* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 4/22/96

TENTH CIRCUIT

INTERMOUNTAIN RURAL ELECTRIC

ASSOCIATION,

Petitioner/Cross-Respondent,

v.

NATIONAL LABOR RELATIONS

BOARD,

Respondent/Cross-Petitioner.

No. 95-9529

(Board Case No. 27-CA-10711)

ORDER AND JUDGMENT*

Before PORFILIO, BARRETT, and LUCERO, Circuit Judges.

These cross appeals raise issues relating to an award of

approximately $3,000 in backpay to two linemen who work for

Intermountain Rural Electric Association (the Company). The

remedy was generated after the National Labor Relations Board
- 2 -

found the Company violated section 8(a)(5) and (1) of the

National Labor Relations Act (NLRA), 29 U.S.C. § 158(a)(5) and

(1), by unilaterally changing the procedure for selecting

employees for overtime. Intermountain Rural Elec. Ass’n, 305

N.L.R.B. 783 (1991)(IREA I), review denied, enforcement granted,

Intermountain Rural Elec. Ass’n v. NLRB, 984 F.2d 1562 (10th Cir.

1993)(IREA II). On its cross appeal, we enforce the Board’s

order.

The Company is a rural electric cooperative providing

electrical services to customers in the area surrounding its

facility in Sedalia, Colorado. The International Brotherhood of

Electrical Workers, Local 111, AFL-CIO (the Union), represents

the linemen, employees who construct, maintain and service the

electrical lines. The Company and the Union have a longstanding

collective bargaining agreement. Under that agreement, the

Company called linemen for overtime work in inverse order of the

total amount of overtime the employee had worked the prior year

so that linemen who had worked the least hours would be called

first by dispatchers. For the purpose of this case, linemen may

be called for two types of overtime: callout overtime - employees

are called to return to work during weekday evenings and nights

in response to unforeseen emergencies such as power outages; and,

standby overtime - linemen assigned to be “on call” during

weekends and holidays earn two hours each day for being on call;
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and, in case emergency work has to be performed and they are

called, they earn additional standby overtime. Callout overtime

is not mandatory, and a lineman called may refuse the overtime

assignment without penalty.

In practice, an overtime committee made up of employees

oversaw the allocation of overtime. Until the change in late

1988, the committee assigned callout and standby overtime at the

beginning of each calendar year on the basis of seniority. More

senior employees could select the holidays and weekends they

wanted to work and then swap schedules if they were later unable

to work. 

On December 14, 1988, however, during negotiations over a

new collective bargaining agreement, the Company announced it

would instruct its dispatchers to use an alphabetical rotation

procedure exclusively to schedule callout and standby overtime. 

Then, when an emergency arose during the evening or on weekends,

the dispatcher would call the next name alphabetically on the

list. Linemen could still refuse callout time, but the alphabet,

not seniority, controlled standby overtime. 

This unilateral change during the collective bargaining

process was deemed an unfair bargaining practice in IREA I, and

enforced in IREA II. That finding carried with it a remedial

order to restore the overtime procedures previously bargained for

and for backpay to be awarded to specific employees who suffered
- 4 -

as a consequence of the unilateral change. The Company did not

challenge either order. However, after the General Counsel

submitted a Compliance Specification alleging the Company owed

approximately $13,724 plus interest in backpay to four employees,

the Company objected, contending it owed no money to any employee

because of its change in overtime call procedures. 

The issue was brought to trial before an administrative law

judge upon the General Counsel’s amended Compliance Specification

which reduced the amount of backpay allegedly owed to $10,225.84. 

At the hearing, the General Counsel called Robert Cervone, an

NLRB field examiner, who explained how he arrived at a

“representative period” by including as potential backpay

claimants all linemen who had been employed consistently for the

three years prior to 1988 and at least into the first calendar

quarter of 1991. Only overtime actually worked by those linemen

was included in the backpay computations. The formula then

compared the average percentage of total overtime hours each such

lineman worked during that three-year period. It also compared

the percentage of overtime worked before and after 1988. Mr.

Cervone calculated the difference between the representative

percentage and each quarterly percentage after the change,

converting the difference into hours and multiplying by the

overtime pay rate to determine the backpay owed. Given that the

total number of overtime hours had not changed - the Company
- 5 -

still called linemen to approximately the same number of calls -

Mr. Cervone could then determine how the new system impacted an

employee’s total number of overtime hours while also taking into

consideration employees’ refusing callout overtime. 

After the hearing, however, the General Counsel submitted a

brief to which he appended an amended calculation reducing the

total amount of overtime he claimed was owed to $3,993.30. 

Unfortunately, the brief itself is not in the record before us;

therefore, we cannot be certain of its contents. About those

contents, however, the Board stated in its order: 

[T]he General Counsel took account of the Respondent’s

evidence concerning the similarly situated unit

employees and, deleting the hours for employees Kogan

and Keefe, recomputed the representative percentages

and submitted these revised backpay figures to the

judge. 

Although the ALJ granted the General Counsel’s request the

record remain open to permit submission of rebuttal to the

Company’s expert, the General Counsel did not add any more

evidence. He then moved to close the record. The Company filed

no objection to the General Counsel’s appended brief, nor did it

attempt to otherwise object before the ALJ to its contents.

The ALJ dismissed the amended backpay specification,

finding the General Counsel’s posthearing attachments should be

stricken from the record because they were not properly

introduced; that this unfair labor practice did not warrant the

usual presumption that backpay was owed; and the General
- 6 -

Counsel’s formula to calculate backpay was not “reasonably

designed to produce approximate awards due.” The General

Counsel took exception, and after briefing, the Board reversed

the ALJ’s decision.

The Board defined “the single backpay issue” before it as

“the extent of the loss suffered by certain unit employees when

[the Company] changed its procedure for selecting employees for

callout overtime ... and standby overtime.” The Board rejected

the ALJ’s characterization of the General Counsel’s posthearing

brief as an amended specification of new evidence, stating the

attachments are recalculations of the backpay figures based on

the evidence about the composition of the bargaining unit the

Company submitted at the hearing. The Board stated this was not

“new evidence” but an arithmetic adjustment in light of the

record. This adjustment did not necessitate reopening the

record, and the Company could hardly claim surprise or prejudice

by having the General Counsel agree with one of its arguments. 

Next, the Board disagreed with the ALJ’s finding that the

award of backpay for other unfair labor practices ascribed to

the Company in this case negated the presumption of backpay in

this instance. Reversing the ALJ, the Board held the unilateral

action changing the callout system “created the potential loss

of income to employees” which is distinct from other losses. 
- 7 -

The Board found the Company did not carry its burden

through the testimony of its expert, Dr. Bien. The Board

concluded this testimony did not “amount to an affirmative

conclusion that the differences were not caused by the selection

procedure change, so it does not rebut the presumption

[requiring backpay awards.]” 

Finally, the Board rejected the ALJ’s conclusion the

General Counsel’s proposed formula was not reasonably calculated

to correctly establish the losses at issue. Had the Company not

changed the procedure, the loss would not have ensued, the Board

stated, permitting it to construe uncertainties against the

wrongdoer. La Favorita, Inc., 313 N.L.R.B. 902 (1994), review

denied, enforcement granted, 48 F.3d 1232 (10th Cir. Jan. 27,

1995) (unpublished disposition). The Board found the General

Counsel’s formula adequately considered the vagaries of the

voluntariness of overtime, and the three-year representative

time period produced a “fairly accurate picture of the amount of

overtime.” The Board rejected the ALJ’s reliance on the hearsay

testimony of Company supervisors, finding: “Such vague and

speculative testimony is insufficient to defeat the presumption

that backpay is due because of the unlawful reduction in offered

overtime.” The Board also found the General Counsel’s method

took into account the technological changes that might have

reduced the number of overtime hours available. “By calculating
- 8 -

each employee’s overtime during the backpay period as a

percentage of the total available during that period, variance

in the actual number of hours is taken into account.” The Board

did not fault the use of total types of overtime from which to

calculate the specific losses. It noted the Company did not

keep records compiling overtime by category and never suggested

the General Counsel examine five and one-half years of employee

time cards. “Because the [Company] was urging that callout and

standby overtime did not constitute a substantial portion of the

total [hours] worked, it was required to do more than gesture

vaguely in the direction of thousands of employee timecards.” 

Thus, the Board affirmed the award of $2,123.04 in backpay to

Gerald Fedders and $1,870.26 to Mitchell Eveleth.

On appeal, the Company essentially argues because backpay

was not calculated with absolute precision, the resulting award,

arrived at after the hearing, amounts to a “penalty” imposed

without due process. The backpay formula, it insists,

arbitrarily and unreliably figured overtime based on factual

inaccuracies, forcing the Company to pay employees for not

working. 

Nonetheless, because we must give considerable deference to

the Board’s construction of the National Labor Relations Act,

IREA II, 984 F.2d at 1566, we must agree with the conclusions of

the Board. Under the very deferential standard of review to
- 9 -

which the Board’s judgments are entitled, its findings of fact

must be upheld “if they are supported by substantial evidence in

the record considered as a whole.” Monfort, Inc. v. NLRB, 965

F.2d 1538, 1540 (10th Cir. 1992) (citing Universal Camera Corp.

v. NLRB, 340 U.S. 474, 488 (1951)). In this review, we must

consider both the findings of the ALJ and the Board, recognizing

the wider experience and combined knowledge of the three members

of the Board’s panel. We stated in Ann Lee Sportswear, Inc. v.

NLRB, 543 F.2d 739 (10th Cir. 1976), “The Board, of course, is

not bound by the findings and conclusions of an Administrative

Judge, and is free to draw its own inferences, as well as

conclusions, when its broader experience and expertise indicates

that such is in order.” Id. at 743 (citations omitted). 

Moreover, while a Court of Appeals “might disagree with the

Board’s interpretation of the evidence in a given case, we are

not free to substitute our view of the facts for the Board’s

when it is supported by some credible evidence in the record

that is not outweighed by evidence opposed to the Board’s view.” 

NLRB v. Cell Agric. Mfg. Co., 41 F.3d 389, 393-94 (8th Cir.

1994).

We stated in Angle v. NLRB, 683 F.2d 1296 (10th Cir. 1982):

 The purpose of a backpay order is to vindicate the

public policy of the Act by making any employee whole for

any losses suffered because of an employer’s unfair labor

practice. The Board’s power to order backpay is a broad

discretionary one, subject to limited judicial review.
- 10 -

Id. at 1301 (citations and quotation marks omitted). 

A finding the employer has committed an unfair labor

practice which creates a potential for loss “is presumptive

proof that some backpay is owed by the employer.” NLRB v.

Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert.

denied, 384 U.S. 972 (1966). Moreover, it is the burden of the

employer “to establish facts which would negative ... or ...

mitigate that liability.” NLRB v. Brown & Root, Inc., 311 F.2d

447, 454 (8th Cir. 1963). “We will not disturb a backpay order

“‘unless it can be shown that the order is a patent attempt to

achieve ends other than those which can fairly be said to

effectuate the policies of the Act.’” 88 Transit Lines, Inc. v.

NLRB, 55 F.3d 823, 825 (3d Cir. 1995) (quoting Fibreboard Paper

Prod. Corp. v. NLRB, 379 U.S. 203, 216 (1964) quoting Virginia

Elec. & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)). 

With these principles in mind, we briefly turn to the

issues raised by the Company in this appeal. The Company

contends the Board erred by reversing the ALJ’s order striking

the General Counsel’s post-hearing brief. The Company offers

several reasons for its position: (1) the new calculations

were an attempt by the General Counsel to rehabilitate its only

witness who had been discredited by the ALJ; (2) the amended
1 Later, however, Mr. Eveleth changed his opinion and

stated he would probably have earned about ten percent of the

figure the General Counsel’s formula attributed to him.

2 Yet, the Company does not explain why it did not call Mr.

Fedder to testify. Nevertheless, it urges the Board improperly

rejected this testimony as speculative hearsay. 

- 11 -

calculations have serious flaws the Company was unable to

address on cross-examination; and, (3) even if the amended

calculations “applied the correct data,” they were based on

faulty assumptions because no employee actually lost overtime

work.

 Second, the Company argues the backpay formula did not

adequately take personal variables into account. The Company

states when backpay was calculated by comparing the difference

between the relative percentages of overtime worked before and

after the change, the formula did not adequately consider

employee refusals or unavailability or personal changes of any

sort in responding to a callout. The Company points to

testimony of Mr. Eveleth, one of the backpay awardees, that he

would have been disinclined to accept overtime because of his

increased family responsibilities during the period.

1 The

Company also relies on a supervisor's testimony about the other

employee, Mr. Fedder, and his overtime availability in support

of its contention.2

Third, the Company challenges the General Counsel's lumping

all overtime work together to make his computation. Finally,
- 12 -

the Company maintains, the formula did not consider: (1) the

behavior of individual employees with respect to their ability

or willingness to accept overtime; (2) callout procedures prior

to December 1988; and (3) the number and identity of employees

in a group of employees whose relative overtime was compared. 

Having examined the record, we find nothing leading us to

the conclusion the Company was deprived of due process. If we

correctly understand the facts, the only purpose of the General

Counsel’s attachment to his brief was to lower the amount of

backpay he claimed due to reflect the elimination of two

employees from those eligible for compensation. This

calculation was not based upon a theory new to the proceedings. 

Indeed, it was the formula over which the litigation occurred. 

We must uphold the Board’s holding on this issue.

As for the remaining issues, we believe 88 Transit Lines is

particularly illuminative because it also involves a

supplemental backpay proceeding following an order enforcing an

earlier NLRB finding. In that case, the NLRB found the employer

discriminated against its employees by unilaterally replacing

the transit run schedule which had been in effect for many years

with a new one that reduced the number of runs employees could 

work. In that case, too, the ALJ recommended amending the

General Counsel’s backpay calculation by not awarding backpay to

fourteen replacement workers who had been hired during the
- 13 -

backpay period because they had no losses to be restored to

them. It also recommended treating as interim earnings any

amount by which post-unfair labor practice earnings exceeded

employee earnings during the base-period year. The Board

rejected both suggestions. 

On appeal, the Third Circuit agreed, rejecting each of the

Company’s three claims of error, issues mirroring those before

us here. The court rejected the Company’s characterization of

the award of backpay to the fourteen employees hired after the

schedule change as punitive. 55 F.3d at 826. In our case, the

Company asserts a similar argument, contending granting backpay

to the two linemen who voluntarily refused some callout time

based solely on applying the formula is a penalty. The Third

Circuit, holding to the contrary, reasoned the change in

schedule caused a loss of work for the entire bargaining unit. 

“The Board correctly found that the remedy was to inure to the

benefit of the entire bargaining unit. The award of backpay to

the fourteen replacement employees was not “‘punitive or

confiscatory’” and was “‘reasonably adapted to the situation

that call[ed] for the redress.’” Id. (citations omitted). 

The employer’s second argument about the duty of 

employee/discriminatees to mitigate damages and that gross

backpay must be reduced by interim earnings to derive a net

backpay award was also rejected. “It is true that mitigation
- 14 -

of loss of earnings is a cardinal principle in the development

of remedial orders under the National Labor Relations Act.” Id.

at 826-27. However, the court continued, in that case, the

excess was attributable to fluctuations in the amount of

available work during the applicable time period rather than to

the restoration of lost work by the employer. The Third Circuit

observed: “The Company has provided us with no authority for its

argument that it can avoid the payment of backpay liability for

its discriminatory schedule change simply because discriminatees

happened to do better financially during the backpay period than

during the base-year period.” Id. at 827. In our case, the

Company takes a similar tack contending the two linemen have

reaped a windfall by being paid for not working. 

In sum, we find no support in the cases for the Company's

assertion the change in overtime resulted in no backpay. We

agree with the Third Circuit that the injury was to the

bargaining unit, and the Company should not be able to profit

from its unfair labor practice. A backpay award is only an

approximation of what is owed. See La Favorita, 313 N.L.R.B. at

903. Thus, to urge the calculation is incorrect because it

didn't properly account for the technological improvements or

correspond to precise statistical principles is inapposite. The

General Counsel’s formula does not have to achieve perfection;

it need only be non-arbitrary. 
- 15 -

Having concluded the record contains substantial evidence

supporting the conclusions of the Board, we then apply the rule

of Ann Lee Sportswear, where we stated when it comes to crafting

remedies, we should look to the expertise of the Board over that

of an ALJ. 543 F.2d at 743. The Board’s "broader experience

and expertise" are entitled to considerable weight. Id. Upon

that basis, the Company’s PETITION FOR REVIEW IS DENIED, and the

Board’s ORDER is ENFORCED.

ENTERED FOR THE COURT

John C. Porfilio

Circuit Judge