National Labor Relations Board v. Ryder System, Inc.

983 F.2d 705
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 8, 1993
DocketNo. 91-6391
StatusPublished
Cited by1 cases

This text of 983 F.2d 705 (National Labor Relations Board v. Ryder System, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Labor Relations Board v. Ryder System, Inc., 983 F.2d 705 (6th Cir. 1993).

Opinions

RYAN, Circuit Judge.

This appeal is the latest, and hopefully the last, chapter in the nearly decade-long struggle between respondent Ryder System, Inc. and members of a Teamsters local, intervenor Highway and Local Motor Freight Employees Local Union No. 667. The case arose when Ryder unlawfully refused to hire members of Local 667 in 1983. Although over thirty truckdrivers were originally involved in the dispute, the present appeal before this court involves only two.

Petitioner National Labor Relations Board applies to this court to enforce an order of the Board determining the amount of backpay due to the two remaining employees, Larry Elmore and Carl Briscoe. The backpay order was itself a supplemental order, issued pursuant to the earlier finding that Ryder had engaged in an unfair labor practice when it refused to hire the members of Teamsters Local 667.

After consideration of the numerous issues raised by Ryder, we grant the Board’s application and enforce its order.

I.

Diesel Recon Company is a Memphis firm that manufactures engines. Until December 1983, it used its own truckdrivers to transport its products. Diesel Recon drivers were members of Local 667 and earned between $600 and $900 per week.

Ryder contracts with companies to provide transportation services which include both trucks and drivers. In December 1983, Ryder contracted with Diesel Recon to satisfy Diesel Recon’s shipping needs, after which Diesel Recon laid off all its drivers. Ryder then hired eight former Diesel Recon drivers, but refused to hire thirty-two others. Ryder filled the remainder of the initial complement of drivers needed for its new Diesel Recon account by transferring existing Ryder employees from another account, obtaining drivers “off the street,” and bringing applicants in from out of town. The two drivers who are the subject of the Board’s order that Ryder now appeals — Larry Elmore and Carl Briscoe — were part of the group of former Diesel Recon drivers Ryder refused to hire.

In August 1985, an Administrative Law Judge held that Ryder’s refusal to hire the thirty-two drivers was an unfair labor practice because the decision was based on the fact that the drivers supported Teamsters [708]*708Local 667, a violation of section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. § 151 et seq.- In 1986, the Board adopted the AU’s order. Ryder System, Inc., 280 N.L.R.B. 1024 (1986) (Ryder System I). In 1988, this court, in an unpublished decision, enforced the Board's order. NLRB v. Ryder System Inc., 842 F.2d 332 (reported in table) (6th Cir.1988).

Subsequently, the Board commenced a backpay proceeding, during the course of which Ryder settled with many, but not all, the drivers. In 1990, an AU issued a decision recommending that the seven dis-criminatees who had not settled be awarded backpay, and determining the amount of backpay due. Ryder filed exceptions to this order, and the Board reviewed it. Before the Board completed its review, five of the remaining seven drivers settled with Ryder, leaving only the cases of Elmore and Briscoe. In 1991, the Board adopted the recommended supplemental order determining the amount of backpay Ryder owed Elmore and Briscoe. Ryder System, Inc., 302 N.L.R.B. No. 93 (April 19, 1991) (Ryder System II).

In November 1991, the Board applied to this court for enforcement of its April 1991 supplemental order. Ryder opposed the Board’s application, raising numerous issues. Two issues relate only to Larry El-more:

1. Whether Ryder’s hiring of Elmore in October 1985 was a sufficient reinstatement to toll backpay liability; and
2. Whether Ryder’s subsequent discharge of Elmore after it hired him constituted a willful loss of earnings on the part of Elmore?

Two issues relate only to Carl Briscoe:

1. Whether Briscoe incurred a willful loss of earnings when he left one job and waited one month before starting another; and
2. Whether Briscoe incurred a willful loss of earnings by removing himself from the relevant labor market when he started working as a painter and stopped looking for work as a truckdriver?

One issue relates to both drivers:

Whether Elmore and Briscoe incurred a willful loss of earnings when they left jobs as truckdrivers to take jobs as freighthandlers?

We conclude that the Board acted within its discretion, and we enforce the Board’s order in its entirety.

II.

RYDER’S BACKPAY LIABILITY TO ELMORE

A.

Background

Elmore began working for Diesel Recon in June 1975, and was number two on the seniority list when he was laid off on December 3, 1983, after Ryder assumed Diesel Recon delivery operations. In the weeks prior to taking over Diesel Recon’s operation, Ryder accepted applications from Diesel Recon drivers. Although most drivers had applied by December 3, 1983, Elmore had not; he was out on a run and did not return to Memphis until December 4, at which time he filed an application with Ryder. Ryder refused to hire him.

After the layoff by Diesel Recon and Ryder’s subsequent rejection of his application, Elmore compiled an erratic employment record. Between December 1983 and October 1985, he worked for four different trucking companies. In October 1985, during the course of the unfair labor practice proceedings arising from Ryder’s initial refusal to hire, Ryder hired Elmore as a casual driver; after a probationary period, he became a full-time driver at the bottom of Ryder’s seniority list.

In March 1987, Elmore was discharged by Ryder for insubordination arising from an encounter between Elmore and Ryder’s operations manager. The NLRB filed an unfair labor practice charge against Ryder because of this discharge, but in September 1988 an AU found that the discharge was lawful. The full Board adopted this recommendation in November 1988.

Meanwhile, the backpay proceedings arising from the 1983 refusal to hire were moving to conclusion. In June 1990, the [709]*709AU found that Elmore was due $26,024.83 in interim backpay from December 4, 1983 until March 18, 1987. The AU also concluded that Elmore was entitled to a reinstatement despite the Board’s finding that the March 1987 discharge was lawful. Finally, the AU held that Elmore was due additional backpay for the period from March 18, 1987 until his reinstatement by Ryder. In Ryder System II, the Board adopted the supplemental decision and order.

B.

Statutory Scheme and Standard of Review

We approach this case mindful that Congress has chosen to vest the NLRB with considerable discretion. Section 10(c) of the NLRA authorizes the NLRB to order reinstatement and backpay. It empowers the Board, after finding that an employer has committed an unfair labor practice, to issue an order requiring the employer

to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter: Provided,

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