right for the petitioners cross responde good afternoon may it please the court steven wright for the petitioner lose transported to a mass if i may reserve two minutes for a bottle the the underline issue we believe in this case and somehow the board has come up that there should be net back pay and interim expenses and four dollars a one k obligations all of which we believe should not be here what we're going to do what i would like to do with my time is  address the interim expenses and if there's any remaining time address the net back pay issue where they treat over time and regular time differently with respect to the interim expenses mr hershey worked at t k m s and lose for more time than he for more time at the flat rock yard then he worked in pontiac he started in pontiac after three and a half months he went to the flat rock yard it is absolutely undisputed that while he was at the flat rock yard he did not get any additional compensation he did not get travel expenses he didn't get anything in fact he acknowledged that in his worker's compensation claim that it during his travel times to and from the t t m s yard and flat rock he did not get any compensation so when the board suggests that oh he wasn't he was an employee who was going to the flat rock yard he was going to the pontiac yard ok which is much closer to his home and they then come up with an inflated last day of work i was at the flat rock yard the testimony was theirs and there was no time when he wasn't going to be at the flat rock yard what mr hershey's testimony was that a month after i'd left i went by and i saw with respect to that it was not that yard is only for losing t k mess it's not for anyone else so i'm not sure with respect to that particular thing i do know what you're referencing but my understanding was what he was same with respect to that when i went by one month and i saw it not that we weren't didn't still have the contract or any of that but that with that in fact what had happened was that he seemed to think that for some reason he wouldn't have been working there anymore but that's not the testimony and that's pure speculation with respect to that he would been working there especially with the testimony that he would have been working there and that every single day after mr hershey left for the two and a half years of the back or three years of the back pay there was some quad drivers working at the flat rock yard that evidence was undisputed and all we have is the speculation of the day with respect to that more importantly let's assume for a moment that you take the a j you take the credibility issue or whatever and you say there is substantial evidence with respect to what the assumed we come to the point with respect to the interim expenses where why are the d c circuit affirmed was that work search and interim employment expenses would be treated independently from back pay that they would be treated independently however in king soopers nothing in the in the affirmed nothing and in the d c circuit did change the fact that it did not go as far as and now you're suggesting the board wants to go with respect here is the issue here if that's the case yes ok it is fundamentally unfair when when the standard the standard is to put you the economic status quo ok you put them in the back in the economic status quo they would have been in but for  the unlawful conduct while here if you take just the th quarter of two thousand and fifteen mr hershey made two thousand four hundred dollars more working at his new job than his old job of your sort of shifting over aren't you to the hours versus the expenses can i stay on expenses you use the term interim employment expenses as though that was necessarily different from this mileage can you explain that because to me driving extra miles would be an employment expense so was there something you met specifically while the interim employment expenses the king soopers purse talking about was stuff with respect to finding a job those were the expenses not mileage expenses or things like again using advances related to finding said work search and interim employment expenses you're saying there's a lot that's really only one thing while the the actual search going out to finding work and then any expenses you have with respect to that at least that's how we reaching super's that there's two discrete things my point and to address the mileage of but i guess to push that on the one hand you have to go out and spend money to get the job king soopers in this case assuming that he's right about the pontiac flat rock issue you have to spend extra money to get to the job why should that be really any different because i think because i think that and with respect to the interim employment expenses we're not talking about once he got another job releases as i read king stewart it's those expenses incurred to obtain order yet i understand the conceptual point you're making but i'm putting it back to you if in order to get the paycheck on the one hand you have to find the job on the other hand you have to get physically to the job why should that be any different it's different in this respect once you get the job if you make more money fundamental fairness and the standard that the board has always used about putting someone in the status quo suggests that if you make two thousand four hundred dollars more in net back pay during a pay period and you have two thousand four hundred dollars that in expenses those should be netted nothing the board has ever said we would take away from that and the dissent in the d c circuit against expenses or best opinion i think the i would suggest anything pretty king soopers suggest that that is the rule and king soopers nothing from king super says that you don't net them in fact you should it i can understand where king super says hey if you've got interim employment expenses or you've got something you know it's unfair to not at least you know not get paid for those or not net those because that w freaking supers they were netted but all we're suggesting now is if you're going to do that at least net them ok if you're going to put the person back in the position they would have ben and not give them a windfall you should net those two so in my keep saying he gets two thousand four hundred dollars more my rowing is you actually works more hours than he did or would have no point is that's the amazing thing about this every job he got when he left us he got paid more per hour so when i said at the beginning that he actually during this time period made more money and worked one thousand one hundred and thirty hours less that's why it's important if if the if the board wants to say we'll net these but we've got to equate ours or somehow make sure that the hours of the right hours that would be something different but here they're saying i'm going to completely disregard any net pay where it in order to our favor the in that hypothetical because mr hershey only worked two weeks and he found another job in that hypothetical that that person wouldn't be entitled to seek those damages what we're suggesting is if you make more money at your new job you should at least  any expenses claimed expenses that you have were not even suggesting preaching super's that you don't actually get those ok where is preaching super's you just more you're out of luck even get into what we're suggesting is if you're going to if you were g that then before and not give someone that you should now not just say we're going to treat them separately you should instead say that you're going to net them and the chips fall where they may with respect to that if you  for st of all i would do believe that the d c circuit did not go as far as mileage expenses but more importantly the constitution funding family fundamental fairness says you can't penalize the employer here if you don't you your honor is may please the court my name is stephen b s shot i am counsel for the national labor relations board the board is seeking enforcement of a board order against loose transport incorporated for back pay in the amount of forty nine thousand eight hundred and seventeen dollars to unlawfully discharge employee mr michael hershey the dispute this case centers solely on whether the board exceeded or abused its wide discretion in calculating the specific amount owed on april th two thousand and sixteen this court and forced board order  underlying unfair labor practice in this case finding that the employer unlawfully discharged mr hershey in violation of the national labor relations act for among other things complaining to coworkers about unsafe trucks being forced to work in ha conditions and the company's refusal to pay for traffic tickets the employees incurred because of the bald truck tires that they were forced to drive pursuant to the board order the board from the company payroll records of comparably situated employees and obtained from mr hershey's interim employers payroll records for mr hershey's interim employment on aug th two thousand and seventeen the board's regional office for the region in which the unfair practice occurred issued a compliance specular specification detailing the specific amounts that the company owed and had to pay mr hershey in make whole relief the company disputed those amounts for fix citing various reasons and that decision ordering the company to pay mr hershey forty nine thousand eight hundred and seventeen dollars in back to another make whole relief one of the major arguments your opponent raised was that mr her she got more dollars per hour at work fewer hours  employed how do you address that that's correct your honor but he companies still owed mr hershey for other expenses that the company did not include in their own calculations for example all the interim commuting expenses that he was forced to drive further through in term employment than he would have had he not been unlawfully fired from the employer in the st place and pursuant to established board present policy of the board's policy is to compensate the discriminative for those for those losses in addition to that there are four a one k benefits that mr her she would have continued to accrue had enough unlawfully fired including would offset some of the positive amounts that he would have made that would have been higher than some of the interim earning some of the earnings of the comparable employees as i read the document there that he got more money for less work how does that get and where does that net backpay come from well we would argue he did not get more money for less work the way the board calculates back pay is that it takes all the hours the comparable employee would have worked multiply that by what the discriminant he would have made under the collective bargaining agreement and then offset offset that amount with the amount of hours he would have worked that he did work in times what he made interim employment but the board's policy and it's a longstanding policy under their compliance manual which guides regional offices in computing these amounts and cites to court precedent and employee wrong about more money for less hours because i i quite understand that and when he said he made more money my immediate thought was exactly what you said but then he says more money for less hours and then i'm saying  would have been the outcome but that's not the way that the board compensates discriminant tease what they'll do is they'll offset interim employment what they cut what the discriminate team makes it in a room plummet with the amount that the comparable employees make on any given quarter and the lead up all the hours that were the same work but for every week in which a comparable employee works more hours than were available to mr hersh it and term employment those hours are going to be compensated in his back pay because he would have been eligible for those extra hours at the original gross employer and dish into that pursuant to longstanding board policy the board is not going to penalize the discriminants he buy reduced by forcing him to essentially give up the ex the money he made working extra hours at interim employment in excess of hours that would have been available had he stayed with the gross employer and so that's why we came up with there is a positive net back pain number and there are policy reasons for that as well your honor if if the board were to calculate back pay in such a way that it penalizes the discriminative for working extra hours at interim employment then the discriminates he can just not work as many hours it into an inter of just having a little trouble and maybe i need to read the record better connecting that with your adversaries factual view which you don't seem to dispute and i fully understand that if he would have worked forty hours and he only gets to work thirty hours at his new job that he ought to get the excess of that the question is how does he get more money because he's getting a higher pay great per hour is that the is that the reason he can say what he says some of the jobs he works were paid at a higher wage and that's is that the prevailing wage vs the contract wage argument no there is an argument in there about th he's not getting as many hours right what what's this what's the truth in this case well the truth is the board doesn't simply add up everything that he made at interim employment and compare it with everything he would have made had to happen unlawfully fired them and so the way that the board does it is because they don't want to penalize the discriminants he for working extra hours and encouraging him to slack off so i know weekly basis he's going to make more and those hours are going to be not subtracted from the back pay award and so that's mathematically that he really did get that money because he did work more hours on it and a weekly basis and some some weeks he worked more hours some weeks he would have worked less ok so you're saying what you really saying is that when he worked more hours you shouldn't penalize him for it when he works less hours he gets topped up to what he would have done at that's old employee ok is that close to what your position is that's exactly what the  and interim employment got more are more money per hour there would be a net back pay or yes for the extra hours that would be in because other times he was under that right that is if there was nothing else happening and he used to get paid fifteen dollars an hour and his interim is seventeen for exactly the same number of hours then there'd be no back  yes exactly if you work seventeen hours at each employer same hours but now he's getting a higher pay rate and there's no other in that back they have zero but for all hours worked in excess of those but it sounds like you're really saying that the weekly deficit get compensated even if there are benefits and some other weak is that yes yes you're right and looking at the last page of the supplemental order which i think is the governing thing net back opponents the area that the interim expenses of twenty one thousand dollars should be netted against the net back pay to come up with a much smaller amount my best understanding of what the opposing counsel is proposing is that yes to all the interim expenses that he was compensated for should simply not have been compensated or otherwise offset against the award however you want to phrase it and what's sorry what's wrong with his argument well it's under board president policy commuting expenses and interim expenses and search for work expenses have been compensated by board by the board for eighty plus years even before king soopers and so any losses he suffered by as a result of the unlawful discharge and having to drive further to enter employment would be compensated even before king soopers pleading for one when inflation which with some of the complaint here charge an employee by reducing his back pay award for uniform fees or any fees the company would have charged had he been a because he was unable to keep his job that his board president policy and that was followed here in addition the four a one k benefits were properly awarded and properly calculated again its board president policy that employees receive medical compensation for all the forty one k benefits that they have been deprived of as a result of their own lawful discharge in fact the board here was careful to not to double count those for a one k benefits by reducing from his gross back pay the amount of contributions he made to the four a one k benefits so that those are only included once in the award in addition the board based the four a one k determination on the past practices of mr hershey he had been contributing five percent of his salary to a four a one k prior to his discharge and so the board concluded based on past practice that he would have continued that practice and the cutoff date for that for a one k contributions was the st day that he was eligible for a four a one k option at his new employer and so that was the forty one dollars k period that the board used in calculating the amount the company argues that for a one k benefits should not have been included or and that the board's use of a for the for a one k equity fund to calculate those benefits was unreasonable in this case mr hersh the specific fun to which mr her she had contributed was discontinued and so the board had to find some other similar equity fund upon which to base the estimated gains that he would have made had he not been unlawfully fired and continue contributing to that for a one k award and so the  settled on a similar equity fund the company disputes but provided no documents whatsoever as to other types of for one k plans that were still offered by the employer and provided no evidence whatsoever that had he chosen one of those plans he would have made less money in one dollar k gains and in addition the opposing counsel makes a number of constitutional arguments including due process and equal protection for the st time here on appeal that were never raised any part in the proceedings before the board and not in no part of the record whatsoever pursuant to section tenney of the national labor relations act this court has jurisdiction be barred from considering those arguments but in any event they have no merit the company was not deprived of due process by amendments to the compliance specifications rather there is no evidence in the record whatsoever that any amendments to comply specifications were made for any reason other than to make for a more accurate and reasonable approximation of the amount and make whole relief that her she was owed and the company was not deprived of equal protection here rather as shown in our preferred and as shown in the compliance speculation the board meticulously calculated every aspect of the backpay amount to ensure that her she was fully compensated for the many losses that he suffered as a result of the employer's unfair labor practice in some the board recently calculated the backpay were to make merchant hershey whole and it was well within the board's remedial discretion accordingly the board respectfully request the court to enforce the board's order in full thank you your hon i'll try to address you by a cure i'll try to address the issue that you raise the the way the calculation works it's not weekly it's quarterly every quarter the employee would have made so much money if he was working for us and they determine what his hours were and then they adjust those to make sure that they're the same and in most of the quarters what we found was that he would have made more he made more money and would have made more money working and his interim job is opposed to our our position there were a couple of quarters that total up to the eleven thousand when that was not the case and more importantly with respect to that the part of the eleven thousand relates to overtime because while they treated the wages on a quarterly basis they treated overtime on a weekly basis so what they did important because they don't treat that quarterly and so therefore they they they just do a different calculation for the overtime which is pure speculation based on what he would of work one week versus the versus the next that unique to this case or is that  a practice that is completely unique to this i we've never we've never seen where they've taken over time on a weekly basis not even a bi weekly basis like the payroll  or the board per week that's that's that's the one case that they cite and there's not enough information to determine why in that case that single case they did it but here they have the information that he was paid every quarter every he was paid every two weeks to be paid for a quarter it would begin to understand who this if you work forty hours each week no overtime no problem but if because the company says we really need you and you work sixty hours this week twenty hours the next week your side wants to say the extra money he makes in effect should go against him and he's going to say wait a minute i work sixty hours this week i work my butt off whereas if i just happen to be level four thousand and forty then i'd be ok what i'm suggesting is is sort of the opposite so let me let me use your example let's assume that in a now not a quarter we're going to treat two week pay period his pay period we don't know his we don't those interim represent vailable but let's say he worked forty hours of overtime ok in his interim employment the board treated that is twenty hours here and twenty hours here ok and then what they did is they said well we could see by the pay records that mr hershey would have worked based on the comparables thirty hours here and ten hours here ok in those to pay period so what did they do they say in this pay period when he worked ten more hours in that week not quarter that week you have to give him that but when he work twenty hours less we're not going to do anything so even though they both work forty hours that that one dollar pay period in it should have all netted out if you did it by pay period ok when you put when you net it by week especially when you net overtime by week when you're doing the rest of his pay by quarter there's no rationale that's ever been stated for why you would do overtime every week and have to divide up a had a two week paper to do it when the quarter is for growth of the wait thank you very much thank you thank you both for your argument that can still be submitted and with a clear call the next case