Application for Enforcement of Supplemental Order National Labor Relations Board, NLRB Docket No. 6-CA-15962.
Before: SEITZ and MANSMANN, Circuit Judges, and BISSELL, District Judge.*fn*
This case comes before us upon the application of the National Labor Relations Board ("NLRB or "the Board"), pursuant to 29 U.S.C. § 160(e), for enforcement of an order issued by the Board against Louton, Inc., t/a The Original Oyster House ("the Oyster House" or "the company"). For the reasons stated below we will enforce the order of the Board.
On May 1, 1985, this court entered a judgment enforcing the Board's order of April 30, 1984, which found that The Original Oyster House had discriminated against Denise Churchel, Delores DeGeer and Doreen Dunmire. The Board's order required, inter alia, that the Oyster House make the discriminatees whole for loss of earnings suffered as a result of unfair labor practices.
The parties were unable to agree upon the amount of back pay to be awarded and a back pay proceeding was therefore instituted. After a hearing, the Administrative Law Judge rejected the Oyster House's affirmative defenses and ordered the company to pay $471.08 to Denise Churchel, $15,199.16 to Delores DeGeer, and $25,466.77 to Doreen Dunmire (plus interest). DeGeer was also awarded $580, plus interest for health insurance benefits and medical expenses.
On September 30, 1986 the Board adopted the ALJ's order. This application for enforcement was timely filed.
In this action, the Oyster House argues that the Board's Order is not supported by substantial evidence, and specifically alleges error in the Board's calculation of tip income and reliance on the tip income evidence when that evidence was in direct conflict with federal income tax returns. The company further contests specific portions of the back pay awards for Ms. Dunmire and Ms. DeGeer, and alleges error in the Board's failure to strike certain testimony of Ms. Dunmire.
Our review of the Board's remedy to effectuate the policies of National Labor Relations Act is limited. "The Board's order will not be disturbed 'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.'" Fibreboard Corporation v. National Labor Relations Board, 379 U.S. 203, 13 L. Ed. 2d 233, 85 S. Ct. 398 (1964) (quoting Virginia Electric and Power Co. v. National Labor Relations Board, 319 U.S. 533, 87 L. Ed. 1568, 63 S. Ct. 1214 (1943). On questions of law, appellate review of the Board's decision is plenary, although that decision is entitled to deference due to the Board's expertise in labor matters. See, N.L.R.B. v. L & J Equipment Co., Inc., 745 F.2d 224 (3d Cir. 1984), reh'g denied, 750 F.2d 25. The Board's findings of fact in a back pay proceeding will be overturned if the record, considered as a whole, shows no substantial evidence to support those findings. See Universal Camera Corporation v. National Labor Relations Board, 340 U.S. 474, 95 L. Ed. 456, 71 S. Ct. 456 (1951). Utilizing these standards, we find no merit in the contentions before us here, and we will enforce the Board's order.
In this case, the Oyster House challenges the Board's findings of fact concerning the amount of the discriminatees' tip income. The company asserts that the evidence is of no value because the discriminatees admitted under oath to reporting different tip income to the Internal Revenue Service, and the evidence is not credible because the ...