                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0028p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                             X
                                 Petitioner, -
 NATIONAL LABOR RELATIONS BOARD,
                                              -
                                              -
                                              -
                                                                 No. 10-2101
           v.
                                              ,
                                               >
                                              -
                                              -
 JACKSON HOSPITAL CORPORATION, d.b.a.

                                Respondent. --
 Kentucky River Medical Center,

                                             N

               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

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


                                                  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 eight-
month 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.
