Starcon Int'l Inc v. NLRB , 450 F.3d 276 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3209, 05-3538, 05-3539
STARCON INTERNATIONAL, INC.,
Petitioner/Cross-Respondent,
and
INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIP BUILDERS,
BLACKSMITHS, FORGERS AND
HELPERS, AFL-CIO,
Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD,
Respondent/Cross-Applicant.
____________
On Petitions for Review and Cross-Application
for Enforcement of an Order of
the National Labor Relations Board.
No. 13-CA-32719
____________
SUBMITTED JANUARY 30, 2006—DECIDED JUNE 7, 2006
____________
Before FLAUM, Chief Judge, and POSNER and MANION,
Circuit Judges.
POSNER, Circuit Judge. In a previous round, we held that
the National Labor Relations Board may not order an
2 Nos. 05-3209, 05-3538, 05-3539
employer who has rejected job applicants because of their
union affiliation to offer them jobs and give them backpay
without first determining which if any of them would
actually have been hired had it not been for the employer’s
anti-union animus. Starcon, Inc. v. NLRB, 176 F.3d 948, 951-
52 (7th Cir. 1999). The significance of requiring such a
determination in this case lay in the fact that the applicants
were “salts.” That is, they were union organizers whose
motive in applying for jobs with Starcon was, by advertising
their intention to organize the employer’s workforce,
to precipitate an unfair labor practice by the employer
(refusing to hire them because of their revealed, indeed
flaunted, intentions). Obviously there would be a legitimate
question how many if any of them would have accepted a
job had it been offered to them, and only those would be
entitled to any relief. So while we upheld the Board’s order
insofar as it commanded Starcon to cease and desist from
discriminating against union supporters, we vacated the
part of the order that granted relief to the individual salts
who had applied and been turned down for jobs.
On remand the Board determined that only two of the
more than 100 salts who had applied to Starcon would have
been hired had it not been for the company’s antipathy to
union organizers. Those were the two who testified that if
offered a job they would have taken it. The other salts, who
did not testify, would probably have turned down a job
offer by Starcon since the purpose of the salt strategy is not
to furnish workers for the nonunion employer but to get
him into trouble if and when, as expected and indeed
hoped, he turns down the salts who have applied for jobs.
So the Board ordered relief only for the two employees who
had testified that they would have accepted a job offer from
Starcon.
Nos. 05-3209, 05-3538, 05-3539 3
The union challenges the limited scope of the order on the
ground that the General Counsel of the Board, who prose-
cutes unfair labor practice cases, should not have to prove
that salts who were qualified would have accepted a job
offer, though the union would let the employer try to prove
that they would not have accepted an offer. The Board has
never decided who has the burden of proof in such a case,
but in the remand proceeding in the present case it inter-
preted our decision as resolving the issue against the union.
For we had said that “if the Board wants to order relief to
particular ‘salters,’ it has, at a minimum, to determine how
many of them Starcon would have hired had it not been
actuated by hostility to unionization.” 176 F.3d at 951-52.
Not “would have offered a job to,” but “would have hired.”
The doctrine of law of the case precludes reexamining
a previous ruling (unless by a higher court) in the same case
unless it was manifestly erroneous. Arizona v. California, 460
U.S. 605, 618 n. 8 (1983); Moriarty v. Svec, 429 F.3d 710, 722-
23 (7th Cir. 2005); Vidimos, Inc. v. Wysong Laser Co., 179 F.3d
1063, 1065-66 (7th Cir. 1999). That the union has not shown.
Indeed, we think the passage we just quoted from our
previous opinion is correct—a worker cannot get relief
predicated on his being denied a job if he would have
spurned the job had it been offered to him. But the issue is
a novel one to which the National Labor Relations Act does
not speak, and should the Board in some future case adopt
a view contrary to ours it would be entitled to our respectful
consideration. But quite apart from the obstacle to reconsid-
eration erected by the doctrine of law of the case, the union
has given us no reason to think the Board would adopt a
contrary view. The National Labor Relations Act is not a
penal statute, and windfall remedies—remedies that give
the victim of the defendant’s wrongdoing a benefit he
would not have obtained had the defendant not committed
4 Nos. 05-3209, 05-3538, 05-3539
any wrong—are penal. Suppose a salt would have spurned
the employer’s job offer had it been made, yet the General
Counsel seeks backpay for him. If the backpay is awarded,
the salt will get money that he would not have gotten had
the employer rather than violating the Act offered him a job.
The burden of proving an entitlement to relief is usually
placed on the person seeking the relief, and we are given no
reason for departing from that presumption in salting cases,
especially since the departure would place on the employer
the burden of proving a negative. Siebert v. Severino, 256 F.3d
648, 656 n. 4 (7th Cir. 2001); National Communications Ass’n
v. AT & T Corp., 238 F.3d 124, 131 (2d Cir. 2001). It is easier
for each employee to produce evidence of what he would
have done had he been offered a job than for the employer
to produce evidence of what each of the employees would
not have done. See Campbell v. United States, 365 U.S. 85, 96
(1961); United States v. New York, New Haven & Hartford R.R.,
355 U.S. 253, 256 n. 5 (1957).
Not only the union but also Starcon is complaining about
the Board’s new order. Starcon complains in two respects
both involving the Board’s decision to postpone certain
issues to the compliance stage of this unfair labor act
proceeding. The first is the Board’s decision to make the
relief for one of the two employees conditional on his
passing the employer’s test for his job specialty as a welder,
as he was not qualified for any other job. Starcon points out
that a worker’s present ability to pass a welding test is not
conclusive proof that he could have passed it earlier when
he was turned down for the job. The second postponed issue
is how long the two employees would have been employed
had it not been for the employer’s hostility to the union.
That affects not only the amount of backpay to which they
are entitled but also whether they are entitled now to be
Nos. 05-3209, 05-3538, 05-3539 5
hired by Starcon. Starcon argues that they would have been
laid off at the completion of the construction project for
which they would have been hired had they not revealed
themselves to be salts, and if this is right they are entitled
only to backpay, and not to a job.
There was no error in the Board’s deciding to reserve
these matters for compliance proceedings. There is a
difference between entitlement to relief and the amount of
relief to which one is entitled. Our first decision upheld the
entry of a cease and desist order against Starcon’s discrimi-
nating against salts. The Board has since determined
correctly that the two employees who would have accepted
a job offer from Starcon had they received one are entitled
to some equitable relief. The open issue is merely the precise
amount of that relief, and specifically whether it includes
not merely backpay for both employees but also a job for
one or both; and how much backpay. Remedial proceedings
in an equity case often take place in stages: an injunction is
issued, but what constitutes compliance with the injunction
is deferred. People Who Care v. Rockford Board of Education,
171 F.3d 1083, 1086 (7th Cir. 1999); Gautreaux v. Chicago
Housing Authority, 690 F.2d 601, 609-10 (7th Cir. 1982). The
staged approach is sensible because usually once the
injunction is entered and upheld, the parties can work out
the details of compliance without further judicial interven-
tion. For the application of this principle to cases before the
Labor Board, see Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 902
(1984); Ron Tirapelli Ford, Inc. v. NLRB, 987 F.2d 433, 444 (7th
Cir. 1993).
The petitions for review are denied, and the Board’s order
will be enforced.
6 Nos. 05-3209, 05-3538, 05-3539
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-7-06