Summary
The Second Circuit reviewed the NLRB’s petition to enforce two supplemental backpay orders involving Atlantic Veal & Lamb and discriminatee Jeorge Ogando. The court granted enforcement of the first order and enforced the second order as to the last quarter of 2001, but denied enforcement for the period from January 1, 2002, through June 7, 2004, finding that Ogando had concealed interim earnings.
Topics
Practice areas
Questions Presented
- Whether the court should enforce the NLRB's first Supplemental Decision and Order when Atlantic Veal did not challenge the Board's remedial determination.
- Whether substantial evidence supported the Board's finding that Ogando diligently sought employment and mitigated his losses during the last quarter of 2001.
- Whether substantial evidence supported the Board's determination that Atlantic Veal failed to prove Ogando willfully concealed interim earnings from January 1, 2002, through June 7, 2004.
Holdings
- The petition to enforce the first Supplemental Decision and Order was granted because Atlantic Veal did not challenge it and failed to carry its burden of proving that the Board abused its discretion in selecting the remedy.
- The Board acted within its broad remedial discretion in awarding Ogando $4,001.04 for the last quarter of 2001 because Atlantic Veal failed to establish its affirmative defense that Ogando did not diligently seek employment.
- The petition to enforce the Second Supplemental Decision and Order was denied for the period from January 1, 2002, through June 7, 2004, because Atlantic Veal proved by a preponderance of the evidence that Ogando concealed interim earnings and the Board's contrary finding was not supported by substantial evidence.
Key quotations
“[A]n award of reinstatement with backpay is the normal remedy awarded to victims of discrimination” (2)
“Once the Board’s General Counsel has established the gross amount of backpay due, the burden shifts to the employer to prove that the discriminatee is ineligible for backpay or is owed a lesser amount.” (3)
“We conclude that the Board’s findings were not supported by substantial evidence: Ogando was far from a credible witness, as determined by the ALJ, and Atlantic Veal introduced significant evidence debunking Ogando’s claims.” (7)
Factual background
Atlantic Veal had been ordered to compensate discriminatee Jeorge Ogando for lost wages. For the last quarter of 2001, Ogando testified that he began looking for work in mid-November, while Atlantic Veal presented no evidence establishing that he failed to mitigate his losses. For the period from January 1, 2002, through June 7, 2004, Ogando claimed he worked only sporadically in light construction and submitted tax returns, but Atlantic Veal presented job applications, payment records, a mortgage application, and a W-2 indicating substantially greater undisclosed earnings. The ALJ found Ogando's account incredible, but the Board reversed and ordered backpay.
Procedural history
The NLRB issued a first Supplemental Decision and Order on May 28, 2010, and a Second Supplemental Decision and Order on June 27, 2012. Atlantic Veal did not challenge the first order but challenged the second order's backpay determinations. The court granted enforcement of the first order, granted enforcement of the second order as to the last quarter of 2001, and denied enforcement as to the period from January 1, 2002, through June 7, 2004.