*

The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0028p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

v.

JACKSON HOSPITAL CORPORATION, d.b.a.

Kentucky River Medical Center,

Respondent.

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No. 10-2101

On Application for Enforcement of an Order of the 

National Labor Relations Board.

Nos. 9-CA-38468; 9-CA-38237; 9-CA-38084-2; 9-CA-38084-1; 9-CA-37875;

9-CA-37796; 9-CA-37795-2;1 9-CA-37795-1; 9-CA-37734.

Decided and Filed: January 31, 2012 

Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.*

_________________

COUNSEL

ON BRIEF: Renée D. McKinney, Usha Dheenan, Linda Dreeben, NATIONAL

LABOR RELATIONS BOARD, Washington, D.C., for Petitioner. Bryan T. Carmody,

Glastonbury, Connecticut, for Respondent. 

_________________

OPINION

_________________

BOYCE F. MARTIN, JR., Circuit Judge. In a previous proceeding, the National

Labor Relations Board found that respondent Jackson Hospital Corporation, which does

business as Kentucky River Medical Center, violated the National Labor Relations Act,

29 U.S.C. § 158(a)(1), (3) when it fired eight employees because of their union support

1
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 2

and participation in a lawful strike. Jackson Hosp. Corp., 340 N.L.R.B. 536 (2003),

enforced No. 04-1019, 2005 U.S. App. LEXIS 10450 (D.C. Cir. June 3, 2005). The

Board now seeks to enforce its Supplemental Decision and Order directing Jackson

Hospital to pay back pay to one of the eight discriminatees, Melissa Turner. We

ENFORCE the Board’s Order.

I.

In 2000, before a collective-bargaining agreement could be reached between

Jackson Hospital and the United Steelworkers, which represented this unit of Jackson

Hospital’s employees, the employees went on strike. Following reports of

discrimination in retaliation for the strike, the National Labor Relations Board’s General

Counsel issued a complaint alleging that Jackson Hospital had engaged in unfair labor

practices. The administrative law judge held that Jackson Hospital had unlawfully

discharged eight employees because of their union support and participation in the strike.

The Board affirmed those findings and the United States Court of Appeals for the

District of Columbia Circuit enforced the Order. Id.

After the D.C. Circuit enforced the Order in 2005, Jackson Hospital did not

comply with the Order with respect to Turner. On May 25, 2007, the Board issued an

amended second compliance specification. In response, Jackson Hospital admitted it had

not paid or reinstated Turner and argued that its liability for back pay should be tolled.

The administrative law judge heard the case in July and October and found Turner was

owed back pay of $79,577, plus interest. The Board affirmed the administrative law

judge’s rulings, findings, and conclusions, with modifications, on July 9, 2009, in a

Supplemental Decision and Order. Jackson Hosp. Corp., 354 N.L.R.B. No. 42 (2009).

The Order was set aside after the Supreme Court’s decision in New Process Steel, L.P.

v. NLRB, 130 S.Ct. 2635 (2010). The Board again considered the administrative law

judge’s decision and adopted it for the same reasons set forth in the 2009 Supplemental

Decision and Order. Jackson Hosp. Corp., 355 N.L.R.B. No. 114 (2010).

The Board filed its application for enforcement of its Order before this Court.
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 3

II.

Jackson Hospital challenges the enforcement of the Board’s Order, arguing that:

(1) the Board erred in finding that Turner’s felony conviction had no impact on her right

to reinstatement and back pay; (2) the Board erred in finding that Turner’s resignation

from an interim job did not toll Jackson Hospital’s back pay liability; and (3) the Board

erred in finding that Turner’s medical leave did not terminate Jackson Hospital’s back

pay liability.

When the Board finds that an employer has engaged in an unfair labor practice,

section 10(c) of the National Labor Relations Act compels it “to take such affirmative

action including reinstatement of employees with or without back pay, as will effectuate

the [Act’s] policies.” 29 U.S.C. § 160(c). The Board’s remedial power is “a broad,

discretionary one, subject to limited judicial review.” Fibreboard Paper Prods. Corp.

v. NLRB, 379 U.S. 203, 216 (1964) (citation omitted). As a result, we may not disturb

a Board 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.” NLRB v.

Overseas Motors, Inc., 818 F.2d 517, 520 (6th Cir. 1987) (quoting Fibreboard, 379 U.S.

at 216) (internal quotation marks omitted). Thus, the question is “whether the Board has

abused its discretion in fashioning its remedial order.” NLRB v. Joyce W. Corp., 873

F.2d 126, 128 (6th Cir. 1989) (citation and internal quotation marks omitted).

Specifically, where the Board must determine the amount of an employer’s

liability to an employee for the unfair labor practice of discharge for engaging in

protected activity, “[t]he General Counsel has a duty only to show the gross amount of

back pay due.” Overseas Motors, 818 F.2d at 521. Once gross back pay—“the amount

of money that the employee would have earned had the employer not violated the

National Labor Relations Act” —has been established, “the burden is on the employer

to establish facts which would negative the existence of liability to a given employee or

which would mitigate that liability.” Id. (quoting NLRB v. Reynolds, 399 F.2d 668, 669

(6th Cir. 1968)). “[T]he Board’s conclusion as to whether an [employer has met this

burden] will be overturned on appeal only if the record, considered in its entirety, does
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 4

not disclose substantial evidence to support the Board’s findings.” NLRB v. Westin

Hotel, 758 F.2d 1126, 1130 (6th Cir. 1985) (citation omitted); see also NLRB v. Velocity

Express, Inc., 434 F.3d 1198, 1201 (10th Cir. 2006) (“Substantial evidence is defined

as such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”) (citation and internal quotation marks omitted); TNS, Inc. v. NLRB, 296

F.3d 384, 394-95 (6th Cir. 2002).

A. Turner’s Felony Conviction

Turner was convicted in November 2002 for the felony of attempting to solicit

a controlled substance by fraud. Jackson Hospital argues that Turner’s rights to

reinstatement and back pay terminated upon this conviction, and that the Board erred

in finding they did not.

The felony conviction stemmed from Turner’s attempt to obtain Demerol for a

toothache by untruthfully denying she had received Percocet for the same ailment earlier

that day. Jackson Hospital argues that it would have terminated Turner for her felony

conviction or for substance abuse. The administrative law judge found, and the Board

agreed, that in the past Jackson Hospital had continued employment of a felon and

dozens of substance abusers. Specifically, Jackson Hospital had continued the

employment of an employee, Carol Hudson, who was convicted of the felony of

concealing her husband’s marijuana operation while she was a Jackson Hospital

employee. Jackson Hospital also continued employment of substance-abusing

employees. In fact, Jackson Hospital had an Employee Assistance Program designed to

help employees with substance-abuse problems.

Further, as the Board notes, Turner’s situation is different from, but is not

undercut by, these examples because her termination occurred two years before the

felony conviction. Jackson Hospital claims its leniency in continuing Hudson’s

employment after her felony conviction owed to close communication with Hudson’s

attorney and probation officer; Turner did not contact Jackson Hospital to discuss

continued employment because Turner was not employed by Jackson Hospital at the

time of the felony. Similarly, Jackson Hospital argued that substance-abusing employees
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 5

in the Employee Assistance Program were allowed to continue employment because they

voluntarily submitted to the program; Turner had no opportunity to submit to the

program because, again, she was not employed by Jackson Hospital at the time of her

misconduct. 

Finally, the administrative law judge found, and the Board noted, that Turner’s

work as an X-ray technician did not afford her access to controlled substances, and that

Jackson Hospital closely monitored controlled substances in the hospital. These facts

undercut Jackson Hospital’s argument that it would not have continued to employ Turner

after her conviction based on concerns about her potential future abuse of controlled

substances present at the hospital.

We conclude that the Board did not abuse its discretion in its conclusions

regarding Turner’s felony conviction, and that substantial evidence supports the Board’s

conclusion that Jackson Hospital did not meet its burden to negate back pay or

reinstatement liability.

B. Turner’s Resignation from Interim Employment

Turner was employed as a radiology technologist at Gram Resources from

October 2001 until July 2002, when she resigned. Jackson Hospital argues as an

affirmative defense to its back pay liability that Turner’s resignation amounts to a

“willful loss of earnings” that should result in tolling its back pay liability.

Jackson Hospital is correct that where an employee suffers a “willful loss of

earnings,” the employer’s back pay liability is tolled. NLRB v. Ryder Sys., Inc., 983 F.2d

705, 712 (6th Cir. 1993) (citing Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 199-200

(1941)). However, a willful loss of earnings will be found only where “the employee’s

misconduct was ‘gross’ or ‘egregious.’” Id. at 713.

The administrative law judge found that Turner resigned from Gram because her

work hours increased to the point where they became incompatible with the demands of

caring for her child, and that this resignation did not affect subsequent back pay owed

her. The Board adopted the administrative law judge’s findings. Jackson Hospital
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 6

argues that Turner resigned to preempt her being fired, but the administrative law judge

found otherwise. Our review of the facts indicates that there is “substantial evidence to

support the Board’s findings,” Westin Hotel, 758 F.2d at 1130, including evidence that

Turner’s increased working hours made providing child care burdensome. Jackson

Hospital cites conflicting testimony by Ken Holbrook, a Gram administrator, to support

its argument that Turner anticipated an impending termination and resigned

preemptively. The Board concluded that “the [administrative law judge] implicitly

discredited Holbrook’s testimony by finding that Turner quit because of childcare issues

and did not know at the time that Holbrook intended to fire her.” Jackson Hosp. Corp.,

354 N.L.R.B. No. 42, at *2. “[T]his Court will not normally substitute its judgment for

that of the Board or administrative law judge who has observed the demeanor of the

witnesses.” NLRB v. Lakepark Indus., Inc., 919 F.2d 42, 44 (6th Cir. 1990) (citation

omitted). We decline to substitute our judgment here. 

Resigning from a position incompatible with child care duties is not the sort of

gross or egregious conduct necessary to find a willful loss of earnings. We conclude that

the Board did not abuse its discretion in its findings and conclusions on this point.

Substantial evidence supports the Board’s conclusion with respect to Jackson Hospital’s

failure to meet its burden in negating back pay liability based on Turner’s resignation

from her interim job.

C. Turner’s Medical Leave

Turner took medical leave from interim employment at Clark Regional Medical

Center because of pregnancy complications and postpartum recovery from October 28,

2005 through June 25, 2006. Jackson Hospital contends that, because the leave exceeds

the leave required by the Family and Medical Leave Act and any additional leave

allowed by Jackson Hospital’s own leave policies and its past application of its leave

policies, Turner’s medical leave would have resulted in her termination, thus ending

Jackson Hospital’s liability for back pay.

The administrative law judge did not address Jackson Hospital’s medical leave

defense. The Board considered this defense and concluded that Turner is not entitled to
No. 10-2101 NLRB v. Jackson Hospital Corporation Page 7

back pay during the leave period but that the leave itself did not relieve Jackson Hospital

of further liability for back pay. This leave exceeded the twelve weeks of leave legally

protected by the Family and Medical Leave Act. To determine whether Jackson

Hospital would have terminated Turner once her leave exceeded twelve weeks, the

Board examined Jackson Hospital’s leave policy and considered testimony from David

Bevins, Jackson Hospital’s former CEO. The Board determined, Jackson Hosp. Corp.,

354 N.L.R.B. No. 42 at 4-5, that though “there are material tensions between Bevins’s

testimony and [Jackson Hospital’s] written leave policy” and 

neither the written policy nor Bevins’s testimony clearly addresses the

procedures, conditions, or possible duration of [Family and Medical

Leave Act] leave extensions or the use of personal leaves to supplement

[Family and Medical Leave Act] or other leave, the record does not

preclude the possibility that Turner may have been eligible for an

extended leave that could have lasted for as long as her incapacity, and

thus for reinstatement upon obtaining medical clearance.

Jackson Hospital points to Bevins’s testimony that Jackson Hospital had never

retained an employee who took medical leave for eight months. While that may be true,

Jackson Hospital’s written leave policy does not foreclose the possibility of an eightmonth leave. As the Board notes, the written policy leaves open the possibility that an

employee could extend her leave by either extending her leave under the Act or by

taking a “personal leave of absence.” Though the written policy is not clear on all

points, the burden rests with Jackson, and not Turner, to prove that Jackson Hospital

would have refused to reinstate Turner because of her medical leave. The Board

concluded that Jackson Hospital did not meet this burden. We find that substantial

evidence supports this conclusion, and that the Board did not abuse its discretion in

fashioning its Order on this point.

III.

For the above reasons, we ENFORCE the Board’s Order.