In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1895

IN RE:

EDWARD L. CALVERT,

Debtor-Appellee.

APPEAL OF: NATIONAL LABOR RELATIONS BOARD

____________________

Appeal from the United States District Court for the 

Southern District of Indiana, Indianapolis Division.

No. 1:16-cv-00161-SEB-MJD — Sarah Evans Barker, Judge.

____________________

ARGUED JANUARY 8, 2018 — DECIDED JANUARY 22, 2019

____________________

Before EASTERBROOK and SYKES, Circuit Judges, and 

BUCKLO, District Judge.*

SYKES, Circuit Judge. Edward Calvert was the sole owner 

and president of E.L.C. Electric, Inc., an electrical contracting 

company. After a labor organization unsuccessfully campaigned to unionize his company’s workforce, Calvert laid 

off most of E.L.C. Electric’s rank-and-file electricians, which 

effectively prevented future unionization attempts. The 

 * Of the Northern District of Illinois, sitting by designation.
2 No. 17-1895

National Labor Relations Board (“NLRB”) determined that 

the company violated the National Labor Relations Act

(“NLRA”), which prohibits discrimination against workers

for exercising their statutory rights. See 29 U.S.C. § 158(a)(3). 

The Board ordered E.L.C. Electric to compensate the electricians with backpay. 

Calvert tried to avoid the order by shifting his company’s 

operations to two new corporate entities. He didn’t succeed. 

The NLRB discovered Calvert’s plan and held him personally responsible for the backpay award. Facing more than 

$400,000 in liability, Calvert filed for Chapter 7 bankruptcy.

The Board challenged Calvert’s attempt to discharge the 

backpay liability, arguing that the debt was not dischargeable because it arose from a willful and malicious injury.

See 11 U.S.C. § 523(a)(6). Calvert conceded the willfulness 

element but denied that he acted maliciously. The Board

countered by asserting that Calvert was collaterally estopped from litigating the malice issue, but it made little 

effort to establish the elements of the doctrine. Indeed, the 

Board did not identify any specific findings in the NLRB

ruling that should be given preclusive effect. The bankruptcy judge declined to apply collateral estoppel and instead 

held a bench trial on the issue of malice. Based on the trial 

evidence, the judge found that Calvert had not acted maliciously and thus ruled that the debt was not exempt from 

discharge.

On appeal to the district court, the Board again raised

collateral estoppel but failed to analyze the elements of the 

doctrine or provide citations to the relevant parts of the 

agency record. The district judge noted these deficiencies 

and affirmed.
No. 17-1895 3

We likewise affirm. The Board does not challenge the evidence at trial or the bankruptcy judge’s factual findings. 

Instead it stakes its entire case on collateral estoppel. But it 

persists in providing only a generalized discussion of preclusion doctrine that is untethered to specific findings in the 

NLRB proceeding. That’s not enough to establish that 

Calvert is precluded from contesting the malice issue under 

§ 523(a)(6).

I. Background

In July 2002 the International Brotherhood of Electrical 

Workers, Local 481, campaigned to become the certified 

bargaining representative for E.L.C. Electric’s rank-and-file 

electricians. Calvert launched his own campaign to oppose 

the Union’s efforts. When the Union lost, it filed an objection

with the NLRB, demanding a new vote on the ground that 

E.L.C. Electric had unlawfully meddled in the election. 

While this objection was pending, E.L.C. Electric promoted two of its bargaining-unit electricians and fired the 

remaining sixteen, leaving the Union without a rank-and-file 

workforce at the company to unionize. The Union filed a

second charge with the NLRB alleging that E.L.C. Electric 

unlawfully fired the electricians for exercising their right to 

unionize. 

After a trial in April 2004, an administrative law judge 

ruled that E.L.C. Electric violated sections 8(a)(1) and (3) of 

the NLRA, 29 U.S.C. § 158(a)(1), (3). The NLRB affirmed the 

ALJ’s ruling a year later. E.L.C. Elec., Inc., 344 N.L.R.B. 1200 

(2005). It determined that E.L.C. Electric violated § 158(a)(3)

of the NLRA by firing the electricians to prevent them from 
4 No. 17-1895

organizing. The NLRB ordered the company to compensate 

the electricians with backpay.

E.L.C. Electric never paid the award. It ceased operations 

in March 2006. The ALJ initiated supplemental proceedings

and concluded that Calvert shuttered the firm to avoid 

paying the electricians. The judge pierced the corporate veil 

and held Calvert personally liable for $437,427 in backpay 

and interest. The NLRB adopted the judge’s findings and 

conclusions, E.L.C. Elec., Inc., 359 N.L.R.B. 255 (2012), and we 

summarily enforced the order in July 2013.

Calvert filed a Chapter 7 bankruptcy petition five months 

later. See 11 U.S.C. § 727. In response the Board challenged

Calvert’s attempt to discharge the backpay debt. It raised 

multiple arguments but only one remains relevant. The 

Board claimed that the debt was exempt from discharge 

because it arose from a “willful and malicious injury by the 

debtor to another entity.” § 523(a)(6). Calvert did not dispute 

that he acted willfully, but he denied that he acted maliciously. The Board sought summary judgment, arguing that 

the agency’s finding of liability under § 158(a)(3) of the 

NLRA precluded Calvert from litigating whether the debt 

was exempt from discharge under § 523(a)(6) of the Bankruptcy Code. The bankruptcy judge denied the motion, 

reasoning that § 158(a)(3) and § 523(a)(6) apply different 

legal standards and that the NLRB proceedings lacked a 

“sufficient level of ‘specific findings’” to be given preclusive 

effect on the question whether the debt was exempt from 

discharge—more particularly, whether Calvert had acted 

with malice.

The matter proceeded to a bench trial, and Calvert testified that he laid off his employees to save money by hiring
No. 17-1895 5

independent contractors. The Board offered no evidence to 

refute this explanation. The judge credited Calvert’s testimony and found that the Board failed to prove that he acted 

maliciously. Based on these findings, the judge rejected the 

Board’s contention that the backpay debt was exempt from 

discharge.

The Board appealed to the district court, once again raising issue preclusion. The district judge affirmed. She rejected 

the preclusion argument, noting that the Board had failed to 

analyze the elements of collateral estoppel or provide citations to the relevant parts of the agency record that might 

support preclusion. On the merits the judge held that the 

bankruptcy judge’s factual findings were not clearly erroneous.

II. Discussion

We review the bankruptcy court’s findings of fact for 

clear error and conclusions of law de novo. In re Kempff, 

847 F.3d 444, 448 (7th Cir. 2017). The Bankruptcy Code does 

not permit the discharge of debts incurred because of “willful and malicious injury by the debtor to another entity or to 

the property of another entity.” § 523(a)(6). By its terms, this

exception to the general discharge rule requires “(1) an 

injury caused by the debtor (2) willfully and (3) maliciously.” First Weber Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th

Cir. 2013). The Board has the burden of establishing each of 

these elements by a preponderance of the evidence. Id.

There’s no dispute about injury, causation, or willfulness. 

The sole question concerns malice. It’s the Board’s burden to

prove that Calvert “acted ‘in conscious disregard of [his] 

duties or without just cause or excuse.’” Id. (quoting In re 
6 No. 17-1895

Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994)) (alteration in 

original). The Board contends that the NLRB adjudication

collaterally estopped Calvert from contesting the malice 

issue in the § 523(a)(6) litigation. 

Calvert responds that the Board cannot now rely on collateral estoppel because it did not fully develop the argument in the bankruptcy and district courts. It’s true that the 

Board’s preclusion argument was overly generalized and 

incomplete, as the district judge expressly noted. But the 

agency said enough to overcome a forfeiture, which is not 

“an overly technical appellate hurdle.” Fox v. Hayes, 600 F.3d 

819, 832 (7th Cir. 2010). While not forfeited, the argument is 

neither adequately nor correctly developed in this court—

even after the district judge put the Board on clear notice of 

the defects in its briefing—and that defeats the Board’s 

argument on appeal. 

Issue preclusion prevents a party from relitigating issues 

that were resolved in a prior legal action. Adams v. City of 

Indianapolis, 742 F.3d 720, 736 (7th Cir. 2014). The party 

invoking preclusion must show that 

(1) the issue sought to be precluded [was] the 

same as that involved in the prior litigation, 

(2) the issue [was] actually litigated, (3) the determination of the issue [was] essential to the 

final judgment, and (4) the party against whom 

estoppel is invoked [was] fully represented in 

the prior action.

Matrix IV, Inc. v. Am. Nat’l Bank & Trust Co. of Chi., 649 F.3d 

539, 547 (7th Cir. 2011) (quoting H-D Mich., Inc. v. Top Quality Serv., Inc., 496 F.3d 755, 760 (7th Cir. 2007)). 
No. 17-1895 7

To determine whether the NLRB proceeding “involved” 

the same issue as the bankruptcy proceeding, the first step is 

to “determine with precision what matters actually were 

decided” in the labor proceeding. 18 CHARLES ALAN WRIGHT 

ET AL., FEDERAL PRACTICE AND PROCEDURE § 4417, at 459–60 

(3d ed. 2016). This determination must be grounded in the 

actual findings and analysis in the ALJ’s ruling. See, e.g., In re 

Davis, 638 F.3d 549, 554 (7th Cir. 2011) (defining the issue 

“[i]n the context of the entire [prior] court opinion”); H-D 

Mich., Inc., 496 F.3d at 760–61 (defining the issue with reference to specific statements in the prior opinion). 

It’s the Board’s job to identify the actual findings in the 

NLRB proceeding that it claims are entitled to preclusive 

effect, and it must then map those findings onto the standard for malice under § 523(a)(6). Compare First Weber Grp., 

738 F.3d at 775 (finding preclusion on the issue of malice 

because the prior action’s analysis “substantially mirrored” 

the standard under § 523(a)(6)), with Gerard v. Gerard, 

780 F.3d 806, 810–11 (7th Cir. 2015) (holding that a slanderof-title verdict did not preclude litigation over whether the 

underlying injury was “willful” under § 523(a)(6) because 

the jury instructions for the verdict required only negligence).

The Board has not satisfied its burden. It has not identified the specific issues that were actually decided in the 

labor proceeding, much less mapped the ALJ’s findings onto 

the elements of § 523(a)(6). Instead, the Board’s argument for 

collateral estoppel is stated at a high level of generality. It 

argues that § 158(a)(3) and § 523(a)(6) ask the same general

question: “Why did Calvert discharge his employees, or, 

what was his intent in doing so?” Like the lower courts, we 
8 No. 17-1895

cannot assess the applicability of issue preclusion without a 

more precise analysis of what was actually decided in the 

labor proceeding as a legal and factual matter. See Econ. 

Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 

721 (7th Cir. 2008) (“It is not the court’s responsibility to

research the law and construct the parties’ arguments for 

them.”).

The Board maintains that preclusion applies as a categorical matter because § 158(a)(3) prohibits discrimination 

based on antiunion animus. As the Board sees it, a factual 

finding that Calvert acted with malice necessarily nests 

within the agency’s imposition of § 158(a)(3) liability. But for 

preclusion to apply, the Board must establish that the issue 

of discriminatory intent under § 158(a)(3) of the NLRA is the 

same as the issue of malice under § 523(a)(6) of the Bankruptcy Code and also that the issue of Calvert’s intent was 

actually decided in the agency proceeding. It has not done so. 

To repeat, the Board has not grounded its argument in 

specific findings entered in the NLRB proceeding, much less 

applied those findings to the malice standard under 

§ 523(a)(6). Moreover, as the bankruptcy judge noted, the 

agency’s determination lacks specificity on the issue of 

Calvert’s intent. The ALJ found only that the NLRB established a prima facie case under § 158(a)(3) that E.L.C. Electric 

failed to rebut.

In short, the Board has not met its burden to establish

that the prior agency adjudication involved and actually 

decided the issue of whether Calvert acted with malice, 

which is fatal to its preclusion argument. And because the 

Board does not challenge the bankruptcy judge’s factual 

finding that Calvert did not act with malice, its claim that the 
No. 17-1895 9

backpay debt is exempt from discharge under § 523(a)(6) 

necessarily fails. Accordingly, the judgment below is

AFFIRMED.
10 No. 17-1895

BUCKLO, District Judge, dissenting. I respectfully dissent. 

The question before the bankruptcy court was whether 

Calvert acted maliciously, i.e. “without just cause or excuse,” 

when he laid off nearly all of his rank-and-file workforce in 

violation of the National Labor Relations Act. First Weber 

Grp., Inc. v. Horsfall, 738 F.3d 767, 774 (7th Cir. 2013). In 

adjudicating the underlying 29 U.S.C. § 158(a)(3) discrimination claim in the NLRB’s favor, the ALJ conducted an analysis that “substantially mirrored” the malice inquiry under 

11 U.S.C. § 523(a)(6), id. at 775, and determined that Calvert’s

conduct was unsupported by any lawful purpose. That 

finding should have been given preclusive effect in the 

bankruptcy court.

My colleagues rule against the NLRB on the ground that 

its preclusion analysis is overly general. In their view, the 

Board “has not grounded its [preclusion] argument in 

specific findings” or established that “the issue of Calvert’s 

intent was actually decided in the agency proceeding.” But the 

NLRB points to several findings that the ALJ made regarding Calvert’s intent. First, the Board cites the ALJ’s determination that Calvert laid off his employees “because of their 

union activities, to wit, to avoid having further NLRB proceedings and the risk that the Union might ultimately be 

certified as the collective-bargaining representative[] of [his] 

employees.” (Emphasis added.) The phrase “because of” 

tells us that the ALJ actually decided the issue of Calvert’s 

intent. Moreover, the ALJ’s determination that Calvert was 

motivated by a discriminatory purpose was essential to the 

ALJ’s ultimate holding. See SCA Tissue N. Am. LLC v. 

N.L.R.B., 371 F.3d 983, 988 (7th Cir. 2004) (proof of discrimination requires evidence that “employer acted because of 
No. 17-1895 11

anti-union animus”); Bloedorn v. Francisco Foods, Inc., 

276 F.3d 270, 290 (7th Cir. 2001) (employer’s unlawful discriminatory motive is the “critical question” in a § 158(a)(3) 

proceeding); Van Vlerah Mech., Inc. v. N.L.R.B., 130 F.3d 1258, 

1263 (7th Cir. 1997) (“In evaluating [§ 158(a)(3) allegations], 

the Board must determine the employer's motivation in 

taking a particular action.”). 

Second, the Board identifies the ALJ’s determination that 

Calvert did not establish a “legitimate business reason” for 

his conduct. Notwithstanding the ALJ’s finding that Calvert 

acted with discriminatory intent, Calvert could have avoided liability under § 158(a)(3) by showing that he had a 

legitimate business reason for his actions. See N.L.R.B. v. 

Dorothy Shamrock Coal Co., 833 F.2d 1263, 1266 (7th Cir. 1987) 

(“The employer ... may avoid liability by showing that his 

actions would have been the same ‘regardless of his forbidden motive.’”). Calvert attempted to make such a showing, 

offering three different explanations for the layoffs, but the 

ALJ rejected all of them. Indeed, the ALJ found Calvert’s 

“shifting” justifications to be “wholly unreliable” and concluded that they “utterly failed to rebut” the Board’s evidence of “antiunion animus.” The upshot of the ALJ’s 

burden-shifting analysis was a conclusive finding on the 

issue of Calvert’s intent: specifically, that Calvert laid off his 

workforce based on “antiunion animus” rather than “legitimate business considerations.” 

The majority’s contrary view nods to Calvert’s argument 

that because § 158(a)(3) does not require the NLRB to prove 

affirmatively that Calvert lacked a legitimate business 

reason for his conduct, the ALJ did not conclusively decide 

the issue of Calvert’s intent. See supra at 8 (“The ALJ found 
12 No. 17-1895

only that the NLRB established a prima facie case under 

§ 158(a)(3) that E.L.C. Electric failed to rebut.”). That interpretation fails to appreciate that in the labor proceedings, the 

NLRB at all times carried the burden of establishing that 

Calvert discharged his employees “based in whole or in part 

on antiunion animus.” N.L.R.B. v. Transp. Mgmt. Corp., 

462 U.S. 393, 401 (1983), abrogated in non-relevant part by Dir., 

Office of Workers’ Comp. Programs, Dept. of Labor v. Greenwich 

Collieries, 512 U.S. 267, 276–78 (1994)). Moreover, it overlooks 

the text of the ALJ’s decision, which, in a paragraph that 

opens, “[s]pecifically as to why [Calvert] made the decision ...” the ALJ concluded that Calvert’s decision to lay off 

his workers “was motivated by ... antiunion animus.”

To establish issue preclusion, the NLRB needed to show 

that the ALJ’s analysis of Calvert’s intent “substantially 

mirrored” the standard for malice under § 523(a)(6). Horsfall, 

738 F.3d at 775. In fact, the Board had a tougher row to hoe 

to prevail in the labor proceedings than it did before the 

bankruptcy court, since it had not only to prove Calvert’s 

impermissible motive, but also to withstand Calvert’s affirmative defense of a legitimate business reason. Regardless 

of who bore the burden on which issue, the universe of 

evidence presented to the ALJ had to persuade him that a 

prohibited reason—not a legitimate one—motivated 

Calvert’s actions. And as the text of his decision makes clear, 

persuade him it did. 

The majority faults the Board for failing to perform a 

more exacting exercise to “map[] the ALJ’s findings onto the 

elements of § 523(a)(6).” In my view, no heavy lifting was 

required to illustrate how the ALJ’s twin findings that 

Calvert acted with a prohibited motive and without a legiti-
No. 17-1895 13

mate business reason satisfy the malice inquiry under 

§ 523(a)(6). Malice is established by proof that a debtor acted 

“without just cause or excuse.” Horsfall, 738 F.3d at 774. The 

Board proved to the ALJ, notwithstanding Calvert’s contrary 

testimony, that Calvert acted with antiunion animus—a 

prohibited motive. It is not clear to me what additional 

analytical dots the Board needed to connect to show that 

Calvert’s actions lacked just cause or excuse. 

Bankruptcy courts in this circuit and elsewhere have held 

that an agency or state court finding that the debtor acted 

with discriminatory intent and without just cause satisfies 

the malice standard under § 523(a)(6). In re Fogerty, 204 B.R. 

956, 962 (Bankr. N.D. Ill. 1996) (NLRB’s conclusion that the 

debtor wrongfully terminated two employees in violation of 

§ 158(a)(3) decided the issue of malice because it was based 

on the determination that the debtor lacked just cause to 

discharge the employees and terminated them solely because of their protected activities); In re Goldberg, 487 B.R. 

112, 129 (Bankr. E.D.N.Y. 2013) (applying collateral estoppel 

to state court’s factual findings of intentional discrimination, 

reasoning that declining to do so would “sanction the view 

that there exists some ‘just cause or excuse’ for discrimination ... where the state court has already found otherwise”).

When the ALJ held that Calvert discriminated against his 

employees in violation of § 158(a)(3) and held him liable for 

that violation, he resolved the question of whether Calvert 

had just cause for his actions. Instead of giving the ALJ’s 

findings about Calvert’s intent the preclusive effect they 

were due, the bankruptcy court offered Calvert another bite 

at the apple, affording him an opportunity to relitigate his 

purported justifications for violating federal law. But the 
14 No. 17-1895

ALJ’s analysis left no room for finding Calvert’s conduct 

justified. Accordingly, I would hold that the bankruptcy 

court was precluded from reopening an inquiry into 

Calvert’s intent.