NEW YORK PARTY SHUTTLE, LLC,d/b/a ON BOARD TOURS, WASHINGTON DC PARTY SHUTTLE, LLC, D/B/A ON BOARD T

372 NLRB No. 5 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, d/b/a Onboard Tours, Onboard Las Vegas Tours, LLC, d/b/a Onboard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, a Single Employer and Fred Pflantzer. Case 02–CA– 073340 November 18, 2022 SECOND SUPPLEMENTAL DECISION AND ORDER REMANDING BY MEMBERS KAPLAN, RING, AND PROUTY This proceeding, which involves a dispute over the backpay owed to Charging Party Fred Pflantzer, is on remand to the National Labor Relations Board from the United States Court of Appeals for the Fifth Circuit.1 The court affirmed most of the Board’s findings, includ- ing its calculation of Pflantzer’s backpay from February 2012 through September 2014. The court, however, re- jected the Board’s calculation of backpay from October 2014 through March 2018 because the Board used a comparator who had not worked during that period. Holding that the calculation was therefore based on “im- permissible speculation,” the court reversed and remand- ed the case to the Board for recalculation of the backpay for that period. Consistent with the court’s decision, we liquidate the portion of the backpay award that was af- firmed by the Fifth Circuit—i.e., the period from Febru- ary 12, 2012, through September 30, 2014—and sever and remand to an administrative law judge the portion of the case concerning gross backpay calculations for the period of October 1, 2014, through March 31, 2018. In the underlying unfair-labor-practice proceeding, the Board found that New York Party Shuttle (NYPS) un- lawfully terminated Charging Party Fred Pflantzer from his job as a tour guide after he engaged in protected un- ion activity.2 The Board ordered NYPS to offer Pflantzer reinstatement and make him whole. NYPS reinstated Pflantzer in 2014 but then discharged him again 16 days later. This compliance proceeding followed. The backpay specification calculated Pflantzer’s backpay from Febru- 1 New York Party Shuttle, LLC et al. v. NLRB, 18 F.4th 753 (5th Cir. 2021), affirming in part, reversing in part, and remanding 370 NLRB No. 19 (2020). 2 New York Party Shuttle, LLC, 359 NLRB 1046 (2013), motion for default judgment granted No. 13-60364 (5th Cir. Nov. 19, 2013), mo- tion for reconsideration denied No. 13-60364 (5th Cir. Jan. 8, 2014) ary 2012 through March 2018 using the comparable- employee formula and alleged that NYPS and several related entities constituted a single employer. The com- pliance officer chose the comparator (Edwin Jorge) whose average hours worked were closest to Pflantzer’s. But the compliance officer did not have payroll records for Jorge after October 2014. Therefore, in order to cal- culate Pflantzer’s backpay for the years after 2014, the compliance officer took Jorge’s hours for his last full year of employment with NYPS (October 2013 to Octo- ber 2014) and then repeated them for the remaining years in the backpay period. She also calculated Pflantzer’s estimated tips, both while he worked for NYPS and dur- ing his interim employment, and his estimated income from moonlighting while working for NYPS. The Board affirmed the administrative law judge’s findings that the backpay calculation was reasonable, Pflantzer reasonably mitigated his damages, the Board had jurisdiction over the non-NYPS entities, and the var- ious entities constituted a single employer (the Respond- ent). The Board ordered the Respondent to pay Pflantzer $91,912, plus interest, in backpay for the period from February 12, 2012, through March 31, 2018. The Respondent petitioned for review in the United States Court of Appeals for the Fifth Circuit, and the Board cross-applied for enforcement. On review, the Fifth Circuit granted the Board’s cross-application for enforcement with respect to most issues, including the calculation of Pflantzer’s backpay from February 2012 through September 2014.3 The court determined that the Board’s selection of the comparator method and its choice of Jorge as a comparator were acceptable, but only “to the extent that the Board relied on Jorge for the hours that he actually worked.” Id. at 767 (emphasis in original). Thus, the court held that the Board’s use of the hours worked by Jorge during his last year of employ- ment (October 2013 to October 2014) to calculate Pflantzer’s post–October 2014 backpay amounted to “impermissible speculation.” Id. The court affirmed the Board’s order, “save the portion of that order awarding backpay for the period of October 2014 to 2018,” and remanded “the case . . . for recalculation of the backpay damages in keeping with this opinion.” Id. at 765, 769. On April 19, 2022, the Board advised the parties that it had accepted the remand from the Fifth Circuit and that the parties could file statements of position with respect 3 The court also affirmed the Board’s single-employer findings and other backpay findings—i.e., those related to tips, moonlighting, and interim employment—and found that NYPS had forfeited its constitu- tional arguments under NLRB v. Noel Canning, 573 U.S. 513, 519 (2014), by failing to raise them during an earlier court-review proceed- ing. 18 F.4th at 763, 767–768. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 to the issues on remand. The General Counsel and the Respondent did so. The Board has delegated its authority in this proceed- ing to a three-member panel. We accept as the law of the case the court’s conclusion that there is insufficient evidence to calculate gross backpay between October 1, 2014, through March 31, 2018. We find that it is necessary to remand the pro- ceeding to an administrative law judge in order to further develop the evidentiary record. In their position state- ments, the General Counsel and the Respondent agree in concept that the Board should remand the recalculation of backpay to an administrative law judge for a hearing, but they disagree on the parameters of the remand. The General Counsel argues that the Fifth Circuit affirmed the Board’s backpay calculations from February 12, 2012, through September 30, 2014, and only directed the Board to recalculate Pflantzer’s backpay for the 4-year period for which the court rejected the Board’s compara- tor calculations (October 1, 2014, through March 31, 2018). The General Counsel requests that the Board liq- uidate the earlier backpay calculation award and sever and remand the allegations regarding the 3-1/2 years of backpay still at issue for a hearing before an administra- tive law judge. In contrast, the Respondent contends that the Board should remand the case to an administrative law judge for calculation of the entire backpay period. The Respondent argues that the Board should not liqui- date the affirmed portion of the backpay award because “there cannot be a final collectible judgment in this mat- ter until the entire backpay award is calculated.” We find no merit in the Respondent's argument. The Fifth Circuit expressly “affirm[ed] the Board’s order, save the portion of that order awarding backpay for the period of October 2014 to 2018.” Thus, the portion of the order that was affirmed encompasses the Board’s backpay calculations for the period from February 12, 2012, through September 30, 2014. Accordingly, in agreement with the General Counsel, and consistent with the court’s opinion, we will liquidate the affirmed portion of the backpay award from February 12, 2012, through September 30, 2014. Regarding gross backpay for the period of October 1, 2014, through March 31, 2018, we sever and remand to the Division of Judges to further develop the record. We limit the scope of our remand to the comparator calculations between October 1, 2014, through March 31, 2018. This will pre- vent the relitigation of any portions of the Board’s origi- nal Order that were affirmed by the Fifth Circuit. As mentioned, that court not only adopted the Board’s back- pay calculations for the period from February 12, 2012, through September 30, 2014, but also its use of the com- parator method, the specific choice of comparator, and all tips, moonlighting, and interim earning calculations. ORDER The National Labor Relations Board orders that the Respondent, New York Party Shuttle, LLC, d/b/a OnBoard Tours, Washington DC Party Shuttle, LLC, d/b/a OnBoard Tours, OnBoard Las Vegas Tours, LLC, d/b/a OnBoard Tours, NYC Guided Tours, LLC, and Party Shuttle Tours, LLC, a Single Employer, its offic- ers, agents, successors, and assigns, shall forthwith pay to Fred Pflantzer the sum of $66,794,4 plus interest as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medi- cal Center, 356 NLRB 6 (2010), accrued to the date of payment and minus tax withholding required by law, covering the backpay period of February 12, 2012, through September 30, 2014, as affirmed by the United States Court of Appeals for the Fifth Circuit. The Re- spondent shall also compensate Pflantzer for the adverse tax consequences, if any, of receiving a lump- sum backpay award, and file with the Regional Director for Region 2, within 21 days of the date of this Order, a report allocating the backpay award to the appropriate calendar years. IT IS FURTHER ORDERED that the issue of gross backpay payable to Fred Pflantzer for the period of October 1, 2014, through March 31, 2018, is severed and remanded to the Division of Judges for reopening of the record and issuance of a second supplemental decision setting out factual findings. This remand excludes all affirmed por- tions of the Board’s September 16, 2020, Order, includ- ing interim earnings, tips, and moonlighting calculations during that period. Dated, Washington, D.C. November 18, 2022 ______________________________________ Marvin E. Kaplan, Member ________________________________________ John F. Ring, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 4 $66,794 represents the net backpay owed to Pflantzer for the peri- od of February 12, 2012, through September 30, 2014.