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NLRB: Back Pay For Unlawful Reduction in Hours Not Subject to Offset for Interim Earnings

On August 25, 2014, the National Labor Relations Board, in Community Health Services, Inc., 361 N.L.R.B No. 25, reaffirmed that the back pay ordered to remedy the employer's unlawful reduction in hours is not subject to offset based upon the employees' interim earnings from other employment. In 2004, the Board found that the employer had violated the Act by reducing working hours for its respiratory department employees without bargaining with the union that represented them. It ordered the employer to remedy that violation by making the employees whole for the lost earnings and benefits resulting from this unilateral change, which were to be computed in accordance with its holding in Ogle Protection Service, 188 N.L.R.B. 682 (1970), enfd., 444 F.2d 502 (6th Cir. 1971). On December 20, 2011, the District of Columbia Circuit remanded the case to the Board for a more thorough analysis of the interim earnings issue.

On remand, the Board concluded that the standard established in Ogle Protection Service, should continue to govern the calculation of back pay in cases that do not involve a cessation of employment. The Board reasoned that in such cases, "permitting the employer to deduct those interim earnings from back pay owed, rather than permitting the employee to enjoy the full benefit of them, would represent an unwarranted windfall to the employer and discourage compliance with the law." Applying the Ogle Protection Service back pay formula in this manner, the Board explains, "falls well within the permissible bounds of the Board's broad remedial discretion and effectuates important statutory policies recognized by the Supreme Court."

http://op.bna.com/dlrcases.nsf/id/ldue-9ndp4c/$File/Community825.pdf


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