Aneco Incorporated v. NATIONAL LABOR RELATIONS BOARD, Region 12

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ANECO INCORPORATED,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Region 12,
Respondent, No. 01-1572 
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 606,
Intervenor.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Amicus Curiae. 
 NATIONAL LABOR RELATIONS BOARD,
Petitioner,
v.
ANECO INCORPORATED,
Respondent,
No. 01-1681  INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 606,
Intervenor.
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Amicus Curiae. 
On Petition for Review and Cross-Application
for Enforcement of an Order
of the National Labor Relations Board.
(12-CA-15738)

-- 1 of 15 --

Argued: December 4, 2001
Decided: March 29, 2002
Before WIDENER and LUTTIG, Circuit Judges, and
Joseph R. GOODWIN, United States District Judge for the
Southern District of West Virginia, sitting by designation.
Petition granted in part and denied in part, cross-petition granted in
part and denied in part, and remanded by published opinion. Judge
Luttig wrote the opinion, in which Judge Widener joined. Judge
Goodwin wrote an opinion concurring in part and dissenting in part.
COUNSEL
ARGUED: William E. Sizemore, THOMPSON, SIZEMORE &
GONZALEZ, P.A., Tampa, Florida, for Aneco. Anne Marie Lofaso,
Office of the General Counsel, NATIONAL LABOR RELATIONS
BOARD, Washington, D.C., for Board. Joseph Egan, Jr., EGAN,
LEV & SIWICA, P.A., Orlando, Florida, for Intervenor. ON BRIEF:
John W. Bencivenga, THOMPSON, SIZEMORE & GONZALEZ,
P.A., Tampa, Florida, for Aneco. Arthur F. Rosenfeld, General Coun-
sel, John E. Higgins, Jr., Acting Deputy General Counsel, John H.
Ferguson, Associate General Counsel, Aileen A. Armstrong, Deputy
Associate General Counsel, Robert J. Englehart, Supervisory Attor-
ney, Rachel Gartner Lennie, Office of the General Counsel,
NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for
Board. Tobe Lev, EGAN, LEV & SIWICA, P.A., Orlando, Florida,
for Intervenor. Nora H. Leyland, SHERMAN, DUNN, COHEN,
LEIFER & YELLIG, P.C., Washington, D.C., for Amicus Curiae.
OPINION
LUTTIG, Circuit Judge:
On July 12, 1993, Winson Cox applied for a job as an electrician
with Aneco, Inc., a non-union contractor. J.A. 1222. Cox was a paid,
2 ANECO INC. v. NLRB

-- 2 of 15 --

full-time union organizer for the International Brotherhood of Electri-
cal Workers, Local Union Number 606 ("the Union"), J.A. 1226, and
he sought employment with Aneco to help organize Aneco’s workers.
J.A. 779. This process, where union organizers seek to become
employees of a company targeted by the union, is known as "salting."
Typically, union "salts" only work for an employer as long as there
is a prospect of success at organizing its workers, and they are trained
to leave an employer by striking rather than resigning, so as to pre-
serve their rights to reinstatement. J.A. 648-49, 838, 1554.
Cox disclosed his motives during his job interview, and Aneco
refused to hire him. Id. Five years later, on February 27, 1998, the
National Labor Relations Board ("the Board") held that Aneco’s
refusal to hire Cox violated sections 8(a)(1) and (a)(3) of the National
Labor Relations Act ("NLRA"). The Board ordered that Cox be made
"whole for any loss of earnings and other benefits he may have suf-
fered . . . from the date he applied for employment to the date
Respondent makes him a valid offer of employment." Aneco, Inc.,
325 NLRB 400, 401 (1998).
In response to the Board’s ruling, Aneco offered Cox employment
on April 1, 1998. J.A. 1219. Cox accepted the offer and worked for
Aneco for about five weeks, leaving during an unfair labor practice
strike called by a Local from Tampa. J.A. 932. Cox never made an
offer to return to work for Aneco nor did he request reinstatement.
J.A. 932.
Paid union organizers who seek employment with other companies
are protected by the National Labor Relations Act. See NLRB v. Town
& Country Electric, Inc., 516 U.S. 85 (1995). Aneco conceded that
its refusal to hire Cox in 1993 was an unfair labor practice, J.A. 1029,
however, Aneco and the General Counsel were unable to agree on the
appropriate amount of backpay owed to Cox. The General Counsel
sought backpay in the amount of $47,349.29, for ten of the nineteen
quarters between July 12, 1993 (the date Aneco unlawfully refused to
hire Cox) and April 1, 1998 (the date Aneco hired Cox). J.A. 9-10.1
Aneco opposed this, arguing that Cox did not conduct a reasonable
1For nine of the quarters during that five-year period, the General
Counsel conceded there was no backpay liability owed to Cox.
3 ANECO INC. v. NLRB

-- 3 of 15 --

search for interim employment during those ten quarters and, hence,
did not fulfill his duty to mitigate his income loss. In the alternative,
Aneco contended that the period of Cox’s backpay award should be
far shorter than the ten quarters sought by the Board because it is
wrong to assume that Cox, had he been hired by Aneco in July of
1993, would have continued working at Aneco through April 1, 1998.
Aneco argued that Cox, as a union "salt," would have left Aneco
when his employment there no longer served the Union’s organiza-
tional interests; hence, Cox would not have worked ten quarters for
Aneco and should not be awarded $47,349.29 in backpay.
After a compliance hearing, the Administrative Law Judge rejected
Aneco’s argument that Cox failed to mitigate his income loss. J.A.
1050-51. However, the ALJ refused to award Cox the full $47,349.29
in backpay sought by the General Counsel, and instead awarded Cox
five weeks of back pay in the amount of $1,461.15. J.A. 1052. Noting
that Cox, as a union "salt," "would have spent no more time working
for [Aneco] than necessary to organize its employees or conclude that
such organizing would not be practical," J.A. 1040, the ALJ con-
cluded that, had Aneco hired Cox in July of 1993, he would have only
worked five weeks for Aneco. J.A. 1051. In so concluding, the ALJ
relied on the fact that Cox, when finally hired by Aneco in April of
1998, worked only for five weeks before leaving.
The Board reversed the ALJ’s finding that Cox would have only
worked five weeks for Aneco had he been hired in 1993, stating that
Aneco failed to present "specific evidence" on this issue. J.A. 1050.
Relying on the "well-established principle that ‘[t]he Board resolves
compliance-related uncertainties or ambiguities against the wrong-
doer,’" the Board ordered that Aneco pay Cox the full $47,349.29 in
backpay sought by the General Counsel. J.A. 1050 (citations omitted).
The Board also found, as did the ALJ, that Cox fulfilled his duty to
mitigate. J.A. 1050 n.3.
Aneco petitions this court for review, and the Board cross-petitions
for enforcement of its order. For the reasons that follow, we grant
enforcement in part, deny enforcement in part, and remand.
I.
Title 29, U.S.C. § 160(c) authorizes the Board to award backpay in
response to an unfair labor practice. However, a backpay order may
4 ANECO INC. v. NLRB

-- 4 of 15 --

only serve as a compensatory, make-whole remedy, not a punitive
sanction or deterrent. See NLRB v. Pepsi Cola Bottling Co. of Fay-
etteville, Inc., 258 F.3d 305, 314 (4th Cir. 2001). A backpay order is
a means to "restore the situation ‘as nearly as possible, to that which
would have obtained but for the illegal discrimination.’" Coronet
Foods, Inc. v. National Labor Relations Board, 158 F.3d 782, 798
(4th Cir. 1998) (quoting Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
194 (1941)).
Aneco raises two challenges to the Board’s award of backpay, and
we address each for abuse of discretion. See Coronet Foods, 158 F.3d
at 798 (4th Cir. 1998).
A.
1.
Aneco first argues that Cox did not conduct a reasonable job search
between July 12, 1993 and April 1, 1998 and, therefore, failed to miti-
gate his income loss. After Aneco refused Cox employment in 1993,
Cox did not embark on the type of thorough job search one would
expect from one who is unemployed. There were several reasons for
this failure, all related to Cox’s role as a union "salt." First, Cox
already had a full-time job with the Union, which dampened his
financial incentives to obtain additional employment. J.A. 716. More-
over, because Cox’s purpose in seeking a second job was to organize
the workers of that company on behalf of the Union, Cox only applied
to companies where there was a realistic chance to organize their
workers. The Union forbade Cox from applying to work for compa-
nies that were already unionized, including all companies that hired
through the Union’s hiring hall. J.A. 1042. In addition, Cox could not
work for small companies with too few employees to be of organizing
interest to the Union, J.A. 579, 1004, nor large companies with so
many employees that organizing them would be difficult, J.A. 576,
1036. Given these restrictions, Cox visited a total of only 50 compa-
nies during the ten quarters for which the Board awarded backpay.
J.A. 1469.
Finally, in addition to the narrow scope of his job search, Cox fur-
ther hurt his chances of finding employment by bringing other electri-
5 ANECO INC. v. NLRB

-- 5 of 15 --

cians with him when he applied for a job, some of whom were better
qualified than he. J.A. 860-61, 1232.2 Apparently, Cox brought his
friends along to serve as potential witnesses at an unfair labor practice
hearing, and also to increase the number of union organizers working
for the non-union company.
Not surprisingly, although he maintained his full-time employment
with the Union, Cox never found another job to "salt" until Aneco
offered him employment in 1998.
Despite the limited nature of Cox’s job search, the Board held that
Cox fulfilled his duty to mitigate his income loss. According to the
Board, an employer seeking to prove a failure to mitigate by a union
"salt" must show that "the Union’s policies unreasonably limited [the
discriminatee’s] job search." J.A. 1050 n.3. Rejecting the notion that
"the mere existence of any union restrictions was per se unreason-
able," the Board held that Aneco failed to show that any specific
2The record contains a letter dated July 17, 1996, from Val Chu to
Cox, which states, in part:
Dear Mr. Cox:
The purpose of this letter is to let you know that we have filled
our needs for journeymen electricians and that we will not be
offering you a position with our company.
We have filled the immediate needs by hiring Mr. Albert Weber.
As you know, Mr. Weber applied at the same time as you did,
and highlighted his union membership. Prior to hiring Mr.
Weber, we offered a position to Mr. Gary Johnson. Mr. Johnson
declined to accept our job offer, telling me that he had secured
other employment. As you know, Mr. Johnson also was with you
when you most recently applied, and his application includes a
notation that he is a "volunteer union organizer." . . .
Beyond the fact that there are sufficient candidates available to
us, I do want you to know that we consider that your lack of
active working at the electrical trade for the last 14 (fourteen)
years as indicated on your application, makes you a candidate of
last resort. . . . We believe that hiring people with recent experi-
ence is a more sound business practice in light of their current
acclimation to the daily requirements of the craft, including
safety habits.
6 ANECO INC. v. NLRB

-- 6 of 15 --

restrictions on Cox’s job search imposed by the Union were unrea-
sonable. J.A. 1050 n.3.
2.
Employees who lose their jobs as a result of an unfair labor prac-
tice must mitigate their damages by making a "reasonable effort to
obtain interim employment," and the burden of proving a failure to
mitigate rests on the employer. Coronet Foods, 158 F.3d at 800. If
Cox had been unemployed, rather than a full-time Union "salt," dur-
ing the time of his job search, we would hold without hesitation that
he failed to make a "reasonable effort" to obtain interim employment.
For the typical person seeking work, it cannot be considered a "rea-
sonable effort" to eliminate all large-scale and small-scale employers
from one’s job search, and we doubt it can be considered a "reason-
able effort" to apply for a job with a group of friends, absent a clear
understanding from the potential employer that a bloc of workers is
needed.
Cox, however, was not an unemployed person looking for a job; he
was a full-time employee of the Union and his purpose in seeking fur-
ther employment was to advance the Union’s organizational interests.
Thus, the crucial issue is whether Cox’s status as a paid union orga-
nizer permitted the Board to find that his job search represented a
"reasonable effort," even though such a search could not be deemed
reasonable if undertaken by an ordinary, unemployed discriminatee.
Given the deference owed to the Board in determining backpay reme-
dies, we conclude that it was permissible for the Board, in determin-
ing whether Cox undertook "reasonable efforts" to obtain interim
employment, to take into account the duties he owed to his union
employer. Previous Board decisions have held that limits on job
searches designed to accommodate a discharged worker’s responsibil-
ities to another employer are reasonable, see Acme Bus Corp., 326
NLRB 1447, 1449 (1998) (holding that discriminatee fulfilled his
duty to mitigate even though he limited his search to jobs with start-
ing times after 8:30 am, to accommodate his full-time job as a nursing
assistant); American Pacific Concrete Pipe, 290 NLRB 623, 627
(1988) (holding that discriminatee was not required to accept a job
that would require him to abandon active duty service in the Air Force
7 ANECO INC. v. NLRB

-- 7 of 15 --

reserve), and we see no reason to question the propriety of those deci-
sions.
We do not hold, however, that the Board may find that any restric-
tions on an interim job search caused by a discriminatee’s duties to
another employer are reasonable per se. Compare Tualtin Electric,
Inc., v. NLRB, 253 F.3d 714, 719 (D.C. Cir. 2001) (stating that the
Board may limit the duty to mitigate "so as not to require a salt to
accept employment that would subject him to union discipline or
require him to abandon full union membership"). We could not, for
example, uphold a finding of mitigation if the limits on a discrimi-
natee’s job search, ostensibly caused by his duties to another
employer, were not reasonably related to that employment. In this
case, however, we find that the Board could, without abusing its dis-
cretion, find that Cox’s limited interim job search was reasonable
given his duties as a union salt. While applying for jobs in groups did
hurt Cox’s chances of obtaining employment, Aneco is unable to
show that such was "unreasonable" given the Union’s need for multi-
ple "salts" on a job site. In addition, while only 50 employers in ten
quarters does not seem like a lot to visit, Aneco has failed to show
that Cox neglected other employers who were also fertile targets for
union organizing.
We conclude that the Board did not abuse its discretion in rejecting
Aneco’s argument that Cox failed to mitigate his damages.
B.
Aneco next contests the Board’s decision to award Cox backpay
for ten quarters, rather than for five weeks, challenging the Board’s
presumption that, had Aneco hired him on July 12, 1993, Cox would
have remained on the job through April 1, 1998. Aneco argues that
Cox would have quit working for Aneco when it no longer served the
Union’s interests for Cox to stay, and that this would have occurred
long before April 1, 1998.
The Board held that Aneco, as a wrongdoing employer, bears the
burden of proving that Cox would not have remained at the job which
he was unlawfully denied. J.A. 1049. Aneco failed to carry its burden,
according to the Board, because Aneco did not present any "specific
8 ANECO INC. v. NLRB

-- 8 of 15 --

evidence" that Cox would not have worked five years for Aneco, and
that any uncertainties as to this must be resolved against the wrong-
doer, Aneco. J.A. 1050.
Given the evidence presented in this case, we conclude that the
Board abused its discretion in calculating the backpay period on the
assumption that, had he been hired in 1993, Cox would have worked
for Aneco for five years. Aneco did present specific evidence to show
that this assumption was indefensible. First, Cox was not an ordinary
employee, but a union "salt" whose sole purpose in seeking employ-
ment with Aneco was to organize its workers. Accordingly, it was
undisputed that Cox would have left his job at Aneco when it no lon-
ger served the Union’s organizational interests. J.A. 572. While Cox’s
duties to the Union allowed us to uphold the Board’s finding that Cox
mitigated his damages by conducting a reasonable job search, his
duties to the union undermine the Board’s assumption that Cox would
have stayed on the job for five years.
Second, Cox actually worked for Aneco in 1998 after the Board
ordered him reinstated, and he worked for only five weeks before
leaving during an unfair labor practice strike. J.A. 837. Although the
Board correctly noted that this does not prove that Cox would have
"invariably" departed from Aneco in five weeks had he been hired in
1993, J.A. 1050, it is still strong evidence that Cox’s stint at Aneco
would have been far less than five years, and strongly suggests the
Board’s award of backpay serves a punitive rather than compensatory
function.
Finally, there are no examples in the record of a union "salt" ever
remaining on the payroll of another company for five years. Harry
Brown, the Union’s business manager, testified that some organizing
campaigns against companies other than Aneco lasted several years,
J.A. 641-44, and also testified that the Union might have desired to
keep Cox on Aneco’s payroll for five years "if it was productive,"
J.A. 571-72. But there is no testimony that a union "salt" was
employed at a single company for a five-year period as part of these
campaigns, nor is there any indication that Cox would have stayed at
Aneco for five years given the circumstances at Aneco in 1993.3
3The dissent contends that Aneco did not meet its evidentiary burden
to rebut, by a preponderance of the evidence, the Board’s presumption
9 ANECO INC. v. NLRB

-- 9 of 15 --

We acknowledge, as did the ALJ, that any calculation of how long
Cox would have worked if Aneco had hired him on July 12, 1993 is
"somewhat speculative." However, a backpay order must "restore the
situation ‘as nearly as possible, to that which would have obtained but
for the illegal discrimination.’" Coronet Foods, Inc., 158 F.3d at 798.
In light of Cox’s role as a union salt, as well as the fact that Cox only
worked five weeks for Aneco when hired in 1998, we cannot enforce
the Board’s award of backpay premised on the assumption that Cox
would have worked five years for Aneco had he been hired in July
of 1993. To do so in the face of this evidence would provide a wind-
fall to Cox and would exceed the Board’s authority to award only
make-whole remedies, and not punitive sanctions. See Pepsi Cola
Bottling Co., 258 F.3d at 314. Unlike NLRB v. Ferguson, 242 F.3d
426, 430 (2d Cir. 2001), where there was an "absence of record evi-
dence" as to how long the unlawfully discharged union "salt" would
have remained with the employer, there is ample evidence in the
record to suggest that Cox would not have worked five years for
Aneco. The Board’s contrary holding in the face of this evidence is
an abuse of discretion, and cannot be enforced.
that Cox would not have worked five years for Aneco had he been hired
in 1993. However, we believe that the dissent’s reasoning, as well as the
Board’s, places too high a burden of proof on Aneco.
Aneco is not required to prove to a certainty, or beyond a reasonable
doubt, that Cox would have left Aneco’s employ before April 1, 1998.
Moreover, Aneco need not pinpoint a precise date or time when Cox
would have quit working. Aneco must only show that it is more likely
than not that Cox would not have worked for Aneco during the entire
five-year backpay period.
This case is unlike Ferguson, where there was an absence of evidence
regarding how long the union salt, whom the employer unlawfully
refused to hire, would have stayed on the job. Also, the disputed backpay
period in Ferguson was "only" ten months, not five years.
We believe the evidence of Cox’s role as a union salt, the fact that he
only worked five weeks for Aneco in 1993, and the lack of any evidence
of a union salt ever working for an employer for the extraordinarily long
period of five years, was more than adequate to rebut, by a preponder-
ance of the evidence, the Board’s presumption, and that the Board
abused its discretion in holding otherwise.
10 ANECO INC. v. NLRB

-- 10 of 15 --

On remand, based upon the record in the case, we would expect the
appropriate, make-whole remedy for Cox to be somewhere around the
five weeks of backpay awarded by the ALJ. However, there may be
circumstances, unforeseen to us, that would justify an award slightly
beyond that amount. The Board’s responsibility on remand is to fash-
ion a compensatory remedy that will restore Cox, as nearly as possi-
ble, to the circumstances that he would have enjoyed but for Aneco’s
illegal discrimination.
CONCLUSION
We enforce the Board’s finding that Cox mitigated his income loss,
but decline to enforce the Board’s $47,349.29 award of backpay. The
case is remanded to the Board to fashion a remedy that will restore
Cox, as nearly as possible, to the circumstances that he would have
enjoyed but for Aneco’s illegal discrimination.
It is so ordered.
GOODWIN, District Judge, concurring in part and dissenting in part:
I concur in the court’s holding that the Board properly considered
Cox’s duties to the Union in determining whether his job search was
reasonable.* I respectfully dissent from the court’s holding regarding
the length of the back pay period. The majority superficially recog-
nizes that the employer bears the burden of showing that the
employee would have left earlier. The majority’s application of this
standard, however, shifts the burden to the employee.
Ordinarily, the back pay period runs from the date of the wrongful
act to the date of reinstatement. See, e.g., NLRB v. Waco Insulation,
Inc., 567 F.2d 596, 603 (4th Cir. 1977) (finding that back pay was
limited to the period between the unlawful discharge and the rein-
statement). Once the amount of back pay due has been established,
the burden shifts to the wrongful employer to demonstrate why the
award should be decreased. Lundy Packing Co., 856 F.2d at 629. Our
*However, I note that the record does not support the majority’s char-
acterization of Cox’s occasional practice of seeking employment with
other electricians as unreasonable.
11 ANECO INC. v. NLRB

-- 11 of 15 --

case law establishes, in effect, a rebuttable presumption that an
employee will receive back pay for the entire period between the date
of the unlawful act and the date the act is corrected, unless the
employer produces sufficient evidence to rebut the presumption. See
Tualatin Elec., 253 F.3d at 718-19 (upholding the Board’s application
of this presumption); Bales v. NLRB, 914 F.2d 92, 94 (6th Cir. 1990)
(finding that the Board clearly understood the legal standard that toll-
ing back pay requires the employer to show by a preponderance of the
evidence that employment would not have lasted the entire period).
Aneco’s evidentiary burden was to prove by a preponderance of the
evidence that Cox would have quit at an earlier time. The Board
acknowledged that as a salt, Cox "could have left his job" with Aneco
prior to April 1, 1998. J.A. 1049 (emphasis in original). The Board
noted, however, that both Cox and the Union’s business manager tes-
tified that there were no limits on the amount of time Cox could have
worked, and that Brown testified that he would have allowed Cox to
remain at Aneco for as many as five years had it proved productive
to do so. Id. The Board found that Aneco,
whose burden it is, has failed to present any specific evi-
dence showing that Cox or the Union would not have [spent
an extended period of time attempting to organize a nonun-
ion employer], nor has it shown that there was anything
about the Union’s organizational objectives, the Respon-
dent’s work force, or the local area economy that would
invariably have led to Cox’s departure after only 5 weeks.
J.A. 1050. Thus, having found insufficient evidence to rebut the pre-
sumption, the Board correctly calculated the award based on the full
five-year period.
The majority claims that Aneco successfully rebutted the presump-
tion. The majority second guesses the Board’s findings — including
specific crediting of testimony — and points to the following facts as
evidence that the back pay period should be shortened: 1) Cox was
a salt who would have quit once the Union’s interests were served;
2) Cox worked only five weeks when eventually hired; and 3) the
record contained no evidence of a salt ever having worked for more
than five years.
12 ANECO INC. v. NLRB

-- 12 of 15 --

Cox’s salt status shows only that he could have left, not that he
probably would have. That he would have left when the Union’s
objectives were accomplished simply restates the issue — when was
that? Moreover, as the Supreme Court has noted, the simple fact that
a salt might quit is irrelevant since "so too might an unpaid organizer,
or a worker who has found a better job, or one whose family wants
to move elsewhere." Town & Country Elec., Inc., 516 U.S. at 96.
Offering an additional reason why Cox might have left is as meaning-
less as showing that employment will end when an employee dies or
retires. The statement is true, but it is not probative of the actual date.
Aneco simply supposed that Cox would have quit sooner than five
years because he was a salt.
Next, the length of Cox’s employment in 1998 is irrelevant to the
amount of time he would have worked in 1993. There is no evidence
in the record regarding whether organizing at Aneco in 1993 was eas-
ier or more difficult than in 1998. For Cox’s 1998 stint to be relevant,
Aneco would need to show at least that similar circumstances existed
at the company in 1993 and 1998.
Finally, the lack of evidence as to how long other salts have
worked at targets has no bearing on Cox’s situation. In any distribu-
tion of values, the mean value is characteristic only of all the data; it
does not describe any subset of the whole. The average amount of
time salts work does not describe the amount of time a particular salt
would work.
Admittedly, the burden a wrongful employer must bear is a diffi-
cult one, but the burden properly rests with the wrongdoer, even in
cases involving salts. It is true that employers usually do not have
complete information about when an employee or salt would have
quit, necessarily making back pay awards somewhat uncertain.
Because back pay awards are only approximations, however, such
uncertainty does not render a back pay award speculative. Ferguson
Elec., 242 F.3d at 430. Bearing this uncertainty is a risk wrongdoers
create when they act unlawfully. See Bigelow v. RKO Radio Pictures,
Inc., 327 U.S. 251, 265 (1946); Ferguson Elec., 242 F.3d at 432.
Because it is the wrongdoer’s unlawful act that requires the Board to
approximate back pay, it is fair and just that he, and not the discrimi-
natee, bear the burden of the uncertainty.
13 ANECO INC. v. NLRB

-- 13 of 15 --

This view is consistent with the underlying policies of the National
Labor Relations Act. See Ferguson Elec., 242 F.3d at 432; Tualatin
Elec., 253 F.3d at 718. Applying a presumption in favor of the wrong-
doer would be inconsistent with the goal of protecting the interests of
aggrieved employees. See Tualatin Elec., 253 F.3d at 718. As the Fer-
guson court noted, the wrongdoer always has the power to end the
back pay period and any speculation regarding its length by offering
the salt a job. Id. Moreover, forcing the wrongful employer to meet
this burden also encourages employers to comply with the law and
deters discrimination against salts in the first place.
Furthermore, while the burden may be difficult to meet, it is not
impossible. An employer might meet its burden and toll the back pay
period by presenting a wide variety of evidence. See, e.g., Tualatin
Elec., 253 F.3d at 717 (noting that an employer can meet its burden
by presenting evidence of established Union or employer policies,
under which the employee would not have been reassigned to a new
project once the original project for he which he was hired termi-
nated); Pepsi Cola Bottling Co., 258 F.3d at 310 (stating that a back
pay period is tolled where an individual voluntarily resigns an interim
job without good cause); Bales, 914 F.2d at 94 (finding that the period
could be tolled by a showing that the employer would have termi-
nated the worker because it ceased operations at his location at an
interim date); Ferguson Elec., 242 F.3d at 431 (noting that the period
may be shortened by a showing that the salt accepted a promotion
from the Union during the back pay period which removed him from
the field); Hoffman Plastic Compounds, Inc. v. NLRB, 208 F.3d 229,
242 (D.C. Cir. 2000) (upholding a back pay period that tolled when
an employer learned of a worker’s undocumented status, requiring his
termination). Other possible evidence includes testimony by the salt
or his Union managers about the length of time they intended him to
work at the target employer.
Even if this court would reach a different conclusion on the evi-
dence, it should not interfere with the Board’s decision. The Board’s
choice of a method for calculating back pay concerns a matter
uniquely within the Board’s competence, and should be given a "wide
berth" by this court. Pepsi Cola Bottling Co., 258 F.3d at 314. It
should not be disturbed unless it is explicitly punitive. Id.
14 ANECO INC. v. NLRB

-- 14 of 15 --

I disagree with the majority’s contention that the instant award is
punitive. When, as here, an employer’s wrongdoing violates the pur-
pose of the NLRA, the Board has broad discretion to craft a remedy
that will remove the consequences of such violation. Local 60 v.
NLRB, 365 U.S. 651, 655 (1961). A back pay remedy taking into
account the entire period of unlawful behavior is appropriate, and not
punitive. See, e.g., G. Heileman Brewing Co., Inc. v. NLRB, 879 F.2d
1526, 1534 (7th Cir. 1989) (approving an award that required the
employer to rehire electricians with full back pay, even though the
contract governing the workers had expired, because the employer
had wrongfully refused to bargain for a new contract).
The majority relies on Pepsi Cola Bottling Co., 258 F.3d 305, to
hold that the remedy in this case was punitive. In Pepsi, the Board
violated its duty to choose the "most accurate" formula for calculating
back pay and instead chose one that it acknowledged would greatly
overcompensate the employee, despite the existence of a more accu-
rate formula. Choosing the less accurate formula was sufficiently red-
olent of punishment to cause the court to remand the matter to the
Board for an explanation of how such a remedy could be non-
punitive. In this case, the Board merely calculated back pay based on
a legal presumption which was not rebutted. Basing a calculation on
a proper legal standard should not be equated with purposefully
choosing an inaccurate formula.
I would defer to the Board’s chosen remedy. Aneco has not met its
legal burden; the back pay award is the result of the application of a
legal presumption; the Board’s findings that Aneco did not meet its
burden are supported by substantial evidence; and it is inappropriate
for this court to substitute its own judgment for that of the Board.
Accordingly, I respectfully dissent.
15 ANECO INC. v. NLRB

-- 15 of 15 --