Bannum Place of Saginaw, LLC

372 NLRB No. 97 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. Bannum Place of Saginaw, LLC and Bannum, Inc., a Single Employer, and LOCAL 406, International Brotherhood of Teamsters (IBT) and Ernie Ah- mad. Cases 07–CA–207685, 07–CA–211090, 07– CA–215356 June 27, 2023 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS KAPLAN, WILCOX AND PROUTY On October 14, 2022, Administrative Law Judge Sha- ron Levinson Steckler issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Supplemental Order as modified and set forth in full below.2 ORDER The National Labor Relations Board orders that the Re- spondents, Bannum Place of Saginaw, LLC and Bannum, 1 The Respondent has implicitly excepted to some of the judge’s cred- ibility findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In adopting the judge’s finding that Respondents Bannum Place of Saginaw and Bannum, Inc. are a single employer, we reject Respondent Bannum, Inc.’s argument, raised on exception, that it did not share suf- ficient interrelation of operations with its subsidiary because Saginaw Director Kenneth Schramm handled day-to-day operations at the Sagi- naw facility. See Alcoa, Inc., 363 NLRB 368, 368 fn. 3, 373-374 (2015) (finding single-employer status even where subsidiary had its own man- ager in charge of day-to-day operations), enfd. 849 F.3d 250, 257 (5th Cir. 2017) (“[D]ay-to-day control of operations is not required to find that two entities are a single employer under the NLRA.”); Royal Type- writer Co., 209 NLRB 1006, 1008-1011 (1974) (finding interrelated op- erations sufficient to establish single-employer status because “while day-to-day matters were of necessity left to the separate divisions, there [was] ample evidence that major decisions were controlled by top offi- cials . . . . ”), enfd. 533 F.2d 1030 (8th Cir. 1976). Member Kaplan observes that the judge broadly stated that she would draw adverse inferences “when necessary” against the Respondent, on Inc., Saginaw, Michigan, a parent and/or single employer, and their officers, agents, successors, and assigns, shall 1. Make whole Greg Price by paying him backpay in the amount of $26,974, plus $25,458.53 to compensate him for 401(k) contributions and expenses, and $3,325 to com- pensate him for medical expenses, plus interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), mi- nus tax withholdings on the backpay as required by Fed- eral and State laws. 2. Make whole Ernie Ahmad by paying him backpay in the amount of $28,741, plus $27,978 to compensate him for 401(k) contributions and expenses, plus interest accrued to the date of payment as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra, minus tax withholdings on the backpay as re- quired by Federal and State laws. 3. Make whole Greg Price and Ernie Ahmad for the ad- verse tax consequences of receiving lump-sum backpay awards.3 Dated, Washington, D.C. June 27, 2023 ______________________________________ Marvin E. Kaplan, Member the grounds that it failed to produce witnesses and documents pursuant to valid subpoenas, but then failed to indicate in her decision specifically when, or if, she actually did so. As a result, it is not readily apparent from her decision whether she drew any adverse inferences with respect to the backpay findings. To the extent she may have, Member Kaplan finds it unnecessary to rely on any adverse inferences. More generally, Member Kaplan believes that it would be helpful to the Board and parties for judges to state specifically when they are drawing adverse inferences and the reasons therefor. We find it unnecessary to pass on the judge’s additional determination that the Respondents are not a joint employer with the Federal Bureau of Prisons. We note that such a finding is irrelevant to the Respondents’ status as a statutory employer under Sec. 2(2) of the Act. Management Training Corp., 317 NLRB 1355, 1358, 1358 fn. 16 (1995) (in determin- ing whether the Board has jurisdiction over an employer alleged to be in privity with a government entity, “[w]hether the private employer and the exempt entity are joint employers is irrelevant.”). 2 We shall modify the judge’s recommended Supplemental Order to conform to the Board’s standard language for supplemental orders in compliance proceedings. 3 We recognize that the tax situation of the discriminatees may have changed since the amended compliance specification issued. We there- fore leave it to the Region to update this number as appropriate. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 ________________________________________ Gwynne A. Wilcox, Member ________________________________________ David M. Prouty, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Rana Roumayah, Esq., and Elaina S. Bailey, Esq., Counsel for the General Counsel Clifford Hammond, Esq., Counsel for Respondent Bannum Place of Saginaw, LLC and Bannum, Inc. SUPPLEMENTAL DECISION SHARON LEVINSON STECKLER, Administrative Law Judge. The Board issued its decision in the above-captioned case and the Sixth Circuit affirmed that decision, which included orders to reinstate and make whole two discriminatees. Bannum Place of Saginaw, LLC, 370 NLRB No. 117 (April 30, 2021), rev. de- nied, enfd. Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th 518 (6th Cir. July 14, 2022). A dispute having arisen about the amount of backpay due under the Board’s order, I conducted a hearing held July 20, 2022 in Detroit, Michigan,1 regarding a compliance specification for Respondent Bannum Place of Sagi- naw, LLC (Bannum Saginaw), which unlawfully terminated two discriminatees in September 2017. Id. However, Bannum Sagi- naw denies that it has any liability because its facility closed in September 2021 and has no assets. On March 31, 2022 Counsel for the General Counsel (General Counsel) amended the compliance specification to include Re- spondent Bannum, Inc. (Bannum, Inc.) as the parent, single em- ployer and/or joint employer of the Bannum Saginaw employ- ees.2 Bannum, Inc.’s Answer denies that it is a single employer, joint employer or sufficiently acted as a parent, and was notin- cluded in the underlying proceeding so it was denied due process and ability to respond; it also maintains that the Bureau of Pris- ons should have been included as a joint employer and necessary party. Respondents maintain that neither owes anything; how- ever the calculations should have been based upon the discrimi- natees’ hourly rates for a specific number of hours per week, making the calculations in the amended compliance specification incorrect, and that the discriminatees failed to mitigate their 1 All COVID protocols were followed during the in-person hearing. Judge Michael Rosas opened the hearing by videoconference on June 1, 2022, at which time General Counsel’s formal exhibits were admitted. No party objected to the change in administrative law judge. See ALJ Exh. 1. 2 Bannum Saginaw and Bannum, Inc. collectively are called Respond- ents. damages. ISSUES In examining the case, I first discuss the facts. Among the legal issues is whether General Counsel may use adverse infer- ences and secondary evidence because Bannum, Inc., Respond- ents’ president Rich and Bannum, Inc compliance officer Teel were properly served with subpoenas. Respondents’ counsel contends that neither Bannum, Inc. nor Bannum Saginaw have any personnel left. The second issue is whether Bannum, Inc. is a parent, single employer or joint employer with Bannum Saginaw. Respond- ents claim that the Bureau of Prisons is a joint employer. I find that Bannum, Inc. is the parent and a single employer with Ban- num Saginaw. Regarding the Bureau of Prisons, I find it has no liability as it is not the employer. In tandem with these issues is whether Bannum, Inc. can be held derivatively liable for Ban- num Saginaw’s owed backpay and benefits to the two discrimi- natees. As a corollary, Bannum, Inc. maintains a defense that the Bureau of Prisons is liable for any backpay. I find that Ban- num, Inc. and Bannum Saginaw are jointly liable for the backpay and the Bureau of Prisons has no liability. The last issues finally reach the calculations of backpay and benefits presented in the Compliance Specification. The parties agree, and I find, that liability for backpay and benefits were tolled when Bannum Saginaw closed in September 2021. I find that General Counsel generally carried its burdens of proof, while Respondents do not meet their burdens of proof to success- fully challenge these calculations. I therefore award the discrim- inatees the make-whole remedies they are owed. STATEMENT OF THE CASE FACTS In order to develop an understanding of the issues, I first dis- cuss the relationship between Bannum Saginaw and Bannum, Inc. I then discuss certain facts from the underlying representa- tion and unfair labor cases. I also present interim requests from Region 7’s compliance officer to Bannum Saginaw for infor- mation related to calculating backpay for the discriminatees and its sequelae. Ultimately the Sixth Circuit decision, enforcing the Board’s order, is noted. A. Organization and Relationship with Bannum Saginaw and Bannum, Inc. Bannum, Inc. held the contract with the Bureau of Prisons for services provided at several Bannum facilities, including Ban- num Saginaw.3 Bannum Saginaw was a halfway house with 3 Respondents and General Counsel stipulated that Bannum Inc. had income relating to outflow or inflow of services totally at least $50,000 for the year 2021. (Tr. 648.) The record also reflects that Bannum, Inc. did business in a number of states and is a federal contractor. Respond- ents did not agree to stipulate that Bannum, Inc. was an employer under the Act. However, based upon these facts and Bannum, Inc.’s failure to provide subpoenaed records regarding employer status, infra, I find that BANNUM PLACE OF SAGINAW 3 “residential reentry services to formerly incarcerated individuals under a contract with the Federal Bureau of Prisons.” Bannum Place of Saginaw, LLC, 370 No. 117 (2021). The employees at the facility monitored residents within the facility and then also monitored others who lived off site. Although the Bannum Sagi- naw facility closed in September 2021, the actual property is owned at the same address for Bannum, Inc. (GC Exh. 33.)4 John Rich served as president and corporate counsel for Ban- num, Inc. and Bannum Saginaw. At the unfair labor practice case hearing Rich admitted that Bannum, Inc. was the parent company of Bannum Saginaw. (Tr. 324.)5 Rich described Ban- num Place of Saginaw, LLC as the operating company for the facility. (Tr. 325.) Rich admittedly made the decisions for ter- minations in Saginaw. (Tr. 329.) Sandra Allen was the Bannum, Inc. vice president. (See, e.g., GC Exhs. 13, 17.) Within Bannum, Inc. the compliance manager, held by Katrina Teel, ensured the program was meeting the Bureau of Prisons standards as defined in its contract with Bannum, Inc. Teel made visits to Bannum Saginaw to make her own audits. Other corporate functions, such as payroll for Bannum Saginaw and approval of discipline for the various Bannum entities, were handled by Bannum Inc.’s vice president of operations, Sandy Allen. Teel, however, also directed disciplinary action regarding em- ployees’ attendance. (Tr. 135.) Teel also conducted training and hired and fired employees at the residential facilities. Bannum, Inc. enacted the job descriptions for Bannum Saginaw. At the time the unfair labor practices were committed, Kenneth Schram was the manager for Bannum Saginaw and reported to Teel. Although the Bureau of Prisons provided a sample schedule in its documentation, Manager Schram was responsible for mak- ing the weekly schedule for staff. Schram denied that he hired or terminated any employees. He obtained Teel’s permission for any disciplinary action and sent Teel all disciplinary reports. Af- ter Schram was no longer employed, Teel and managers from other Bannum, Inc. facilities covered managerial duties at the Bannum Saginaw facility. Teel was not regularly stationed at the Bannum Saginaw fa- cility. Certain procedures, such as reporting possible rapes at the facility, required employees to immediately notify the Bannum, Inc. Compliance Manager in the central office, who was Teel, or local management. The central office, not local management, was responsible for coordinating any efforts with the Bureau of Prisons and, if needed, local law enforcement. The policy ap- plied to all Bannum, Inc. employees and the ”agency head” was defined as the president of Bannum, Inc. (GC Exh. 23.) Bannum Inc., a corporation registered in several states, was involved in interstate commerce. It is an employer under the Act and the Board can assert jurisdiction. 4 Throughout the decision I note different transcript and exhibit cita- tions: GC Exh. for Counsel for the General Counsel Exhibit; R. Exh.for Respondent(s) Exhibit; Tr. for Transcript; GC Br. for Counsel for the General Counsel Brief; R. BSP Br for Respondent Brannum Saginaw brief; and, R. Inc. Br. for Respondent Bannum, Inc. Brief. The transcript pages for the compliance hearing reflect a continuation of pagination from the unfair labor practice transcript, which is contained in GC Exh. The Bureau of Prisons sent a contract oversight specialist to perform on-site monitoring as well as remote monitoring. Dur- ing the interim monitoring, the contract oversight specialist vis- ited the Bannum Saginaw facility to inspect the complete and total operation during three visits each year. The contract spe- cialist also performed a complete overview of the operation in its annual full monitoring. The purpose of the inspections was to ensure the contractor was adhering to the contractual standards in every aspect of the operation. (Tr. 584-585.) If the Bureau of Prisons was expected to audit the Bannum Saginaw facility, Teel arrived beforehand to ensure the case managers correctly performed and documented operations. (Tr. 737-738.) Although the Bureau of Prisons directed the staffing ratios and that a male and female be on staff each shift, a contractor must provide the staff. The Bureau of Prisons did not make hiring or scheduling decisions for the Bannum Saginaw staff or direct the day-to-day operations. The Dept. of Labor published the merit determination of wages and benefits, which sets the minimum that a contractor must offer but does not limit the wage scale oth- erwise. In 2015, Bannum Inc. filed suit in the Federal Court of Claims against the Bureau of Prisons for additional monies; the suit listed a number of halfway houses for which Bannum, Inc. held the contracts. The complaint listed an address for Bannum Inc. that was current at the time of this hearing. (GC Exh. 38.) When a resident was killed at Bannum Saginaw, Bannum, Inc. was the named defendant, not Bannum Saginaw or the Bureau of Prisons. During the course of the unfair labor practice hearing, Rich and Bannum Saginaw counsel presented time records for alleged discriminatee Price, which General Counsel questioned heavily about the certain manual adjustments. Respondent Bannum Saginaw’s counsel, who is the same counsel for this compliance proceeding, stated that the time records were kept in the ordinary course of business. (Tr. 347.) Bannum Saginaw employees used biometric scanning to clock in and out. Management, however, could make manual overrides to the biometric clock rings. All payroll records were sent to Bannum Inc. for processing. Employees received their paychecks on a Bannum Saginaw payroll account that had the same address as Bannum, Inc. Ban- num, Inc. vice president Allen signed the checks. (e.g., GC Exh. 17.) The W-2s issued to the Bannum Saginaw employees also listed the address for Bannum Saginaw as the same address for Bannum Inc. (GC Exh. 18, 20.) Bannum, Inc. carried the insur- ance for the Bannum Saginaw facility. The retirement state- ments for employees listed the employer information as Ban- num, Inc., not Bannum Saginaw, with the same Florida address 8. As a result, I cite only to the transcript page numbers throughout the ecision. Specific citations to the transcript and exhibits are included where appropriate to aid review and are not necessarily exclusive or ex- haustive. My findings and conclusions are not based solely on the record citations contained in this decision, but rather are based upon my consid- eration of the entire record for this case. Including the unfair labor prac- tice hearing and representation case hearing. 5 At the time of the unfair labor practice hearing, Bannum, Inc. was overseeing a number of other similar facilities. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 for Bannum, Inc. (e.g., GC Exh. 16.) Employees at Bannum Saginaw signed employee acknowl- edgement forms for receipt of Bannum Inc. handbooks. (GC Exhs. 14, 21.) Bannum Saginaw employees also signed acknowl- edgements that they “thoroughly reviewed” and understood the Bannum Inc. operations manual. (GC Exh. 15.) Respondents’ counsel maintained that Bannum Saginaw and Bannum Inc. were no longer in business. The evidence that sup- ported this claim was the Bureau of Prisons’ letter regarding Bannum Saginaw. Nothing showed Bannum Inc. ceased opera- tions until, on July 13, 2022, one week after subpoenaes were received at Bannum, Inc. and one week before this hearing. At that time Bannum Inc. filed with the Florida Secretary of State papers to show it withdrew its corporate status. Other states, however, continued to show Bannum Inc. as an active corporate entity. B. The Underlying Proceedings Representation case hearing On September 5, 2017, Local 406 filed a petition. After a rep- resentation case hearing, which discriminatee Price attended, the NLRB conducted an election on November 7, which Local 406 won. The certification of representative was effective November 15, 2017. Respondent maintained throughout the pre-election proceedings that the Bureau of Prisons was a joint employer and called Bannum Inc.’s compliance officer, Katrina Teel. The ev- idence showed that the Bureau of Prisons’ contract for the Sagi- naw facility was with Bannum, Inc., not Bannum Saginaw. (GC Exh. 7 at 21-23.) Bannum Saginaw did not contest the findings of the pre-election representation decision. 1. Unfair labor practice decision and appeal The Board found Bannum Saginaw violated Section 8(a)(1), (3) and (4) through interrogation, threats of facility closure, and termination of union adherents Greg Price and Ernie Ahmad. Price and Ahmad were instrumental in the union organization campaign. Price, in 2017, contacted Charging Party Local 406, International Brotherhood of Teamsters (Local 406) about po- tential unionization. Bannum Place of Saginaw, LLC, 370 NLRB No. 117, slip op. at 1. At hearing, which began on February 24, 2020, Bannum Saginaw CEO and Bannum Inc. CEO and owner John Rich served as the corporate representative and testified.6 At the unfair labor practice hearing, as it did in the represen- tation case and the current compliance case,7 Bannum Saginaw maintained that the Bureau of Prisons was a joint employer. The evidence adduced at this hearing showed that the Bureau of Pris- ons maintained a contract with Bannum, Inc., not Bannum Sagi- naw, for the Bannum Saginaw facility. The Bureau of Prisons required a set of standards that applied to the facility. The contract was not available to employees for review. The handbook, was located in a filing cabinet with the residents’ charts. Each employee apparently signed for receipt of the handbook, which was a Bannum, Inc. document. Teel 6 Rich left in the middle of the third day, after he completed his testi- mony. trained employees based upon Bannum, Inc.’s training manual. During the course of the unfair labor practice hearing, some of the 8(a)(1) statements were based upon information managers had from Rich. One example was that the manager had a con- versation with discriminatee Greg Price, a case manager, about the unionization efforts. When Price told Manager Schram that the employees wanted better wages, cost of living increases, shift differentials, retirement benefits, better lighting and cameras around the facility, Schram replied that Rich would not approve any of it. Schram also said that Rich would shut the place down. (Tr. 105.) When the Union filed its petition for an election, Man- ager Schram forwarded it to Bannum, Inc. Compliance Officer Teel. (Tr. 110.) Price was terminated on September 28, the day after he at- tended the representation case hearing. (Tr. 122.) Compliance Officer Teel advised CEO Rich that Price allegedly failed to show up for a shift but instead attended the hearing. (Tr. 331.) Rich discussed the matter further with Teel and Bannum Inc.’s vice-president of operations, Sandra Allen. Rich ultimately de- cided to terminate Price. Ernie Ahmad, a part-time counselor aide, was also terminated. Bannum Inc. Compliance Officer Teel interviewed Ahmad when he was hired for his job. Ahmad worked the night shift, 12 a.m. to 8 a.m., for 3 shifts each week (24 hours). (Tr. 244, 249.) He sometimes worked an additional shift, totaling 32 hours per week. (Tr. 301-302, during cross-examination). Similar to Price, Manager Schram told Ahmad that the facility would shut down if the employees organized. (Tr. 255.) During organizing Schram switched Ahmad to second shift despite knowing that Ahmad worked third shift in his full-time position. Ahmad later spoke about the union to Schram and the upcoming election. As with Price, Rich made the ultimate decision to ter- minate Ahmad. The administrative law judge’s decision, dated May 29, 2020, found Bannum Saginaw violated the Act. The administrative law judge found numerous violations, including the discriminatory termination of Price pursuant to Sections 8(a)(4), (3) and (1) and Ahmad pursuant to Sections 8(a)(3) and (1) of the Act. This de- cision required the traditional make-whole remedies and preser- vation of documents for further calculation of backpay. Bannum Place of Saginaw, LLC, 370 NLRB No. 117, slip op. at 20-21. Bannum Saginaw filed exceptions to the administrative law judge’s decision. The Board’s decision, issued on April 30, 2021, still found that Bannum Saginaw discriminatorily terminated Price and Ahmad. The Board ordered Bannum Saginaw to effec- tuate cease and desist orders and affirmative remedies. The af- firmative remedies included reinstating discriminatees Price and Ahmad and making them whole for lost earnings and benefits due to Bannum Saginaw’s unlawful discrimination. In addition, the Board ordered Bannum Saginaw to pay the discriminatees for search-for-work and tax consequences of receiving a lump- sum backpay award, with a report allocating the backpay award to the appropriate calendar years. The remedies also require 7 In the compliance case, Bannum, Inc. also joins the claim that the Bureau of Prisons is a joint employer. BANNUM PLACE OF SAGINAW 5 Bannum Saginaw to “preserve . . . all payroll records, social se- curity payment records, timecards, personnel records and re- ports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.” Id., slip op. at 6-7. Bannum Saginaw requested the Sixth Circuit Court of Ap- peals review of the Board’s decision. The Board sought enforce- ment of its orders. 2. While Appellate Proceedings Were Pending General Coun- sel Solicits Compliance and Issues Compliance Specifications to Respondents On May 4, 2021, Region 7’s Compliance Officer Ethan Ray sent Bannum Saginaw’s counsel a letter requesting that Bannum Saginaw notify him if it intended to comply and enclosed a copy of the Board decision. (GC Exh. 2.) On May 19, 2021, Ray again requested evidence of compliance within 2 days. (GC Exh. 3.) Bannum Saginaw did not provide the requested information. On May 27, 2021, the Regional Director for Region 7, by email, notified Bannum Saginaw that the Region intended to seek an enforcement order. (GC Exh. 4.) On September 29, 2021 the Bureau of Prisons notified Ban- num, Inc., to John Rich’s attention, that its contract at its Sagi- naw, Michigan facility would not continue past October 1, 2021 “due to unsatisfactory performance.” (R. Exh. 7.) The Bureau of Prisons relocated residents to other facilities or programs. Id. On October 21, 2021, Ray sent to Bannum Saginaw’s attor- neys an email stating he heard Bannum Saginaw was closed or ceased operation and requested confirmation of Bannum Sagi- naw’s operational status. (GC Exh. 5.) On November 4, 2021, General Counsel issued a Compliance Specification and Notice of Hearing for Bannum Saginaw. Respondent filed its Answer on November 24, 2021 and an Amended Answer on December 13, 2021. In early February 2022, Respondents’ counsel pro- vided copies of employee schedules to General Counsel. These schedules were handwritten; each page had the printed notation that they were subject to change. The actual time records were not provided. On March 31, 2022, General Counsel issued an Amended Compliance Specification and Notice of Hearing, which addi- tionally named Bannum, Inc. as the parent, single and/or joint employer for Bannum Saginaw. Bannum, Inc. and Bannum Sagi- naw filed Answers to the Amended Compliance Specification. Bannum Saginaw’s Answer to the Amended Compliance Speci- fication denied all allegations. (GC Exh. 1(m).) It maintained that the two discriminatees had no backpay due and anything would be a windfall because they might have received pandemic unemployment insurance benefits, plus the unemployment rate in Michigan, as determined by the Bureau of Labor Statistics, showed opportunity for employment. If any backpay was owed, the discriminatees had a duty to mitigate. Respondent Bannum 8 Bannum Saginaw put forth 52 paragraphs of affirmative defenses and not all are included in this paragraph. Many overlapped with Ban- num, Inc.’s affirmative defenses, which numbered at 53 paragraphs. Saginaw offered the alternative calculation for Price’s backpay based upon an hourly rate at 40 hours per week and for Ahmad at 24 hours per week. Because Bannum Saginaw had not seen evidence of interim earnings and search for work, it objected to those calculations as well. Regarding Price’s health coverage, Bannum Saginaw stated that Price had a waiver of insurance form with alternative medical coverage from Medicare and Price did not provide proof of educational reimbursement expenses. Further, it maintained the 401(k) contributions were only conjec- tures. It generally denies the computation of tax consequences. In sum, it requested that the compliance matter be dismissed, and requested that the Board be sanctioned “for asserting frivolous allegations and claims,” and attorneys’ fees and costs. Bannum Saginaw also filed Amended Affirmative Defenses on April 21, 2022. (GC Exh. 1(p).8 The defenses ranged from the Board having no jurisdiction and subject matter jurisdiction over the matter, failing to state a claim, and failing to defer to the appellate proceedings. It also attempted to raise defenses to the findings of the unfair labor practice case; Bannum Saginaw caused no damages to the discriminatees. Bannum Saginaw said the Charging Parties’ claims are preempted in some way by the National Labor Relation Act. It further contended that the Board had no jurisdiction over Bannum Inc., and Bannum, Inc was de- nied due process “by Charging Party amending its Complaint at the last hour to include a remedy that Bannum, Inc. has never had the ability to defend or provide sufficient facts to defend it- self. (GC Exh. 1(p) at ¶¶27-28.) Bannum Saginaw contends the allegations of joint employer are barred by the statute of limita- tion, res judicata and equitable estoppel. Like the appellate case that was pending before the Sixth Circuit, it also contended that the Bureau of Prisons was a necessary party that General Coun- sel failed to join. It contended that Bannum, Inc. was not a party and was denied access to counsel of its choosing. (Id. at ¶32.) Much of Bannum, Inc.’s Answer to the Amended Compliance Specification is similar to Bannum Saginaw’s. However, Ban- num, Inc. maintains it had no chance to litigate the underlying unfair labor practice case and therefore has been denied due pro- cess. Respondents’ counsel admits none of the Board’s Orders di- rected in Bannum Place of Saginaw, supra, were carried out. C. The Sixth Circuit Decision Issued on July 14, 2022 Less than a week before the compliance hearing, the Sixth Cir- cuit Court of Appeals issued its decision, which enforced the Board’s order and rejected Bannum Saginaw’s argument that the Bureau of Prisons was a joint employer. The Sixth Circuit con- curred with the Board’s argument that Bannum Saginaw failed to fully litigate the joint employer argument because it did not raise it after the Regional Director’s decision in the representa- tion case. Nor did Bannum Saginaw raise the issue in a test of certification, or refusal to bargain case. Thus, Bannum Saginaw failed to exhaust its administrative remedies. Bannum Place of DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 Saginaw, LLC v. NLRB, 41 F.4th 518, 525-526 (6th Cir. 2022). Nonetheless, the Sixth Circuit addressed the issue further. Af- ter a comprehensive discussion of res judicata and the relitigation rule, the Sixth Circuit noted that those companies who contract with the government remain employers within Section 2(2) of the Act: The government entity, even with one with “substantial control over [ ] daily operations,” is not converted to an employer under the Act. Id. at 529-530. It held that Bannum Saginaw was an employer within the meaning of Section 2(2) of the Act. Id. at 529-530. Regarding the actual merits of the unfair labor prac- tice case, it denied Bannum Saginaw’s claims as its argument was perfunctory. Id. at 530.9, 10 SUBPOENA ISSUES; GENERAL COUNSEL’S REQUEST FOR ADVERSE INFERENCES General Counsel requests that, due to Bannum Saginaw and Bannum, Inc.’s failure to provide any subpoenaed information or witnesses, that I take adverse inferences and permit use of sec- ondary evidence to prove its case. The requested adverse infer- ences included the following: 1. An adverse inference be drawn with respect to the failure of producing subpoenaed documents; (2) that the appropriate weight be given to the secondary evidence in light of the non- production of subpoenaed documents; (3) an adverse inference be drawn with respect to the failure to present subpoenaed wit- nesses or any witnesses at all; (4) that testimony from cross- examination of Price and Charging Party Ahmad be stricken if it pertains to the subject matter of the subpoenas; and (5) Re- spondent’s pleadings be stricken if they related to the subject matter that is sought in the subpoenas namely paragraphs 2, 3, and 4 of the Amended Compliance Specification. (GC Br. at 44.) I first address the facts regarding General Counsel’s subpoe- nas, then address adverse inferences and secondary evidence. Lastly, I address General Counsel’s request to strike the Re- spondent’s answers to Amended Compliance Specification par- agraphs addressing parent, single employer and joint employer status for Bannum, Inc. I find that certain subpoenas were properly served, particularly upon Bannum, Inc. and Rich, and no documents were provided. Nor did Rich appear to testify. Be- low is the history behind General Counsel’s subpoenas, Re- spondents’ failure to file any timely motion to quash the properly served subpoenas, and rationale for taking adverse inferences. A. General Counsel Issues Subpoenas On June 28, 2022, a little more than three weeks before the hearing, General Counsel issued a number of subpoenas by cer- tified mail to the address listed for Bannum, Inc. The subpoenas ad testificandum were addressed to two individuals, John Rich and Katrina Teel. A subpoena duces tecum was sent to Bannum, Inc. corporate address, the same address for Rich and Teel’s 9 Bannum Saginaw failed to request Board review of the Regional Director’s decision in the representation case and instead attempted to relitigate the matter later. This relitigation was impermissible as Bannum Saginaw failed to follow appropriate steps. 41 F.4th at 529-530. subpoenas. On July 5, 2022, the subpoenas for John Rich and Katrina Teel were picked up at the Bannum, Inc. mailing address with signed certificates. On July 6, 2022, the Postal Service’s documentation shows a subpoena duces tecum was picked up for the custodian of records for Bannum, Inc. The subpoena was sent by certified mail and was accepted at the same address for Rich and Teel. (GC Exh. 44.) This subpoena demanded documents that would establish commerce, which Bannum Inc.’s answer denied. It also re- quested a number of additional documents that would show, in- ter alia: the relationship between Bannum Saginaw and Ban- num, Inc.; operating agreements and other documents showing the relationship and responsibilities between the Respondents; corporate documents for both entities; ownership; tax returns; holdings; insurance; organizational charts and job descriptions; and the role of the Bureau of Prisons and Bannum Saginaw dur- ing the relevant subpoena period. It also requested documents to verify backpay and benefits. B. Pre-hearing, Respondents’ Counsel Responds to General Counsel Coincidentally, on July 6, 2022, Respondents’ counsel by email informed General Counsel that Bannum, Inc. was no longer in operation and it did not employ either Teel or Rich. (GC. Exh. 48.) He denied that anyone could have signed for the subpoenas. Instead of filing any motion to quash or apparently ascertaining whether Rich or others received the subpoenas, Re- spondents’ attorney protested to General Counsel that the indi- viduals were no longer employed and the businesses were de- funct despite several Secretaries of State websites showing that Rich remained president and Bannum Inc. was an active corpo- ration. Respondents’ counsel email to General Counsel stated that Bannum Inc.’s subpoena was overly broad, requested irrelevant information, and was overly burdensome, but that statement was predicated upon serving the custodian of records. He also stated: To the extent the documents requested exist and are relevant, it would not be appropriate to request they be produced at the day of the hearing, but instead, it would be more appropriate to have any relevant documents reviewed in Florida. This is especially true in light of the fact the company is not in business was never a party to this proceeding. (GC Exh. 48.) This address, listed in Odessa, Florida, was the corporate ad- dress and the same address that the Bureau of Prisons used when it stopped the contract for Bannum Saginaw. General Counsel maintained she offered to allow virtual testimony if travel was too burdensome. (Tr. 632.) Respondents never moved for Rich to testify virtually. General Counsel subpoenas typically require an offer to pay for travel. Notably, Respondents failed to file any pre-hearing motion to quash the served subpoenas duces tecum or the subpoena ad testificandum. 10 In their briefs, Respondents include a letter from the Region 7 com- pliance officer. The letter issued after the hearing and requests compli- ance with the Sixth Circuit’s orders. Although it appears to be an admin- istrative document, it provides no impact upon the findings herein. BANNUM PLACE OF SAGINAW 7 A week before hearing, on July 13, 2022, Bannum, Inc. filed with the Florida Secretary of State its intent to dissolve. (GC Exh. 10, 12.) However, no such withdrawal was listed with the Kentucky Secretary of State, with the last annual report date of March 15, 2022. (GC Exh. 11.) Until that time, Bannum, Inc. filed its annual renewals with the Secretaries of State in several states, including Florida, Kentucky, and Michigan. In a confer- ence call with the parties, Judge Rosas and myself, Respondents’ counsel maintained that no subpoenas were properly served. Re- spondents’ counsel also refused to accept service. At hearing General Counsel notified Respondents’ attorney that subpoenas were properly served. Respondents’ counsel maintained that General Counsel had a duty to inform him that subpoenas were effectively served. Additionally, on July 18, 2022, two days before hearing, Gen- eral Counsel issued subpoenas to Katrina Teel11 and the custo- dian of records for Bannum Saginaw.12 Although Respondents’ attorney continued to refuse service of the subpoenas, General Counsel sent him courtesy copies. At hearing, Respondent’s counsel maintained that neither Bannum Inc. nor Bannum Saginaw had a custodian of records. (Tr. 635-637.)13 Respondents’ counsel also claimed attorney- client privilege covered whether his clients established a litiga- tion hold. (Tr. 641-642.) Post-hearing Respondents’ counsel filed a motion to quash the subpoenas to Bannum Inc. and Bannum Saginaw and also in- cluded the subpoenas to Teel, Rich, and Bannum, Inc. which were served on July 5, 2022. Respondents’ briefs also argue that the subpoenas were not lawfully served and even if they had “Bannum, Inc. and Bannum Place of Saginaw lack the man- power and ability to review the requested information and return it, due to the voluminous nature of the information sought.” Re- spondents also argue that the subpoena requests were overly bur- densome and sought irrelevant information. See, e.g., R. BPS Br. at 27. First, service of the earliest subpoenas was effective for Rich, Teel, and the custodian of records for Bannum, Inc. Subpoenas may be served in a number of ways, including registered or cer- tified mail, leaving a copy at the principal office or place of busi- ness of the person required to be served, or by private delivery service. See §102.4(b) and (d) of the Board’s Rules and Regula- tions. An attorney who has actual notice of a subpoena must file a petition to revoke to raise a credible claim of prejudice, even if over 5 days have passed since service on the client. NLRB v. Fresh & Easy Neighborhood Market, 805 F.3d 1155, 1161-1162 (9th Cir. 2015). Regarding responses to subpoenas, Section 102.31(b) of the Board’s Rules and Regulations states: 11 The subpoena ad testificandum for Teel, dated July 18, 2022, was sent to an address in South Carolina. When the hearing was almost over, Respondents’ counsel represented that Teel and her husband had COVID. 12 The subpoena duces tecum for Bannum Saginaw was sent to the address of the facility in Saginaw, Michigan, with the property owner’s address still listed the same as Bannum, Inc. The Administrative Law Judge or the Board, as the case may be, will revoke the subpoena if in their opinion the evidence whose production is required does not relate to any matter un- der investigation or in question in the proceedings or the sub- poena does not describe with sufficient particularity the evi- dence whose production is required, or if for any other reason sufficient in law the subpoena is otherwise invalid. The Admin- istrative Law Judge or the Board, as the case may be, will make a simple statement of procedural or other grounds for the ruling on the petition to revoke. The petition to revoke any opposition to the petition, response to the opposition, and ruling on the pe- tition will not become part of the official record except upon the request of the party aggrieved by the ruling, at an appropri- ate time in a formal proceeding . . . . A petition to revoke must be filed “within 5 business days after the date of service of the subpoena.” Board’s Rules and Regu- lations §102.31(b). The date of service and intermediate Satur- days, Sundays and Holidays are not counted. Section 102.2(a). General Counsel notified Respondents’ attorney on July 6 that a number of subpoenas were sent to his clients. The evidence showed that the subpoenas were left at the business addresses for Bannum Saginaw and Bannum Inc. No petition to revoke was filed until after the hearing. Rule 102.4(d) only requires that General Counsel provide notice to an attorney of records that it served subpoenas on its client. Once an attorney has notice of subpoenas to his client, that attorney has a duty to act with due diligence to file any motion to quash. As Respondents’ counsel had notice on July 6 that General Counsel issued subpoenas to personnel (who he claimed were no longer employed) and his client Bannum, Inc., it was incumbent upon counsel to check with the clients to see if the subpoenas were received and file a motion to quash before the hearing and not afterwards. Even considering the motion to quash filed post-hearing, it does not excuse Respondents from filing any motions pre-hearing. Thus, Respondents’ post-hear- ing motion to quash the subpoenas issued on June 28, 2022 is untimely. Despite the Board order requiring Bannum Saginaw to retain and provide appropriate records, Respondents maintains that the documents necessary to determine backpay cannot be located be- cause they are no longer in business, or in the alternative General Counsel should travel to Florida to view whatever documents may be there. When asked whether Respondents ever placed a litigation hold on these materials, Respondents’ counsel said the matter was privileged. However, the fact that a litigation hold exists is not privileged or subject to work product. See generally Edwards v. Scripps Media, Inc., 331 FRD 116, 125 (E.D. Mich. 2019), citing Beaudry v. TeleCheck Servs., Inc., 2013 WL 13 Respondents’ counsel denied any knowledge of who Arnold Rich was, who was listed in several corporate documents as chairman, and refused to divulge who was the person who retained him on behalf of these clients, citing attorney-client privilege. Client identities, retainer agreement and fee arrangements are not protected by privilege. SEC v. Ryan, 747 F.Supp.2d 355, 367-368 (N.D.N.Y 2010). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 12355782 at *2, 2013 U.S. Dist. LEXIS 206843 at *7 (M.D. Tenn. 2013). Because Respondents failed to produce any witnesses and to produce any documents pursuant to the valid subpoenas, General Counsel requests that secondary evidence be used to fill in the blanks where the subpoenaed information would have been and to take adverse inferences. In Michael Cetta, Inc. d/b/a Sparks Restaurant, 366 NLRB No. 97, slip op. at 10-11 (2018), the judge provided a primer regarding adverse inferences: Succinctly stated, the adverse inference rule consists of the principle that “when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him.” Auto Work- ers v. NLRB, 459 F.2d 1329, 1335-1336 (D.C. Cir. 1972) (de- scribing the adverse inference rule as “more a product of com- mon sense than of the common law”); see also Metro-West Am- bulance Service, Inc., 360 NLRB No. 124 at p. 2-3 and at fn. 13 (2014); SKC Electric, 350 NLRB 857, 872 (2007). An ad- verse inference may be drawn based upon a party's failure to call a witness within its control having particular knowledge of the facts pertinent to an aspect of the case. See Chipotle Ser- vices, LLC, 363 NLRB No. 37, p. 1, fn. 1, p. 13 (2015) (adverse inference is particularly warranted where uncalled witness is an agent of the party in question); SKC Electric, Inc., 350 NLRB at 872-873. An adverse inference may also be drawn based upon a party's failure to introduce into evidence documents containing information directly bearing on a material issue. See Metro-West Ambulance Service, Inc., 360 NLRB No. 124 at p. 2-3 (failure to produce subpoenaed accident reports pertinent to the “treatment of similarly situated employees” warrants ad- verse inference that records would have established that such employees were treated more leniently than discriminatee); Massey Energy Co., 358 NLRB 1643, 1692, fn. 63 (2012); see also Zapex Corp., 235 NLRB 1237, 1239 (1978). The adverse inference rule does not require that the party seek- ing the adverse inference have sought the witness testimony or documents via subpoena. Auto Workers v. NLRB, 459 F.2d at 1338 (applicability of the adverse inference rule “in no way de- pends on the existence of a subpoena compelling production of the evidence in question”). However, where a subpoena appli- cable to the particular witness or documentary evidence in question has been served, the rationale for drawing an adverse inference is strengthened. Auto Workers v. NLRB, 459 F.2d at 1338 (“the willingness of a party to defy a subpoena in order to suppress the evidence strengthens the force of the preexisting inference”); People's Transportation Service, Inc., 276 NLRB 169, 223 (1985). An adverse inference has been deployed as a discovery sanction in such cases. See, e.g., McAllister Towing 14General Counsel requested judicial (not additional, as listed in the transcript) notice of GC Exh. 29, which involves Rich’s divorce pro- ceedings. Despite his experience as an attorney and corporate counsel, Rich and his father, Chairman Arnold Rich, apparently engaged in con- tinuous refusal to abide by discovery orders during lengthy divorce pro- ceedings, in which the former wife named Bannum, Inc. as a defendant. The trial court repeatedly found Rich in contempt and sanctioned him for & Transportation Co., 341 NLRB 394, 396 (2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). In McAlister Towing, 341 NLRB at 397, the Board established that the subpoena noncompliance could lead to a variety of sanc- tions, including allowing the party who issued the subpoena to use secondary evidence, preventing the noncompliant party from rebutting evidence or cross-examining witnesses about it and drawing adverse inferences upon the noncompliant party. The administrative law judge must not abuse discretion in making such findings. Id., citing: NLRB v. American Art Industries, 415 F.2d 1223, 1229-1230 (5th Cir. 1969), cert. denied 397 U.S. 990 (1970) (finding trial examiner did not “abuse his discretion” in precluding employer from introducing evidence on number of employees in unit after employer refused to produce relevant subpoenaed documents); Midland National Life Insurance Co., 244 NLRB 3, 6 (1979) (discussing the discretion of a trial exam- iner to refuse to allow evidence where evidence is not made available pursuant to a subpoena); cf. Equipment Trucking Co., 336 NLRB 277 fn. 1 (2001) (no abuse of discretion where the judge struck the respondent's answer regarding allegations re- lated to agents who evaded subpoenas with the aid of the re- spondent); and, Perdue Farms, 144 F.3d at 834 (applying “abuse of discretion” standard). Rich was under an obligation to appear at the compliance hearing. Rich was not only president but also corporate coun- sel.14 He attended part of the unfair labor practice hearing as the corporate representative. Documents reflect that he remained in his role as president at the time the subpoenas were served. As corporate counsel, he should be aware of the basic requirements of responding to subpoenas, particularly with the administrative law judge and Board orders in the underlying proceedings direct- ing preservation of evidence for review. Rich, who was and is listed as a corporate officer and therefore an agent of both Respondents, which continued until a week after the subpoenas were effectively served, was a responsible party to ensure that Respondents not only preserved evidence pursuant to a litigation hold but also to produce such documents. Further- more, the other Secretaries of States’ websites reflect that Ban- num Inc. remained active and Rich remained president. Rich failed to appear pursuant to a valid subpoena. Respondents’ counsel did not aver that the subpoena was otherwise defective, e.g., no offer to pay transportation. Respondents are not denied due process when applying adverse inferences and secondary ev- idence due to Rich’s failure to appear. See generally Skyline Builders, Inc., 340 NLRB 109 (2003) (alj did not deny respond- ent employer due process when alj refused to order subpoena en- forcement for General Counsel subpoena of employer’s owner). Additionally, some documents, such as the written schedules, his “intentional and willful noncompliance . . . .” Rich v. Rich, 337 So.3d 138, 144 fn. 4 (Fl. Dist. Ct. App. January 14, 2022). There Rich’s former wife sued him and Bannum, Inc., apparently with the claim that Rich and the corporations sued were hiding assets in the divorce proceedings. Rich’s former wife resorted to “dumpster diving” to obtain certain finan- cial records. Id. at 147-149. Nonetheless, I can only examine the cir- cumstances of the subpoenas he received in this matter. BANNUM PLACE OF SAGINAW 9 were available in February 2022, after Bannum Saginaw closed. The rest of documents, Respondents frequently claim, are no- where to be found., or possibly in Florida. A judge may press for details of the search for documents. However, when a party’s efforts to respond to a subpoena are apparently non-existent, the judge has no duty to press further. McAlister Towing, 341 NLRB at 398. As a result, Respondents’ contradictory positions on the subpoena duces tecum do little to show that Respondent Ban- num, Inc. made a good faith effort to comply with the subpoena duces tecum. See Shamrock Foods, 366 NLRB No. 117, fn. 1 and JD slip op. at fn. 29 (2018), affd. 779 Fed. Appx. 752, 754- 755 (D.C. Cir. 2019) (sanctions appropriate when employer failed to make good faith effort to present documents relevant to GC’s case). Organizational information from Bannum Inc. and Bannum Saginaw should still exist. Timecard records would have shown what hours were actually worked. General Counsel also subpoenaed the documents to demonstrate the parent, single and joint employer status. These documents are relevant to these allegations. The Board orders requiring maintenance of records pre-date Bannum Saginaw’s demise. The Board’s orders were directed not only to the entity, but also its officers, agents, and assigns. As early as February 2022, when the schedules were provided, the officers still had a duty to preserve and retain documents. Framing it in the best possible light for Respondents, the timing of Respondent Bannum Inc.’s sudden dissolution, about a week after three subpoenas were effectively served at Bannum, Inc.’s listed address and a week before hearing, is problematic. Re- spondents claim no custodians of records exist, and the docu- ments are not available because Bannum Saginaw has not existed since November 2021 and Respondents’ counsel knows of no custodian of records for either entity. Based upon Respondents’ counsel’s representations that the documents are nowhere to be found or may be in Florida for General Counsel’s review, I have no choice but to find that Respondents failed to search for and present relevant documents15 McAlister Towing, supra. When necessary, I apply the adverse inference rules as stated above and rely upon secondary evidence, such as the prior unfair labor prac- tice transcript, the representation hearing records and the dis- criminatees’ evidence. See generally International Brotherhood of Teamsters, Local Union No. 469, AFL-CIO (Coastal Tank Lines), 323 NLRB 210, 211-212 (1997) (where no employer payroll information is available, other records may be used). General Counsel also requests that I strike Respondents’ An- swers to Compliance Specification ¶¶2, 3, and 4. Those para- graphs plead that Respondents were a single employer, or alter- natively, were joint employers, or alternatively, that Bannum Inc. was the parent or affiliated corporation of Bannum Saginaw 15 Although Respondents allegedly no longer exist, one might pre- sume that, in addition to preserving records for the NLRB proceedings, Respondents surely have an obligation to retain records for the Bureau of Prisons, particularly in case of future audits and/or other litigation against Respondents. 16 I was not asked for a finding on spoliation, which also comes to mind. and is therefore jointly and severally liable for remedying the unfair labor practices. Respondents deny these allegations as untrue. Bannum, Inc. repeatedly avers in its Answer to each sub- sequent paragraph that it is not the employer of the discrimi- natees. I do not take lightly a request to strike an answer or portions thereof. However, Respondents failed to file any timely motions to quash the subpoenas and only presented its counsel’s aver- ments about the Respondents’ situations. In United States Postal Service, 339 NLRB 400 fn. 3 and 401 (2003), the administrative law judge struck the answer when respondent failed to produce documents after its motion to quash was denied. In this case, the failure to file a timely motion to quash the subpoenas that were properly served is not an acceptable excuse. Certainly the ac- tions described above provide sufficient fodder for striking.16 Even without striking the paragraphs that General Counsel re- quested, the record and analysis below demonstrates that Ban- num, Inc. and Bannum Saginaw are a single employer and Ban- num, Inc. is the parent. RELATIONSHIP BETWEEN BANNUM SAGINAW AND BANNUM, INC: PARENT, SINGLE EMPLOYER, AND/OR JOINT EMPLOYER General Counsel contends that Bannum, Inc. is the parent company for Bannum Saginaw, and a single employer. General Counsel also contends the two entities are a joint employer. Re- spondents contend that General Counsel has ignored essential facts that Bannum Saginaw is dissolved and Bannum, Inc. is no longer in operation.17 I find that Bannum, Inc. is both the parent of Bannum Saginaw and a single employer with Bannum Sagi- naw.18 Bannum, Inc. therefore is equally liable for the backpay owed to the discriminatees. As a result of these findings, I de- cline to reach the issue of joint employer between Bannum, Inc. and Bannum Saginaw. I also find that the Bureau of Prisons is not a joint employer with Bannum, Inc. for the employees em- ployed at Bannum Saginaw. A. Parent Under the “direct participation theory,” an employer as de- fined in Section 2(3) of the Act is one that directs another em- ployer terminate employees in violation Section 8(a)(3) of the Act. Esmark, Inc., 315 NLRB 763, 767-768 (1994) on remand from Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir. 1989). Under this theory, it is unnecessary to find a single employer, joint em- ployer or piercing of the corporate veil. Id. The Board accepted the Seventh Circuit’s reasoning that “a parent corporation should not be allowed to act through its subsidiaries to the detriment of the subsidiaries’ workforce and yet escape liability for acts 17 Both Respondents attach Exhibit A to their briefs. That exhibit is not part of the official record and conveniently is dated after hearing took place. I therefore do not consider Exhibit A as part of this record. 18 Respondents’ briefs ignore the separate issues of whether Bannum Inc. was the parent or the single employer. It instead argues that Ban- num, Inc. was not a joint employer but the Bureau of Prisons was. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 which it has mandated.” Esmark, 315 NLRB at 77019 and 764- 765. Esmark, as the parent of its wholly owned subsidiary, was liable for directly playing a “key causal role” in the closing of a facility and then reopening it in a sham transaction. Id. at 770. Compare Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 735-736 (D.C. Cir. 1983) (Board must find that parent was in- volved in labor relations of subsidiary). The facts here support a finding that Bannum, Inc. directly participated in the affairs of Bannum, Inc., including its labor relations.20 Not only did Bannum Inc.’s officers hire and termi- nate employees, it also directed them through a Bannum Inc. handbook. Bannum, Inc., not Bannum Saginaw, provided the benefits. Paychecks were issued from Bannum, Inc.’s address. Rich admitted in the unfair labor practice hearing that Bannum Inc. was the parent to Bannum Saginaw, which constitutes an admission against interest. Bannum Inc. officers, including Pres- ident and Legal Counsel Rich, directly participated in the deci- sions to terminate Ahmad and Price, which violated Section 8(a)(3) and (1). I therefore find that Bannum, Inc., as the parent company of its subsidiary Bannum Saginaw, is also liable for directly participating in the unfair labor practices. B. Single Employer In addition to finding Bannum, Inc. is the parent to Bannum Saginaw, I also find Respondents were a single employer. Two or more ostensibly separate entities may be a single employer where they constitute a single integrated enterprise. When a par- ent company is found to be a single employer with its subsidiary, the parent is liable to for the subsidiary’s unfair labor practices, and to the same extent as the subsidiary. UPMC and Its Subsidi- ary, UPMC Presbyterian Shadyside, Single Employer, 365 NLRB No. 153 (2017), citing Flat Dog Productions, Inc., 347 NLRB 1180, 1182 (2006). Also see Essex Valley Visiting Nurses, 352 NLRB at 439-440 (if other corporation closely re- lated to party that was found in the underlying proceedings to have committed the unfair labor practices, the other corporation has derivative liability). The burden of proof lies with the party asserting single employer status, here General Counsel. David Saxe Productions, LLC and Vegas! The Show, LLC, Single/Joint Employers, 364 NLRB No. 100 (2016), remanded on other grounds 888 F.3d 1305 (D.C. Cir. 2018). Once General Counsel offers sufficient proof that the entities are a single employer, then Respondents have an obligation to prove that it is not a single employer. Jerry’s United Super, 289 NLRB 125, 137 fn. 86 (1988). To determine whether entities are a single employer, four fac- tors are examined: common ownership; common management; interrelated operations; and centralized control of labor relations. Denart Coal Co., Inc., 315 NLRB 851 (1994),21 citing Radio & Television Broadcast Technicians Local Union 1264 v. Broad- cast Service of Mobile, Inc., 380 U.S 255, 256 (1965). No one 19 Citing Esmark v. NLRB, 887 F.2d at 757 (internal quotation marks omitted). 20 General Counsel established a number of other ways in which Ban- num, Inc. controlled affairs at Bannum Saginaw and its other facilities. criteria is dispositive; all criteria do not have to be present to find single employer status. Air-Vac Industries, Inc., 259 NLRB 336, 340 (1981), remanded 732 F.2d 142 (2d Cir. 1984), supple- mented 282 NLRB 703 (1987). The finding depends upon the circumstances and is strengthened with the absence of an arm’s- length relationship that unintegrated entities would have. Flat Dog Productions, 347 NLRB at 1182, citing Dow Chemical Co., 326 NLRB 288 (1998). Also see: S.L. Industries, Inc., 252 NLRB 1058, 1061 (1980) (single employer where one made crit- ical business decisions for the other); Birmingham Plastics, Inc., 221 NLRB 141, 142 (1975) (single employer where the corpora- tion wholly owned subsidiary and the corporation dictated terms of employee interests in vacation, pension and severance). Regarding common management, Bannum, Inc. and Bannum Saginaw had almost identical officers. Beyond the day-to-day management by the onsite manager/director, much of the super- vision and direction came from Katrina Teel, checking compli- ance, hiring, and training employees, and Sandra Allen, for pay. Disciplinary decisions were not made at the onsite level; Teel and Allen determined whether discipline would be given. In the case of the two terminations in this case, Rich was responsible making the order. The president of both entities, Rich, in con- junction with Bannum, Inc.’s officers Teel and Allen determined to terminate the discriminatees. Denart Coal Co., 315 NLRB at 852-853. The operations were interrelated for many of the same rea- sons. Labor relations were centrally controlled, with employees required to maintain standards that Bannum Inc. set forth in its handbook. Bannum Saginaw’s local management could not hire as Bannum, Inc. officers made hiring decisions. As previously noted, disciplinary action, time records and pay were controlled centrally. Teel, who worked for Bannum, Inc. and not Bannum Saginaw, conducted training and quality audits. Bannum Inc. sent managers from its other locations and Teel to act as manager at the Saginaw facility when Bannum Saginaw lost its manager. The handbooks were Bannum, Inc. documents. Bannum, Inc. maintained insurance and the 401(k)s. These facts demonstrate that Bannum, Inc. did not keep an arm’s length relationship with Bannum Saginaw because the entities were not separately oper- ated. Jerry’s United Super, 289 NLRB at 137-139 (same indi- vidual maintained control over labor relations policies with ac- tive control of both entities; commonly owned with same corpo- rate officers and directors; separate bank accounts and records kept by one entity; little interchange of employees). The case is similar to Air-Vac Industries, 259 NLRB at 340. As in Air-Vac, the entities had common officers, ownership, di- rectors and operators, which formed a single business enterprise. The directors and operators also had a common labor policy. While in this matter the physical address for Bannum Saginaw was different from Bannum, Inc., Bannum, Inc. maintained all corporate records and the same corporate address. Id. Tax 21 Enforced sub nom. Vance v. NLRB, 71 F.3d 486 (4th Cir. 1995) (finding, inter alia, substantial evidence supported Board’s finding that entities were single employer). BANNUM PLACE OF SAGINAW 11 records and paychecks were issued from the corporate headquar- ters, not Bannum Saginaw. Bannum Inc. maintained common ownership and directors and had a common labor policy, as dic- tated by Bannum Inc’s handbooks. Additionally, Price and Ban- num Inc.’s corporate officers determined to terminate the two discriminatees, with Price making the ultimate decisions. The situation is differentiated from NLRB v. Welcome-Ameri- can Fertilizer Co., 443 F.2d 19 (9th Cir. 1971). Unlike here, the parent exercised no discretion over the day-to-day labor prob- lems or had the power to terminate an employee of the subsidi- ary. Id. at 21. In contrast, Bannum, Inc. acted in numerous ways to exercise control over Bannum Saginaw for the day-to-day la- bor relations and was instrumental in committing the Section 8(a)(3) and (4) unfair labor practices. Respondents’ representations that the entities are defunct are insufficient: Given that Bannum Inc. remained an active corpo- rate entity in Florida until a week before hearing and continued as active in other jurisdictions, its failure to present any testi- mony over the sudden change requires that I take adverse infer- ences. See generally Denart Coal Co., Inc., 301 NLRB at 392. Because Respondents do not provide any evidence to refute these facts, I find General Counsel has carried its burden of proof that Bannum Inc. and Bannum Saginaw are a single employer. Er- lich’s 814, 231 NLRB 1237, 1243 et seq. (1979), enfd. 577 F.2d 68 (8th Cir. 1978).22 As a single employer, Bannum Inc. is derivatively liable for Bannum Saginaw’s unfair labor practices. Flat Dog Produc- tions, 347 NLRB at 1182 (lead to a conclusion that two entities are a single employer when they have common ownership, com- mon management and common control of labor relations). The addition of parties in a compliance specification is no barrier to requiring those additional parties be liable when entities are found to be a single employer. Denart Coal Co., Inc., 315 NLRB at 850-851. Also see generally Air Vac Industries, Inc., 282 NLRB at 711 (in compliance proceeding judge rejects defense that a respondent could not be added at the compliance phase). In a similar defense, Respondents argue that Bannum, Inc. cannot be held liable for the unfair labor practices as it had no opportunity to defend itself and further maintains that the Act was not violated. However, the unfair labor practice transcript was entered. “Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.’” Pace Industries, Inc. v. NLRB, 118 F.3d 585, 589 (8th Cir. 1997), quot- ing Parklane Hosiery Co., Inc. v. Shore, 439 NLRB 322, 326 n. 5 (1979) (emphasis added). Here, parent and single employer Bannum, Inc. is in privity with Bannum Saginaw. Because these 22 In Erlich’s 814, Inc., 231 NLRB at 1243-1243, the individual who owned the majority of common stock for all entities was the same; only one officer was different and the boards of directors were identical. The main stockholder also was the active manager. Id. at 1243. Like the matter before us, the entities had a functional and administrative relation- ship. Ultimately the parent/licensor was found to be a single employer with the “shell” licensees, particularly as the corporate leader held dis- cretion on how to treat employees. Id. at 1243-1244. matters were already litigated in the unfair labor practice case and enforced by the Sixth Circuit, Respondents cannot relitigate the matter. Task Force Security and Investigations, Inc., 323 NLRB 674 n. 2 (1997).23 Respondents also claim Bannum, Inc. was denied due process. However, “due process is satisfied when a complaint gives a respondent fair notice of the acts alleged to constitute the unfair labor practice and when the conduct implicated in the alleged violation has been fully and fairly litigated.” Pergament United Sales, Inc. v. NLRB, 920 F.2d 130, 134 (2d Cir. 1990), cited in Ozburn-Hessey Logistics, LLC v. NLRB, 939 F.3d 777 (6th Cir. 2019) (internal quotes omitted). Respondents’ briefs provide lit- tle guidance on this point, except complaints about the addition of Bannum, Inc. during the compliance phase instead of the un- derlying unfair labor practice case. Respondent’s contention that parent and single employer had no requisite notice of the unfair labor practice case is incorrect because Rich, president and cor- porate counsel for both entities, was present at the unfair labor practice hearing and testified. Rich served as the corporate rep- resentative. He did not remain for the entire hearing: Nothing precluded Rich from remaining throughout the hearing. Simi- larly, Bannum, Inc. Compliance Officer Teel testified in Board proceedings. The same law firm and attorney represented Ban- num Saginaw and Bannum Inc. This level of participation demonstrates that not only did Bannum, Inc. have adequate no- tice, it participated in the defense of the underlying unfair labor practice hearing. Respondents were also permitted to present ev- idence at the compliance specification hearing, cross-examine witnesses and submit briefs. Given this level of participation and notice, Respondents were not denied due process. C. The Bureau of Prisons Is Not A Joint Employer With Ban- num Saginaw Or Bannum, Inc. The Sixth Circuit made exhaustive findings to show that the Bureau of Prisons is not a joint employer with Bannum Saginaw. At hearing Respondents’ attorney said that the Sixth Circuit de- cision was not binding upon Bannum, Inc. However, Respond- ents’ briefs argue: The Region now asks in the Compliance Specification for the ALJ to adopt an absurdity. The Region and NLRB have stated and fought all the way to the 6th Circuit that Bannum Place of Saginaw and Bureau of Prisons (“BOP”) are not joint employ- ers. Despite the Sixth Circuit decision, Respondents then describe the litany of reasons it believes the Bureau of Prisons was a joint employer. In doing so, Respondents argue that the Bureau of Prisons, which is not an employer under the Act, is a joint 23 Respondent Bannum Inc.’s brief referred to itself as the “former entity . . . .” First, the Board’s orders point out that not only is the of- fending employer on the hook, but officers, agents and assigns are re- sponsible. In addition, any argument that the case is moot because of the dissolution(s) of both Bannum, Inc. as well as Bannum Saginaw is mis- taken. The case may be viable, including if the business was transferred or was purposefully done to evade the judgment. Walling v. James V. Reuter, Inc., 321 U.S. 671, 674-675 (1944) (injunction enforceable in the circumstances stated for dissolution of family business). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 employer and therefore essentially relieves it of any liability. The burden of proof for joint employer relationship is upon the proponent of the theory, here Respondents. Sec. 103.40(a) of the Board’s Rules and Regulations. I find that the Bureau of Prisons is not a joint employer for the same reasons stated by the Sixth Circuit. First, Bannum Saginaw is held to the Sixth Circuit’s findings. The Sixth Circuit was quite clear that the Bureau of Prison’s re- lationship with a company does not transform the company into a governmental entity. As the Bureau of Prisons’ contracted with Bannum, Inc., and not Bannum Saginaw, the same holds true. Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th at 530. As Bannum, Inc. stands in privity with Bannum Saginaw, it too is held to the Sixth Circuit decision. Secondly, Respondent’s analysis based upon §103.40 of the Board’s Rules and Regulations, which reflects the current rule for defining “joint employer,” also falls flat. To become a joint employer under Section 2(2) of the Act, Respondents would have to show evidence that the Bureau of Prisons possessed and exercised “such substantial direct and immediate control over one or more essential terms or conditions of employment . . . .” Sec. 103.40(a). The essential terms and conditions of employ- ment are wages, benefits, hours of work, hiring, discharge, dis- cipline, supervision and direction. Sec. 103.40(b). Indirect con- trol over any of the terms and conditions alone is insufficient to demonstrate joint employer status. Sec. 130.40(a). Respondents presented no witnesses or documents beyond the previous records and the testimonies of the two discriminatees. Its arguments instead are a retread of what Bannum Saginaw pre- sented to the Sixth Circuit. Nor do Respondents show any in- volvement from the Bureau of Prisons except setting minimum standards and sending its inspector to the Saginaw facility a few times a year. Setting the minimum standards is hardly the same as what an employer is willing to do. The standards Bannum, Inc. set are reflected in their policies and training. Respondents’ arguments and lack of evidence are insufficient to meet the burden of proof to show that the Bureau of Prisons was a joint employer. Bannum Place of Saginaw, LLC v. NLRB, 41 F.4th at 530. FINDINGS AND CONCLUSIONS FOR BACKPAY AND OTHER REIMBURSEMENT A. Applicable Law The finding of an unfair labor practice is presumptive proof that some backpay is owed. The Lorge School, 355 NLRB 558 (2010), cited in International Longshore and Warehouse Union (Pacific Crane Maintenance Co., Inc.) (ILWU), 370 NLRB No. 104, slip op. at 6 (2021). The goal of compliance proceedings is restoration, to whatever extent possible, the status quo ante had no unfair labor practices been committed. Sever v. NLRB, 231 F.3d 1156, 1167 (9th Cir. 2000), partially remanding Alaska Pulp Corp., 326 NLRB 522 (1998). The Board exercises broad discretion to determine the backpay formulas to cure unfair labor practices. Nathanson v. NLRB, 344 U.S. 25, 29-30 (1952). 1. Burdens of proof for compliance In ILWU, supra, the goals and shifting burdens of proof for compliance proceedings are explained: The Board's objective in compliance proceedings is to restore, to the extent feasible, the status quo ante by restructuring the circumstances that would have existed had there been no unfair labor practices. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Backpay amounts often cannot be precisely deter- mined from the available facts. Thus, the Board may adopt any formula which is reasonably designed to produce an approxi- mation of what the discriminatee would have received absent the discrimination. NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir. 1963); Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986), citing NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir. 1970). The Board has applied a broad stand- ard of reasonableness in approving numerous methods of cal- culating gross backpay. Performance Friction Corp., 335 NLRB 1117, 1117 (2001). Once the General Counsel meets its burden of showing the gross backpay owed, the burden shifts to the respondent to es- tablish facts that negate or mitigate its liability. St. George Ware- house, 351 NLRB 961, 963 (2007); Parts Depot, Inc., 348 NLRB 152, 153 (2006), enfd. 260 Fed. Appx. 607 (4th Cir. 2008); At- lantic Limousine, Inc., 328 NLRB 257, 258 (1999), enfd. 243 F.3d 711 (3d Cir. 2001). An administrative law judge need not recommend the General Counsel's gross backpay formula to the Board when a more accurate one is established in the record. Frank Mascali Construction, 289 NLRB 1155, 1157 (1988); J.S. Alberici Construction Co., 249 NLRB 751 fn. 3 (1980). A respondent cannot rely upon self-serving or conclusory statements to meet its burdens of proof. Ampersand Publishing, LLC d/b/a Santa Barbara News-Press, 370 NLRB No. 119, slip op. at 7 (2021), enfd. 43 F.4th 1233 (9th Cir. 2022), and cases cited therein. Nor is a respondent entitled to rely upon its cross- examination of the discriminatees and any alleged impeaching testimony for these purposes. United States Can Co., a wholly owned subsidiary of Inter-American Packaging, Inc., 328 NLRB 334, 338 (1999), enfd. 254 F.3d 626 (7th Cir. 2001). Any un- certainties or ambiguities must be resolved against the wrong- doer as its conduct made such doubts possible. Mart’s Way Ves- sels, Inc., 358 NLRB 1350, 1353 (2012); accord ILWU, 370 NLRB No. 104, slip op. at 6, quoting United Aircraft Corp., 204 NLRB 1068 (1973). 2. Search-for-work and mitigation As part of the Board’s broad discretionary authority to fashion remedies appropriate to the unlawful conduct, discriminatees are entitled to search-for-work and interim employment expenses. King Soopers, Inc., 364 NLRB No. 64 (2016), enfd. in rel. part 859 F.3d 23, 38-39 (D.C. Cir. 2017). Discriminatees are also owed for excess tax liability. Discriminatees have a duty to mitigate their damages. See generally New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shuttle, LLC, 370 NLRB No. 19, slip op. at 13 (2020). Discriminatees are required to make reasonable efforts to obtain interim employment. United States Can, 328 BANNUM PLACE OF SAGINAW 13 NLRB at 337. Discriminatees may limit job searches to positions that make appropriate use of past work experience and skills and paid comparable wages to their positions with Bannum Saginaw. Lucky Cab Co., 366 NLRB No. 56, slip op. at 1 fn. 1 (2018); Essex Valley Visiting Nurses Ass’n, 352 NLRB 429 (2008), re- affd. 356 NLRB 146 (2010), enfd. (unpub.) 455 Fed.Appx. 5 (D.C. Cir. 2012). In determining whether a discriminatee made reasonable efforts, factors assessed include age, skills, qualifica- tions and the labor conditions in the area. Essex Valley, 352 NLRB at 429. Mitigation is determined by efforts made to seek out work, not by the success in obtaining employment. Id. The discriminatees are not required to take lower paying jobs. See generally United States Can Co., a wholly owned subsidiary of Inter-American Packaging, Inc., 328 NLRB 334, 355 (1999). A discriminatee is not penalized for lack of success in obtaining jobs. United States Can, 328 NLRB at 337. Nor do low interim earnings or lack of earnings at all prove that the discriminatee lacked diligence in his job searches. Id. at 337. As before, un- certainty or ambiguity is resolved against the wrongdoer. Id. The discriminatees are not required to keep immaculate rec- ords, or any records of their searches and General Counsel may rely upon the testimony of the discriminatees. St. George Ware- house, 351 NLRB 971 (2007). The discriminatees also cannot be penalized for poor record keeping or faulty memory for these job searches. Essex Valley, 352 NLRB at 429. Nor is the dis- criminatee required to provide corroboration. The Lorge School, 355 NLRB at 561. Failure to mitigate is an affirmative defense, which Respond- ent must carry with a burden of persuasion. New York Party Shuttle, 370 NLRB No. 19, slip op. at 13. According to St. George’s Warehouse, 351 NLRB at 964, Respondents must pro- duce evidence that “substantially equivalent jobs in the relevant geographic area [are] available for the discriminatee during the backpay period.” B. Compliance Officer Calculations and Analysis for the Dis- criminatees Ethan Ray, the compliance officer for Region 7 - Detroit, tes- tified about his calculations that led to the backpay determina- tions listed in the compliance specification.24 Ray relied upon the discriminatees’ prior earnings as primarily identified in W-2 tax forms. (Tr. 669.) The appropriate gross backpay is based upon a period beginning with each discriminatee’s date of termination to September 30, 2021, which was the date Bannum Saginaw closed and therefore tolled the backpay period.25 (Tr. 670-671; GC Exh. 1(j).) Ray used the weekly average based upon their 24 I credit Ray’s testimony regarding how he made his calculations. He demonstrated good knowledge of the methodologies and was able to answer questions easily on cross-examination. 25 The last paychecks would have issued in October 2021, which is reflected in Ray’s attached spreadsheets. 26 Price provided evidence that Bannum Saginaw advertised for his position with an offered wage increase of 2.5 percent for his position, which Ray then included in calculations effective the week ending July 20, 2019. (Tr. 690.) Respondents argue that there is no evidence that weekly earnings because it captured all worked hours and com- pensation, including any overtime. (Tr. 677, 695.)26 The weekly earnings were raised for the week ending July 20, 2019 because the job website Indeed listed a job posting at Bannum Saginaw with this pay rate.27 The net backpay was calculated by subtract- ing interim earnings each quarter. (GC Exh. 1(j) Attachments A and B.) General Counsel must use a reasonable formula that has a like- lihood of determining the discriminatees’ lost earnings, but not necessarily one that gives a perfect calculation. New York Party Shuttle, LLC, d/b/a Onboard Tours, Washington DC Party Shut- tle, LLC, 370 NLRB No. 19, slip op. at 8 (2020). Respondents suggested that backpay be calculated based upon 40 hours per week for Price and 24 hours per week for Ahmad. Respondents’ briefs fault Ray’s failure to rely upon the schedules Bannum Saginaw provided after the first Compliance Specification is- sued. As noted, those schedules may not accurately reflect time employees actually worked because the schedules are asterisked as “subject to change.” Respondents did not call any witnesses to demonstrate the schedules were not changed. Respondents’ suggested formula does not capture the overtime or any extra hours worked: It therefore does not give a closer approximation of the damages each discriminatee incurred. Id., slip op. at 8-9. The suggested backpay formula is not superior to the formula used by the compliance officer and is therefore rejected. ILWU, 370 NLRB No. 104, slip op. at 6. Interim expenses and 401(k) contributions are listed and added separately. Interim expenses includes search-for-work and any additional costs, such as traveling longer to a new job. Ray also calculated excess tax determinations as required by the Board order. (Tr. 676; GC Exh. 1(j) Attachments C and D.)28 Regarding benefits, Respondents’ attorney previously provided Ray with a general statement for each discriminatee and 10-page document for Bannum, Inc’s benefit enrollment guide. (R. Exh. 3.) However, Ray subpoenaed relevant documents from the third-party administrator to determine precisely what the em- ployer’s 401(k) contributions for Price and Ahmad were. (Tr 674-675.)29 According to the documents Ray received, employ- ees did not contribute any monies into their 401(k)s; only Ban- num, Inc. contributed. (Tr. 682.) Both discriminatees were vested in the pension plan, which is consisted an employer’s “contractual obligation to the employee . . . in the nature of de- layed compensation for former years of faithful service.” United States Can Co., 328 NLRB at 341 (cites and internal quotes omit- ted). Ray also calculated the excess tax liability, which Bannum Saginaw gave the raise; however Respondents provided no ev- idence otherwise. 27 Here General Counsel is entitled to rely upon secondary evidence due to Respondents’ failure to show otherwise or produce relevant doc- umentation. 28 Interest continues to accrue until payments are made. (Tr. 674.) 29 Respondents’ briefs complain that they have not had access to these documents. However, General Counsel pointed out that Respondents did not subpoena the 401(k) information. Respondents should have been able to access this information on their own. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 Respondents owe due to having greater than one year of back- pay. Respondents contend that the discriminatees failed to miti- gate their damages. Both discriminatees testified credibly and undisputedly about their mitigation efforts. The Lorge School, 355 NLRB 558, 561 (2010).30 I find that the record demonstrates that the discriminatees indeed mitigated the damages caused by Respondents’ unlawful terminations. 1. Price Respondents unlawfully terminated Price on September 28, 2017. The calculations for Price reflect that his gross backpay was $505 until the week ending July 13, 2019 and increased to $517 for the week ending July 20, 2019. Regarding medical costs for Price, Ray relied upon records from Price. Price also submitted educational expenses totaling $8917.50. Ray calcu- lated that Price was entitled to 401(k) contributions and interim expenses of $122 each week. In making the calculations for the 401(k), Ray examined the record of contributions made on Price’s behalf, divided it by the number of weeks he was employed, then took the average weekly contribution amount to apply to the weeks in which back- pay was owed. (Tr. 678.) Respondents do not contest that Price was entitled to pension benefits while employed at Bannum Saginaw. Regarding Price’s 401(k) with his new employer, Ray testified that it was not an equivalent benefit. Respondent con- tends the pension with Price’s new employer is superior to his pension with Respondents. Respondents are incorrect. Respondents are not entitled to an offset: Bannum Inc.’s 401(k) was entirely an employer-paid contribution; Price’s new employer’s program was not a “completely employer-sponsored benefit.” (Tr. 702-703.) Price testified that, with the new em- ployer, his 5 percent contribution was matched by the employer at 5 percent. No match was required while Price worked at Ban- num Saginaw. Although Price became employed with his cur- rent employer since November 2018, his matching pension does not vest until he had been employed for 10 years. (Tr. 722.) Re- spondents therefore owe to Price the 401(k) payments he would have otherwise been entitled to while working at Bannum Sagi- naw. Price undisputedly participated in the health plan provided by Respondents and that he incurred health care costs in the amount of $3,325.00. These expenses are reasonably calculated. Amper- sand Publishing, LLC d/b/a Santa Barbara News-Press, 370 NLRB No. 119, slip op. at 9. Another benefit that Ray included in the calculations was tui- tion reimbursement in the amount of $8917.50. While working for Bannum Saginaw, Price paid for his own tuition. However, Price assumed from conversations with Teel that Bannum Inc. wanted him to complete his bachelor’s degree so that he could receive promotions.31 (Tr. 728.) Price attempted to contact Teel and Rich about paying for his tuition with his request but 30 Despite the subpoena disputes, I permitted Respondents to cross- examine the discriminatees. Respondents subpoenaed the discrimi- natees’ records, including tax records, pay records while employed at Bannum Saginaw, etc. Respondents subsequently moved for admission of those records into evidence and I ruled that they were admissible. received no response. Ray took Price at his word that he was entitled to this benefit. Nothing in the benefits package reflects that Price was entitled to tuition reimbursement. I therefore find that Price is not entitled to repayment for tuition. Regarding mitigation of damages, Price sought employment at different juvenile facilities and criminal justice facilities in and around the Saginaw area. He had approximately five or six in- terviews. (Tr. 722-723.) He worked at one location in a third- shift job, which did not mesh with attending college to complete his bachelor’s degree and he quit. Price was already working on his degree before Bannum Saginaw unlawfully terminated him, and he also did not work the third shift at Bannum Saginaw. This testimony was unrefuted. Respondents contend that Price should be penalized for quit- ting the third-shift position. When a discriminatee quits interim employment that is prestigious, annoying, or creates unaccepta- ble disruptions to his private life, the discriminatee is not ex- pected to stay employed in such circumstances. It does not count as a willful loss of earnings and does not decrease the backpay owed to the discriminatee. United States Can Co., 328 NLRB at 346-347 (discriminatee’s backpay not reduced when personal circumstances created need to quit).32 Therefore, Price suffi- ciently mitigated his backpay when he left interim employment that affected his studies and was not similar to the shift he worked while at Bannum Saginaw. The undisputed testimony also shows that Price did not re- move himself from the labor market while completing his de- gree, so he remains entitled to backpay for those periods. Essex Valley Visiting Nurses, 352 NLRB at 439 (attending classes to develop additional marketable skills during unemployment pe- riod is not equivalent to removal from the labor market); The Lorge School, supra. He incurred an interim charge for posting on Indeed.com. At the end of completing the degree he obtained a position in which he earned more than his earnings at Bannum Saginaw. This increase created a complete offset in Price’s earn- ings once he obtained the position. As attending school is not a removal from the labor market, Price adequately mitigated these damages. Essex Valley, supra; J.L. Holtzendorff Detective Agency, Inc., 206 NLRB 483, 484-485 (1973), enfd. without opinion 85 LRRM 2769 (9th Cir. 1974). Respondents’ burden is to show “evidence that there were sub- stantially equivalent jobs within the relevant geographic area available” to the discriminatee during the backpay period. St. George’s Warehouse, 351 NLRB at 964; Ampersand Publish- ing, LLC, 370 NLRB No. 119, slip op. at 9 n. 5. Respondents presented the Department of Labor unemployment statistics for the Saginaw area. (Tr. 652; R. Exh. 1.) This report is ambiguous about what jobs were available in the relevant geographic area and has no specifics for particular jobs geared towards discrimi- natees’ pay or experience. United States Can, 328 NLRB at 337. 31 Price testified honestly about what he received before his termina- tion. I fully credit his testimony. 32 See generally Pessoa Construction Co., 361 NLRB 1174, 1189 (2014) (no willful loss of earnings for quitting a job that is not equiva- lent), enfd. 632 Fed. Appx. 760 (4th Cir. 2015). BANNUM PLACE OF SAGINAW 15 This information fails to prove that positions with similar skills, tasks and responsibilities were available to the discriminatees. See generally Essex Valley Visiting Nurses, 352 NLRB at 437- 438. Respondent does not meet its burden of persuasion. St. George’s Warehouse, 351 NLRB at 964. I therefore find that Respondents owe Price backpay (gross less interim earnings) of $26,974, interim expenses and 401(k) contributions of $25,458.53 (which excludes tuition reimburse- ment), and medical expenses of $3,325. 2. Ahmad Respondents unlawfully terminated Ahmad on November 21, 2017. Ahmad worked an average of 26 hours a week for Ban- num Saginaw at a rate of $11.32 per hour on the night shift. He also worked for Saginaw County Mental Health Authority part- time during his employment at Bannum Saginaw. Post-dis- charge, Ahmad increased his hours at the Mental Health Author- ity to full-time. Ray calculated Ahmad’s interim earnings based upon the increased hours. (Tr. 698.) As discussed above, Re- spondents fail to provide any documentation about particular jobs in the area and therefore cannot meet its burden. Ray’s calculations reflect that Ahmad received quarterly in- terim earnings of $754.00 starting in the first quarter of 2018. These interim earnings increased to $2106 and $2470 per quarter in the first quarter of 2019 and 2020 respectively. After 2020, Ahmad completely offset backpay owed. Ray calculated net backpay for Ahmad at $28,741.00. Ahmad was also the chapter president for Saginaw County Mental Health. In 2018, he bargained for and was able to estab- lish a mobile urgent treatment team (MUTT), or what is now called a mobile response stabilization service (MRSS). (Tr. 754- 755.) In doing so, Ahmad was able to negotiate for creation of paid part-time positions for employees who wanted to have ad- ditional hours without working for another employer. The nego- tiated positions began as “on call” to receiving pay for four to five hours a shift. In addition, Ahmad worked both his full-time position and additionally worked the part-time position 15-20 hours per pay period. (Tr. 756.) He was paid on-call pay of $25.00 per hour since that time. He was able to increase his hours with his primary employer by 15 to 20 hours per pay pe- riod. (Tr. 754-756.) Ahmad also received 401(k) contributions from Bannum, Inc. (Tr. 740-741; GC Exh. 16.) Ahmad was fully vested in the plan. (GC Exh. 16.) Ray calculated that Ahmad was entitled to $139 per week for 401(k) contributions, totaling $27,978. Ahmad re- ceived no healthcare benefits while working at Bannum Sagi- naw. While negotiating, Ahmad continued to search for work and made “searches.”33 Some of the jobs revealed during this period were seasonal groundwork and a mosquito control position, nei- ther of which were commensurate with his prior work. (R. Exh. 33 Respondents first state that Ahmad did not seek employment while negotiations were ongoing in January 2018. They then cite to Tr. 755, in which Ahmad specifically said he performed a couple of job searches during this time. (See, e.g., R. Br. Inc. at 5.) Such misrepresentations may lead to investigations of counsel pursuant to the Board’s Rules and 7.) As noted above, a discriminatee is not required to take a po- sition that does not utilize skills. These efforts reflect mitigation. I therefore find that Respondents owe Ahmad net backpay of $28,741 and 401(k) contributions of $27,978. C. Interest and Excess Tax Remedy The Board Decision and Order specifically granted remedies for interest and incursion of excess tax liability34 for the discrim- inatees when receiving a lump sum payment. At the time the amended compliance specification issued, Respondents owed Price $4547 for interest on the backpay award and excess tax liability of $2015. It similarly owed Ahmad $6739 for interest on the backpay award and total excess tax liability of $2717. (GC Exh. 1(j) Attachments C and D.) These amounts will continue to accrue until Respondents pay the discriminatees. Ampersand Publishing, LLC, 370 NLRB No. 119, slip op. at 2 n. 5 (Region will update tax calculations based upon the discriminatees’ situ- ations at time of payment). D. Respondents’ Other Affirmative Defenses Respondents claims that the compliance specifications do not state a claim upon which relief can be granted and that the Board lacks subject matter jurisdiction. These defenses are frivolous: Respondents admit they paid nothing towards the Board’s Or- ders. See generally District No. 1, Marine Engineers’ Beneficial Association/National Maritime Union, AFL-CIO (Dutra Con- struction Co.), 312 NLRB 55, 56 (1993). Bannum Inc. also put forth a number of affirmative defenses, including, but not limited to, that it has been denied access to counsel of its choice, claims are barred by equitable estoppel, laches, and public policy. None of these affirmative defenses were addressed in Respondents’ briefs. Nothing at hearing reflects Bannum, Inc. or Bannum Saginaw was denied access to counsel of its choosing. Respond- ents’ counsel stated that neither entity had any employees. He also stated that he would not reveal a person who retained him on behalf of Respondents. These affirmative defenses are dis- missed for lack of any semblance of foundation. Upon these findings of fact and conclusions of law and upon the entire record I issue the following recommended SUPPLEMENTAL ORDER IT IS HEREBY ORDERED that Respondents Bannum Place of Saginaw, LLC and Bannum, Inc., a parent and/or single em- ployer, and its officers, agents, successors and assigns, satisfy its obligations incurred by its unlawful actions: 1. Make whole Greg Price by paying him back pay in the amount of $26,974.00, for 401(k) and expenses of $25,458.53 plus $3325.00 to compensate him for medical expenses plus ex- cess taxes and interest accrued to the date of payment as pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 Regulations §102.177. Roemer Industries, Inc., 367 NLRB No. 133 n. 2 (2019), enfd. (unpub.) 824 Fed.Appx. 396 (6th Cir. 2020). 34 The excess tax liability includes federal and Michigan state income taxes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 16 NLRB 6 (2010), minus tax withholdings on the backpay as re- quired by Federal and State law. 2. Pay Price for the adverse tax consequences of the multiyear lump sum backpay award, as prescribed in AdvoServ of New Jer- sey, Inc., 363 NLRB 1324 (2016) and Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). 3. Make whole Ernie Ahmad by paying him back pay in the amount of $28,741, plus $27,978 to compensate him for the 401(k) and expenses, plus excess taxes and interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010), minus tax withholdings on the backpay as required by Federal and State law. 4. Pay Ahmad for the adverse tax consequences of the multi- year lump sum backpay award, as prescribed in AdvoServ of New Jersey, Inc., 363 NLRB 1324 (2016) and Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). Dated: October 14, 2022