United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 17, 2014 Decided July 17, 2015

No. 14-1001

JAMISON JOHN DUPUY,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

On Petition for Review of an Order 

of the National Labor Relations Board

Jamison John Dupuy, pro se, argued the cause and filed 

the briefs for petitioner. 

Douglas Callahan, Attorney, National Labor Relations 

Board, argued the cause for respondent. With him on the 

brief were Richard F. Griffin, Jr., General Counsel, John H. 

Ferguson, Associate General Counsel, Linda Dreeben, 

Deputy Associate General Counsel, and Robert J. Englehart, 

Supervisory Attorney.

Before: TATEL and MILLETT, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.
2

MILLETT, Circuit Judge: Eleven years is a long time to 

wait for backpay; doubly so when no interest accrues over 

those eleven years. Yet, after a federal court of appeals 

entered judgment enforcing Jamison John Dupuy’s right to 

reinstatement and backpay with interest for his unlawful

termination, the National Labor Relations Board entered into 

a settlement agreement with Dupuy’s former employer under 

which Dupuy’s backpay would be paid on those sparing terms

over Dupuy’s objection. The Board also ruled that 

reinstatement to a position with reduced pay, benefits, and job

security satisfied the court’s judgment because it paralleled 

what current employees received. As a matter of law, the 

Board reasonably used current employees’ pay and benefits as 

a reference point. But with the exception of the backpay 

calculation, the Board provided only scant evidence to 

corroborate its critical factual findings about comparable 

employment terms. Because the Board failed adequately to 

explain or to substantiate those aspects of its decision, we 

grant the petition in part, vacate the Board’s ruling, and 

remand.

I

Statutory Framework

Congress enacted the National Labor Relations Act in 

1935 to “eliminate the causes of certain substantial 

obstructions to the free flow of commerce * * * by 

encouraging the practice and procedure of collective 

bargaining and by protecting the exercise by workers of full 

freedom of association, self-organization, and designation of

representatives of their own choosing, for the purpose of 

negotiating the terms and conditions of their employment or 

other mutual aid or protection.” 29 U.S.C. § 151. To that 

end, Congress empowered the National Labor Relations 
3

Board to “prevent any person from engaging in any unfair 

labor practice * * * affecting commerce.” Id. § 160(a). 

Oftentimes, the Board learns of a potential violation through 

the filing of an unfair labor practice complaint by a “charging 

party.” See 29 C.F.R. § 101.2.

If the Board finds, after notice and a hearing, that an 

unfair labor practice has occurred, the Board “shall issue * * * 

an order requiring” the person violating the Act “to cease and 

desist from such unfair labor practice, and to take such 

affirmative action including reinstatement of employees with 

or without back pay, as will effectuate the policies of” the 

Act. 29 U.S.C. § 160(c). The Board can then “petition any 

court of appeals of the United States * * * within any circuit 

* * * wherein the unfair labor practice in question occurred” 

for enforcement of its order. Id. § 160(e). Once that petition 

is filed, “the court * * * shall have jurisdiction of the 

proceeding and of the question determined therein.” Id. The 

jurisdiction of the court “shall be exclusive and its judgment 

and decree shall be final,” except that the Supreme Court may 

review it upon granting a writ of certiorari. Id.

After “the entry of a court judgment enforcing” Boardordered remedial action, 29 C.F.R. § 102.52, “the Board has 

the responsibility [for] obtaining compliance with that 

judgment,” id. § 101.15. To that end, “the Regional Director 

shall seek compliance from all persons having obligations” 

under the judgment, and “shall make a compliance 

determination as appropriate.” Id. § 102.52. If the Regional 

Director “finds that the respondent has failed to live up to the 

terms of the court’s judgment, the General Counsel may, on 

behalf of the Board, petition the court to hold the respondent 

in contempt of court.” Id. § 101.15. 
4

A charging party who objects to the Regional Director’s 

compliance determination may appeal the determination to 

the Board’s General Counsel, 29 C.F.R. § 102.53(a), and if 

still dissatisfied, may petition the Board for review, id.

§§ 102.53(c)–(d). The Board’s denial of review “will 

constitute an affirmance of the decision of the General 

Counsel.” Id. § 102.53(d). 

If the charging party still remains “aggrieved” after “a 

final order of the Board,” that party may petition for review of 

the Board’s order in this circuit or in any other federal circuit 

court of appeals in which the unfair labor practice occurred. 

29 U.S.C. § 160(f). On review “the findings of the Board 

with respect to questions of fact if supported by substantial 

evidence on the record considered as a whole shall * * * be 

conclusive.” Id. 

Factual Background

Northeastern Land Services (“Northeastern”) is a 

temporary employment agency that supplies right-of-way 

agents for clients in the natural gas and fiber-optics 

industries.1 From July to October 2001, Jamison John Dupuy 

worked as a right-of-way agent for Northeastern on a project 

for El Paso Energy, one of the company’s clients. 

Dissatisfied with Northeastern’s policy for reimbursing workrelated expenses, Dupuy contacted El Paso in October 2001 

asking it to reimburse his hotel and computer expenses. 

When Northeastern got wind of that disclosure, it terminated 

 

1 Right-of-way agents “perform various activities related to the 

acquisition of land rights,” including “perform[ing] title research to 

determine who owns the land, perform[ing] title abstracts, survey 

permitting[,] and [] negotiat[ing] for land rights, whether easements 

or fee properties.” Northeastern Land Services, Ltd., 352 NLRB 

744, 744, 747–748 (2008).
5

Dupuy for violating a confidentiality agreement that 

prohibited him from disclosing the terms of his compensation.

Dupuy filed an unfair labor practice charge with the 

National Labor Relations Board in 2001. Seven years later, a 

two-member panel of the Board issued a Decision and Order 

finding that Northeastern’s ban on disclosing compensation 

terms violated the Fair Labor Standards Act. The First Circuit 

enforced the Board’s Order, see Northeastern Land Services, 

Ltd. v. NLRB, 560 F.3d 36 (1st Cir. 2009), but the Supreme 

Court vacated that judgment in light of New Process Steel, 

L.P. v. NLRB, 560 U.S. 674 (2010), because the two-member 

Board lacked the necessary quorum to act, see Northeastern 

Land Services, Ltd. v. NLRB, 561 U.S. 1021 (2010). 

On remand from the Supreme Court, a three-member 

panel of the Board reaffirmed the previous Decision and 

Order, and the First Circuit again entered judgment enforcing

the Order. See NLRB v Northeastern Land Services, Ltd., 645 

F.3d 475 (1st Cir. 2011).

As relevant here, the First Circuit’s judgment enforcing 

the Board Order required Northeastern to offer Dupuy “full 

reinstatement to his former job or, if that job no longer exists, 

to a substantially equivalent job, without prejudice to his 

seniority or any other rights or privileges previously enjoyed,” 

and to “[m]ake Jamison Dupuy whole for any loss of earnings 

and other benefits suffered as a result of the unlawful action 

taken against him[.]” Northeastern Land Services, Ltd., 355 

NLRB 1154 (2010) (enforced by Northeastern Land Services,

645 F.3d at 484, and incorporating the terms of Northeastern 

Land Services, Ltd., 352 NLRB 744, 746 (2008)). In the 

“Remedy” section of its Order, the Board was explicit that the 

backpay was to be accompanied by “interest as computed in 

New Horizons for the Retarded, 283 NLRB 1173 (1987).” 
6

Northeastern Land Services, 352 NLRB at 746. As relevant 

here, New Horizons is a longstanding Board precedent that 

requires interest on backpay “to accrue commencing with the 

last day of each calendar quarter of the backpay period for the 

amount due and owing for each quarterly period and

continuing until compliance with the Order is achieved.” 283 

NLRB at 1174 (emphasis added).

Following the First Circuit’s affirmance of the Board’s 

Order, a Compliance Officer for the Board negotiated a 

settlement agreement with Northeastern, without Dupuy’s 

concurrence, under which Northeastern would offer Dupuy 

reinstatement by December 30, 2011. See Settlement 

Agreement ¶ 5, J.A. 55. The Settlement Agreement also 

provided Dupuy $201,788.50 in compensation, comprising 

$124,115.33 in backpay and $77,673.17 in accrued interest. 

Id. ¶ 7. The Agreement called for monthly installment 

payments of $1,500 over a period of more than eleven years, 

from January 2012 to March 2023. See Letter from Deputy 

Regional Attorney Scott Burson to Jamison John Dupuy, Feb.

28, 2012, at 3 (“Burson Letter”); Board Supp. App. 3. 

Notwithstanding the Order’s direction that interest be 

paid consistent with New Horizons, the Settlement Agreement 

waived any claim to interest that would have accrued during 

the payment period. That decision deprived Dupuy of 

$41,906.78 in compensation. In exchange, Northeastern

agreed simply to comply with the terms of the Agreement. 

See Settlement Agreement ¶ 14, J.A. 56–57. The Settlement 

Agreement also provided that Northeastern would mail its 

monthly installment payments to the Board in Boston, 

payable to Dupuy, after deducting any Social Security and 

withholding taxes, and that it would issue IRS Forms W-2 and 

1099 to Dupuy for the payments. Id. ¶¶ 10–12, J.A. 56. 
7

To ensure compliance, a Security Agreement appended to 

the Settlement Agreement gave the Board a security interest 

in: 

“A. All real property, of which there is none 

currently owned by [Northeastern];

B. All fixtures, equipment, machinery, vehicles, 

inventory, accounts receivable, and bank accounts;

C. All proceeds from the above collateral; and,

D. All increases, substitutions, replacements, 

additions and accessions to the above collateral.”

Security Agreement ¶ 1, J.A. 60–61. 

On December 13, 2011, Dupuy emailed the Board’s 

Compliance Officer to notify her that he would be unavailable 

between December 21, 2011 and January 11, 2012. J.A. 20. 

Nonetheless, on December 20, 2011, Northeastern President 

and Chief Executive Officer Jeffrey Deuink emailed Dupuy 

an “unconditional offer of reinstatement.” Email from 

Northeastern to Jamison John Dupuy, Dec. 20, 2011, J.A. 22–

23 (“Reinstatement Letter”). That letter offered Dupuy a 

position as a “land agent” for a project starting the week of 

January 2, 2012 in eastern New York and northeastern 

Pennsylvania. J.A. 22. The letter noted that “[y]our 

participation on the project will, of course, be subject to the 

approval of the client as is industry practice.” Id. The letter 

also provided that, “[i]f we do not receive this form back from 

you by January 3, 2012, we will assume that you are not 

interested in returning to work for The NLS Group and this 

offer will automatically expire.” J.A. 23. 
8

Procedural History

Two weeks after the offer of reinstatement, Dupuy 

informed Northeastern and the Board’s Regional Director that 

he did not agree to the Settlement Agreement’s terms or 

accept the offer of reinstatement. See Letter from Jamison 

John Dupuy to Rosemary Pye, NLRB Regional Director –

Region 1, Jan. 3, 2012, J.A. 33; Letter from Jamison John 

Dupuy to Jeffrey Deuink, Jan. 3, 2012, J.A. 42. He claimed 

that the Board had unlawfully waived interest during the 

payment period, had failed to impose personal liability for the 

monetary award on Jeffrey Deuink, Northeastern’s CEO, and 

had not followed its own regulations and case-handling 

manual in its enforcement efforts. See Letter to Rosemary 

Pye, J.A. 33–41. Dupuy also argued that Northeastern had 

failed to make a valid offer of reinstatement because, in his 

view, (i) the terms and conditions of reinstatement were out of 

step with industry practice and with his previous employment 

at Northeastern, (ii) the reinstatement offer failed to disclose 

many of the material terms of employment, and (iii) the time 

limits imposed on his acceptance were made in bad faith. See

Letter to Jeffrey Deuink, J.A. 42; Letter to Rosemary Pye, 

J.A. 35–36. 

In response, the Board’s Regional Director entered a 

formal decision “unilaterally accept[ing]” the Settlement 

Agreement. Regional Director’s Compliance Determination, 

Feb. 28, 2012, J.A. 50. In so doing, the Regional Director 

determined that “the position offered was within the scope of 

your professional abilities and the terms and conditions 

offered were consistent with those of other similarly situated 

employees of Respondent – a valid offer of reinstatement 

need offer no more.” Id., J.A. 51. The Regional Director 

cited no evidence of the current terms and conditions of 

employment of Northeastern’s right-of-way agents. 
9

With respect to the forgone interest, the Regional 

Director explained that “it is a compromise settlement of a 

complex post-judgment backpay matter” that provides “a 

better opportunity to obtain compensation for you[] than 

litigation offers.” Compliance Determination, J.A. 51. What 

was particularly complex about this single-employee backpay 

remedy and why specifically the Board feared litigation over 

such commonplace remedial terms were left unexplained. 

Dupuy appealed the Compliance Determination to the 

Board’s Acting General Counsel, who denied the appeal 

“substantially for the reasons in the Regional Director’s 

letter[.]” Letter from Lafe E. Solomon to Jamison John 

Dupuy, March 26, 2013, J.A. 68. 

Dupuy appealed to the Board. In a one-paragraph 

opinion, the Board denied Dupuy’s appeal, stating that,

“under the circumstances, the Regional Director did not err in 

accepting the [S]ettlement [A]greement.” Northeastern Land 

Services, Ltd., 2013 WL 4761157, at *1 (NLRB Sept. 4, 

2013). Dupuy petitioned the Board for reconsideration, which 

the Board denied. Northeastern Land Services, Ltd., 2013 

WL 6229182 (NLRB Dec. 2, 2013). 

II

Analysis

Standard of Review

While our review grants substantial deference to the 

Board, we will reverse if its decision “relied upon findings 

that are not supported by substantial evidence, failed to apply 

the proper legal standard, or departed from its precedent 

without providing a reasoned justification for doing so.” E.I. 

Du Pont De Nemours & Co. v. NLRB, 682 F.3d 65, 67 (D.C. 
10

Cir. 2012); accord, e.g., Carpenters and Millwrights, Local 

Union 2471 v. NLRB, 481 F.3d 804, 808–809 (D.C. Cir. 

2007). 

The Board argues that we may only vacate its Order if we 

find it to be an abuse of “the broad discretion the Board may 

exercise in the settlement of unfair labor practice cases.” 

Textile Workers Union of America v. NLRB, 315 F.2d 41, 42 

(D.C. Cir. 1963). That might be true if the settlement had 

been obtained in the course of the Board’s prosecution of an 

unfair labor practice charge and the dispute arose prior to a 

federal court judgment enforcing the Board Order. The 

Board’s own precedent gives the Board wide latitude to settle 

cases at that prosecutorial stage. See Independent Stave Co., 

287 NLRB 740, 743 (1987) (identifying standards for 

approving settlement agreements). That is what almost all of 

the cases the Board relies upon involved.

2

 

 

2

 See Oil, Chemical & Atomic Workers Int’l Union v. NLRB, 806 

F.2d 269, 269 (D.C. Cir. 1986) (reversing as-yet unenforced Board 

orders); Jackman v. NLRB, 784 F.2d 759, 764 (6th Cir. 1986) 

(Board’s General Counsel may decline to prosecute unfair labor 

practice charges prior to court enforcement); George Ryan Co. v. 

NLRB, 609 F.2d 1249, 1250–1251 (7th Cir. 1979) (informal postcomplaint and pre-enforcement settlement); Oshkosh Truck Corp. 

v. NLRB, 530 F.2d 744, 745 (7th Cir. 1976) (unenforced order); 

Containair Systems Corp. v. NLRB, 521 F.2d 1166, 1174 (2d Cir. 

1975) (same); International Ladies’ Garment Workers Union, 

Local 415-475 v. NLRB, 501 F.2d 823, 824 (D.C. Cir. 1974) 

(withdrawal of a complaint prior to Board hearing); NLRB v. Oil, 

Chemical & Atomic Workers Int’l Union, 476 F.2d 1031, 1033 (1st 

Cir. 1973) (petition for court enforcement); Concrete Materials of 

Georgia, Inc. v. NLRB, 440 F.2d 61, 62 (5th Cir. 1971) (same); 

W.B. Johnston Grain Co. v. NLRB, 365 F.2d 582, 587 (10th Cir. 

1966) (same); Local 282, Int’l Brotherhood of Teamsters v. NLRB, 

339 F.2d 795, 797 (2d Cir. 1964) (same); Textile Workers Union of 
11

This case, however, arises in a materially different 

procedural posture, implicating another strand of Board 

precedent. A court judgment enforcing the Board’s Order has 

issued, and Dupuy is challenging the Board’s determination 

that Northeastern need only partially comply with that judicial 

order. However broad the Board’s discretion may be to settle 

its cases prior to their embodiment in a court order, once the 

Board turns to the task of ensuring an employer’s compliance 

with a final court judgment, the Board’s own precedent has 

disclaimed any authority to modify the court’s order. See, 

e.g., D.L. Baker, Inc., 351 NLRB 515, 525 n.31 (2007) (Board 

is “not at liberty to modify an Order that has been enforced by 

a court of appeals[.]”). 

Accordingly, in enforcing compliance, the Board must 

apply the correct legal standards, ground its factual findings in 

substantial evidence, and give reasoned explanations for any 

departure from precedent on the scope of its post-enforcement 

authority to alter court orders. See Carpenters and 

Millwrights, 481 F.3d at 808–809. Additionally, the Board’s 

Compliance Manual provides that “Regions should strive to 

 

America, 315 F.2d at 42 (same); Textile Workers Union of America 

v. NLRB, 294 F.2d 738, 739 (D.C. Cir. 1961) (resolution prior to 

Board hearing). Of course, even in that procedural posture, we will 

not uphold an order that departs from the Board’s own settlement 

standards without explanation. See Oil, Chemical & Atomic 

Workers Int’l Union v. NLRB, 806 F.2d 269, 273–274 (D.C. Cir. 

1986). 

Two other cases cited by the Board do not involve Board 

proceedings at all. See Air Line Pilots Ass’n, Int’l v. O’Neill, 499 

U.S. 65, 80 (1991) (“National Labor Relations Act cases are not 

necessarily controlling in situations, such as this one, which are 

governed by the Railway Labor Act.”); Girsh v. Jepson, 521 F.2d 

153, 156 (3d Cir. 1975) (class action). 
12

obtain 100 percent of * * * backpay,” and that “[a]ny

compromise from this standard must be warranted by the 

facts, law, and circumstances of the case.” NLRB 

Casehandling Manual, Part 3, Compliance Proceedings (Nov. 

2013) § 10592.4. In sum, however broad the Board’s 

enforcement discretion, it does not extend to turning its back 

on its own precedent and policy without reasoned explanation 

and substantial evidence undergirding its determinations.3

Applying that standard, the Board’s decision falls short in 

two ways: It departs without any reasoned explanation from 

longstanding Board precedent constraining the Board’s ability 

to alter the terms of a judicially enforced Order, and it relies 

on a finding of substantial equivalence between Dupuy’s old 

job and his reinstatement offer that is not supported by 

substantial—or, frankly, by any—evidence.

Waiver of payment-period interest

The First Circuit’s judgment enforced the Board’s Order 

mandating that Northeastern “[m]ake Jamison Dupuy whole 

for any loss of earnings and other benefits suffered as a result 

 

3

The Board cited Amalgamated Utility Workers v. Consolidated 

Edison Co., 309 U.S. 261 (1940), as support for its broad autonomy 

to settle cases. That case did involve a judicially enforced Board 

order. Unfortunately for the Board, the relevant similarities end 

there. Amalgamated Utility held only that charging parties do not 

have the right to enforce, through contempt proceedings, courtenforced Board orders. Id. at 266. With respect to judicial review 

of a Board enforcement order under 29 U.S.C. § 160(f), which is 

what Dupuy seeks, the Supreme Court expressly acknowledged that 

the Act does permit charging parties “to contest a final order of the 

Board[.]” Id. (emphasis in original). 
13

of the unlawful action taken against him, in the manner set 

forth in the remedy section of this decision.” Northeastern 

Land Services, 352 NLRB at 746 (enforced by Northeastern 

Land Services, Ltd., 645 F.3d at 484). The remedy section, in 

turn, was explicit that interest on backpay would be provided 

consistent with New Horizons, which requires interest to 

accrue “until compliance with the Order is achieved.” 283 

NLRB at 1174.

The Board does not dispute that compliance will not be 

achieved until Dupuy has been made whole. Nor does it 

dispute that, to make Dupuy whole, the First Circuit’s 

judgment requires that interest continue to accrue until the 

backpay is distributed in full. See Northeastern Land 

Services, Ltd., 645 F.3d at 484 (enforcing Northeastern Land 

Services, 352 NLRB at 746 (incorporated by Northeastern 

Land Services, 355 NLRB 1154) (ordering Northeastern to 

“[m]ake Jamison Dupuy whole for any loss of earnings and 

other benefits suffered as a result of the unlawful action taken 

against him”)). In other words, interest throughout the 

payment period is just as integral a part of the First Circuit’s 

make-whole judgment as reinstatement and the backpay

requirement itself. 

The Board does not dispute the content or legal effect of 

the First Circuit’s judgment. It just asserts a unilateral right to 

“waive[]” away portions of the judgment as it sees fit. 

Northeastern Land Services, 2013 WL 4761157, at *1 n.1; 

Board Br. 11, 17, 18, 26, 42. The Board never explains the 

source of its authority to singlehandedly make such a waiver, 

though. The Order does not so much as nod to statutory or 

regulatory text or Board precedent. Far worse still, in past 

cases the Board has repeatedly and expressly disclaimed any 

right or ability to modify court-enforced remedial orders, and 
14

it provides no explanation at all, let alone a reasoned one, for 

its about-face here.

In Scepter, Inc. v. NLRB, 448 F.3d 388 (D.C. Cir. 2006), 

an employer petitioned the Board to alter a remedial order that 

this court had enforced, arguing that modification was 

necessary to prevent a windfall for the charging party. In 

stark contradiction of its position here, the Board told this 

court that it had “no authority to modify the remedy specified 

in a court-enforced order unless it had in that order reserved 

for later consideration a specific question pertaining to that 

remedy.” Id. at 390. We held that “[t]he Board is correct” 

because, under 29 U.S.C. § 160(e), it is “obvious[]” that the 

Board “cannot modify an order over which the court has 

‘exclusive’ jurisdiction or that the court has enforced in a final 

judgment.” Scepter, 448 F.3d at 390–391; accord NLRB v. 

Gimrock Construction, Inc., 695 F.3d 1188, 1193 (11th Cir. 

2012) (once the court had enforced a Board order, “only th[at] 

court had the power to modify its order”); NLRB v. Mastro 

Plastics Corp., 261 F.2d 147, 148 (2d Cir. 1958) (“If 

respondents believed that they had sufficient grounds to 

justify [deviating from a court-enforced order], their only 

proper recourse was in timely fashion to petition this court 

for modification of its clear mandate.”) (emphasis added).

4

 

4

 Section 160(e), 29 U.S.C., provides, in relevant part, that “[u]pon 

the filing of the record with it the jurisdiction of the court shall be 

exclusive and its judgment and decree shall be final, except that the 

same shall be subject to review by the appropriate United States 

court of appeals if application was made to the district court as 

hereinabove provided, and by the Supreme Court of the United 

States upon writ of certiorari or certification as provided in section 

1254 of Title 28.”
15

Scepter and those other appellate decisions have a lot of 

company. For almost four decades, and in at least nine 

separate decisions, the Board has taken the position that it 

“has no jurisdiction to modify a court-enforced order.” Willis 

Roof Consulting, Inc., 355 NLRB 280, 280 n.1 (2010).

5

 And

the Board reaffirmed that position just last month. See New 

York Party Shuttle, LLC, 2015 WL 3732893, *1 n.3 (NLRB 

June 12, 2013) (“[T]he Board has no jurisdiction to modify an 

Order that has been enforced by a court of appeals because, 

upon the filing of the record with the court of appeals, the 

jurisdiction of that court is exclusive and its judgment and 

decree are final, subject to review only by the Supreme 

Court.”) (citing Scepter, 448 F.3d 388).

The Board’s decision blinks away Scepter and the large 

body of like-minded precedent. No effort to explain its Uturn is made. Instead, the Board argues that its waiver of 

payment-period interest did not modify the enforced Order, 

because the Order “did not liquidate the amount of backpay 

owed[.]” Board Br. 27. 

 

5

 See also, e.g., D.L. Baker, Inc., 351 NLRB at 525 n.31 (Board is 

“not at liberty to modify an Order that has been enforced by a court 

of appeals[.]”); In re Grinnell Fire Protection Systems Co., 337 

NLRB 141, 142 (2001) (“[T]he Board’s Order has already been 

enforced by the Fourth Circuit, and the Supreme Court has denied 

certiorari, [so] we no longer possess jurisdiction to modify that 

Order.”); Regional Import and Export Trucking Co., 323 NLRB 

1206, 1207 (1997) (“[T]he Board’s order has already been enforced 

and accordingly we no longer have jurisdiction to modify that 

Order.”); Traverse City Osteopathic Hospital, 260 NLRB 1060, 

1060 (1982) (“[S]ince * * * the Board’s Order has already been 

enforced, we no longer possess jurisdiction to modify that Order.”); 

Royal Typewriter Co., 239 NLRB 1, 2 (1978) (“[Because] the 

Board’s order has already been enforced and is now the subject of 

contempt proceedings, we are of the view that we no longer possess 

jurisdiction to either modify or clarify the Order.”).
16

That mixes apples and oranges. The argument confuses 

the amount of backpay owed, which the Board’s Order

expressly reserved for later calculation, with the constituent 

elements of the remedial judgment, which the First Circuit’s 

order locked in. The Board’s reserved authority to undertake 

the traditional steps for computing backpay does not give it 

the power to eschew that task altogether and just declare that 

enforcement would go over easier without any backpay. 

Neither under Board precedent can it entirely erase paymentperiod interest from the First Circuit’s judgment enforcing the 

Order. 

The Board also argues that the waiver of interest was 

justified “by the immediate availability of relief and the 

elimination of the substantial risk involved in litigating the 

issues remaining in this case.” Board Br. 27. Eleven years

waiting for full payment is hardly “immediate,” and the 

Board’s boilerplate litigation-risk claim is not backed up by 

anything.

In any event, the Board’s theory would give it the 

wholesale power to bowdlerize a court order for no reason 

other than litigation efficiency. The source of such authority 

and the justification for it appear nowhere in the Board’s 

decision. After all, the terms of the remedial Order, including 

the interest provision, were of the Board’s own choosing. The 

First Circuit’s judgment simply enforced the remedial Order 

that the Board itself fashioned and then twice pressed the 

court to affirm. Buyer’s remorse at the enforcement stage, 

particularly without any suggestion of a surprising change in 

circumstances or any other reasoned justification, is a 

woefully insufficient excuse for the Board backhanding 

almost four decades of its own precedent insisting that it 

cannot do exactly what it did.
17

When all is said and done, the Board might very well be 

proven right that the deal on the table is the best Dupuy can 

get out of Northeastern. But the Board can only make 

bargains with chips that it possesses. If a court-enforced 

remedial Order is beyond its jurisdiction to amend—as the 

Board has said it is for the last thirty-seven years—then the 

Board has no power to deal away particular elements of that 

Order, even if it sincerely believes that deal-making would be 

in the charging party’s best interest. 

Reinstatement

The First Circuit’s judgment also required Northeastern

to “offer Jamison Dupuy full reinstatement to his former job 

or, if that job no longer exists, to a substantially equivalent 

job, without prejudice to his seniority or any other rights or 

privileges previously enjoyed.” Northeastern Land Services, 

352 NLRB at 746 (enforced by Northeastern Land Services, 

Ltd., 645 F.3d at 484). 

The Board determined that Northeastern met this 

obligation when it offered Dupuy a “Temporary Employment 

Agreement” to work as a land agent on a project in eastern 

New York and northeastern Pennsylvania, with the exact date 

and location of the project not yet settled. Reinstatement 

Letter, J.A. 22. Dupuy was to be paid $250 a day “based on a 

5 or 6 day contract to be determined.” Id. The per diem rate 

was set at “the standard GSA rate of $132 a day,” with 

mileage reimbursed at the then-IRS-approved rate of 55.5¢

per business mile. Id. Use of personal cell phones and 

computers for project business was reimbursable at a rate of 

$5.00 a day. Id. And the project allowed a “mobilization and 

demobilization allowance” of “one travel day and a maximum 

500 miles.” Id. Finally, Dupuy’s participation was “subject 

to the approval of the client as is industry practice.” Id. 
18

Dupuy argues that those conditions were substantially 

worse than what he enjoyed when he last worked for 

Northeastern. That may be true, but it is also beside the point. 

Reinstatement aims to restore “the situation, as nearly as 

possible, to that which would have obtained but for the illegal 

discrimination.” Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 

194 (1941). The relevant yardstick thus is not the job Dupuy 

held over a decade ago, but the job he would have now if he 

had stayed in Northeastern’s employ all that time. And, 

unfortunately, employment conditions can change for the 

worse as well as for the better. If Dupuy had stayed with 

Northeastern, he would have endured both the ups and the 

downs of a changing workplace. The Board thus quite 

reasonably measured reinstatement by reference to “the terms 

and conditions [Northeastern] offers those currently in the 

position you occupied.” Burson Letter at 4–5, J.A. 47–48. 

But asking the right question is only half of the Board’s 

job. The Board also has to back up its answer with substantial 

evidence. The Board did just that with respect to the wage 

rate offered to Dupuy. By relying on the same records from 

which it calculated backpay, the Board reasonably concluded

that the offered rate paralleled that paid to other similarly 

situated land agents. See Burson Letter at 4, J.A. 47. 

The Board, however, has more work to do with respect to 

the other terms and conditions of employment. The most 

anyone at the Board ever said about the non-wage terms and 

conditions was the Deputy Regional Attorney’s unadorned 

assertion that a “review of the Respondent’s records 

establishes that the terms and wages are consistent with those 

of other similarly situated employees of Respondent[.]” 

Burson Letter at 4, J.A. 47. The “wages” part of that sentence 

makes sense given the extensive analysis required to calculate 

the backpay owed. But nothing in the record substantiates the 
19

assertion that the other terms of employment are consistent 

with what other similarly situated employees receive. The 

Regional Director’s Compliance Determination simply 

echoed that statement, J.A. 51, while the Acting General 

Counsel was mum on the topic, other than to affirm the 

compliance determination “substantially for the reasons in the 

Regional Director’s letter[.]” Solomon Letter, J.A. 68. The 

Board itself was even less forthcoming, with no mention of 

the issue in its Order at all. See Northeastern Land Services, 

2013 WL 4761157, at *1. 

The Board’s task, remember, was to find “substantial 

equivalence” between Dupuy’s terms and conditions of 

employment and those of similarly positioned employees.

See Northeastern Land Services, 352 NLRB at 746. But it 

takes two to compare. We cannot say that one thing is the 

same as another without knowing what that other thing is. 

Neither can the Board. The Board had no plausible basis for 

finding that Dupuy’s terms and conditions were substantially 

equivalent to those of similarly situated employees without at 

least finding what the material terms and conditions of 

employment were for those other employees. Accordingly, 

on remand, the Board must consider all material terms and 

conditions of employment, not just compensation, in deciding 

whether Northeastern’s offer of reinstatement was sufficient.

Dupuy’s Remaining Challenges

Dupuy raises three further challenges to the Board’s 

decision. The first argument fails; the remaining two are 

better addressed by the Board on remand. 

First, Dupuy argues that, rather than adopt an elevenyear, interest-free payment period, the Board should have 

pierced the corporate veil and imposed personal liability on 

Northeastern’s Chief Executive Officer Jeffrey Deuink and 
20

Northeastern’s Directors. The Board sensibly found no basis 

for doing so. Under Board precedent (which Dupuy does not 

challenge), the corporate veil may be pierced only when: “(1) 

there is such unity of interest, and lack of respect given to the 

separate identity of the corporation by its shareholders, that 

the personalities and assets of the corporation and the 

individuals are indistinct, and (2) adherence to the corporate 

form would sanction a fraud, promote injustice, or lead to an 

evasion of legal obligations.” White Oak Coal Co., 318 

NLRB 732, 735 (1995). The Board decided those factors 

were not met, and Dupuy points to nothing that casts doubt on 

that conclusion.

For starters, Dupuy asserts that, during litigation before 

the First Circuit, Northeastern terminated its 401K group 

pension plan, leaving the corporation with title to enough 

money in non-vested employer contributions to satisfy the 

backpay award. That argument simply misreads 

Northeastern’s 401K statement, which is explicit that “all plan 

assets [were] either distributed to participants or beneficiaries, 

transferred to another plan, or brought under the control of the 

[Pension Benefit Guaranty Corporation].” Northeastern Land 

Services Ltd. Group 401K Plan, Form 5500 Data, at 3 (March 

13, 2012), J.A. 145. Termination of that plan thus did not free 

up any money to pay Dupuy. The argument also 

misunderstands the law. Even if the plan’s termination or 

some other event had freed up corporate funds, that is no 

argument for veil-piercing, at least in the absence of any 

claim of improper dissipation. 

Dupuy also notes that Northeastern reduced its number of 

right-of-way agents in the years following the First Circuit’s 

initial decision. It seems dubious that employees count as the 

kind of asset that can be fraudulently dissipated. But in any 

event, Dupuy cannot point to anything in the record that 
21

suggests a fraudulent motivation for that workplace reduction 

at all, let alone one designed to end-run the Board’s Order. 

Dupuy’s last-ditch argument to pierce the corporate veil 

asserts that Northeastern is organized as a Subchapter S 

corporation, with its income passed through to Deuink for tax 

purposes. Maybe. But even if true, that contention simply 

describes how the Subchapter S corporate form works; it says 

nothing about why the corporate form should be cast off. 

Second, Dupuy challenges the enforcement provisions of 

the Settlement Agreement as insufficient because 

Northeastern is judgment proof. The Settlement Agreement 

provides for “collection proceedings * * * in any court of 

competent jurisdiction” if Northeastern defaults on its 

payment obligations, and it further specifies that “[a]ll parties 

waive all further and other proceedings to which the parties 

may be entitled under the [National Labor Relations] Act or 

the Board’s Rules and Regulations.” Settlement Agreement 

¶¶ 16, 21, J.A. 57, 59. Because we must return this case to 

the Board to modify its remedial terms, we leave it to the 

Board in the first instance to determine whether, in its 

judgment, any further enforcement guarantees will be needed.

Third, Dupuy argues that the Board should have 

forwarded him the checks that Northeastern has been sending 

to the Board since 2012. Again, because the Board must 

revisit its remedial Order, we will allow the Board to 

determine on remand the proper disposition of those funds in 

light of our opinion and any further proceedings.
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III

Conclusion

We grant the petition for review in part, vacate the 

Board’s Order, and remand for further proceedings consistent 

with this opinion.

So ordered.