CITY OF GREAT FALLS v YOUNG BY CON

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No. 84-38 IN THE SUPREME COURT OF THE STATE OF MONTANA IN THE MATTER OF UNFAIR LABOR PRACTICE : CITY OF GREAT FALLS, MONTANA, Defendant/Petitioner and Appellant, -vsBRUCE YOUNG BY CONSTRUCTIOlJ AND GENERAL LABORERS' LOCAL NO. 1334 AFL-CIO, Complainant and Respondent, and MONTAXA BOARD OF PERSONNEL APPEALS, Intervenor. APPEAL FROM: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable H. William Coder, Judge presiding. COUNSEL OF RECORD: For Appellant: David V. Gliko, City Attorney, Great Falls, Flontana For Respondent : D. Patrick McKittrick, Great Falls, Montana For Intervenor: James E. Gardner, Board of Personnel Appeals, Helena, Montana -- ---. -.-- Submitted on Briefs: Decided: - Clerk - March 30, 1984 June 19, 1984 Mr. Justice L.C. Court. Gulbrandson delivered the Opinion of the The City of Great Falls (City) appeals from an order of the District Court of the Eighth Judicial District, Cascade County, affirming an order of the Board of Personnel Appeals (Board) awarding backpay and restoring certain contractual benefits to complainant Bruce Young on account of an unfair labor practice committed against Young by the City. We affirm. This is the third instance in which this Court has been petitioned to resolve matters arising out of a labor dispute between the City and Young and his union. v. City of Great Falls In Young * (Mont. 1981), 632 P.2d /Ill, 38 St.Rep. 1317 (Young I), this Court addressed the propriety of joining the Board as a necessary party to any judicial review in District Court of a Board order. A year later, in Young v. City of Great Falls (Mont. 1982), 646 P.2d 512, 39 St.Rep. 1047 (Young 11), this Court affirmed a judgment by the District Court affirming a Board decision that the City had committed an unfair labor practice in its dealings with Young. Subsequent to that appeal, on September 30, 1982, a bearings examiner for the Board conducted a hearing for the purpose of designing an appropriate remedial order. The examiner's recommended order, dated January 7, 1983, was appealed by the City to the Board. The Board adopted the order 9, without alteration on March 1983. The City appealed this decision to the District Court, but the court affirmed. The City's challenge to the remedial order is now before this Court. The remedial. order fashioned by the examiner and affirmed by essential the Board and s t a t e and Security, federal Public District (1) t h a t components: back p a y i n t h e amount o f by the Employees' has the City tender $9,633.66 agencies Court three t o Young ( l e s s amounts d e d u c t e d for contribution Retirement, and to other Social similar f o r t h e time p e r i o d o b l i g a t i o n s ) p l u s i n t e r e s t of $4,628.09, O c t o b e r 3 1 , 1978 t o J u l y 20, 1 9 7 9 ; ( 2 ) t h a t t h e C i t y r e s t o r e t o Young the a l l s e n i o r i t y and l o n g e v i t y collective Young's union; bargaining (3) that r i g h t s d u e him u n d e r agreement the City between the City c r e d i t Young w i t h and other b e n e f i t s d u e him u n d e r t h e a g r e e m e n t . The City contests the findings in support hack p a y component and t h e s p e c i f i c t e r m s o f D u r i n g and s i n c e t h e S e p t e m b e r 3 0 , of the t h e component. 1982, h e a r i n g , the City h a s r e s i s t e d a n y award o f back p a y o n t h e g r o u n d t h a t Young failed to mitigate his financial losses by exercising r e a s o n a b l e d i l i g e n c e t o o b t a i n i n t e r i m employment. Assuming t h a t Young is e n t i t l e d t o back p a y , t h e C i t y h a s c h a l l e n g e d t h e t i m e p e r i o d f o r which t h e award i s t o b e c a l c u l a t e d and t h e method used by t h e Board t o c a l c u l a t e b o t h t h e amount o f back p a y and i n t e r e s t d u e on t h a t amount. On a p p e a l , t h e C i t y r a i s e s t h e f o l l o w i n g i s s u e s : ( 1 ) Whether the Board t h e r e is s u b s t a n t i a l finding that Young evidence exercised t o support "reasonable d i l i g e n c e " i n o b t a i n i n g i n t e r i m employment d u r i n g t h e p e r i o d i n which h e was l a i d o f f by t h e C i t y ? ( 2 ) Whether t h e r e m e d i a l p e r i o d a d o p t e d by t h e h e a r i n g e x a m i n e r and a f f i r m e d by t h e Board i s p r o p e r ? ( 3 ) Whether t h e amount o f t h e Woolworth formula used to calculate b a c k p a y owed Young i s a p p r o p r i a t e f o r t h i s case? (3) Whether the Florida Steel calculate the amount of formula used interest awarded on back pay to is appropriate in light of Montana law respecting interest on judgments? Our analysis of these issues is guided by reference to National Labor Relations Board (NLRB) decisions and federal judicial interpretation of the National Labor Relations Act (NLRA). Because of the similarity between the NLRA and the Montana Public Employees' Collective Bargaining Act, (PECBA) Sections 39-31-101 to administrative and -409, MCA, we have judicial construction found of federal the NLRA instructive and often persuasive regarding the meaning of our own labor relations law. See, e.g., Teamsters Local #45 v. State ex rel. Bd. of Personnel Appeals (Mont. 1981), 635 P.2d 1310, 1312, 38 St.Rep. 1841, 1844; State ex rel. Bd. of Personnel Appeals v. District Court (1979), 183 Mont. 223, THE ISSUE OF "REASONABLE DILIGENCE" Following federal precedent, all of the parties agree that back pay is not always an appropriate remedy for an aggrieved employee: "A worker who has been the victim of an unfair labor practice is not entitled to simply await reimbursement from his or her employer for wages lost, for 'the [law] was not intended to encourage [citations omitted] idleness. ' . " 'Mitigation [of an employer Is liability for backpay] will result not only where the worker has taken in earnings from another source after discharge, but also for 'losses willfully incurred1-- such as when the discriminatee fails to secure comparable employment without excuse. [citations omitted] A discharged worker is not held to the highest standard of diligence in his or her efforts to secure comparable employment; I reasonable' exertions are sufficient. [citations omitted]." N.L.R.B. v. Mercy Peninsula Ambulance Serv. (9th Cir. 1979), 589 F.2d 1014, 1017-18. See also McCann Steel Co. v. N.L.R.B. F.2d 652, 656; N.L.R.B. 1968), 394 F.2d Rubber Co. v. Arduini Mfg. 420, 423; N.L.R.B. (5th Cir. Corp. (1st Cir. v. Armstrong Tire and 1959), 263 F.2d 680, 683; Airport Service Lines (1977), 231 N.L.R.B. The (6th Cir. 1978), 570 City maintains "reasonable diligence" 137, 96 L.R.R.M. that Young in seeking did not (BNA) exercise interim employment. According to the City, the record demonstrates that Young made minimal efforts to secure other employment between October 31, 1978, the day he was laid off, and July 20, 1979, the day he was reinstated. efforts to those Penninsula, supra. of the The City likens Young's aggrieved employee in lllercy In that case, back pay was denied to the victim of an unfair labor practice upon a finding that he made but a few, insincere attempts during his nine months of unemployment to seek other work. 589 F.2d also Alfred M. Lewis, Inc. v. N.L.R.B. F.2d at 1018. See (9th Cir. 1982), 681 1154, 1156 (explaining facts of Mercy Peninsula); Arduini, supra ( court found lack of reasonable diligence where discriminatee did not apply for job with company he knew was hiring and where he visited only four other companies and registered with employment office). Our review is confined to the question of whether there is substantial evidence to support the finding of the Board that Young had exercised reasonable diligence. See section 2-4-704(2)(e), MCA; Slater v. Emp. Sec. Div. (Mont. 1984), 676 P.2d 220, 222, 41 St.Rep. 247, 249-50. The record indicates that, following his termination, Young made weekly contacts with the union hall and with the local Job Service regarding prospective employment. Through the union, Young obtained a job of one-week's duration with a local construction company. Upon obtaining this job, Young's name was placed at the bottom of the union hall's hiring list, and, consequently, was additional work through the union low position on the list. unable to obtain in part because of his However, he was able to secure, through his own initiative, another week's worth of work with a construction firm in Shelby, Montana, approximately eighty miles from Great Falls. other individuals and Young also contacted several companies about job prospects, but could not remember all of their names or the specific number of individuals and companies approached. that job opportunities were hampered There was evidence by winter weather that Young's efforts to reasonable diligence, considering all the conditions and a slow economy. The hearing amounted examiner attendant circumstances. no found The Board concurred, and we find reason to disturb this finding. established wrongfully the amount of back discharged employee, employer to produce evidence pay the Once the Board has owed an otherwise burden to mitigate is upon the its liability. Mercy Peninsula, supra, at 1017 (citing cases). Here, the evidence of Young's job-hunting efforts and the detrimental effect of weather and economic conditions on the job market were uncontraverted. Furthermore, the facts of this case are clearly distinguishable from those in Mercy Peninsula Arduini. and available The City has evidence can not demonstrated reasonably be how interpreted the as indicative of indifference, insincerity or slothfulness on Young's part in his search for employment. THE ISSUE OF THE REMEDIAL PERIOD The period for calculating back pay typically begins to run at the time of the illegal discharge and ends when the aggrieved employee's reinstatement becomes effective. Bob Maddox Plymouth, L.R.R.M. (BNA) 1325. Inc. (1981), 256 N.L.R.B. 813, 107 However, this remedial period can be reduced if there is proof of mitigating circumstances. burden of proof would not have is on the employer to establish that it had work available for an illegally discharged employee due to economic or other N.L.R.B. v. Midwest Hanger Co. 90; N.L.R.B. v. factors. (8th Cir. 1977), 550 F.2d 1101, 1104-1105, cert. den. 434 U.S. L.Ed.2d The 830, 98 S.Ct. Maestro Plastics Corp. 112, 54 (2d Cir. 1965), 354 F.2d 170, 176, cert. den. (1966), 384 U.S. 86 S.Ct. 1862, 16 L.Ed.2d 972, 682. The hearing examiner found, and the Board concurred, that the appropriate remedial period for Young extended from October 31, 1978, the day of his termination, to July 20, 1979, the day of his reinstatement. the relevant period should end The City maintains that January 5, 1979, because Harold Spilde, the employee who had been wrongfully retained after October 31, had been laid off on January 5, with no hiring taking place until Young was reinstated July 20. Because of "budget constraints" in effect at the time immediately following Spilde's termination, the City reasons that there would have been no work for Young to perform. The essence of the City's argument was presented to this Court in Young I1 and rejected as contrary to the available evidence: In addition to Spilde, CETA [Comprehensive Employment and Training Act] employees with less seniority than Young continued to do laborer's work after Young's discharge [on October 31, 19781. Furthermore, 7 or 8 new employees were hired by the [City] Street Department in April 1979, but not Young. It was in this period that [Bob] Duty, [Superintendent of the Department ,] said in effect, 'I don't care what happens. I won't hire Bruce Young back in the Street Department.'" 646 P.2d at 514, 39 St.Rep. at 1049. I' We find no evidence to dispute our original finding. Indeed, as the hearing examiner noted remedial order, there is evidence in his recommended that the City laborer's work available after January 5, 1979. had Moreover, it appears that the CETA employees used to perform this work may have been used illegally, because CETA jobs may not result in displacement of regular employees and may impair existing labor contracts. (since repealed). he would have not 41 Fed.Reg. No. 124 (1981) Had Young not been wrongfully discharged, had standing substitution of CETA workers to challenge for employees after January 5, 1979. regular any subsequent union contract Finally, we note that the City did not offer evidence at the hearing about any budget constraints. In short, we find no reason to alter prescribed remedial period. THE APPROPRIATENESS OF THE WOOLWORTH FORMULA the In calculating the amount of back pay due an illegally discharged employee, the Board utilizes developed and used by the N.L.R.B. (1950), 90 N.L.R.B. a in F.W. 289, 26 L.R.R.M. method first Woolworth Co. (BNA) 1185. This method, commonly referred to as the "Woolworth" formula, has been approved by the United States Supreme Court. N.L.R.B. v. Seven-Up Bottling Co. (1953), 344 U.S. 344, 73 S.Ct. 287, Under this formula, the N.L.R.B. and the Board compute back pay "on the basis of each separate calendar quarter or portion thereof" from the time of the illegal discharge to the time of a proper offer of reinstatement. begin with the first day of January, October. See Woolworth, 90 N.L.R.B. 1185-86. See also 8 F.R.E.S. instant case, Young's back The quarters April, July at 293, 26 L.R.R.M. Section 63:74 (1978). pay was calculated and at In the for four quarters or portions thereof as follows: QTR. ENDING COMPENSABLE HOURS RATE PER HOUR GROSS PAY Gross pay for the first two quarters listed above was then reduced by $194.70 and $200, respectively, to reflect Young's earnings from the two brief jobs with construction firms. Thus, his total back pay is $9,633.66 for the four quarters, subject to further reductions for contributions to Social Security, PERS, and other obligations. wcoC1~~'0.17.t Gi Prior to using the P e A & formula, the N.L.R.B. ?c w A typically computed back pay by subtracting the total amount earned in other employment from the earnings the employee would have made had he or she not been terminated. This straight subtraction method was ultimately rejected because many employees could conceivably find work that paid more during the duration of their absence from the first job than what they would have earned had they still been employed in that position. in the "This," according to the N.L.R.B., progressive backpay due." reduction or 90 N.L.R.B. Consequently, the N.L.R.B. complete "resulted liquidation of at 292, 26 L.R.R.M. at 1185. concluded that some employers might knowingly delay offers of reinstatement in order to reduce their hack pay liability. Aggrieved employees would counter by waiving the right to reinstatement and thus toll the running of back pay to preserve any amounts then owing. 90 N.L.R.B To at 292, 26 L.R.R.M. maintain the at 1185. effectiveness of reinstatement policies and restore industrial peace, the quarterly method of computation or "Woolworth formula" was adopted. Under this approach: "[tlhe liability for each quarter may be determined by reference to factors then current, and not subject to subsequent Thus, both employee and fluctuation. employer will be in a position to know with some precision the amount that will be due at the end of each 3-month period, if discrimination should ultimately be found." 90 N.L.R.B. at 293, 26 L.R.R.M. at 1186. This formula also protects an employee's right to Social Security benefits, which quarterly contributions are based from wages. on the Thus, number the of formula serves the remedial purposes of labor law and retirement law. 90 N.L.R.B. at 293, 26 L.R.R.M. at 1186. We emphasize that this method has been approved by the United States Supreme Court as a proper exercise of informed discretion. 73 S.Ct. expressed Seven-up Bottling, supra, 344 U.S. at 288-89, 97 L.Ed. by the Court was at 381-83. The only caveat that the N.L.R.B. "apply a remedy it has worked out on at 346-48, could not the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate [National Labor Relations] Act." 344 U.S. a policy of the at 349, 73 S.Ct. at 290, 97 L.Ed. at 383. The City objects to the use of the Woolworth formula in the immediate case, primarily because Young allegedly did not exercise reasonable diligence in obtaining interim employment during the quarterly periods that he would have been working for the City. of the formula for This is not so much a criticism calculating back pay as it is a reiteration of the already rejected argument that Young did not exercise reasonable diligence in seeking interim employment. Nevertheless, the City makes an additional argument, i.e., that Woolworth sector employment. are presented is somehow We disagree. in the reasoned arguments. form of inapplicable to public The City's arguments here conclusions as opposed to The Woolworth formula has been applied in other states to public sector unfair labor practices. See e.g., Golden Cab. Co., 1 Nat'l Pub. Empl. Rep. Rel. Press) 438 (Pa.Lab. Rel. Bd. Nov. 1, 1979). has offered no reasons why "oppresive" manner the (Lab. The City formula works in an contrary to the goals of the Montana Public Employees' Collective Bargaining Act. See Seven-Up Bottling, supra, a t Moreover, 383. 3 4 4 U.S. we case, discrimination Cir. 1 9 8 1 ) , 645 F.2d U.S. 219, to this 102 S.Ct. case, Young. The note that 97 L.Ed alternative the a t 290, formula which i s b a s e d on a method used i n a p r o p o s e d by t h e C i t y , sex a t 349, 73 S.Ct. E.E.O.C. v. Ford Motor Co. (4th 183, r e v ' d on o t h e r g r o u n d s ( 1 9 8 2 ) , 458 3 0 5 7 , 7 3 L.Ed.2d 721, would, in the same a m o u n t o f did not act result Board i f applied back erroneously by pay due applying Woolworth t o t h i s case. THE A P P R O P R I A T E N E S S OF THE F L O R I D A S T E ...............................................E L FORMULA FOR CALCULATING INTEREST O BACKPAY N In granted 96 awarding Young i n F l o r i d a S t e e l Corp. L.R.R.M. rate variable back (BNA) of 1070. interest, S e r v i c e methods o f pay, the Board using a formula f i r s t used i n t e r e s t on t h a t award, b y t h e N.L.R.B. 651, to addition This taken ( 1 9 7 7 ) , 2 3 1 N.L.R.B. formula e s t a b l i s h e s from interest calculation. Internal a Revenue The F l o r i d a S t e e l formula replaces a f i x e d s i x percent i n t e r e s t standard f i r s t applied in N.L.R.B. Isis 716, reasonable by Plumbing 51 the L.R.R.M. and Heating federal courts. (1962), 138 112 and accepted as See, (BNA) Co. e.g., N.L.R.B. v. I n t ' l Union o f O p e r a t i n g E n g i n e e r s ( 6 t h C i r . 244. The favor of reasons for rejecting a fixed 1 9 6 7 ) , 380 F.2d interest rate i n a v a r i a b l e rate are c l e a r l y set f o r t h i n F l o r i d a Steel: "Taking i n t o c o n s i d e r a t i o n [ i n f l a t i o n a r y t r e n d s a n d t h e r e m e d i a l p u r p o s e s of t h e t h e f l a t 6-percent i n t e r e s t NLRA,] r a t e no l o n g e r e f f e c t u a t e s t h e p o l i c i e s A r a t e o f i n t e r e s t more o f t h e [NLRA]. a c c u r a t e l y keyed t o t h e p r i v a t e s e c t o r money m a r k e t w o u l d h a v e t h e e f f e c t o f encouraging timely compliance with . . . [N.L.R.B.] orders, discouraging the commission of u n f a i r l a b o r p r a c t i c e s , and more f u l l y c o m p e n s a t i n g d i s c r i m i n a t e e s f o r t h e i r economic l o s s e s . " 2 3 1 N.L.R.B. a t 6 5 1 , 9 6 L.R.R.M. a t 1072. were These views Corp. (1980), The Montana recently M.L.R.B. 250 reaffirmed 146, Board of Personnel in Olympic 1 0 4 L.R.R.M. Appeals Medical (BNA) finds these 1325. same c o n s i d e r a t i o n s r e l e v a n t t o remedying u n f a i r l a b o r p r a c t i c e s i n Montana. The C i t y o b j e c t s t o t h e i n t e r e s t award o f $4,628.09 on grounds t h a t t h e v a r i a b l e rates used by t h e h e a r i n g examiner and t h e Board exceed t h e s t a t u t o r y l i m i t a t i o n on i n t e r e s t o n a n d b e c a u s e t h e i n t e r e s t was c o m p o u n d e d . judgments, 29-9-205(1), interest contract, MCA, t o be e x c e p t i n cases w h e r e t h e provides that, recovered on a judgment is s p e c i f i e d i n a i n t e r e s t is payable "at a rate of and no g r e a t e r r a t e any nanner o r form." [,and] Section . . . must Furthermore, 10% p e r annum n o t be c o m p o u n d e d i n the City maintains t h a t t h e r a t e on judgments s h o u l d be t h e s i x p e r c e n t r a t e used i n I n t ' l Union of O p e r a t i n g E n g i n e e r s , There used by is n o q u e s t i o n the hearing that examiner supra. t h e v a r i a b l e rate formula and approved by the Board r e s u l t s i n an e f f e c t i v e i n t e r e s t rate exceeding t e n p e r c e n t . The following c a l c u l a t i o n s are taken from the hearing e x a m i n e r ' s recommended o r d e r a s a f f i r m e d b y t h e B o a r d : QUARTER ENDING The c h o i c e of NET BACK PAY INTEREST RATE INTEREST DUE 1-1-83 i n t e r e s t r a t e s and method o f c a l c u l a . t i o n was e x p l a i n e d b y t h e h e a r i n g e x a m i n e r i n h i s recommeded o r d e r : " T h e NLRB R e g i o n a l O f f i c e i n S e a t t l e reported t h e following adjusted prime interest rates which it used in c a l c u l a t i n g back pay award i n t e r e s t i n t h e p r i v a t e s e c t o r : 1979-6%; 1980-12%; 1981-12%; 1982-20%. To d e t e r m i n e simple i n t e r e s t d u e , t h e NLRB t o t a l s t h e r a t e s f o r t h e y e a r s i n which t h e i n t e r e s t was due and owing t h e n a p p l i e s t h a t r a t e ( 6 % + 1 2 % + 1 2 % + 20% i n t h i s c a s e ) t o t h e amount t h e employee would h a v e e a r n e d , minus i n t e r i m e a r n i n g s , as o f t h e end o f To t h e f i r s t q u a r t e r h e was t e r m i n a t e d . a r r i v e a t i n t e r e s t due i n subsequent q u a r t e r s t h e f i r s t r a t e (50% h e r e ) is r e d u c e d by o n e f o u r t h o f t h e amount o f t h e adjusted prime rate i n e f f e c t a t t h e time ( 6 % x 1 / 4 = 1 . 5 % h e r e ) . " I n response t o t h e C i t y ' s argument, we n o t e i n i t i a l l y t h a t t h e i n t e r e s t r a t e was n o t compounded. is m e r e l y a s h o r t h a n d method o f i n t e r e s t f o r each quarter calculation. Thus, controls, calculations the prohibition convinced assuming against that the The a d d i n g o f that are not compounding. statute section in violation However, prevents 25-9-205(1) the use of the we are n o t of variable r a t e s when c a l c u l a t i n g i n t e r e s t d u e o n b a c k p a y a w a r d s . Several states impose statutory restrictions on the amount of i n t e r e s t t h a t may b e a w a r d e d o n c o u r t j u d g m e n t s . See e.g., Fla. (12 Stat. percent); Or. sec. Ann. Rev. (West S u p p . 55.03(1) Stat. sec. 82.010(3) 1984) (1983) (9 These states i n p a r t i c u l a r have p u b l i c employee percent). l a b o r r e l a t i o n s laws s i m i l a r t o M o n t a n a ' s . We note that, awarding personnel back pay and interest thereon, in appeal boards i n those s t a t e s have l i m i t e d i n t e r e s t awards t o t h e s t a t u t o r y maximum r a t e . Pub. Empl. Comm'n Nov. (Lab. Rel. Rep. 12, H i a l e a h Housing A u t h o r i t y , 4 N a t ' l (Lab. R e l . P r e s s ) 777 ( F l a Pub. 1 9 8 1 ) ; Coos County 3 N a t ' l Press) 589 (Or. Empl. Rel. Bd. Empl. Pub. Empl. Oct. 3, Rel. Rep 1980). From our survey of other jurisdictions, it appears that the Florida and Oregon precedents may Unfortunately, there are no be followed elsewhere. judicial opinions on the justification for correctness of these administrative decisions. Taking into consideration the awarding interest on any monetary judgment and the remedial purposes of the Montana Public Employees1 Collective Bargaining Act, we conclude that the Florida Steel method for calculating interest is lawful. which gives related the Board remedies, is authority identical 160(c)(1976), which the N.L.R.B. Section 39-31-406(4), to award to 29 back pay U.S.C. and sec. relies upon to award back pay and interest in federal labor relations cases. While both section 25-9-205 and the above-cited labor law statutes contemplate that interest on awards or judgments recognizes the debtor-creditor relationship between parties to an action, labor relations law employs interest for more than compensation for the loss of use of the employee's money. The award of interest encourages more prompt compliance with Board orders and discourages the commission of unfair labor practices, thereby effectuating the legitimate ends of labor legislation. L.R.R.M. N.L.R.B. See Florida Steel, 231 N.L.R.B. at 651, 96 at 1071, 1072; Isis Plumbing and Heating, 138 at 719, 720, 51 L.R.R.M. at 1124, 1125. Thus, the statutory provision on interest must not supplant, but public policy. should complement, the legitimate ends of Here, section 25-9-205(1) does apply to the extent that Young is entitled to ten percent per annum on the judgment, which includes the award interest as calculated by of back pay and the Board, after the district court affirmance of the Board order. does - however, prevent not, Section 25-9-205(1) the use of the Florida Steel formula at the administrative stage of these proceedings. One final argument of the City must be addressed. In its reply brief, the City reiterates its initial argument that, following N.L.R.B. precedent, the Board should be limited to awards of six percent based on federal appellate court decisions. The City argues that N.L.R.B. decisions like Florida Steel, rendered subsequent to these court holdings, cannot, as administrative rulings, overrule federal court precedents. This argument misapprehends the role of judicial review of these administrative rulings. Federal court decisions that affirm N.L.R.B. rulings do so because the rulings are based on substantial evidence and are in accord with the N.L.R.B.'s the N.L.R.B. statutory mandate. Should determine at some future time that, in view of changing factual conditions, a new ruling or policy should be implemented, that policy will be measured on judicial review by evidence the same or and statutory similar principles compliance of substantial that were employed in previous judicial decisions, not by whether the new ruling is in accord with the previous court decisions. North Cambria Fuel Co. v. N.L.R.B. 177, cert den. 4 5 4 U.S. where the court upheld See, e.g., (3d Cir. 1981), 6 4 5 F.2d 1123, 102 S.Ct. 970, 71 L.Ed.2d an N.L. R.B. interest-on-back 110, pay award using a twelve percent rate on grounds that it was within the N.L.R.B.'s statutory discretion to implement. We will adhere to the same principles when evaluating appeals of future Board decisions. The decision of the District Court affirming the order of the Board of Personnel Appeals is affirmed. ,/ We concur:

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