of review. We must credit the NLRB’s factual inferences and credibility

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determinations. Interior Alterations, Inc., 738 F.2d at 376-77. We will only

disturb the NLRB’s order if no reasonable mind could accept the NLRB’s

conclusion. See Interstate Builders, 351 F.3d at 1027-28.

Here, the NLRB’s calculation was reasonable because Hildegard’s own

testimony supported the finding. She testified that Velocity cut her route, and

therefore her earnings, approximately one week before her discharge. Hildegard

testified without contradiction that the office manager “said it would not be a

problem” to adjust her route such that her earnings would be consistent with what

they had originally been. Tr. 88-89,94. Based on this testimony, the NLRB

concluded “it is reasonable to assume [that] Hildegard Kirk would have earned

[her previous average] if she had not been unlawfully terminated.” Supplemental

D&O at 6. The NLRB’s decision to utilize averaging to determine Hildegard’s

rate of pay is supported by precedent, Bridgeway Oldsmobile, 294 NLRB 858,

861-62 (1989), and the NLRB’s decision to credit her testimony was reasonable

and provides sufficient support for its conclusions.

ORDER ENFORCED.

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No. 04-9602, National Labor Relations Board v. Velocity Express, Inc.

MURPHY, Circuit Judge, dissenting in part and concurring in part.

The backpay awarded Edwin Kirk by the NLRB can only be described as an

attempt by the NLRB to pound a square peg into a round hole. Although Kirk’s

relationship with Velocity Express was that of employee/employer, it was unusual

in that he provided his own delivery vehicle and absorbed all associated fuel and

maintenance costs. As a consequence, the NLRB’s standard formula for

calculating backpay awards is an improper fit. Because the NLRB ignored the

economic realities of the relationship between Kirk and Velocity Express in

calculating an appropriate backpay award, and in doing so awarded Kirk a

substantial windfall, I respectfully dissent.

As noted by the majority, the NLRB’s power to order backpay is a “‘broad,

discretionary one, subject to limited judicial review.’” Majority Op. at 5 (quoting

Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964)).

Furthermore, in determining backpay, the NLRB may use “close approximations”

and “may adopt such formulas reasonably designed to produce such

approximations.” NLRB v. Int’l Ass’n of Bridge, Structural & Reinforced Iron

Wkrs., Local 378, 532 F.2d 1241, 1242 (9th Cir. 1976) (quotations omitted); see

also Angle v. NLRB, 683 F.2d 1296, 1302 (10th Cir. 1982) (“A backpay award is

only an approximation. The Board has considerable discretion in selecting a
method reasonably designed to approximate the amount of pay a wrongfully

discharged employee would have received absent his employer’s wrongful

conduct.”). Accordingly, a backpay order is entitled to enforcement unless it is

arbitrary or unreasonable in the particular circumstances of the case. Majority

Op. at 6 (citing Int’l Ass’n of Bridge, Structural & Reinforced Iron Wkrs., 532

F.2d at 1242-43; Woodline Motor Freight, Inc. v. NLRB, 972 F.2d 222, 225 (8th

Cir. 1992)). Nevertheless, “where there is a dispute as to the proper backpay

formula, the ALJ must choose the ‘most accurate’ formula, e.g. the formula that

best captures the likely actual amount of wages lost due to illegal termination.”

NLRB v. Pepsi Cola Bottling Co., 258 F.3d 305, 314 (4th Cir. 2001). 1 Further, in

making backpay calculations, the NLRB is “precluded from imposing punitive

remedies,” and instead, is limited to making improperly discharged workers

whole. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 152 n.6 (2002).

1
As noted by the majority, this court stated in Angle v. NLRB, 683 F.2d
1296, 1302 (10th Cir. 1982) that “[a] backpay award is only an approximation”
and that the NLRB “has considerable discretion in selecting a method reasonably
designed to approximate the amount of pay a wrongfully discharged employee
would have received absent his employer’s wrongful conduct.” Majority Op. at 9-
10. Since our decision in Angle, however, the NLRB has cabined its own
discretion, ruling that when there is a dispute as to the proper backpay formula,
the ALJ must choose the “‘most accurate’” formula. Woodline Motor Freight,
Inc., 305 NLRB 6 n.4 (1991), enforced, 972 F.2d 222, 226 (8th Cir.1992);
Laborers Local 135 (Bechtel Power Corp.), 301 NLRB 1066, 1073 (1991). Thus,
in analyzing whether a backpay award is reasoned and reasonable, or is instead
arbitrary and capricious, it is necessary to keep in mind the requirement that the
ALJ utilize the most accurate formula.

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Failing to tailor the remedy to the unfair labor practice the remedy is designed to

redress is arbitrary and capricious. Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900

(1984); Monfort, Inc. v. NLRB, 965 F.2d 1538, 1546-47 (10th Cir. 1992).

The award of backpay in this case is so detached from the economic

realities of the employment relationship between Velocity Express and Kirk that it

is arbitrary and capricious. Although it is now settled that Kirk was actually an

employee of Velocity Express, it cannot be contested that the parties

contemplated a wage scheme that was akin to that of an independent contractor

arrangement. Kirk was paid a flat fee for his service as a “same-day” delivery

driver. From that fee, Kirk reimbursed Velocity Express for insurance and pager

costs 2 and, most importantly for purposes of understanding the economic realities

of this relationship, absorbed the other direct and necessary costs of his

employment, such as gasoline and vehicle maintenance. Thus, as noted by the

dissenting member of the Board, the real rate of gross pay Kirk received was

substantially less than the fee provided in the flat rate.

Nevertheless, the Board chose to ignore the economic realities of the

employment relationship between Kirk and Velocity Express and instead

calculated Kirk’s backpay award by reference to its “standard formula.” Majority

These costs were approximated by the ALJ and deducted from the flat fee
2

Kirk would have otherwise received in calculating Kirk’s backpay award.

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Op. at 6. Under that formula, the Board refuses to “deduct from the gross

backpay those expenses that employees would have incurred had they not been

unlawfully discharged.” Supplemental D&O at 2 (citing Laborers Local 38

(Hancock-Northwest), 268 NLRB 167 (1983), enforced in relevant part, 748 F.2d

1001 (5th Cir. 1984) (declining to deduct expenses for transportation, lodging and

meals that the employees would have incurred had they been employed during the

backpay period); Myerstown Hosiery Mills, 99 NLRB 630, 631 (1952)). The

majority concludes the Board’s “decision was reasonable given the aim of

liquidating the amounts the employees would have realized from their employer

had they not been discharged wrongfully” and that “[e]xpenses incurred

permitting an employee to work (transportation and child care) seem just as

essential as an employee’s vehicle operating expenses.” Majority Op. at 8.

The problem with the Board’s approach, and the majority’s approval

thereof, is that the vehicle costs at issue in this case are not remotely similar to

transportation and child care costs at issue in the precedents identified by the

NLRB. Both the cost of commuting to work and the cost of child care, although

certainly essential to allowing an employee to work, see id. at 8, are neither

deductible from an individual’s income taxes nor incurred in the performance of

the work itself. The vehicle costs at issue in this case, on the other hand, are

deductible business expenses, as demonstrated by Kirk’s deduction of these

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expenses on his 1998 tax return. Furthermore, the vehicle costs were incurred in

the process of performing Kirk’s work (i.e., driving his vehicle to deliver freight),

as opposed to simply being incidental expenses incurred by an individual in the

ordinary course of life (i.e., child care and commuter costs). The Board’s

application of its one-size-fits-all backpay formula to the unique circumstances of

this case is an arbitrary and capricious failure to tailor the remedy to the unfair

labor practice the remedy is designed to redress, Sure-Tan, 467 U.S. at 900;

Monfort, 965 F.2d at 1546-47, and results in an unwarranted and substantial

windfall to Kirk.

According to the majority, “the dissent’s position is that Edwin was in fact

an independent contractor (not an employee) and as such, the NLRB should

deduct all of his expenses as an independent contractor from gross pay, just as

they would be deducted on Schedule C.” Majority Op. at 11. Contrary to the

majority’s assertion, this dissent does not question the determination of the NLRB

that Kirk was an employee of Velocity. That conclusion, however, does not

entitle either the NLRB or this court to ignore the economic realities of the

employment relationship in determining an appropriate backpay award. After all,

employment relationships and their accompanying compensation structures take

all kinds of forms and the NLRB is obligated to ensure that its award of backpay

is tailored to remedy the unfair labor practice at issue and is limited to making the

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discharged employee whole. Hoffman Plastic Compounds, 535 U.S. at 152 n.6;

Sure-Tan, 467 U.S. at 900. Hence, the majority is simply incorrect in asserting

that recognizing the economic realities of the employment relationship at issue in

this case is somehow inconsistent with the conclusion that Kirk was an

“employee” of NLRB for purposes of the NLRA.

Far more dangerous, however, is the majority’s categorical statement,

apparently in dicta, that because the NLRB determined Kirk was Velocity’s

employee for purposes of the NLRA, and the D.C. Circuit’s enforcement of that

order, the NLRB was obligated to adopt a gross receipts approach to calculating

Kirk’s backpay award. Majority Op. at 11 (“Given the D.C. Circuit’s decision to

the contrary, we think that the ALJ and the NLRB majority had no choice but to

reject this position as well as the conceptual difficulty it portends regarding the

classifications of expenses.”). This statement is particularly odd in light of the

majority’s extensive recitation of the wide discretion the Board has in calculating

backpay awards and its conclusion that the backpay award to Kirk is supported by

substantial evidence. Majority Op. at 4-10. The majority cites no authority for its

assertion that the NLRB is obligated, as a matter of law, to employ a gross

receipts standard in every backpay proceeding and this dissent can find none.

One need look no further than this case for an example of a situation where the

gross receipts method, the method the majority asserts the NLRB is compelled to

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employ in every backpay calculation, results in a significant distortion of the

remedy of backpay. The majority is simply wrong to assert that the NLRB is

obligated to employ the gross receipts method in calculating Kirk’s backpay

award, let alone obligated to employ that method in all backpay proceedings.

For those reasons set out above, I would deny enforcement of the Board’s

order as to Kirk’s backpay award. Because the majority concludes otherwise, I

respectfully dissent. I concur in the balance of the majority opinion.

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