case number fourteen ten zero one james and john to point to petition or versus national labor relations board to do qui for the petitioner mr callahan for the respond conditioning preventing and delaying various aspects of a make whole remedy that's contained in a final judgment forstmann that have been issued by the first circuit court of appeals approximately three and a half years ago there are four major points i'd g george banta company in the city of cleveland the law the case doctrine in the mandate rule once a united states court of appeals has issued a judgment to enforce a may call remedy that the board has specifically fashioned to effectuate the policies on the national labor relations act the board and its regional director are mandated to see can obtain full compliance from all persons who are obligated under that final judgment foresman and any actions that are taken or withheld by the board or its regional director that in any manner directly or in directly modify a condition prevent or delay any aspect of that may call remedy containing that final judgment vires act which must be declared unlawful by this court this is my second point the regional directors compliance with terminations and the two orders that were issued by the board  capricious and not the product of recent just a reason decision making this is so because the region to the board and its regional director did not cite any evidence or any legal authorities to support their findings and conclusions moreover the board and its regional director did not explain why they departed from well established board president or why they do regard it any evidence that was contrary to their findings and conclusions and this ties into my third point this court should give no weight to any of the counter arguments that were made by the board in its answering brief because those counter arguments are post hoc rationalization that are not supported by substantial evidence moreover regional director did not provide the board with any evidence to support or compliance determination just as the board has not provided this court with any evidence to to to support its two orders in this case regarding this lack of substantial evidence i draw this court's attention to the board certified list of records footnote number five on b s a page one  nine on the board board supplemental appendix and footnote eleven on page ten of the board's answering brief finally my last point not only is the board's proposed standard a review contrary to the law this circuit in my briefs but the board's proposed standard of review is completely an appositive to the facts and a procedural posture in this case because the board's proposed stand every view is based upon a fatally flawed issue statement this is so because the board has  award might be enough to convince the company to close down right i'm not sure i understood you sir that the one of the reasons of or gave for negotiating the for conceding on the interest payment on interest waiving interest was to avoid putting a heavier financial burden on the company right i don't believe that is necessarily correct or it was to induce them into settling for sure you know but i don't i don't know but i think and do with the financial stability of the company well didn't the board worry about the financial stability the company in its order so it's been alleged yes and as far as i know they are judgment proof company according to the what the but here's my question suppose we don't just suppose i pathetically suppose we don't think that you've met the burden here for forcing the board to go after the president of the company in some way are you still willing to risk  reinstatement of my job that's still on the table regard later soon and also the waiver of the interest is probably the most troubling one for me because of scepter inc the suffering is very clear the board other agents were offered by the board i have the only evidence i have is what i had made in my position before i was unlawfully terminated and as i read or read the the initial i met decade before the offer of write a but but the make whole remedy is to put me back into my former position which doesn't exist or substantially equivalent one and i've cited cases in there where if you if the if the monetary amount is not substantially equivalent then the  reinstated right you weren't well had you stayed in your job that whole time presumably your job would have changed and morphed that you have been in the same position as current right of way agent without knowing what current right away and in the at how can we know they've been valid the  this about the right away work is that the the projects or temporary but the positions are not now it's been something that's been overlooked by this tyrrell not but the courts below there are people working that had been  working for this employer for four years at a time people don't always want to go to the projects they're asked to go to enabled then they decide not to and they leave in a go somewhere else but at the end of the day when i when when when you had a bug in my position i was i had a six day job the job they offer me was either five or six they didn't even provide me with a copy of the contract that they wanted me to sign how could i determine if it's a to what i had before if i don't have the facts to make that decision putting you in the position you would have been in but for the the chairman and lawful terminations is not the same thing as giving you the terms you would have had ten years earlier not necessarily good but it is a matter of giving you the terms presumably you would have had because others have them now again i don't even know why i do not know what the others have on that project i didn't even know how many different projects that the the employer had going at this time the most go back to something at the outset of this case you talked about standard review of the board wants us to apply the ordinary a p a standard of review correct i don't believe so that they want to apply that the the issue of withholding agency action for piercing the corporate veil and reinstatement should be held to non reviewable oh i'm  respect to the entire matter of the order before us the order under review they have asked for abuse of standard what abuse of standards is the standard of review they've asked for abuse of uses those views i'm sorry  right and you could have taken this case to the first circuit because you know that's correct and have them interpret the order because you're offering us an interpretation under which what the board has done here particularly with respect to interest defacto a modification of the to korea and they didn't go back to the first circuit and ask for a modification that is true but this circuit is open to the entire country and its oh yes you have there's no question of right of that you brought you could bring it here and you have brought it here and now you're asking us to interpret what the first circuit order means but but the may call remedy that was in my case pretty much a are hate a cookie cutter it's a pretty standard may call remedy water  orders an employer in the run of cases to make an employee whole and then goes into a compliance hearing it it must have the accept something that is less than truly whole because of a judgment that either there's nothing there or that it would be not in the board's interest in terms of litigation resources or the employees interest in terms of probability prevail and that's a good point but in my case there was no compliance hearing and i was completely excluded from any part of the settlement talks i actually wasn't a hearing there was  what although the the employer apparently turned over or made available its records concerning employment yes but the regional director did not make those records available to the board the board didn't review those when they made their decision nor had they made it available to this court well when you see the regional directors and make them available to the board in the board could have asked from one of them that i don't know well through surely the regional director works for whom general counsel but the board did not make those those records available to this court have you asked them to nelson that surprising if you don't pay in taxes on the yes as a matter of fact i am i found out when i was reviewing my social security benefits statements that i get every year that i was actually the the employer had been filing w nine r w to swith the i r s but i was receiving  because they were using their own post office box as my address so i did go back and files amended return to pay state and federal income taxes on these checks which are sitting in in a desk drawer up in boston and i have never received you paid income tax on a beacon income you never realized because i ordered my tax transcripts from that from the the what the income and wages transcript from the i r s and they show that this has been reported to the internal revenue service doesn't mean it's correct just because that is correct good morning your honour's that was callahan period for the national labor relations board edition or is incorrect about the standard view this court has said repeatedly in its decisions that when considering the settlement decisions of first in the two textile workers cases as well as in garment workers case that the board has broad discretion to settle cases and again those were before there was a court order and forcing the board to warren right  devilment non title that matters and i'm questioning whether what matters is whether your job is to take a court order and implement that relief and the compliance stage farces whether you're pre court order you're in the general litigation mode and where settlement is always part of the discussion and part of your authority i would argue that the the board order before this court the board order that the board order that eventually issued by the board after going through the appeal process elicited in section one and two point five three of the board's regulations that's a different sort of board in the board order that was before this of the board order or with the the court order enforcing the border i thought you were doing the latter when you think when pliant with the court order or with the board order we are boards the the the board has throughout this case been seeking compliance with the first circuit with the board order in force by decree of the first circuit morse by the first circuit what's on review before your honor's is not an application for enforcing we're not seeking any enforcement  doesn't strongly inform the stand of riverview well indeed the the court order here and merely enforced the terms already spelled out by the board even to the point of by the board in books specifying the method by which interest would be calculated so i think your position is that the courts and forstmann of that order carries with it all of the usual qualifications the and five prior interpretations accepted practice and standard of review not complied with by the employer could be a problem could result in an order of contempt that's true your honor contempt would be the final step but absent a court order everything else would be the same you just wouldn't be able to go directly for contempt  you wouldn't get well you wouldn't even be able to go directly to content out as of the moment that the first circuit enforced by decree of the board order because the that order left undefined certain aspects of the remedy for example it ordered that mr de puy be made whole it didn't specify liquidated amount it didn't say exactly what kind of offer reinstatement should be presented and that's in keeping with the traditional national labor relations board approach to present to me but for a company but i think i really asking you based on your experience how many other times have you seen a back pay order to an individual stretched out over eleven and a half years without any interest in circumstances like this where the company has judgment proof i haven't seen a case like you haven't seen other but the fact that the company is judgment proof if it took determinately that's not unusual surely you cut your deal with other comp for which there's some risk of th the judgment proof companies appear before the board all the time but when a judgment proof company does appear before the board engages in good faith and in settlement and shows us their books and shows that there is going to be no recovery if we take them to a compliance proceeding or that the recovery is going to be added pennies on the dollar added interest they would have gone belly up that's that's what you're determination or they would have gone your honor they could've even satisfied the two hundred two thousand dollars i'm not it more an eleven half years i'm suggesting if you had included the entrance and the board orders that it was going to include over the eleven and a half years is there anything in the board decision that says they couldn't do that without risking losing everything because of the judgment what the what the record reflects is that the compliance with this is the best deal that the implants off compliance officer could get from the company what the record reflects is that this is a judgment proof company and the c e o of this company was receiving a salary of a hundred fifty thousand dollars roughly and every dollar that was being paid to mr de puy on this installment plan was a dollar taken away from the c e o salary and so there was we were dealing with a zero sum game here in which every additional dollar per year that we asked from this coming out only one board decision i didn't see that in the board decision about how his interests would come out of the c e o s pocket is that in the board decision it was in the board's opposition to mr it was in the general counsel's opposition with the board's decision was that under the circumstances the general counsel did not abuse its discretion in accepting the settlement agreement and that hundred fifty thousand dollars a  and i'm really i really just think eleven and a half years after they've already had a decade between the violation and the order to begin with and then eleven and a half years without interest even though the board order the first  that there would be interest it's hard for me to understand and i don't see anything in the board's decision in the stand she aids the judgment that you're explaining to me that that that they couldn't include interest forty thousand dollars spread over eleven and a half years one month at a time was going to do anything do everything other than if what you mean by it was when i don't see that mathematical computation or explanation and two if the answer is wow if we really make it hard he's going good faith settlement negotiations and but at the same time contentious ones in which the board was trying to get the most that it could be the fact continuing on this interest point the touch of militancy about the board's order refers specifically to the boys decision in new horizons right excuse me in the the board's decision a new horizon that's you know which it says interest shall be computed in accordance with new rights correct correct and you're not arguing you can see don't you that this order or this interest waiver does not comply with new horizons correct well again i mean now that's not being done here correct because you've waived some of that interest we have with some of boards wave of interest so only over the installment plan but and what do you agree with me that th compliance with the word has been achieved now there are those on the right that it's not happening here well your honor i mean i think that is actually the answer i mean until compliance has been achieved in compliance the compliance determination did actually signal the end of interest in this case one twenty one i mean they they comply now even though he they won't go the company won't paid him for what is it eleven years we'll pay him for eleven years now eight years well whatever you understand my point so your position is is it this is in full compliance with new horizons because because the board fully complied when it signed a document saying that it would pay him back pay over eleven years and he doesn't get interest for those eleven years i just i don't see how you can read a new horizon that way i mean i can understand you saying yes it doesn't it doesn't comply with new horizons because we felt that in order in strict compliance with new horizon would push the company over the edge and it would go out of business that's what i thought your argument was i don't believe i don't believe that new hor dictates under what circumstances the board can waive interest during an installment plan and if negotiate with a judge and for a company i don't believe the new horizon is that you have a case can you cite a board decision that says or and a decision of this court that says that in terms of measuring new horizon compliance that the key date is the date the board signs that the employer signs an agreement to pay future funds i can't your honor i can only i can refer you to the discretion that he's but it's not his place to enforce that order the book that just recorded why you cited amalgamated it seems to me to be a very different case i think i think certainly the technical holding of amalgamated is different but you cannot ignore this discussion and by the supreme court the supreme court says and i quote the decree by the first or by the court of appeals in no way alters but confirms the pitch position of the board as the unfortunates already not the position of the charging party in that case the union  private component but it really is a private interest that you're in foreseen yet the private interest seems to have gotten shoved aside in this case with the private interest has been very well described i think by number of circuit courts like the first circuit in its decision in and chemical and atomic workers the charging party the private interest that the charging party has to present evidence to the board to make sure that his interests are considered but once you have a board order it's the board's order the aggrieved party are they complaining charging parnia are not addressed so if you have an any problem here is as is i suggest the earlier i'm having trouble seeing the board's explanation for the waiver of interest over an eleven it strikes me tell me if i'm wrong a very long time eleven and a half years for payment for a single person again the the answer to that is that there  are there's extensive briefing that the board has presented in which it laid out its reasons in which it made them very very clear to petitioner this was february twenty eighth letter that the deputy regional attorney sensor petitioner this is the board opposition to petitioners requests for review and in those decisions the general counsel made clear exactly why the exact bases for why it was a green to this particular settlement agreement including the eleven and a half year period and he cited a hundred  fifty thousand dollars salary when i thought was of this is a one year a complex case which to me on a sounded like boilerplate i can't imagine this is anywhere near the complexity you ordinary deal with so there's no explanation for why this was particularly complex and there was no explanation for why interest was going to be the straw that broke the camel's back and push these people either into bankruptcy or the c e o to wrap up the company and efficiency that and i'm happy to be corrected i didn't see that  order they were reviewing your honor that order that order by action of section one hundred two point five three d incorporated the reasoning of the general counsel it was a review of the discretion of the general counsel in settling this case and so the board yes where did the general counsel explain what was so i mean is this is this really that complex you've probably seen a thousands and thousands of of these types of cases how would you rate this on the complexities of spectrum this remedy just the remedial stage i'm not talking about the prior step just just to recap a calculation in this case really how complex was it on a one to ten scale sed well being the worst you've ever seen difficult in that we were dealing with the  employer was going to contest the board's position at this compliance determination and that included the method by which the board calculated the back to a term which was complex in this particular instance because this is intermittent employment i guess and i'm comparability of mr de puy situation to that of other employees in question but it strikes me as a little odd that the company if it's going to go belly up if it hasta pay forty thousand dollars in interest over an eleven and a that i mean i think that's well i mean i thought what i think you're doing is i think your point and putting us in the dirt what i think the natural conclusion of what you just said is is that if it wasn't going to settle this company was going to be liquidated and as i guess and this might be my mike we understand it wouldn't be ok for the c e o to say i don't like that back pay award you didn't make the deal i wanted to i'm liquidating the company to avoid paying it would you then be able to pierce the corporate  would you just would you have to throw up your hands and walk away i don't really i believe the corporate veil if you've incorporated a company in the united states and the company has limited liability and you're suddenly served with a judgment which exceeds the assets of your corporation and you decide to wind up and you  waived as a concession and settlement settlement it's an on the theory that in order to get the settlement agreement executed and bring the employer to table there had to be some sort of sweetener in that when place went ok so the interest wasn't part of the judgment from you didn't wave interest because they were judgment proof they couldn't afford to pay the interest then he doesn't interest so that they wouldn't litigate the back page in terms of that inquiry the job interest is actually of no import because to the interest would have kicked up the total liability to two hundred fifty thousand dollars doesn't matter whether you're talking about two hundred or two is not substantially equivalent to his old job and you responses you know disagree with that the board's response is well it's substantially higher than to the kinds of jobs the employers need help offering right we're not because to exactly what other jobs were like back in two thousand and one but you're right we believe in two thousand and eleven the terms that offer were consistent with the terms and conditions of employment offered to other employees employed but at the time and now at the top and at the at the time and our compliance office and spoke with  can mean i mean suppose suppose hypothetically he was being paid one hundred dollars an hour and now the employers run into trouble and they're only paying fifty dollars an hour so would that be substantially equivalent potentially but i mean in this case his own how we went from two hypothetical at i'm trying to find out what the the it looks to me like the board's own standard is that it has to the with language and in order like this it has to be either as position he'd be in if you hadn't been terminated which means he would be getting today's package when i was actually running and over the course the back pay period wait wait a minute oh sorry he was given every raise if you look at the calculation he was given every raise that other which is the settlement agreement but i can't find anything in there that relates to the song that says the votes this requires is six years not valid until signed by him or well anything of the sort i believe i believe at least elsewhere in the missed my remembering maybe it just says the settlement agreement isn't final until this this proceeding has been resolved that's right your honor your position that's our that's our position and that's why the board out now why is that because there's no i don't understand how there could be any scenario in which he doesn't get at least the monies that have bring paid monthly already under the existing settlement agreement i think there's definitely a possibility of that let's say that this case goes back to a compliance determination and the compliance termination find that he's on he's owed much less money than the money that we've accumulated so far what if let's i mean one of the complex how that could arise in compliance with germination is that he could be found that the interim earnings that he has actually coincided with weeks or with times in which the company was not hiring or what you know business coming through the door doesn't he could have a zero dollar yes and i guess i don't know he hasn't challenge i think calculation of backpay at anymore we'd we didn't want to cash the checks we don't want to put them into a bank account they're in escrow in the sense that we are keeping them under lock and key in the reader while holding the receipt dail no bank's going to take a three year old the we've actually the region has talked with the company in the company it indicated that in the event that this settlement and the company i'm not expert in tax i'm not sure whether the company should be or should not be reporting that it's as employee payments to the i r s but mr de puy certainly the no of under no obligation to pay taxes you normally procedure that we have for this situation this is the way that the regions have traditionally handled the situation it's a rare one so they don't actually dealing with our situation i don't actually open an escrow account when they say well we put them in escrow i think in the in the not pay the tax right but then he but then he would have been opened in the in the long term if he loses here he would have been open to interest and penalties he could very easily contacted the region  region would have been more than happy to help him out in that situation and talk to the i r s on his behalf explain the situation remind require the input require the employer to withhold the tax that's what seems unusual in your agreement require settlement agreement required withholding of tax and yet you didn't set up any mechanism in advance well the agreement didn't really go into effect to give you employer's been ten the agreement and go into effect because of this review proceeding right and so the employer has not then delivering these checks pursuant to any obligation under that agreement it's been doing so as an indication of its good faith to comply with the agreement they reason asked the company to do that and the company complied have one quick question about the reinstatement offer put aside the terms the timing of it and december twenty first offer that has to be accepted by january third  and the only as i read it in their offer the only way he could not accepted and still get another offer was if he needed that needed more time to wrap up with his existing employer didn't say anything about vacations or anything like that but it struck me as quite an abrupt schedule particularly over holidays and and didn't love any leeway for that least i read the language it was if you need time to wrap up your existing employer i was going to be in this netherworld just waiting to see if anything else ever came along i think that the words of the region were actually where's another word for the offer from the company and the reinstatement offer from the company where they know if you need more time to wrap up with your employer but with the regional director but ambiguous status if something didn't come up because why couldn't he have an offer that would say that since this is a really short notice and look for something that would give him a little more guarantee down the line i think that the employer under the circumstances gave him as much of a guarantee as is possible when they on it's essentially a sub contracting company his company can only offer him a job insofar as a new project opens up going to have to be on a project by project basis is going to be somewhat advent parties request for board review that's right your honor didn't it also said earlier that if the matter were to go if the settlement were not reached or were disarray to vacated the employer could  live again from scratch questions like his obligation to mitigate what was his actual earnings were elsewhere how many months he would have been employed and so on that's right but the document the opposition's of the charging f requests says the compromise was as follows the principle amount of back pay on twenty four was established as one hundred percent of the back pay less the  interim earnings but then exactly to exactly when so one of the issues in this case is exactly when over the course the back pay period deep we would have been employed by the company he would have been employed during the entirety of the back pay period and there's an important question as to how to match up the quarters when he would have been employed with the back with the employer and the quarters when he would have been earning the interim earnings if they're in the same quarter then they cancel out if not then he gets them back well it says go on the air and from the opposition document the resulting sum of two hundred one thousand represented one hundred percent of analysis back to a liability as of the date of reinstatement according what's what's left unstated there but which i think is easy enough to read in is that that's according to the compliance officers on litigated assumptions which are not binding on anyone until they're litigated before an l j approved by a board just order of this was the compliance settlement i mean right now it still read him something more but you're right there i would admit that over the course of the general counsel's briefing he does sometimes say that this is represent one hundred percent of back pay well more specifically eight hundred percent of the back paid at the compliance officer calculated  to say we looked at these four criteria yes your honor that's that's in the general counsel's opposition to mr de puy needs requests for review which doesn't want to wait basis for determining that the employer had not for instance reduced the scale of operations in order to make a cell judgment and if i could explain a little bit just how this board review process works and what evidence is available at every stage the compliance officer all of the information available to her the compliance officer had been in consultation with the company her from their financial records his employment records their payroll records their financial statements their balance sheet their bank accounts she'd seen all of that most of which except for the payroll records most of which was confidential which she couldn't which under an agreement she had with the company she was not going to share with mr de puy but she on the basis of that generally explained her by her reasons for not seeking to pierce the corporate veil that information was available to the general counsel as well when this case was taken up on appeal from the region to the general counsel here in washington d c but then after the general counsel approved the regional directors decision at that point the formal record began at that point the confidential information was placed of the side with not submitted to the board but the board had before it was all of the briefing and all of the information that's currently in the certified list before this court so the board was considering the same information as this court is considering and one of the things that was relying on crucially was its knowledge of the region the regions experience in dealing with these matters the regions reliability the lack of any history of the region doing anything untoward with regard to the settlements that the reasons that the board did implicitly and the board the record makes clear this is what the board was doing the board was as part of its exercise of discretion relying upon the experience and trustworthiness of the regional personnel and the general counsel who had reviewed all of the information and were making statements about the fact that this corporation was judgment proof and right one thank you thank you let's see mr de puy you and we used up all your time but you can take two minutes to like it fifty six of the joint appendix millette on the question of job reinstatement it was not unconditional and there is a problem i'm working they they present this offer with none not the all the information i need it but it says if you accept this offer we were present your resume to the client for their consideration your participation on the project will of course be subject to the approval of the client as an industry practice it was not an unconditional offer of reinstatement and that's contrary to board policy is that the way it worked when you were working there you didn't seem likely know the words when you were working there delivered each assignment conditional on the client's acceptance it depends on it well before i worked there twice another two different circumstances the second time i worked in the time i got i contacted the the client company because i knew the the project manager he had also worked for and  s e was my supervisor at ls he left and went to work for el paso and so i needed to go to massachusetts my mother was terminally ill i called up rick i knew we had a project going up your ass is working you get me on this project he says when the time comes you know give give the folks up at the end unless a call i'll see what i can do so that's how i got into the job because you know you're concerned i take it in this case that you could quit your existing employer because there was a chance in the prospective employer would just say no and then you'd be out of a job that's correct that's correct your honor that they have given your resume to this client before they made this offer certainly you said if you accept would you be willing to take with you some is there something they could have done to deal with its inherent contingency in the nature of this business perhaps but not in such a short time frame that's why i asked the compliance officer for the pushback that the deadlines thirty days because i had obligations and maybe we could work something out but