CHS Community Health Systems, Inc. d/b/a Mimbres Memorial Hospital and Nursing Home

National Labor Relations Board - Board Decisions

Aug 25, 2014

361 N.L.R.B. 333 (N.L.R.B. 2014)

MIMBRES MEMORIAL HOSPITAL & NURSING HOME 333
Community Health Services, Inc. d/b/a Mimbres
Memorial Hospital and Nursing Home and
United Steelworkers of America District 12,
Subdistrict 2, AFL–CIO–CLC. Cases 28–CA–
016762, 28–CA–017278, and 28–CA–017390
August 25, 2014
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS JOHNSON
AND SCHIFFER
On June 30, 2004, the National Labor Relations Board
issued a Decision and Order in this proceeding,1 in which
the Board found, inter alia, that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally reduc-
ing the work hours of unit employees in its Respiratory
Department from 40 hours per week to between 32 and
36 hours per week. To remedy that violation, the Board
ordered the Respondent to “[m]ake employees whole for
any loss of earnings and other benefits suffered as a re-
sult of the unilateral change[],” to be “computed as pre-
scribed in Ogle Protection Service, 183 NLRB 682
(1970)[, enfd. 444 F.2d 502 (6th Cir. 1971)].”2
In the subsequent compliance proceeding,3 the Board
affirmed the judge’s supplemental decision and held,
inter alia, that the backpay due each employee should not
be reduced by any interim earnings the employees may
have generated during the backpay period. Further, in a
Supplemental Order, the Board required the Respondent
to pay the backpay awards plus the interest then due.4
The Respondent petitioned the United States Court of
Appeals for the District of Columbia Circuit to review
the Board’s Supplemental Order, and the General Coun-
sel cross-applied for enforcement. On December 20,
2011, the court issued a decision granting in part the
cross-application for enforcement. However, the court
also granted the petition for review in part, vacated the
Board’s backpay computation, and remanded the case
“for a more thorough analysis of” the interim earnings
issue.5
On May 25, 2012, the Board notified the parties that it
had accepted the remand and invited them to file state-
ments of position. The General Counsel and the Re-
spondent filed statements.
1 342 NLRB 398 (2004), affd. 483 F.3d 683 (10th Cir. 2007).
2 Id. at 404.
3 Mimbres Memorial Hospital & Nursing Home, 356 NLRB No. 103
(2011), enfd. in part and remanded in part 665 F.3d 196 (D.C. Cir.
2011).
4 Id. slip op. at 1.
5 Deming Hospital Corp. d/b/a Mimbres Memorial Hospital v.
NLRB, 665 F.3d 196, 198–201 (D.C. Cir. 2011).
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The single issue on remand is whether the Board
should deduct an employee’s interim earnings from other
employment when calculating backpay in cases where
the employee suffers no cessation of employment with
the wrongdoing respondent-employer and has no duty to
mitigate damages by seeking interim employment. For
the reasons explained below, we conclude that the deduc-
tion of interim earnings in this situation would not best
effectuate statutory policy and we reaffirm our earlier
holding not to do so.
I. BACKGROUND
During the hearing for the compliance proceeding, the
Respondent submitted an offer of proof that two of the
employees entitled to backpay under the Board’s original
Order had taken on additional work at other hospitals to
offset the Respondent’s unlawful reduction of their
hours. As a result, at least these two employees had gen-
erated interim earnings, which, according to the Re-
spondent, should have been deducted from their backpay
awards. The judge rejected this argument, finding that
under “the clear language [of] Ogle Protection,” interim
earnings are not considered “in cases of this type,” i.e.,
those involving no job loss. Mimbres Memorial Hospital
& Nursing Home, 356 NLRB 744, 752. Specifically, the
judge relied on language in Ogle Protection Service
holding that the quarterly backpay computation method
set forth in F.W. Woolworth Co.6 would be “unnecessary
and unwarranted” in cases not involving “cessation of
employment or interim earnings that would in the course
of time reduce backpay.” Id. (quoting Ogle Protection
Service, 183 NLRB at 683). Based on this language, the
judge concluded that deducting interim earnings from
backpay awards in cases like this one would “impos[e] a
duty on employee[s] . . . to moonlight in order to mini-
mize the impact of the unlawful conduct for the benefit
of the wrongdoer.” Id. slip op. at 9. On exceptions to
the Board, the Respondent renewed its argument that the
General Counsel was required to investigate and plead
the employees’ interim earnings and offset them against
their backpay awards. The Board rejected this argument.
In its opinion remanding, the D.C. Circuit panel high-
lighted three concerns about the Board’s reasoning. Ini-
tially, the court observed that the “clear language” of
Ogle Protection Service does not address the interim
earnings issue presented in this case. Mimbres Memorial
Hospital v. NLRB, 665 F.3d at 200. In particular, while
Ogle Protection Service stands for the proposition that
where an employer’s unlawful action “does not involve
6 90 NLRB 289, 291–293 (1950).
361 NLRB No. 25

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 334
. . . interim earnings,” the Board should not calculate
backpay on a quarterly basis, it does not stand for the
converse proposition that “if the Board cannot calculate
backpay on a quarterly basis, then it should not consider
interim earnings” actually generated. Id. The court fur-
ther observed that the Ogle Protection Service Board
appeared to assume an employee who had not suffered a
job loss would not seek another job, and therefore, would
not generate interim earnings. Id.
Second, the court concluded that the Board’s concern
for imposing a “duty to moonlight” improperly “seems to
conflate, and thus confuse, an employee’s duty to miti-
gate with rules governing when backpay should be re-
duced by interim earnings.” Id. at 200. The court found
that while unlawfully discharged and laid-off employees
have a duty to mitigate, and victims of unfair labor prac-
tices not resulting in job loss do not, the Board may
nonetheless be obliged to consider interim earnings to
prevent those employees who did engage in other work
from receiving windfalls. Id. at 200–201. In that con-
nection, the court explained that the Board could account
for the interim earnings of continuously employed work-
ers without imposing on them a duty to mitigate. Id. at
201. Specifically, it stated that “a non-terminated em-
ployee who seeks out interim earnings after an unlawful
hours or wage reduction would have his [or her] backpay
award reduced by those earnings, but would have the
potential to earn more money overall. Meanwhile, a
non-terminated employee who chooses not to seek inter-
im earnings would receive his [or her] full backpay
award (because he [or she] had no duty to find additional
work), but would forego the potential to make even more
money through additional employment.” Id. According
to the court, both of these potential outcomes are con-
sistent with the Board’s obligations “to ensure that its
remedies are compensatory and not punitive, and to
guard against windfall awards that bear no reasonable
relation to the injury sustained.” Id. (quoting Oil Capitol
Sheet Metal, 349 NLRB 1348, 1353 (2007)).
Finally, the court found that “[t]he Board’s concern
about imposing a duty to mitigate is also belied by its
willingness to account for interim earnings in other cases
involving relatively small reductions in hours or wages,”
citing two Board cases which ordered make-whole relief,
“less any net interim earnings.” Id. at 201.7 The court
further rejected the Board’s argument that its refusal to
deduct interim earnings was consistent with established
precedent, as set forth in 88 Transit Lines, 314 NLRB
7 Amerigas Propane, L.P., 1997 WL 33315927 (NLRB Feb. 12,
1997) (judge’s opinion) (reduction in weekly hours from 40 to 32);
Atlantis Health Care Group (P.R.) Inc., 356 NLRB 140, 140 (2010) (30
to 45 cent decrease in hourly wages).
324, 325 (1994), enfd. 55 F.3d 823 (3d Cir. 1995). Alt-
hough the Board refused to consider interim earnings in
that case, because it “involv[ed] a violation other than [a]
discharge from employment,” the court relied on the fact
that the Third Circuit enforced the Board’s decision on
narrow grounds and expressly “did ‘not read the [Board’s
order] to mean that reduction for interim earnings is nev-
er appropriate in a nondischarge case.’” Mimbres Memo-
rial Hospital v. NLRB, 665 F.3d at 201 (quoting 88
Transit Lines, 55 F.3d at 827 fn. 2).
In conclusion, the court made clear that it was not re-
quiring the Board to consider interim earnings in this
case. Instead, having found the Board’s previous expla-
nation inadequate for the reasons stated above, the court
remanded this case for a more thorough analysis of the
interim earnings issue. Having accepted the remand, we
apply the court’s opinion as the law of the case and un-
dertake the directed analysis.
II. ANALYSIS
Section 10(c) of the Act empowers the Board to order
backpay as a remedy for unfair labor practices. “A back
pay order is a reparation order designed to vindicate the
public policy of the statute by making the employees
whole for losses suffered on account of an unfair labor
practice.” Nathanson v. NLRB, 344 U.S. 25, 27 (1952).
The Board’s objective is to restore “the situation, as near-
ly 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 Board’s authority
to order “affirmative action”—including the payment of
backpay—is remedial, not punitive. Republic Steel
Corp. v. NLRB, 311 U.S. 7, 12 (1940).
Since its first decision in 1935, the Board has consist-
ently deducted interim earnings from backpay awards in
unlawful cessation of employment cases. See, e.g.,
Pennsylvania Greyhound Lines, Inc., 1 NLRB 1, 51
(1935); Pusey, Maynes & Breish Co., 1 NLRB 482, 488
(1936); National Motor Bearing Co., 5 NLRB 409, 441
(1938), enfd. in relevant part as modified 105 F.2d 652
(9th Cir. 1939).8 In 1941, the Supreme Court, relying
upon the historical duty of mitigation doctrine, mandated
that employees should have their backpay awards re-
duced not only by actual interim earnings, but also by
“losses...willfully incurred” by an “unjustifiable refusal
to take desirable new employment.” Phelps Dodge
Corp., 313 U.S. at 197–200. As the Court has explained
8 Deductions are limited to “net earnings” to accommodate the ex-
penses of obtaining substitute employment which, but for the discrimi-
nation, would not have been necessary. See Phelps Dodge Corp., 313
U.S. at 198 fn. 7; Crossett Lumber Co., 8 NLRB 440, 497–498 (1938),
enfd. 102 F.2d 1003 (8th Cir. 1938).

MIMBRES MEMORIAL HOSPITAL & NURSING HOME 335
elsewhere, the mitigation doctrine is “rooted in an an-
cient principle of law” governing the limitation of dam-
ages in private litigation. Ford Motor Co. v. EEOC, 458
U.S. 219, 231 (1982) (fn. omitted). Importantly, howev-
er, the Phelps Dodge Court explained that, by imposing
the mitigation requirement in the context of violations of
the Act, “we have in mind not so much the minimization
of damages as the healthy policy of promoting produc-
tion and employment.”9 Phelps Dodge Corp., supra at
200.
The Phelps Dodge decision was a strong affirmation of
the Board’s broad remedial authority, and the public pol-
icy underlying it, rather than a limitation of that authori-
ty. Endorsing the authority of the Board to find unlawful
and remedy the discriminatory denial of hiring, it ob-
served that “[a]ttainment of a great national policy
through expert administration in collaboration with lim-
ited judicial review must not be confined within narrow
canons for equitable relief deemed suitable by chancel-
lors in ordinary private controversies.” Phelps Dodge
Corp., 313 U.S. at 188 (emphasis supplied). Rejecting
the argument that the Board lacked authority to order
reinstatement of discriminatorily discharged workers
who had obtained regular and substantially equivalent
employment elsewhere, the Court stated even more em-
phatically that “[t]o deny the Board power to neutralize
discrimination merely because workers have obtained
compensatory employment would confine the ‘policies
of this Act’ to the correction of private injuries. The
Board was not devised for such a limited function. It is
the agency of Congress for translating into concreteness
the purpose of safeguarding and encouraging the right of
self-organization. The Board, we have held very recent-
ly, does not exist for the ‘adjudication of private rights’;
it ‘acts in a public capacity to give effect to the declared
public policy of the Act to eliminate and prevent obstruc-
tions to interstate commerce by encouraging collective
bargaining’.” Id. at 192–193 (citations omitted). The
Phelps Dodge Court did not in any way alter the Board’s
administrative practice with respect to the deduction of
net interim earnings during the backpay period. The
Board did that itself in 1950, adopting a quarterly com-
putation method in cases involving “reinstatement cou-
pled with back pay,” i.e., those cases involving unlawful
cessation of employment. F. W. Woolworth Co., 90
9 Since the Court’s ruling in Phelps Dodge, the Board has held that
“[a] discriminatee is not due backpay for any period within the backpay
period during which it is determined that he or she failed to make a
reasonable effort to mitigate.” St. George Warehouse, 351 NLRB 961,
963 (2007). In such situations, the Board “tolls backpay during any
portion of the backpay period in which a discriminatee failed to miti-
gate.” Id.
NLRB 289, 292–293 (1950). The modification of the
traditional practice of deducting interim earnings from
backpay in a single computation for the entire backpay
period was deemed necessary to avoid the adverse im-
pact of this practice on the companion remedy of rein-
statement. As the Board explained:
The cumulative experience of many years discloses that
this form of remedial provision falls short of effectuat-
ing the basic purposes and policies of the Act. We have
noted in numerous cases that employees, after having
been unemployed for a lengthy period following their
discriminatory discharges, have succeeded in obtaining
employment at higher wages than they would have
earned in their original employments. This, under the
Board’s previous form of back-pay order, resulted in
the progressive reduction or complete liquidation of
back pay due.
The deleterious effect upon the companion remedy
of reinstatement has been twofold. Some employers,
on the one hand, have deliberately refrained from of-
fering reinstatement, knowing that the greater the de-
lay, the greater would be the reduction in back-pay
liability. Thus, a recalcitrant employer may continue
to profit by excluding union adherents from his en-
terprise. Employees, on the other hand, faced with
the prospect of steadily diminishing back pay, have
frequently countered by waiving their right to rein-
statement in order to toll the running of back pay and
preserve the amount then owing.

Id. at 291–292.
In NLRB v. Seven-Up Co. of Miami, 344 U.S. 344,
346–347 (1953), the Supreme Court expressly approved
the Woolworth quarterly formula as a legitimate exercise
of the Board’s “broad discretionary” remedial authority
under Section 10(c). In doing so, it rejected the dissent-
ing argument that “[b]y the quarterly calculation ap-
proved by the Court in the instant case, not only may a
wrongfully discharged employee often receive as back
pay a greater amount than he would have received had he
worked at his regular job, but the employer must pay
more than he would have had to pay if he had had the
employee’s services during the period. Thus, both of the
avowed purposes of the rule which this Court has held
must guide the Board in allowing backpay have been
violated, namely, the employee is made more than
whole, and the employer has accordingly been penal-
ized.” Id. at 355 (Justice Minton, dissenting). The Court
majority effectively responded that it was sufficient that
the Board had relied on its cumulative experience to
“fashion one remedy [for backpay] that . . . comple-
ments, rather than conflicts with, another [for reinstate-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
ment]. It is the business of the Board to give coordinated
effect to the policies of the Act. We prefer to deal with
these realities and to avoid entering into the bog of lo-
gomachy, as we are invited to, by debate about what is
‘remedial’ and what is ‘punitive.’ It seems more profita-
ble to stick closely to the direction of the Act by consid-
ering what order does, as this does, and what order does
not, bear appropriate relation to the policies of the Act.”
Id. at 348.
Nearly 20 years later, the Board held in Ogle Protec-
tion Service that in cases not involving a “cessation of
employment status or interim earnings that would in the
course of time reduce backpay, a quarterly computation
is unnecessary and unwarranted.” 183 NLRB at 683
(1970), enfd. 444 F.2d 502 (6th Cir. 1971). The holding
of Ogle Protection Service reflected the Board’s practical
experience that in most cases involving unlawful adverse
economic consequences, but no cessation of employ-
ment, affected employees will not even have the oppor-
tunity to generate any interim earnings. They would ap-
pear to have such opportunity only in circumstances of
an unlawful reduction in work hours.
Thus, it is understandable that the Board generally
does not mention, let alone consider, deducting interim
earnings in cases applying Ogle Protection Service. See,
e.g., First Student, Inc., 359 NLRB 208, 208 (2012) (uni-
lateral changes/refusal to provide annual wage increas-
es); Art’s Way Vessels, Inc., 355 NLRB 1142, 1150
(2010) (repudiation of contract and unilateral changes);
DHL Express, Inc., 355 NLRB 680, 680 fn. 5 (2010)
(unlawful reduction in hours). When interim earnings
are mentioned in reference to an Ogle Protection Service
remedy, it is most often by quoting directly the language
of that case explaining that the remedy applies where
there is “a violation of the Act which does not involve
cessation of employment status or interim earnings that
would in the course of time reduce backpay.” E.g., Pratt
Industries, 358 NLRB 414, 414 fn. 2 (2012); Pepsi
America, Inc., 339 NLRB 986, 986 fn. 2 (2003).10
We acknowledge, however, that Board decisional lan-
guage has, without explanation, occasionally provided
for the deduction of interim earnings in cases where, as
here, there has been no cessation of employment. In
some cases, it has provided for the deduction of interim
10 The Respondent’s reliance on Pratt Industries and Pepsi America
for the proposition that the Board generally deducts interim earnings in
Ogle Protection Service cases involving a reduction in hours is clearly
misplaced. In fact, the Board in those cases merely substituted Ogle
Protection Service for the judge’s erroneous citation of F.W. Wool-
worth. Neither the Board nor the judge discussed any particular interim
earnings in either case. See Pratt Industries, supra at 1 fn. 2; Pepsi
America, supra at 986 fn. 2.
earnings while nominally applying Ogle Protection Ser-
vice. See, e.g., Williamette Industries, 341 NLRB 560,
564–565 (2004) (lost income from discriminatory chang-
es to work schedules); Quality House of Graphics, 336
NLRB 497, 516–517 (2001) (unilateral changes); Con-
sumers Asphalt Co., 295 NLRB 749, 752 (1989) (unlaw-
ful denial of contractual wage increase); Ford Bros., 284
NLRB 211, 211–212 (1987) (repudiation of contract and
refusal to apply contractual wage rates). In other cases
involving no cessation of employment, the Board has
applied F.W. Woolworth (instead of Ogle Protection Ser-
vice) and provided for the deduction of interim earnings.
See, e.g., Atlantis Health Care Group (P.R.) Inc., 356
NLRB 140, 140 (2010) (unlawful decrease in hourly
wages); Ironton Publications, 313 NLRB 1208, 1208 fn.
4 (1994) (various unilateral changes, including unlawful
reduction in hours).11
The aforementioned cases represent a tiny fraction of
the hundreds in which Ogle Protection Service has been
correctly cited and applied. In our view, the unexplained
references in those few cases to the deduction of interim
earnings and/or the Woolworth formula were inadvertent-
ly mistaken, rather than intentional. Further, notwith-
standing the inaccurate statements for calculating back-
pay, we are unaware of any instance in these cases not
involving the cessation of employment where deductions
for interim earnings from outside jobs were actually tak-
en.12
Contrary to any misperceptions created by these few
inconsistent cases, Board policy has been to preclude the
deduction of interim earnings from other jobs when ap-
plying Ogle Protection Service to remedy employees’
monetary losses where there is no cessation of employ-
ment and attendant duty to mitigate damages. We are
mindful of the court’s view that the literal language of
Ogle Protection Service does not compel the conclusion
that interim earnings, where proven, should not be de-
11 In one other case, a judge—not the Board—ordered the deduction
of interim earnings absent any employment cessation without specifi-
cally relying on either Ogle Protection Service or F. W. Woolworth.
See Amerigas Propane, L.P., 1997 WL 33315927 (NLRB Feb. 12,
1997) (judge’s opinion) (unlawful reduction in hours). The D.C. Cir-
cuit cited the judge’s decision in Amerigas Propane as one of two
examples of Board precedent nominally supporting the deduction of
interim earnings. That decision, however, was not reviewed by the
Board and has no binding precedential value.
12 The actual deduction of interim earnings took place only in Ford
Bros., supra, where it is apparent that the interim earnings deducted
were the reduced wages earned working for the wrongdoing employer
during the backpay period, which were offset against the gross amounts
they should have earned but for unlawful conduct. That situation is
entirely different from, and provides no support for, deducting addi-
tional amounts earned working for another employer while continuing
to work unlawfully reduced hours for the wrongdoing employer.

MIMBRES MEMORIAL HOSPITAL & NURSING HOME 337
ducted in cases where there is no job loss. Mimbres Me-
morial Hospital v. NLRB, 665 F.3d at 200. We are mind-
ful as well that the court made clear that it was not re-
quiring the Board to deduct interim earnings, only that
we provide a more thorough explanation for not doing
so.
This is a policy matter involving our undisputedly
broad discretionary authority to fashion remedies under
Section 10(c) of the Act. See, e.g., NLRB v. J. H. Rutter-
Rex Mfg. Co., 396 U.S. 258, 262–263 (1969). In particu-
lar, “[w]hen the Board, in the exercise of its informed
discretion, makes an order of restoration by way of back
pay, the order should stand 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. Seven-Up Bottling Co., 344 U.S. at
346–347 (internal quotations omitted). Our determina-
tion that interim earnings should not be deducted in ap-
plying the Ogle Protection Service backpay formula falls
well within the permissible bounds of the Board’s broad
remedial discretion, and effectuates important statutory
policies expressly recognized by the Supreme Court.
We are guided by the Supreme Court’s “healthy policy
of promoting production and employment.” As dis-
cussed above, it was this public policy, rather than an
equitable concern for minimization of private damages,
that motivated the imposition of a duty to mitigate in
Phelps Dodge. It is undisputed here that no duty to miti-
gate exists in unfair labor practice cases of unlawful eco-
nomic loss that do not involve the cessation of employ-
ment. We readily accept the D.C. Circuit’s view that we
could deduct interim earnings without imposing a duty to
mitigate in such a case, but we conclude that doing so
would contravene the policy of promoting production
and employment. Indeed, by declining to deduct interim
earnings absent a cessation of employment, we offer em-
ployees a greater incentive to voluntarily seek interim
employment, thereby affirmatively “promoting produc-
tion and employment.” Even when interim work is ob-
tained in an unlawful loss of employment situation sub-
ject to the duty to mitigate, it is well established that “on-
ly interim earnings based on the same number of hours as
would have been available at the gross employer should
be offset against gross backpay”—a rule “applicable in
any situation.” NLRB Casehandling Manual (Part
Three) Compliance Secs. 10554.3–10554.4 (2011). “A
backpay claimant who ‘chooses to do the extra work and
earn the added income made available on the interim job’
may not be penalized by having those extra earnings de-
ducted from the gross backpay owed by the
[r]espondent.” EDP Medical Computer Systems, 293
NLRB 857, 858 (1989) (citing United Aircraft Corp.,
204 NLRB 1068, 1073 (1973)); see also Center Service
System Division, 355 NLRB 1218, 1221 (2010) (over-
time hours of employees discharged or denied hire ex-
ceeding those worked by the respondent’s other employ-
ees not deductible because where “a diligent backpay
claimant chooses to work additional overtime during
interim employment, it should operate to his [or her] ad-
vantage, not that of the employer required to make him
[or her] whole for a discriminatory discharge”).
We find the reasoning of these cases applies with equal
force where a diligent backpay claimant under no obliga-
tion to work additional interim hours on another job
chooses to do so. This is particularly so because the em-
ployee whose hours or wages have been unlawfully re-
duced continues to work for the wrongdoing employer
and must adjust any outside employment hours to ac-
commodate that employer’s demands. For example, as a
means of recouping earnings lost by an employer’s un-
lawful conduct, employees must overcome the additional
hardships involved in taking a second job such as resolv-
ing scheduling conflicts between the two jobs and travel-
ing to a second workplace. In fashioning make-whole
relief, we acknowledge these practical considerations and
encourage employees to address their financial situations
contemporaneously.
In our view, permitting the employer to deduct those
interim earnings from backpay owed, rather than permit-
ting the employee to enjoy the full benefit of them,
would represent an unwarranted windfall to the employer
and discourage compliance with the law. Indeed, in
United Aircraft Corp., supra at 1073, the Board observed
that to the extent the employee is arguably made “more
than ‘whole,’ it is a result of his [or her] extra effort
above and beyond his [or her] performance of a full-time
job, not because the [r]espondent is required to do more
than make him [or her] whole for the loss of earnings
suffered as a result of [the] unlawful termination.” Simi-
larly, because the continuously employed workers had no
duty to mitigate by working hours unlawfully taken from
them, their interim earnings both up to and exceeding
those typically available from the Respondent were pro-
cured through their own “extra effort,” and do not result
from the Respondent making employees more than
whole.
Our conclusion would be the same even if the retention
of income from hours worked with another employer
were deemed a windfall to the wronged employee. The
Board is not concerned with employee windfalls in a
vacuum, but only with those “bear[ing] no reasonable
relation to the injury sustained.” See Oil Capitol Sheet
Metal, 349 NLRB at 1353. As the Supreme Court opin-
ions in both Phelps Dodge and Seven-Up make vividly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
clear, our consideration of “the injury sustained” is fo-
cused on the effectuation of public policy expressed in
the Act rather than the mere redress of private injury. As
in Seven-Up, even if an employee’s retention of certain
interim earnings in addition to backpay makes that em-
ployee more than whole, this is a permissible remedial
outcome if it bears “an appropriate relation to the policies
of the Act.” 344 U.S. at 348.
In further parallel to Seven-Up, and the F.W. Wool-
worth formula approved there by the Court, we find that
a policy of precluding deduction of interim earnings in
applying the Ogle Protection Service backpay formula
bears an important complementary relation to the com-
panion remedial requirement that the Respondent rescind
its unlawful reduction of hours and restore to affected
employees the hours they previously worked. Permitting
the deduction of interim earnings on another job would
have the same twofold deleterious effect on the rescis-
sion remedy as motivated the Board to change its single-
computation backpay formula because of the effect on
the companion reinstatement remedy. Wrongdoing em-
ployers knowing that the longer an employee worked a
second job, the greater could be the reduction in backpay
owed, would be unjustly rewarded for delaying compli-
ance with a Board rescission order.13 In such circum-
stances, outside employment forced on an employee be-
13 We note that, at least until the D.C. Circuit’s opinion in this case,
the Respondent was still contesting its obligation to rescind the unlaw-
ful reduction of hours worked by Respiratory Department employees.
Mimbres Memorial Hospital v. NLRB, 665 F.3d at 202–203. This was
approximately 7 years after the reduction took place.
cause of an unlawful reduction in hours, would serve to
subsidize the violation and allow the employer to reap
the benefit of its unlawful conduct in the form of a reduc-
tion––perhaps to zero––of its backpay obligation. On the
other hand, employees suffering from both the financial
strains of continued reduced hours as well as the practi-
cal difficulties of working a second job to offset econom-
ic losses, could well be motivated to seek full-time em-
ployment elsewhere, abandoning their entitlement to full
vindication of their statutory rights vis-à-vis the wrong-
doing employer.
In sum, we hold that important statutory policies
strongly support a practice of declining to deduct interim
earnings when applying the Ogle Protection Service
backpay formula for cases involving economic loss but
no cessation of employment. Accordingly, we reaffirm
our prior backpay order in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, Community Health Services, Inc. d/b/a
Mimbres Memorial Hospital and Nursing Home, Dem-
ing, New Mexico, its officers, agents, successors, and
assigns, shall pay the amounts set forth in the Board’s
February 28, 2011 Supplemental Order,14 plus interest at
the rate prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
14 Mimbres Memorial Hospital & Nursing Home, 356 NLRB 744,
744 (2011).