NLRB v. Ampersand Publishing, LLC ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 11 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL LABOR RELATIONS No. 21-71060
BOARD,
NLRB Nos. 31-CA-028589
Petitioner, 31-CA-028661
31-CA-028667
v. 31-CA-028700
31-CA-028733
AMPERSAND PUBLISHING, LLC, DBA 31-CA-028734
Santa Barbara News-Press, 31-CA-028738
31-CA-028799
Respondent. 31-CA-028889
31-CA-028890
31-CA-028944
31-CA-029032
31-CA-029076
31-CA-029099
31-CA-029124
MEMORANDUM*
On Petition for Review of an Order of the
National Labor Relations Board
Argued and Submitted April 14, 2022
Pasadena, California
Before: PAEZ, SMITH,** and BADE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Ampersand Publishing, LLC (“Ampersand”) does business as the
Santa-Barbara News-Press (“News-Press”), a daily newspaper. The Graphic
Communications Conference, International Brotherhood of Teamsters (“Union”),
which represents a bargaining unit of Ampersand’s employees, filed several unfair
labor practice charges alleging that Ampersand violated the National Labor
Relations Act (“Act”). After a hearing, the National Labor Relations Board
(“NLRB” or “Board”) held that Ampersand had violated numerous sections of the
Act. Ampersand Publ’g, LLC, 362 N.L.R.B. 252, 252 & n.1 (2015). The Board
entered several remedies, including that Ampersand make unit employees whole
for losses they suffered because of discontinued merit pay raises and the use of
non-union employees; provide backpay to two terminated employees, Dennis
Moran (“Moran”) and Richard Mineards (“Mineards”); and reimburse the Union
for the costs and expenses it incurred in collective bargaining. Id. at 252-54.
The parties could not reach an agreement about the amount of backpay due
to employees and the amount of reimbursement due to the Union, so the Regional
Director for the relevant region of the NLRB issued a compliance specification
detailing her calculations of how much Ampersand owed. The Board granted
summary judgment as to portions of the specification, holding that Ampersand’s
**
The Honorable D. Brooks Smith, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
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answer did not specifically refute the calculations. After a hearing on the
remaining issues, an Administrative Law Judge (“ALJ”) granted the full amount
claimed in an amended version of the specification. Ampersand filed exceptions to
this decision, and a three-member panel of the Board affirmed. The NLRB
subsequently applied to this court for enforcement of its compliance order.1 We
have jurisdiction under 29 U.S.C. § 160(e), and we grant the petition for
enforcement.
This Memorandum addresses only Ampersand’s challenges to the amounts
claimed in the compliance specification. In a concurrently filed opinion, we
address the company’s argument about whether legal fees incurred during
bargaining are recoverable and hold that they are.
1. The Board did not err in finding that there was sufficient evidence to
support the Union’s claimed expenses. The Board’s findings of fact are reviewed
for substantial evidence, and we will “not displace the NLRB’s choice between
two fairly conflicting views.” Retlaw Broad. Co. v. NLRB, 53 F.3d 1002, 1007
(9th Cir. 1995). Although the Union’s lawyer, Ira Gottlieb, could no longer recall
the details of his activities, the record contains extensive billing records detailing
the work he performed, and the Board reasonably concluded that these records
1
Because Ampersand objects to only select portions of the Board’s order,
the Board is entitled to summary enforcement of the unchallenged portions. See
NLRB v. Legacy Health Sys., 662 F.3d 1124, 1126 (9th Cir. 2011).
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were contemporaneously prepared, reliable, and trustworthy. That constitutes
substantial evidence to support the Union’s claimed amount of legal fees.
Similarly, the record contains a careful and detailed estimate of the expenses
the Union spent on its lead negotiator, Nicholas Caruso, which is sufficient to
support those claimed expenses even though Caruso could not specifically recall
the breakdown of his time. Although it is true that Caruso was paid a flat salary,
the Board’s order is fairly designed to compensate the Union for the time he spent
on futile bargaining efforts rather than on other work. This is consistent with
standard NLRB practice. See Fallbrook Hosp. Corp., 360 N.L.R.B. 644, 646
(2014), enf’d, 785 F.3d 729 (D.C. Cir. 2015).
Finally, the Union’s contemporaneous expense reports provide substantial
evidence to support its claimed travel expenses, even though it shredded the
original receipts, and to find that those expenses were normal and reasonable.2
2
Ampersand’s argument that the Union’s destruction of the receipts requires
reduction of the award as a sanction is unavailing. The Board reasonably
determined that “[t]he documents were destroyed as part of a normal document
destruction policy” and “there is no evidence that any document was shredded as a
result of any fraud, bad faith, or desire to suppress the truth.” And Ampersand
offered no reason to believe that it suffered any prejudice “occasioned by the
destruction of the records.” In the absence of either bad faith or prejudice, the
Board’s determination that the Union should be awarded its full claimed expenses
was not erroneous. See Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir.
2015). For the same reasons, we also reject Ampersand’s argument that Moran
and Mineards’s failure to maintain written records of their job search should lead
to a reduction in their backpay awards.
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Although Ampersand asserted—without citation to authority—that it was
unreasonable for the Union to use a negotiator from out of state, we do not agree.
2. Ampersand challenges the specific backpay awards for Moran and
Mineards, arguing that both men failed to make reasonable efforts to mitigate their
damages and that their backpay should therefore be reduced. The NLRB’s power
to order backpay “is a broad discretionary one, subject to limited judicial review.”
Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216 (1964). We will
overturn an order on backpay only when the award is “arbitrary or unreasonable,”
NLRB v. Int’l Ass'n of Bridge, Structural & Reinforced Iron Workers Union, Local
378, 532 F.2d 1241, 1242 (9th Cir. 1976), or where there is “no substantial
evidence to support the Board's findings,” NLRB v. United Bhd. of Carpenters, 531
F.2d 424, 426 (9th Cir. 1976). Once the General Counsel has established the gross
amount of backpay due to a claimant, “the burden shifts to the employer to
establish facts that would reduce that amount.” Kawasaki Motors Mfg. Corp., USA
v. NLRB, 850 F.2d 524, 527 (9th Cir. 1988). “This is a difficult burden because
doubts must be resolved against the employer who committed the unfair labor
practice.” Id.Ampersand argues that Moran failed to sufficiently mitigate his damages
because he voluntarily quit his interim employment. When a discriminatee
voluntarily quits his interim employment, the General Counsel bears the burden of
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showing that the decision to quit was reasonable. See Minette Mills, Inc., 316
N.L.R.B. 1009, 1010 (1995). The Board concluded that the General Counsel had
met this burden in light of the increased work demands, financial hardship, and
lack of support Moran experienced in his interim employment. This finding is
supported by substantial evidence in the record, particularly Moran’s own
unrebutted credible testimony. A discriminatee “is not required to seek or retain a
job more onerous than the job from which he or she was discharged,” and the
Board properly concluded that Moran’s decision to leave his interim job did not
undermine his overall efforts to mitigate his damages. Kawasaki Motors, 850 F.2d
at 528.
Ampersand argues that Mineards failed to sufficiently mitigate his backpay
damages because he took a lower-paying, part-time job as interim employment and
stopped looking for additional work once he began receiving a pension and Social
Security benefits. A discriminatee “must seek interim employment substantially
equivalent to the position of which he or she was unlawfully deprived and that
employment must be suitable to a person of like background and experience.”
Tubari Ltd. v. NLRB, 959 F.2d 451, 454 (3d Cir. 1992) (internal quotation marks
and citation omitted). The interim employment need not pay the same to be
considered substantially equivalent, however, and “a discriminatee who accepts
suitable interim employment, even at a lower wage, has no continuing duty to
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search for a more lucrative job.” Id. at 458. Here, the Board found that
Mineards’s position with the Montecito Journal was substantially equivalent to his
prior position with the News-Press. This finding was supported by substantial
evidence in the record, and Ampersand does not offer any evidence to compel the
conclusion that the backpay award should be reduced. And even if the jobs had
not been substantially equivalent, Ampersand did not carry its burden of proving
that Mineards failed to use reasonable diligence in seeking other employment
because it offered no evidence that substantially equivalent jobs existed and that
Mineards was not reasonably diligent in seeking them. Therefore, its mitigation
defense fails.
3. Ampersand raises two evidentiary objections in brief and conclusory
footnotes. These fail to raise any arguments with sufficient specificity, see Fed. R.
App. P. 28(a)(8)(A), so we do not consider them, see Greenwood v. FAA, 28 F.3d
971, 977 (9th Cir. 1994).
PETITION FOR ENFORCEMENT GRANTED.
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