Ryder System

National Labor Relations Board - Board Decisions

Apr 19, 1991

302 N.L.R.B. 608 (N.L.R.B. 1991)

608
302 NLRB No. 93
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondents also appear to argue that the discriminatees had to have
incurred meal and travel expenses in their interim employment in order to be
entitled to the Respondents’ travel/meal allowance. We disagree. The Board
looks to what discriminatees would have had an opportunity to earn had they
not been unlawfully discriminated against, and treats interim earnings only as
an offset to that amount.
2 Because the objective in calculating backpay is to approximate what
discriminatees would have earned had they not been discriminated against,
fringe benefits and other automatically paid emoluments of employment are
properly deemed to be part of gross backpay.
3 The Respondents provided pay figures for their current employees which
were broken down into columns labeled ‘‘gross pay,’’ ‘‘travel/meal money,’’
and ‘‘net pay.’’ The compliance officer testified that in attempting to exclude
from gross backpay amounts which represented expenses for travel (because
travel reimbursements were not considered part of gross backpay), he re-
quested from the Respondents a breakdown of what amounts constituted meal
money and what constituted travel money. The Respondents failed to provide
any breakdown. Accordingly, the compliance officer included the entire
‘‘travel/meal money’’ figures in his calculation of the discriminatees’ backpay,
except where the amount appeared considerably higher than normal. In such
a case, the compliance officer reduced the amount as he saw fit.
4 Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. 683 F.2d
1296 (9th Cir. 1982).
Ryder System, Inc., Ryder Distribution Systems,
Inc., DPD, Inc., and Ryder Distribution Re-
sources, Inc. and Local Motor Freight Employ-
ees No. 667, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO. Cases
26–CA–10714 and 26–CA–10872
April 19, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND RAUDABAUGH
On June 27, 1990, Administrative Law Judge Walter
H. Maloney issued the attached supplemental decision.
The Respondents filed exceptions and a supporting
brief and the General Counsel filed exceptions.
Discriminatee Larry Elmore filed an exception adopt-
ing and incorporating by reference the exceptions filed
by the General Counsel.
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 brief and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified, and to issue the Order as set
forth below.
1. The judge found that the formula used to cal-
culate gross backpay appropriately included a meal and
travel allowance, which was paid to the Respondents’
employees while on over-the-road assignments. He
concluded that these items were properly includable as
a standard part of the Respondents’ pay package, and
thus represented amounts that the discriminatees would
have earned had they not been unlawfully denied em-
ployment. Accordingly, all ‘‘travel/meal’’ figures sup-
plied by the Respondents went into the judge’s cal-
culation of the discriminatees’ gross backpay.
The Respondents assert that the ‘‘travel/meal’’ fig-
ures should not have been included in the calculations,
because they were not emoluments of employment or
fringe benefits that are customarily included as part of
gross backpay. They contend that such amounts were
only paid when drivers performed over-the-road runs
and were not paid for city or local travel. The Re-
spondents argue that the meal/travel allowance was
more in the nature of reimbursement for expenses actu-
ally incurred.1
We agree with the judge, but not for the same rea-
sons. We recognize that a meal allowance and a travel
allowance were customarily paid by the Respondents
under somewhat different circumstances, i.e., the
former was paid automatically at a flat rate for every
12 hours on the road, while the latter was paid only
for expenses incurred and verified. It is clear, however,
that to the extent any allowance was given automati-
cally, it should figure into the gross backpay calcula-
tion as a regular part of the pay package.2 It follows,
therefore, that the meal allowance was properly treated
as an item of gross backpay and we so find. The travel
allowance, on the other hand, was only given as a re-
imbursement for an expense actually incurred and thus
would not ordinarily be factored into a gross backpay
calculation. The Respondents, however, who have the
burden to establish with specificity any amounts they
claim would mitigate their backpay liability, failed to
distinguish between meal and travel expenses in the
amounts they set forth under the heading of
‘‘travel/meal money’’ which they supplied to the com-
pliance officer for his use in calculating backpay.3 As
a result, the compliance officer was unable to seg-
regate meal from travel allowances in those amounts
and exclude the latter in calculating gross backpay for
the discriminatees. Indeed, we are faced with the same
quandary that confronted the compliance officer, be-
cause the Respondents have not at any time material
subsequent to the issuance of the backpay specification
presented figures that separate the two allowances in
question. Because any ambiguity concerning the com-
putation of backpay will be resolved against a respond-
ent,4 we find that the Respondents have failed to meet
their burden of proof with respect to the travel allow-
ance and must bear the consequences of that failure.
Accordingly, we find that inclusion of travel expenses
as part of gross backpay in this case is warranted.
2. The Respondents excepted to the judge’s finding
that their discharge, in 1987, of discriminatee Larry
Elmore from a position as a casual driver did not toll
backpay accruing under the Board Order in the under-
lying unfair labor practice case. The judge found that
(1) the Respondents had never made Elmore a proper
reinstatement offer under that earlier Order, and (2)
Elmore’s conduct prompting the 1987 discharge was
609RYDER SYSTEM
5 Ryder System, Inc., JD–(Atl)–26–88, adopted by the Board by unpublished
order dated November 10, 1988, because no exceptions were filed. 6 NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).
not so egregious as to forfeit Elmore’s entitlement to
reinstatement to a position substantially equivalent to
the one from which he had originally been unlawfully
discharged. For the following reasons, we deny the ex-
ceptions and affirm the judge.
Under the underlying Order, the Respondents were
required to offer Elmore reinstatement to his former
driver position or, if that position did not exist, to ‘‘a
substantially equivalent position without prejudice to
his seniority or other rights and privileges.’’ 280
NLRB 1024, 1054 (1986). Elmore had originally been
ranked second in seniority among drivers in the divi-
sion in question; thus, when the Respondents rehired
him in October 1985 as a casual driver without senior-
ity ranking, the Respondents did not thereby offer the
reinstatement to which Elmore was entitled under the
Order. The Respondents’ obligation to make a proper
offer continued unless they could show that the con-
duct for which Elmore was discharged in 1987 was so
egregious as to require forfeiture of right to reinstate-
ment and further backpay. Deauville Hotel, 256 NLRB
561 (1981), enf. denied on other grounds 751 F.2d
1562 (11th Cir. 1985). See also David R. Webb Co.,
291 NLRB 236, 237 fn. 3 (1988), enfd. 888 F.2d 501
(7th Cir. 1989), cert. denied 110 S.Ct. 2560 (1990)
(discharge of economic strikers from jobs that were not
substantially equivalent to their prestrike employment
did not defeat their right to reinstatement to substan-
tially equivalent positions that became available after
their discharges); Kansas Refined Helium, supra at
1162, and cases there cited (a discriminatee’s discharge
for cause by an interim employer other than the re-
spondent does not necessarily toll backpay and bar re-
instatement).
The Respondents showed that the 1987 discharge,
which an administrative law judge in another Board
proceeding found to be lawful,5 did not relate to
Elmore’s earlier unlawful discharge. The conduct for
which the Respondents lawfully discharged Elmore
cannot, for example, be treated as having been pro-
voked either by the Respondents’ earlier unlawful
treatment of him or its failure to make a proper rein-
statement offer. Thus, we do not rely on John Kinkel
& Son, 157 NLRB 744 (1966), cited by the judge. The
Respondents failed to show, however, that Elmore had
engaged in such gross misconduct as to require him to
forfeit his rights under the 1985 Order, with which the
Respondents had never fully complied.
The incident leading to the 1987 discharge began
when the Respondents’ operations manager, L. An-
thony Chrestman, requested that Elmore appear in his
office to discuss Elmore’s having volunteered for DOT
truck inspections instead of only permitting such in-
spections when he was stopped on the road by DOT
inspectors. When Elmore arrived, he requested that an-
other driver, Baker, be present as well. Chrestman de-
nied the request and ordered Baker out of the room.
Baker refused to leave without Elmore’s approval, so
Chrestman ordered Elmore to tell Baker to leave.
When Elmore refused, Chrestman discharged him for
insubordination. Although this assertion by Elmore of
a purported Weingarten6 right might have been erro-
neous, and even provided the basis for a lawful dis-
charge, we find that it did not meet the misconduct
standard referred to above, any more than it would
have had Elmore been hired by a different interim em-
ployer and discharged for the same reasons relied on
by the Respondents here. Kansas Refined Helium Co.,
supra at 1162, and cases there cited. Similarly, nothing
in the incident for which Elmore was discharged dem-
onstrated that he was clearly unfit for the job to which
he had never been properly reinstated. Compare NLRB
v. Holiday Inn of California, 512 F.2d 1171 (9th Cir.
1975). Accordingly, we adopt the judge’s finding that
the Respondents’ liability for backpay has continued to
run after March 18, 1987, until the Respondents tender
a proper offer of reinstatement.
3. The Respondents argue with regard to both Larry
Elmore and Carl Briscoe that the fact that those claim-
ants quit interim employment to go to other jobs,
which turned out to be lower paying, should serve to
toll backpay. We disagree. In Elmore’s case, he testi-
fied without contradiction that at the time he took the
new job, he thought it would be a better-paying posi-
tion. That it may not have resulted in higher wages
will not serve to toll backpay. The Board requires that
claimants do not willfully incur losses, but make rea-
sonable efforts to find substantially equivalent employ-
ment. There is no requirement, however, that their ef-
forts meet with success. Mastro Plastics Corp., 136
NLRB 1342, 1349 (1962), enfd. in pertinent part 354
F.2d 170 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966).
As to Briscoe, the job he left was not found by the
judge to be employment comparable to that from
which he had been laid off, and accordingly, he was
not obligated to continue with it. A claimant is not re-
quired to continue employment which is not suitable or
not substantially equivalent to the position from which
he was discriminatorily discharged. Alamo Express,
217 NLRB 402 fn. 17 (1975). See also Mastro Plastics
Corp., supra.
4. The Respondents also contend that the judge
erred in finding that Elmore’s termination from interim
employer Associated Transportation Services (ATS)
did not constitute a willful loss of earnings sufficient
to toll backpay. The judge found that Elmore was dis-
charged after he failed to call the dispatcher and ran
several hours late for two deliveries he had been
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Member Cracraft dissented on this issue and would have found that
discriminatee Bermudez’ decision to quit her job was not a willful loss of
earnings. 297 NLRB at 284.
8 See Lundy Packing Co., 286 NLRB 141, 146 (1987), enfd. 856 F.2d 627
(4th Cir. 1988), and Mid-America Machinery Co., 258 NLRB 316, 319 (1981).
The same reasoning applies with regard to David Elmore’s discharge from
Music City.
9 We find no merit in the General Counsel’s contention that we should order
the Respondents to comply with our earlier Order regarding reinstatement and
backpay for Larry Elmore, when that Order was upheld on appeal to the Sixth
Circuit and is fully enforceable by that court. We conclude that such an Order
would be redundant. As the judge noted, ‘‘[s]ince the Board’s enforced order
requires such [a reinstatement] offer and since it has never been tendered,
there can be little dispute that the Respondent has never complied with its
basic remedial obligation.’’
10 The judge notes that two figures, $9932 and $2901, were included in the
specification as expenses incurred in the first two quarters of 1984 as start-
up costs for Goza’s business. The judge seems to conclude that at least some
part of this money was used as a down payment on a truck; however the spec-
ification provides no breakdown of what portion it might have been.
11 C. R. Adams Trucking, 272 NLRB 1271, 1277 (par. 2) (1984), enfd. per
curiam 767 F.2d 1276 (8th Cir. 1985).
12 C. R. Adams Trucking, supra at 1277.
13 The price of the first truck was $20,392.15, and the price of the second
was $23,194.38.
scheduled to make for one of ATS’ customers. He
concluded that Elmore was not out of work because of
his choice but because of the choice of that employer,
and that this did not constitute a willful loss of earn-
ings.
The Respondents attempt to liken Larry Elmore’s
leaving ATS to situations in which employees left in-
terim employment voluntarily for various reasons, thus
tolling their backpay, citing Sorensen Lighted Controls,
297 NLRB 282 (1989) (discriminatee left an interim
job because she no longer wanted to impose on her
brother-in-law for a ride),7 and Associated Grocers,
295 NLRB 806 (1989) (employee quit interim employ-
ment to pursue other endeavors). In Elmore’s case,
however, his departure from ATS was not volitional.
The relevant inquiry is whether the Respondents have
shown that there was a willful loss of earnings on his
part, and we conclude they have not.
The Board has consistently held that discharge from
interim employment, without more, is not enough to
constitute willful loss of employment. P*I*E Nation-
wide, 297 NLRB 454 (1989), enfd. in pertinent part
923 F.2d 506 (7th Cir. 1991), and cases cited therein.
A respondent must show deliberate or gross mis-
conduct on the part of the discharged employee in
order to establish a willful loss of employment. Here
we find that the Respondents failed to show that Larry
Elmore’s conduct fell within that standard. Elmore
may have missed several scheduled deliveries, but he
committed no offense involving moral turpitude and
his conduct was not otherwise so outrageous as to sug-
gest deliberate courting of discharge.8 Without such
proof, Elmore’s discharge from ATS will not serve as
a basis for tolling his backpay.9
5. Discriminatee Bobby Goza went into business for
himself as a truckdriver after being laid off, and re-
mained self-employed for a significant portion of the
backpay period. The judge, citing Rice Lake Creamery
Co., 151 NLRB 1113 (1965), noted that it is well set-
tled that a discriminatee may go into business for him-
self during the backpay period, and that the net earn-
ings from that business constitute interim earnings to
be offset against gross backpay. He awarded backpay
to Goza based on the figures supplied by the compli-
ance officer, which figures included, inter alia,
amounts representing depreciation on Goza’s truck.
The Respondents except to the judge’s findings and
conclusions with regard to Goza, contending that his
self-employment in this situation was not comparable
employment. They assert that they are being forced to
bear the burden of Goza’s inability to succeed in his
business, by subsidizing him during his self-employ-
ment, a period during which he had little or no interim
income. In addition, the Respondents contend that it
was error for the judge to have allowed amounts rep-
resenting depreciation on Goza’s truck to offset his in-
terim earnings, to have looked only at Goza’s ‘‘sal-
ary’’ and not at the actual net earnings of his business,
and to have ruled that any recaptured assets would be
offset by the amount of the initial investment that
Goza did not offset against interim earnings.
Although we agree with the judge’s legal conclu-
sions with regard to treating Goza’s self-employment
as comparable interim employment for the purposes of
calculating backpay, we find that the Respondents’ ex-
ceptions raise troubling questions concerning the actual
calculation of that backpay. Because we are unable to
determine from the figures supplied in the backpay
specification how Goza’s self-employment income and
expenditures were calculated, we will remand this
issue to the judge for further appropriate action, in-
cluding, if necessary, further hearing on the computa-
tion of Goza’s backpay. Some points which should be
addressed are as follows.
First, it is unclear to what extent (if at all) the ex-
pense of Goza’s truck(s) was entered into the calcula-
tions.10 Such a capital expense is not normally made
a part of backpay calculations where the item has a re-
sale value and the use of the item potentially extends
beyond the backpay period.11
Second, the judge apparently allowed amounts
claimed by Goza on his corporate tax returns as depre-
ciation on the truck to be used as an offset against in-
terim earnings. Although we agree that as a general
rule depreciation is an allowable deduction,12 it is un-
clear where the depreciation here was actually entered
into the backpay specification.
Finally, the judge concluded in footnote 15, rather
speculatively, that the first truck purchased by Goza
was traded in as a down payment on the second
truck.13 We require a showing of the extent to which
this transaction had an impact on the backpay calcula-
611RYDER SYSTEM
14 Although the judge concluded that the Respondents’ argument that its
backpay liability should be reduced by the amount recaptured by Goza from
the sale of the truck had merit, we do not rely on this conclusion. We believe
that the truck, as capital equipment, should not have been included in the
backpay specification as an item of reimbursible expense in the first place. See
Aircraft & Helicopter Leasing & Sales, 227 NLRB 644, 650 (1976).
We also do not rely on the judge’s calculations included in fn. 14 of the
judge’s opinion.
1 The name of Ryder Distribution Resources, Inc., does not appear in the
original caption to this case but was added by motion of the General Counsel,
which was unopposed.
2 The Regional Director determined that one of the discriminatees, Frank
Varble, was not entitled to any backpay.
3 While the Regional Director refused to join in the backpay settlements
which were concluded after the hearing in this case opened, he stated on the
record that he would not appeal any of my decisions approving those settle-
ments. I approved the 23 settlements in question, notwithstanding the declina-
tion of the General Counsel to join in them, and the time for taking an appeal
in those cases has now expired.
tions, if at all. As to the Respondents’ argument that
any recapture of Goza’s initial investment in the truck
should offset the initial capitalization of the truck
which the Respondents are being charged for, we
doubt–-for the reasons explained above–-that the Re-
spondents can properly be held liable for any amounts
which represent principal on the truck.14
Accordingly, we remand the question of Bobby
Goza’s backpay to the judge for further appropriate ac-
tion in accordance with the terms of this remand.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Ryder System, Inc., Ryder Distribution Systems, Inc.,
DPD, Inc., and Ryder Distribution Resources, Inc.,
Memphis, Tennessee, their officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that payment of backpay to Bobby Goza shall
await further findings of fact, conclusions of law, and
any recalculations by the administrative law judge.
IT IS FURTHER ORDERED that this proceeding is re-
manded to the administrative law judge for the purpose
of taking such further appropriate action as is nec-
essary, including the holding of further hearing if war-
ranted.
SUPPLEMENTAL DECISION
WALTER H. MALONEY, Administrative Law Judge. On
August 30, 1985, Administrative Law Judge Howard I.
Grossman issued a decision in which he found Ryder Sys-
tem, Inc., Ryder Distribution Systems, Inc., DPD, Inc., and
Ryder Distribution Resources, Inc.,1 the Respondents, guilty
of violating Section 8(a)(1), (2), (3), and (5) of the Act. His
decision detailed how the Diesel Recon Company, a com-
pany engaged at Memphis, Tennessee, in the manufacture
and reconditioning of diesel engines and components, de-
cided to discontinue the transportation of its products (and
presumably the pickup of motors to be reconditioned) by its
own drivers and to contract this work to the Respondents.
For a number of years Diesel Recon had performed this ac-
tivity with the use of trucks rented from the Respondents and
with drivers it employed pursuant to the terms and conditions
of a series of contracts with the Charging Party. On Decem-
ber 3, 1983, when the last of these contracts expired, Diesel
Recon laid off its 32 drivers and looked to the Respondents
thereafter to perform the work these drivers had previously
been doing. Thereafter, Ryder rented not only trucks but
drivers as well.
In order to fulfill its obligation to Diesel Recon, the Re-
spondents hired about 10 of Diesel Recon’s former employ-
ees, transferred to this division (referred to in the record as
an account) a number of its own employees who had been
servicing another of the Respondents’ customers (the Sun-
beam account), and recruited additional drivers in various cit-
ies throughout Pennsylvania, Ohio, and Kentucky. Thereafter,
Respondents recognized District 2-A, Transportation, Tech-
nical, Warehouse, Industrial and Services Employees Union,
affiliated with District 2, MEBA-AMO, AFL–CIO, and con-
cluded a contract with that labor organization. In so doing,
it refused to recognize the Charging Party and declined to
hire more than 20 of the employees whom Diesel Recon had
laid off. Those who were hired were not accorded the senior-
ity they had enjoyed as Diesel Recon employees.
Judge Grossman found that the Respondents were a suc-
cessor to Diesel Recon and were obligated to recognize and
bargain with the Charging Party. He further found that the
refusal of the Respondents to hire 32 former Diesel Recon
employees named in his decision was prompted by discrimi-
natory motives. He issued a recommended Order, providing,
inter alia, that the Respondent be required to offer to these
individuals full and immediate reinstatement, including a rec-
ognition of their former seniority, dismissing if necessary
others who had been hired in their places, and to make them
whole for any loss of pay that they might have suffered by
reason of the discriminations. This recommended Order was
adopted by the Board on June 24, 1986 (280 NLRB 1024),
and was enforced by the United States Court of Appeals for
the Sixth Circuit in an unpublished per curiam decision,
dated March 17, 1988.
Following that decision, the Regional Director issued a
backpay specification, later amended, in which he sought
various amounts of backpay for 31 of the 32 discriminatees2
and requested that backpay liability continue in the case of
Larry Elmore because of the asserted refusal of the Respond-
ents to offer him full reinstatement. In the interim, one of the
discriminatees named in the specification settled his case
with the Respondents and, after the opening of the supple-
mental hearing in this case in February 1990, an additional
23 discriminatees named in the specification settled their re-
spective cases with the Respondents.3 Accordingly, the
Board must now proceed to determine the backpay liability
of the Respondents to seven discriminatees, whose individual
cases will be hereafter discussed.
1. The appropriate formula to be used in determining
gross backpay
In order to compute the gross backpay due and owing by
the Respondents to the discriminatees, Compliance Officer
Robert H. Watson, a public official with some 17 years of
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 F. W. Woolworth Co., 90 NLRB 289 (1950).
5 The figures used were obtained from the Respondents’ payroll records ex-
cept for 1984 and 1985. The Respondents failed to produce such records for
those years and provided only Internal Revenue W-2 forms showing annual
earnings. Accordingly, the compliance officer was unable to make separate and
accurate Woolworth quarterly earnings determinations for those years and sim-
ply divided the figures found on the W-2 forms by four to arrive at the quar-
terly figure for each discriminatee.
6 Backpay liability for some discriminatees ended before that date.
experience in making backpay determinations in Board pro-
ceedings, selected what he called a representative employee
formula. Employing this formula, he ranked Respondents’ re-
placement employees in the order of seniority given to them
by the Respondents when it took over the Diesel Recon ac-
count, computed the actual earnings of each of those employ-
ees on a quarterly basis to comply with the requirements of
the Woolworth decision,4 and measured against those quar-
terly earnings the names of each of the discriminatees in the
order of seniority that they enjoyed as Diesel Recon employ-
ees.5 For example, the earnings of the fifth man on the Re-
spondents’ seniority list were used to determine the gross
backpay due and owing to the fifth man on the Diesel Recon
list.
One problem faced by the compliance officer in making
these determinations was that the Respondents experienced
considerable turnover among their replacement drivers. It fre-
quently occurred that a driver selected as a representative
employee because of his seniority might have worked only
a few weeks in one or more calendar quarters before he quit
or was discharged, so a mechanical application of this proc-
ess could have resulted in an abnormally low and unrepre-
sentative basic determination. In order to avoid this error, it
was necessary for the compliance officer to use 51, not 32,
payroll records because he omitted from his list of represent-
ative employees anyone whose earnings in any quarter
showed less than 10 weeks of employment. Figures derived
by this process were obtained for each calendar quarter from
December 3, 1983, the date of the Diesel Recon layoff, until
May 19, 1988, by which time unconditional offers of em-
ployment had been tendered to all former Diesel Recon em-
ployees with the exception of Harold C. Baker and the argu-
able exception of Larry G. Elmore.6
Watson testified credibly and without contradiction that se-
niority played a great role in the amounts earned by drivers
under both the former and present regimes. Most drivers had
over-the-road assignments, which took them from Memphis
to either coast. Only one or two were utilized on dispatches
limited to the Memphis metropolitan area. All were paid on
a mileage basis and selected their runs from a listing or driv-
er board in the order of their seniority. Accordingly, drivers
with higher rankings selected the most lucrative routes while
others were consigned to the less rewarding ones. The result
was a considerable disparity in earnings arising out of place-
ment on the seniority or bidding list. Watson pointed out that
this disparity was modified under the Respondents’ practice
since many of its assignments were two-driver jobs. Under
this arrangement, a senior driver could pick not only a more
lucrative assignment but could also pick his driving partner,
who might rank far below him on the seniority list. Both
would receive the same earnings on the same run because
both were credited with driving the same number of miles.
Watson rejected any modification of this formula based on
the team driving concept because he felt that any such modi-
fications would be too speculative to fashion into a statistical
result, inasmuch as all runs were re-bid every 6 months.
The formula for gross backpay also included meals and
lodgings allowance. Under the Diesel Recon contract, drivers
were given an extra amount equal to 5 percent of their mile-
age earnings for meals and lodgings, whether or not they ac-
tually spent this money on the road. It was a standard part
of their earnings. If a driver incurred additional company re-
lated expenses, such as for tolls, new tires, or truck repairs,
these amounts could also be claimed if verified by a receipt.
The Respondents also provide over-the-road drivers money
for meals and lodgings as a standard part of their pay plan
but not in the manner outlined in the Diesel Recon contract.
Meals and lodgings are paid by the Respondents at a flat
rate—formerly $7 and now $7.50—for every 12 hours that
a driver is on the road. A driver must be on the road at least
12 hours to receive any travel money; city drivers receive
none. The sum is paid automatically; no meal receipts are re-
quired. Respondents regularly pay motel expenses on an
every-other-night basis if those expenses are verified by re-
ceipt. Respondents also reimburse drivers for expenses relat-
ed to truck maintenance that are incurred while out of town.
However, the data it provided to the compliance officer in
this regard did not break out these expenses from payments
for meals and lodgings so it was impossible to treat them
separately in preparing the specification. These sums were all
integrated into the gross backpay formula which was used in
the specification.
In its verified answer the Respondents asserted that the
proper method to arrive at the gross backpay that would have
been paid to discriminatees had they been hired at the outset
of its Diesel Recon contract is to aggregate the annual earn-
ings of the top 31 drivers on its seniority roster each year
(leaving out anything for Varble, who, under the specifica-
tion, was found to have nothing owed), divide the total of
all those earnings by 31 to determine an overall average per
employee, and then divide that figure by four to arrive at
quarterly earnings. According to this formula, the average
earnings, both yearly and quarterly, for each discriminatee
would be the same, irrespective of seniority. Respondent also
objected to the inclusion of vacation or meal money in any
gross backpay formula, arguing that such money was in the
nature of a bonus or gratuity and did not reflect earnings.
The compliance officer testified that this formula was de-
fective in several respects. Respondents’ alternative formula
and computations provided no figures for the end of 1983 or
the first months of 1988, all of which were part of the back-
pay period. The formula made no allowance for any variation
of earnings in each calendar quarter, as required by Wool-
worth, supra, and made no allowance for any variation in
earnings between employees based on seniority. The Re-
spondents placed no evidence in the record to support its for-
mula and basic method of computation and did not present
any argument in its brief in support of the income averaging
approach, limiting its argument to an objection to the inclu-
sion of meal and travel money.
The Supreme Court said at the outset of the enforcement
of the Act that awarding of backpay authorized by Section
10(c) was part of the Board’s ‘‘power to undo the effects of
discrimination.’’ Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 189 (1941). The Court went on to say that:
613RYDER SYSTEM
7 Here, as in all backpay litigation, the compliance officer made an effort
to discover interim earnings by claimants as well as other offsets which would
reduce the Respondents’ backpay liability. However, this was only an adminis-
trative courtesy. The Respondents still shouldered the burden of establishing
these offsets. In certain instances, the Respondents brought to light certain
matters which further reduced the liability set forth in the specification. When
this occurred, as in the case of Harold Baker, the General Counsel amended
the specification to reflect these matters. In another instance, evidence adduced
at the hearing prompted the General Counsel to amend the specification to in-
crease the amount of a requested award.
[I]n the nature of things, Congress could not catalogue
all the devices and strategems for circumventing the
[policies] of the Act. Nor could it define the whole
gamut of remedies to effectuate these policies in an in-
finite variety of specific situations. Congress met these
difficulties by leaving the adaptation of means to end
to the empiric process of administration. The exercise
of the process was committed to the Board, subject to
limited judicial review. Because the relation of remedy
to policy is peculiarly a matter for administrative com-
petence, courts must not enter the allowable area of the
Board’s discretion and must guard against the danger of
sliding unconsciously from the narrow confines of law
into the more spacious domain of policy. [Id. at 194.]
The purpose of backpay was to ‘‘make whole everything but
what employees failed without excuse to earn.’’ Id. at 198–
199.
Kansas Refined Helium Co., 252 NLRB 1156 (1980), was
cited on both sides in support of various propositions relating
to the determination of backpay liability. Several well-estab-
lished general rules of law are set forth in that case and will
only be summarized here:
1. The sole burden of proof on the General Counsel
in a backpay case is to show the gross amounts of
backpay due. This means that he must establish the pro-
priety of the formula to be employed and must adduce
evidence establishing the gross amounts of liability
under that formula. Every backpay respondent is under
both a general legal obligation and a specific Board
order directing it to make its payroll records available
for this purpose.
2. The burden of proof is upon a respondent to es-
tablish any mitigating factors, such as interim earnings,
failure of a claimant to make a diligent search for work,
the discharge of the claimant from interim employment
under circumstances serious enough to warrant the toll-
ing of liability, illness, or injury that incapacitated a
claimant for work.7
3. Any doubt or ambiguity will be resolved against
a respondent and in favor of the backpay claimant.
4. Any backpay formula that approximates what
discriminatees would have earned had they not been
unlawfully discharged (or refused hire) is acceptable if
it is not unreasonable or arbitrary. Exactness is not re-
quired. The Board has wide discretion in the selection
of a formula to be employed in determining gross back-
pay.
The use of representative employees in determining a gross
backpay formula is both a permissible and a commonplace
practice. Midwest Hanger Co. 221 NLRB 911 (1975). In se-
lecting representative employees, it is permissible to exclude
from that category any employees who have worked only
sporadically during the backpay period or for periods of time
that were markedly less than the hours worked by most em-
ployees in the unit. I-O Services, Inc., 225 NLRB 1251
(1976). Where seniority makes a difference in the relative
earnings of employees, as in this case, a gross backpay for-
mula should take seniority into account. Controlled Alloy,
Inc., 208 NLRB 882 (1974). In the present case, the Board
order, enforced by the Court of Appeals, directed the Re-
spondents to reinstate each named employee ‘‘without preju-
dice to his seniority or other rights and privileges.’’ The rem-
edy required the Respondents here to pay to each
discriminatee ‘‘a sum of money equal to the amount he
would have earned from the date of Respondents’ unlawful
refusal to hire him to a date of an offer of employment as
described above.’’ Accordingly, the law of this case requires
the Board to incorporate considerations of seniority into any
gross backpay formula, regardless of what the Board might
do in some other situation. The General Counsel’s formula
makes provision for seniority in determining the backpay due
and owing to each discriminatee and, insofar as possible,
complies with the quarterly earnings determinations required
by Woolworth. The Respondents’ proposed formula fails in
both respects. Accordingly, the General Counsel’s formula
should be adopted and the Respondents’ formula should be
rejected.
The backpay formula should also include money regularly
paid to the Respondents’ employees for meals, lodgings, and
related travel expenses, as well as vacation pay. These mon-
eys are not bonuses but emoluments of employment that the
discriminatees would normally have received had they been
employed. Like various fringe benefits, they are a regular
part of the Respondents’ pay package and are not the equiva-
lent of gasoline allowances and similar items, which are only
paid when and if expenses are actually incurred. It is no de-
fense to assert that these expenses should not be a part of
gross backpay because the discriminatees did not in fact per-
form services that generated these payments nor incur the ex-
penses associated with them so they should not be credited
with such payments when they were paid to others. The key
consideration is that the discriminatees would have received
these moneys had they been employed by the Respondents
as they should have been during the backpay period. NLRB
v. Laborers Local 38, 748 F.2d 1001 (5th Cir. 1984). To the
overall figures to which claimants are entitled and from
which offsets may be deducted, money spent during the
backpay period to assist claimants in their search for work
and premiums paid for medical insurance by claimants dur-
ing the backpay period must be offset against interim earn-
ings. Continental Insurance Co., 289 NLRB 579 (1988); Col-
orado Forge Co., 285 NLRB 530 (1987).
2. Larry G. Elmore
Larry G. Elmore was employed by Diesel Recon on June
6, 1975, and was number two on its seniority list at the time
he and the other discriminatees were laid off on December
3, 1983. After working for several interim employers, he was
offered a job with the Respondents as a casual driver, mean-
ing that he had no seniority ranking. He accepted this posi-
tion on October 13, 1985. After a probation period of 90
days, he was offered and accepted a regular position at the
bottom of the Respondents’ seniority list and continued to be
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 NLRB v. Weingarten, Inc., 420 U.S. 251 (1975).
employed as a driver in this seniority ranking until March
18, 1987, when he was discharged. In the amended specifica-
tion, the General Counsel alleged a backpay liability, as of
March 18, 1987, due and owing to Elmore of $26,024.83,
plus interest. In his opinion, this amount reflects only an in-
terim amount that is due and owing.
The facts and circumstances surrounding Elmore’s 1987
discharge were litigated in another unfair labor practice pro-
ceeding—Ryder System, Inc., JD(Atl)–26–88, dated Septem-
ber 30, 1988. In that case, General Counsel alleged that the
Respondent was discharged for attempting to assert his
Weingarten8 right—the right to have a fellow employee
present during a disciplinary interview—during an interview
conducted by Respondents’ operations manager, L. Anthony
Chrestman. Respondents defended on the basis that Elmore
was discharged for insubordination. The facts of that case
were summarized by Administrative Law Judge Robert A.
Gritta in his decision, supra. Without delving at length into
Judge Gritta’s findings, it is sufficient to recite here that
Elmore was suspicious that he was being set up by someone
who was planting drugs and a bypass device (designed to
prevent the odometer from recording mileage) on a truck he
was assigned to drive. He sought legal advice and was ad-
vised by his attorney to volunteer for a DOT examination on
every truck in which he was dispatched. When Chrestman
learned of this advice, he instructed Elmore not to volunteer
for DOT truck inspections but to permit such inspections
should he be stopped on the road by DOT inspectors.
This controversy led to a request by Chrestman for a dis-
cussion with Elmore. When Elmore appeared in Chrestman’s
office for the discussion, he requested the presence of fellow
driver Harold C. Baker, who is also a discriminatee in this
proceeding. There is a suggestion in Judge Gritta’s decision
that Baker, a Teamsters adherent, had little use for the col-
lective-bargaining agent who had been installed at the Re-
spondents’ facility and wanted the assistance of a Teamsters
supporter whom he trusted. In any event, when Baker ap-
peared, Chrestman ordered him out of the room but Baker
refused to leave unless Elmore approved. Elmore insisted
that Baker remain. Chrestman instructed Elmore to tell Baker
to leave. Elmore refused, so Chrestman discharged Elmore
for insubordination.
Judge Gritta concluded that the General Counsel had failed
to establish all the elements of a Weingarten violation and
that the Respondent was within its right to discharge Elmore.
Later, Baker was discharged by the Respondents under cir-
cumstances found by Judge Gritta to be discriminatory. He
dismissed the consolidated complaint regarding Elmore and
ordered Baker reinstated with backpay. None of the parties
excepted to this decision so it became the final disposition
of both cases.
The General Counsel contends in this proceeding that
Elmore is still entitled to an offer of full reinstatement, in-
cluding the seniority he would have enjoyed had he received
such an offer, and that the Respondents’ backpay liability
continues to run until such an offer is tendered. In effect, he
is treating the Respondents as an interim employer. Since the
Board’s enforced order requires such an offer and since it
has never been tendered, there can be little dispute that the
Respondent has never complied with its basic remedial obli-
gation. It would serve no purpose in this proceeding to rec-
ommend a second reinstatement offer because the original
order, now incorporated into a court decree, is still outstand-
ing and the Sixth Circuit is quite capable of enforcing its
own decrees.
Respondents argue that Elmore forfeited any reinstatement
right he might otherwise be entitled to by virtue of the con-
duct which led up to his discharge in 1987. They contend
that the Board should now defer to the decision and order
that refused Elmore any relief when his case was litigated
before Judge Gritta. The test of whether a discriminatee
should be denied reinstatement, with the consequent tolling
of backpay liability, is set forth in Deauville Hotel, 256
NLRB 561 (1981), where the Board held that the discharge
of a rehired but unreinstated employee, even if lawful, does
not absolve a respondent from making full reinstatement due
and owing as the result of a previous unlawful discharge, un-
less the second discharge is for conduct which is so egre-
gious that an employee’s right to reinstatement has been for-
feited. Under Board law, an employer may discharge an em-
ployee for good reason, bad reason, or no reason at all so
long as it is not for union or concerted protected activities.
In the case before him, Judge Gritta decided that Elmore was
not asserting his Weingarten right during the interview at
which he was discharged so the Respondents were free to do
what they did when they fired him. Judge Gritta did not de-
cide—because the issue was not before him for decision—
whether Elmore’s misconceived assertion of a Weingarten
right was such egregious and outrageous conduct that it
should bring about the forfeiture of a reinstatement right
which had never been fully vindicated. Plainly it was not, so
the Respondents are still obligated to make such an offer.
John Kinkel & Son, 157 NLRB 744 (1966).
Relying on an EEOC case decided by the Supreme Court
in 1982, the Respondents further argue that Elmore’s accept-
ance of a job without any seniority standing somehow con-
stitutes a waiver of that seniority. Ford Motor Co. v. EEOC,
458 U.S. 219 (1982). Leaving aside the fact that the Ford
Motor Co. case was litigated under the terms of another stat-
ute having a somewhat different remedial scheme, the facts
of that case posed a far different question of mitigation of
damages. In Ford Motor Co. the Court held that backpay li-
ability of two discriminatees was tolled when they refused
Ford’s offers of employment because they had not done all
they reasonably could to mitigate damages arising out of
Ford’s initial discriminatory refusal to hire them. They had
been working for another employer and refused to accept an
offer of employment by Ford which did not include full se-
niority. In the present case, Elmore, by accepting an inad-
equate offer of reinstatement, did all that he could to mitigate
his damages and should not be penalized because the Re-
spondents failed to comply with the clear language of the
Board order.
It so happened that when Elmore went to work for the Re-
spondents he drove as part of a team with a senior driver
who selected him as a driving partner. As a result, Elmore
had earnings derived from his partner’s seniority that were
higher than they might have been had he been placed in a
position of personally selecting runs while at the bottom of
the seniority roster. To determine gross backpay liability,
Elmore’s earnings during the backpay period were compared
with those of representative employee Lavelle Cross, who
615RYDER SYSTEM
9 The record contains evidence of Elmore’s search for work during the back-
pay period. He registered with the Tennessee Department of Employment
Services, regularly followed up newspaper want ads and tips from friends con-
cerning job openings, and made actual applications during this period of time
to 25 different companies engaged in the trucking business in and about Mem-
phis, Tennessee, including the Respondents.
10 He is no kin to the owners of the truck line.
11 A claimant is even entitled to quit interim employment to make a bona
fide search for a more rewarding or less onerous job. Chef Nathan Sez Eat
Here, 201 NLRB 343 (1973) .
was number two on the Respondents’ seniority roster, the
same ranking Elmore enjoyed on the Diesel Recon list. The
resulting comparisons show no backpay liability for the pe-
riod between Elmore’s date of hire by the Respondents and
his date of discharge. However, this happenstance does not
absolve the Respondent from its ongoing obligation of plac-
ing Elmore in a position vis-a-vis other employees where he
can obtain appropriate earnings based on his own seniority
standing rather than the generosity of a ranking fellow em-
ployee who might select him to be on the same driving team.
To the extent that earnings derived from this set of cir-
cumstances made Elmore whole financially, appropriate off-
set credit was given to the Respondents in the backpay speci-
fication. These backpay credits do not satisfy the Respond-
ents’ underlying reinstatement obligation.
Respondents further assert that the gross backpay of
Elmore should be reduced because he willfully removed him-
self from the labor market by quitting an interim job at
Ozark Motor Lines to take another job at Jones Trucking
Company, a job from which he was ultimately laid off. Re-
spondents also claim willful loss on the part of Elmore by
virtue of his discharge on August 21, 1985, from Associated
Transportation Services, Inc. (ATS), another interim em-
ployer.
Between the date of his layoff by Diesel Recon and his
date of hire by the Respondents, Elmore worked for four dif-
ferent trucking companies. In the first two quarters of 1984,
he worked for Ozark Motor Lines from its Memphis terminal
as an over-the-road driver. In part of the second and third
quarters of the same year, he worked on the dock as a ware-
houseman at Jones Truck Lines, Inc., in Memphis. In the last
quarter of 1984 and the first quarter of 1985, he worked for
Southeast Carriers, Inc., out of its Memphis terminal, and fi-
nally, in the second and third quarters of 1985, he worked
for Associated Transportation Services, Inc., of Memphis. In
the fall of 1985, Elmore was rehired by the Respondents and
continued to drive from its Memphis terminal till his dis-
charge, discussed above, which occurred in 1987.9
Elmore’s first job was with Ozark Motor Lines, for whom
he worked as an over-the-road driver. He was compensated
on a mileage basis. He started with Ozark on March 13,
1984, and left voluntarily on June 22, 1984, to go to work
for Jones Truck Lines. At Jones he was a casual dock em-
ployee but was paid on an hourly basis under a union con-
tract. Elmore learned of the Jones job from friends and from
Teamsters Agent Duria Jones.10 He testified credibly that he
quit Ozark to go to work for Jones because the latter offered
a better paying job, even though it was casual employment.
His hourly rate was $13.23, whereas he was receiving about
17 cents a mile at Ozark. Two months later he was laid off
by Jones because of lack of work, along with several other
employees, and did not obtain employment with his third in-
terim employer, Southeast Carriers, Inc., until October 23 of
the same year. This 2-month interim is regarded by the Re-
spondents as a period of willful loss. According to the Re-
spondents, Elmore should have stayed with Ozark, a more
stable employer, and, had he done so, he would not have
been out of work between August 25 and October 23.
Here, as with every other offset against gross backpay, it
must be remembered that Elmore would not have been
placed in the situation in which he found himself on August
25, 1984, except for the wrongdoing of the Respondents, so
it is their burden to establish the the layoff he experienced
at Jones was the result of Elmore’s willful wrongdoing. A
backpay claimant is certainly entitled to quit a lower paying
job to take a better paying job without placing his claim in
jeopardy. Laborers Local 1440 (Delbert A. Schultz), 243
NLRB 1169 (1979).11 If such an opportunity presented itself
and a claimant refused to improve his lot, an erring employer
would certainly seize upon it and urge that it be considered
an element of willful loss. The fact that the Jones job was
casual employment does not mean that it was temporary em-
ployment. In the trucking industry, new hires are frequently
put in casual status during their probationary period and then
given a full-time position after they have demonstrated their
ability. Indeed, this is what the Respondents did when it
hired Elmore. There is no reason to believe that Elmore or
anyone else knew, or had reason to suspect, when he took
the warehouse job at Jones that he would be the victim of
a business downturn 2 months later. Elmore’s joblessness
after August 25 was the result of a situation over which he
had no control and should in no way detract from the amount
of money which is due and owing to him as a discriminatee.
I credit the testimony of Edwyna Woody, the former dis-
trict manager of ATS, that Elmore was discharged from its
employment on August 21, 1985, because, without excuse or
explanation, he failed to call the dispatcher and ran several
hours late for two scheduled deliveries. Elmore had been
hired by ATS on April 1, 1985, and was farmed out to one
of its customers, MCT, Incorporated. ATS supplied this cus-
tomer with its drivers and MCT supplied the trucks. In driv-
ing for this and other customers, Elmore normally acted
under instructions from the customer for whom he was haul-
ing items and making deliveries.
During the course of his employment with ATS, which
lasted just less than 5 months, Elmore had a minor dispute
over whether he was being paid the accurate mileage for one
of his deliveries. ATS thought that the dispute had been re-
solved but apparently it had not been resolved to Elmore’s
satisfaction. According to credited testimony, ATS President
Charles Hankins and Mrs. Woody learned from the ATS dis-
patcher, JoAnn Tucker, that Elmore had failed to call in, as
instructed, and had arrived several hours late for two deliv-
eries he was scheduled to make for MCT. They summoned
him to the company office and asked him for an explanation.
Elmore had none. Instead, he brought up again his earlier
complaint about being shortchanged on mileage for a pre-
vious delivery. Apparently the dispute became heated. In any
event, he was discharged for insubordination and was out of
work for the next 2 months until he was hired by the Re-
spondents on October 13, 1985. Respondents argue that
backpay should be tolled during this period of time because
of Elmore’s willful loss.
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The original backpay specification contained no interim earnings for
Baker during the last calendar quarter of 1983 because the Respondents failed
As in the case of the layoff from Jones, Elmore was not
out of work because of his choice but because of the choice
of his employer. If Elmore had his way, he would have con-
tinued to work for ATS during this period of time. The
Board has held that various acts on the part of a
discriminatee which bring about his discharge by an interim
employer, such as going to jail, refusing to work on Sunday,
unsatisfactory job performance, or arguing with a supervisor
about working conditions, do not give rise to a tolling of
backpay. See Kansas Refined Helium Co., supra, and cases
cited therein at 252 NLRB 1162. Accordingly, it should not
be tolled in this instance.
The Respondent has not shouldered its burden of proof in
establishing any offsets to be charged against the backpay of
Larry G. Elmore, as set forth in the amended specification.
Therefore, Elmore is entitled to an interim net award of
$26,024.83, plus interest. The assessment of any backpay due
and owing subsequent to the date of his discharge must await
the issuance of another specification.
3. W. David Elmore
W. David Elmore was hired by Diesel Recon on March
15, 1976, as an over-the-road driver. At the time he was laid
off on December 3, 1983, he ranked third on the Diesel
Recon seniority list. The General Counsel seeks a net back-
pay award for him of $22,593.50, plus interest, in his second
amended specification introduced at the hearing.
Immediately following layoff, Elmore had a tonsillectomy
and, as pointed out in the first decision in this case, was un-
available for work for this reason until March 18, 1984. 280
NLRB at 1036. The computation of his earnings for backpay
purposes began on that date. On March 19, 1984, he filed
an application with the Respondents for employment but was
not hired until October 1985. In the interim he worked for
six different employers in the Memphis area. When he was
hired by the Respondents, he started as a casual employee
and thereafter was given a regular position at the bottom of
the Respondents’ seniority list.
To apply the gross backpay formula to Elmore’s case, the
compliance officer used as representative employees Lavelle
Cross and Marvin Mays, who were numbers two and three,
respectively, on the Respondents’ seniority list. Because of
the disparity in seniority between these individuals and
Elmore, the latter suffered a disparity in pay because of his
lower bidding rights between what he should have been earn-
ing and what he was in fact earning as an employee of the
Respondents. As a result, backpay liability continued to ac-
crue after Elmore was placed on the Respondents’ payroll
until he was tendered an offer of reinstatement which com-
ported with his seniority. Sometime following the end of the
backpay period, Elmore was discharged under circumstances
which are not relevant to this case.
Elmore’s first job after re-entering the job market in
March 1984 was for Slaughter Brothers, Inc. He drove a flat-
bed truck for Slaughter Brothers hauling lumber in and about
Memphis and was paid $5.50 an hour. He worked at this job
for about 6 months and quit to go to work for Music City,
a sightseeing company which transported visitors to Mem-
phis to local sights of interest, such as Graceland, the home
of the late Elvis Presley. Elmore drove a sightseeing bus. He
would pick up customers at their motels, drive them to the
company office, and then take these and other sightseers who
had been assembled at this collection point to one or more
scheduled stops on the tour. For this work he was paid $5.50
an hour, the same rate he received at Slaughter Brothers, and
enjoyed no fringe benefits. This job did not require his over-
night absence from Memphis, except on rare occasions when
tours to other localities were assigned. Respondents’ claim
that, by accepting such interim employment, Elmore left the
relevant job market for an over-the-road driver job and thus
was guilty of willful loss requiring the tolling of backpay.
The contention borders on the frivolous.
Like most of the claimants in this case, Elmore registered
for unemployment compensation with the Tennessee Depart-
ment of Employment Services. The record contains a list of
thirteen employers in the Memphis area to whom Elmore
made job applications during the backpay period. This fact
alone would normally protect Elmore from any contention
that he was responsible for willful loss. Laredo Packing Co.,
271 NLRB 553 (1984). It is certainly not willful loss if a
backpay claimant takes only intermittent, low paying jobs
during the backpay period. Scott Management Co., 273
NLRB 1216 (1984). Accordingly, backpay liability will not
be tolled for any period of time for which Elmore worked
for Slaughter Brothers or for Music City.
Respondents also contend that Elmore was guilty of will-
ful loss during the month that elapsed between his discharge
by Music City and his employment by Sunbelt Transpor-
tation Services began. As set forth above, Elmore was dis-
charged following a heated argument concerning smoking a
cigarette in a parking lot while giving directions to a tourist.
While Elmore was unhappy about the criticism he was re-
ceiving for an act which he did not regard as a violation of
company rules, the fact that he was separated from the Music
City payroll was due to a decision taken by his employer,
not a decision which he made. In light of the cases cited,
supra, he was not guilty of willful loss of being discharged
under those circumstances, so backpay liability will not be
tolled.
The fact that Elmore did not receive fringe benefits, such
as health insurance, meal, and travel money, from some of
his interim employers has no bearing on the propriety of the
formula used to determine gross backpay. Gross backpay is
the amount a claimant would have earned as an employee of
the Respondents had he not been wrongfully treated by the
Respondents. What the claimant actually earned during the
backpay period may be relevant as an offset to gross back-
pay, but it has no bearing on the initial figure from which
the offset is to be deducted. In light of these considerations,
I have determined that W. David Elmore is entitled to a net
backpay award of $22,593.50, plus interest.
4. Harold C. Baker
Harold C. Baker was hired by Diesel Recon as an over-
the-road driver on March 14, 1977, and stood number six on
its seniority roster when he was laid off on December 3,
1983. He immediately applied for work with the Respondents
and was told that he could drive for its Sunbeam account but
that no positions were available at its Diesel Recon account.
Baker went to work for the Respondents driving for Sun-
beam.12 When jobs opened up at the Diesel Recon account
617RYDER SYSTEM
to furnish the Regional Office with any payroll records for this period oftime.
When such earnings were determined from Baker, the specification was
amended to deduct, among other things, the $1349 originally assessed against
the Respondent.
in March 1984, Baker was transferred to this account, first
as a casual and then as a full-time employee at the bottom
of the seniority roster.To determine his gross backpay, the
Compliance Officer selected as representative employees Re-
spondents’ employees Sturdivant, Murphy, and Telford, who
were listed 5, 6, and 8 on its roster. Until Baker’s discharge
by the Respondents in May 1987, he accrued no backpay.
The bulk of his claim relates to a period of time following
his discharge his discharge by the Respondents. The General
Counsel seeks an amended net backpay award for Baker in
the amount of $35,511.85, plus interest.
The facts and circumstances surrounding Baker’s discharge
are set forth by Judge Gritta in the same 1988 decision that
resolved Larry Elmore’s discharge. In summary, Baker was
involved in an accident which occurred on May 8, 1987, on
I-65 near Louisville, Kentucky, while he was driving a com-
pany vehicle. He was suspended on May 13 pending an in-
vestigation of the accident. Baker took advantage of this sus-
pension to serve 2 weeks’ duty with the National Guard.
When he returned from Guard duty, he phoned the Company
to ask about the outcome of the accident investigation and
was informed that he had been discharged.
Judge Gritta concluded that the discharge was discrimina-
tory and that the excuse proffered by the Respondents for its
action was pretextual. Relying on the fact that Baker was a
Teamsters shop steward while Diesel Recon was operating
the delivery aspect of its business, the fact that Baker had
several safe driving awards and a record of driving for 16
years without an accident, and the fact that other drivers had
not been discharged in similar circumstances, Judge Gritta
found the Respondents guilty of a violation of Section
8(a)(1) and (3) of the Act. In a decision, dated September
30, 1988, he directed the Respondents to offer Baker rein-
statement and to make him whole for any financial losses ex-
perienced as a result of the discrimination. As noted above,
no exceptions were taken to this decision and it became the
final disposition of the Baker case as well as the Larry G.
Elmore case. Baker was offered reinstatement and accepted.
He is now a city driver for the Respondents and has resumed
his position as Teamsters shop steward.
During the nearly 19 months that Baker was absent from
the Respondents’ payroll by reason of the second discrimina-
tion practiced against him, he worked for two trucking com-
panies, Motor Convoy, Inc. and Signal Delivery Service.
Motor Convoy is a carrier which specializes in car hauling.
While their pay is good (62 cents a mile), their work is very
demanding and, in Baker’s opinion, nerve wracking. Baker
had driven trucks for many years but had never previously
operated a car hauler, which has two tiers and is loaded with
9 or 10 new vehicles to be delivered to dealerships located
in various cities. He was required not only to drive but to
load the hauler and to adjust the racks on the hauler so the
top rack would be no more than an inch above the new cars
loaded on the bottom rack. This tolerance was required be-
cause the hauler had to be adjusted to come within over-the-
road height limitations placed on such vehicles. Baker testi-
fied that this effort, plus the strain of driving such valuable
cargo over the road, made the job too difficult to perform,
so he quit on December 8, 1987.
By following up on newspaper want ads and seeking the
assistance of the Union, he found a job with Signal Delivery
Service and started to work on March 7, 1988. He testified
that his search for work with other trucking companies was
made more difficult by the fact that the Respondents had
stated that he had been discharged as the result of an acci-
dent. For that reason, he was often considered a bad risk by
prospective employers in the trucking field.
The Respondents argue that their backpay liability should
be tolled from December 8, 1987, until March 7, 1988, be-
cause, by quitting his job with Motor Convoy, Baker was
guilty of willful loss. The authenticity of Baker’s reason for
leaving Motor Convoy was unchallenged. It was manifestly
an act of prudence for an individual, with no experience in
car hauling, to leave a job for which he felt unqualified and
in which he could have done enormous damage, in order to
seek employment doing the type of driving to which he was
accustomed. Backpay will not be tolled for this reason. Air-
craft & Helicopter Leasing & Sales (Fournier), 227 NLRB
644 (1976).
At the hearing, it was learned that, during the final months
of Baker’s employment with Service Delivery, he suffered a
knee injury and was off work for about 5 weeks. When these
facts were brought to light by the Respondents, the General
Counsel amended the specification to deduct from gross
backpay the amount of money Baker would have earned
from the Respondents during this period when he was un-
available for work. In light of these considerations, I have
concluded that Harold C. Baker is entitled to an award of net
backpay in the amount of $35,511.85, plus interest.
5. Bobby L. Goza
Bobby L. Goza was hired by Diesel Recon as an over-the-
road driver on December 27, 1979, and was 25th on its se-
niority roster when he was laid off on December 3, 1983. To
obtain a gross backpay figure for Goza, the compliance offi-
cer utilized the earnings of nine different replacement em-
ployees having equivalent seniority who worked a sufficient
number of hours during each calendar quarter of the backpay
period.
Goza immediately went into business for himself after
being laid off. In order to do so, he activated a corporate
charter for Goza Trucking Company, Inc., a Tennessee cor-
poration which he had formed in 1978 but which had been
dormant since that time. Goza lent the corporation about
$12,000 in cash from his savings for start-up costs, bought
a truck, and operated the business until January 1986, when
he discontinued the enterprise and went to work for Helena
Truck Lines, Inc. Goza was offered reinstatement by the Re-
spondents on May 19, 1988, and accepted it. The General
Counsel seeks a net backpay award for Goza in the amount
of $54,984.67, plus interest.
It is well settled that a discriminatee may, during the back-
pay period, go into business for himself. The net earnings
from his business constitute interim earnings to be offset
against gross backpay. Rice Lake Creamery, 151 NLRB 1113
(1965). A vexing question which sometimes arises in cases
involving offsets derived from business enterprises operated
by backpay claimants is just what constitutes net earnings.
Wherever possible, all income and expenses must be deter-
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Interim expenses can only offset interim earnings. They cannot serve to
increase gross backpay liability.
14 Goza’s backpay specificaton for the first two quarters of 1984 stated the
following:
15 The corporate tax returns in evidence in this case show the acquisition
of an asset, presumably a truck, in 1984, at a cost of $20,392.15. Other returns
indicate that Goza acquired on February 8, 1985, a 1979 Ford tractor for
$23,194.38. Presumably the first truck was traded in as a downpayment on the
second one. The second truck was sold by the corporation January 31, 1986,
for $14,888.60.
mined in accordance with the Woolworth formula, just as in
the case of wages derived from an interim employer.
In this case, Goza Trucking Company, Inc., which is whol-
ly owned by the claimant, paid the claimant a salary during
1985 and 1986. This salary was offset in the specification
from gross backpay on a quarterly basis in the same manner
that interim earnings from any other employer might be off-
set. The specification also included as interim expenses two
amounts, $9932 and $2901, incurred in the first two quarters
of 1984, respectively. These were amounts which Goza lent
to the corporation from his savings to cover start-up costs or
were corporate expenses Goza incurred personally. The
money was used by the corporation as a down payment on
a truck and other related matters. Start-up costs are a legiti-
mate expense of a business and normally may be included
as an expense which reduces interim corporate earnings. One
cannot go into the trucking business without a truck, so these
items were properly includable by the compliance officer in
the expense column.
The effect of placing these two expense items in the in-
terim expense column for the first two quarters of 1984 is
that they more than offset Goza’s interim earnings in those
quarters by several thousand dollars. They diminished interim
earnings to zero during those quarters but Goza was deprived
of the opportunity to utilize the amounts over and above
those two offsets to reduce interim earnings in other quar-
ters.13 Goza’s attorney argues that the amounts Goza contrib-
uted to the corporation for start-up costs should be devided
by nine, reflecting the fact that the backpay period during
which Goza was self-employed embraced nine calendar quar-
ters, and that start-up costs should be apportioned equally as
interim expenses throughout those nine quarters. In this way,
Goza would not ‘‘waste’’ surplus offsetting expenses in two
calendar quarters and have them available in other quarters
when the unused portion of these offsets would actually
count against interim earnings, thereby increasing net back-
pay liability. Unlike the Internal Revenue Code, Board law
does not permit losses to be carried back or carried forward
into other accounting periods. In some instances the Wool-
worth doctrine aids a claimant by enlarging his claim and,
in other instances, such as the present, it serves to diminish
the ultimate award. Whether it helps or hurts, it must be fol-
lowed, so the specification in this respect will not be dis-
turbed.
The result of following Woolworth regarding these start-up
expenses is that Goza in fact had $12,833 in start-up costs
(including some out-of-pocket expenses for the corporation
which he personally paid) during these two quarters, but only
$7787 of this amount actually reduced the Respondents’ net
backpay liability. Goza testified credibly that, when he
wound up the business in 1986, he recaptured no cash from
his initial investment. As a result, absent certain consider-
ations which will be discussed below, he suffered a total
overall loss of $5046 for which he will receive no rec-
ompense under the specification.14
1984
Goza’s
gross back-
pay
Interim
earnings
Interim ex-
penses
Unused or
unapplied in-
terim ex-
penses from
capitalization
and other
personal ex-
penditures
1st Qtr. $6,713 $3,154 $9,932 $6,798
2d Qtr. 6,763 1,192 2,901 989
Total $12,833 $7,787
The Respondents also challenge the allowance of a portion
of this money as start-up cost. They also challenge the action
of the compliance officer in allowing, as expense items in ar-
riving at net interim earnings, two depreciation costs found
in the corporation’s 1984 and 1985 tax returns. In computing
net interim earnings from Goza Trucking Company, Inc.,
during the period that Goza was in business for himself, the
compliance officer gave the corporation credit for deprecia-
tion on the trucks it owned.15 The depreciation allowed to
produce these interim earning figures is $5098.13 in calendar
year 1984 and $3476.17 in calendar year 1985. Despite the
fact that depreciation on the assets of a claimant is normally
allowable in determining net income from a business, the Re-
spondents object to permitting these allowances for Goza
Trucking Company, Inc., to offset Goza’s interim earnings
(and thereby increase his backpay claim) because Respond-
ents assert that the Board does not allow depreciation on as-
sets which do not lose value merely because it is claimed
and allowed on the claimant’s income tax return. The depre-
ciation allowed here is for a truck (or trucks) which Goza
drove extensively over a period of 2 years in the course of
his business. It is pointless to contend that these vehicles did
not suffer substantial reductions in their value because of
wear and tear from constant use over a 2-year period of time.
A schedule appended to the Goza Trucking Company cor-
porate tax return for 1986 shows that a 1979 tractor which
it purchased in February 1985, for $23,194.38 was sold a
year later for $14,888.60. These figures more than bear out
both the fact of depreciation and the reasonableness of the
amounts claimed for that purpose.
Respondents’ final objection to the Goza specification is
essentially that they are being charged twice for their wrong-
doing in failing to reinstate Goza in a timely fashion. The
compliance officer gave Goza credit for substantial start-up
expenses, although, as noted above, not all of those expenses
served to augment the Respondents’ liability because they
could not be offset against interim earnings. When Goza
turned the truck into the finance company in January 1986,
because he could no longer afford the monthly payments, he
was still able to use a portion of its value as a trade-in on
a vehicle which he purchased for his personal use. According
to the Respondents, Goza recaptured a portion of his initial
investment in the form of a downpayment on a new truck.
Because the Respondents are being charged for the capital-
ization of the corporation in their backpay liability, that li-
619RYDER SYSTEM
16 Even if the Respondents had established the value of the downpayment
attributable to recapturing a part of Goza’s initial investment, this sum would
have to be further offset against $7787, the amount of the initial investment
which Goza did not recapture and which was never passed on to the Respond-
ents in the form of backpay liability.
ability should be reduced by the amount attributable to the
downpayment on Goza’s personal vehicle since Goza alleg-
edly recaptured a part of the capital. The argument has merit.
Unfortunately, the Respondents, who bear the burden of
proof in such matters, failed to establish the amount of the
downpayment they wish to assert as an offset to their liabil-
ity to Goza.16 Accordingly, I conclude that Bobby Goza is
entitled to an award of net backpay in the amount of
$54,984.67, plus interest.
6. Joe Gross
Joe Gross was hired by Diesel Recon on December 2,
1978, as an over-the-road driver. He was 16th on its seniority
list when he was laid off on December 3, 1983. Thereafter,
he worked for Leaseway Personnel Corporation, Sunbelt
Transportation Service, Inc., and Associated Transportation
Services, Inc. To determine his gross backpay, the compli-
ance officer selected four different employees of the Re-
spondents, in the order of their seniority on the Respondents’
seniority list, who had worked a sufficient number of hours
in each calendar quarter to serve as representative employees.
Gross was offered reinstatement on May 19, 1988, and ac-
cepted it. The General Counsel seeks a net backpay award
on his behalf in the amount of $12,800.85, plus interest. In
their brief, the Respondents offered no reasons why the
award requested in the specification should not be paid in
full. Accordingly, I have determined that Joe Gross is enti-
tled to a net backpay award of $12,800.85, plus interest.
7. Carl Briscoe
Carl Briscoe was hired by Diesel Recon on March 27,
1979, as an over-the-road driver, and was number nineteen
on its seniority list when he was laid off on December 3,
1983. As recited in the previous decision in this case,
Briscoe, as well as other Diesel Recon drivers, applied in
writing for jobs with the Respondents before the actual date
of the layoff but they were not hired. To determine Briscoe’s
gross backpay, the compliance officer used the earnings of
five different drivers on the Respondents’ payroll who had
comparable seniority and who worked a sufficient number of
hours in each quarter to provide representative earnings fig-
ures. In a second amended specification pertaining only to
Briscoe (G.C. Exh. 33), the General Counsel is seeking a net
backpay award for him in the amount of $79,267.98, plus in-
terest. No backpay is requested for Briscoe for the period of
time immediately following the Diesel Recon layoff, appar-
ently because the Respondents did not have 19 drivers on
their payroll at that time and there was no work for a driver
holding the 19th rank on its seniority list.
Record evidence indicates that, in addition to applying to
work with the Respondents, Briscoe registered for unemploy-
ment compensation with the Tennessee Department of Em-
ployment Security and made personal applications over a pe-
riod of time to 16 different employers in the Memphis area,
seven of whom actually employed him for short periods of
time. During 1984 and 1985, Briscoe worked as a ware-
houseman for one of these companies and drove a truck for
the others. During the backpay period he filed a second writ-
ten application for employment with the Respondents. For a
brief period of time he worked for his brother-in-law, who
operated a Chevron gas station, and then he went to work
for A. P. Briscoe Repairs doing roofing and painting. A. P.
Briscoe is the claimant’s father; Briscoe worked with him
under what was essentially a partnership arrangement. On
May 19, 1988, the Respondents offered Briscoe reinstatement
and he accepted.
The Respondents object to certain items in the backpay
specification, claiming Briscoe was guilty of willful loss by
leaving a driver’s job to accept a freight handlers job and by
leaving the trucking industry entirely to work as a painter
and roofer with his father. Respondents also claim that back-
pay should be tolled between the time Briscoe quit Southeast
Carriers, an interim employer, until he found other employ-
ment with Dixie Auto Transport, another interim employer.
Respondents also assert that Briscoe’s gross backpay formula
should not include meal and travel money because Briscoe
did not receive meal and travel money from any of his in-
terim employers.
At the risk of repetition certain basic propositions of back-
pay law which control the disposition of Briscoe’s claim
should be recited. ‘‘The principle of mitigation of damages
does not require success, only an honest, good-faith effort.’’
NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir.
1955). A discriminatee who accepts a job at a lower rate of
pay than the job from which he was illegally discharged is
under no duty to continue to search for work. Champa Linen
Service Co., 222 NLRB 940 (1976). A claimant who leaves
a job for a justifiable reason does not forfeit his right to ad-
ditional backpay. Mastro Plastics Corp., 136 NLRB 1342
(1962). A claimant may leave one interim job to obtain an-
other one in order to improve his earnings, especially where,
as here, he has been holding jobs which are less remunera-
tive than the job to which he is entitled with the respondent.
Alamo Express, Inc., 217 NLRB 402 (1975). A claimant is
not required to accept or continue employment in a job
which is not suitable or substantially equivalent to the posi-
tion from which he was discharged. Oman Construction Co.,
137 NLRB 111 (1962), enf. 316 F.2d 230 (6th Cir. 1963).
A backpay claimant is under no duty to remain in the indus-
try in which he was working at the time unlawful discrimina-
tion was practiced against him. Some examples of this rule
are a limousine driver who obtained work as a security
guard, Fugazy Continental Corp., 276 NLRB 1334 (1985), a
pipefitter who took a job as a store clerk, Big Three Indus-
trial Gas & Equipment Co. (Lee J. Judd), 263 NLRB 1189,
1206 (1982), and an electrician’s helper who went into busi-
ness repairing radios and television sets, Big Three (Kenneth
Gatlin), supra at 1207.
It should be remembered at the outset that Briscoe applied
for work to the Respondents not once but twice. In and of
itself, this effort shows a diligent search for work. The fact
that he applied to the state unemployment agency and a total
of 15 employers, most of whom were in the trucking indus-
try, is further evidence of an effort to mitigate damages. Re-
spondents complain Briscoe should be penalized because he
quit working as a driver for Ozark Truck Lines to go to work
for Jones Trucking Company as a freight handler. The job
at Ozark Truck Lines was in no way comparable to the one
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Respondents also argue that Briscoe’s gross backpay should not include
any recognition of travel and meal money since he did not receive these bene-
fits from interim employers. As discussed, supra, in the case of W. David
Elmore, whether an interim employer does or does not offer fringe benefits
has no bearing on whether these items should be a part of the Respondents’
gross liability.
from which he was laid off at Diesel Recon. Not only did
Ozark fail to pay meal and travel allowance to its drivers
but, to use Briscoe’s expression, they ‘‘ran you around the
clock.’’ Unlike the Respondents’ operation or most unionized
trucking companies, Briscoe not only drove a truck but he
had to unload it at its destination because there were no
warehousemen employed by Ozark or anyone else for this
purpose. His mileage rate for Ozark covered not only driving
but ‘‘lumping,’’ a task he had to perform gratis. This was
not equivalent employment to the work from which he was
laid off, and he was fully justified in leaving it without for-
feiting backpay. As noted in the Larry G. Elmore case, the
fact that a driver decides to work as a warehouseman on a
dock, as Briscoe did when he took a job with Jones Truck
Lines, has no bearing on his eligibility to collect backpay. He
did not leave the relevant labor market by so doing and he
may well have improved his earnings. As in the Elmore case,
the fact that Briscoe was eventually laid off by Jones for lack
of work was simply a circumstance over which he had no
control and in no way indicated willful loss.
Briscoe quit driving for Southeast Carriers because he did
not want to become involved or implicated in an ongoing
practice of pilferage which was taking place at Southeast
Carriers. This quit was also justifiable and should not result
in a tolling of backpay simply because it took Briscoe a
month to find another job. His decision to leave the trucking
industry for two years to become a painter and roofer was
legitimate, especially in light of the fact that, as revealed by
the specification, he was earning as much or more doing
painting and roofing as he had earned from driving trucks for
a series of trucking companies who paid marginal wages and
few if any benefits.17 In light of these considerations, I con-
clude that the amended specification should not be disturbed
and that Carl Briscoe is entitled to a net backpay award of
$79,267.98, plus interest.
8. Tommy Bracken
Tommy Bracken was hired by Diesel Recon on May 2,
1981, and was 30th on its seniority list when he was laid off
on December 3, 1983. To obtain a gross backpay figure for
Bracken, the compliance officer utilized the pay experience
of 12 different representative employees, inasmuch as there
was considerable turnover among the Respondents’ drivers
who were so low on its seniority list and many did not con-
sistently work a full quarter. No backpay was claimed for the
last quarter of 1983 because here, as in the case of Briscoe,
the Respondents did not employ 30 drivers during the start-
up period of their Diesel Recon account. The General Coun-
sel seeks a net backpay award for Bracken, contained in his
second amended specification (G.C. Exh. 49), of $51,356.72.
Like several other drivers, Bracken applied for a job with
the Respondents before he was actually laid off from Diesel
Recon. He registered with the Tennessee Department of Em-
ployment Security and, during the backpay period, submitted
job applications to 16 different employers, 5 of whom em-
ployed him at various times. Before coming to work for Die-
sel Recon in 1981, Bracken was an employee of Roadway
Express, Inc. However, he was so low on its seniority list
that he had been laid off. He worked for Diesel Recon with-
out ever having been recalled by Roadway but he still main-
tained his seniority with that company. In March 1984,
Bracken was recalled briefly by Roadway and was then laid
off a second time. Two of his interim employers, Labicon,
Inc., and Mid-South Laboratory Supply, Inc., were compa-
nies which installed fixtures and equipment in laboratories.
Bracken did not drive a truck for these companies. Instead,
he worked as an installer of cabinets and other equipment.
The Respondents argue that backpay should be tolled for the
period of time that Bracken was working for these employers
outside the trucking industry because he had willfully re-
moved himself from the work force. It should be noted that,
in one of these jobs, Bracken was working between 50 and
70 hours a week and making about $650 a week. In light of
precedents cited above, this argument is wholly without merit
and backpay will not be tolled.
The original specification called for a deduction for in-
terim earnings of $650 in the first quarter of 1988 for the
period of time in January 1988, that Bracken worked for
Mid-South Laboratories. Bracken presented his IRS W-2
form at the hearing showing that he had worked 2 weeks,
not 1 week, in January 1988, for Mid-South and that his
earnings were $1300 rather than $650. Upon discovery of
this discrepancy, the General Counsel moved to amend the
specification to reflect the correct amount. The Respondents
argue that backpay for the entire quarter should be tolled and
that Bracken’s award be reduced by $6138 because he will-
fully concealed his earnings. Respondents never explained
the source of the ‘‘$6,138’’ figure in their request.
In fact, the correction to the specification was made be-
cause Bracken himself brought to light the total amount of
the earnings reflected on his W-2 form, a form he did not
receive until the end of the calendar year and long after he
had supplied to the Regional Office the information normally
provided to the compliance officer by a backpay claimant
through the filing of NLRB quarterly employment and ex-
pense data sheets. Respondents’ contention is not only Dra-
conian but absurd. A backpay case is an adversary proceed-
ing in which, as noted above, a respondent shoulders the bur-
den of proving any interim earnings which would reduce the
amount from gross backpay ascertained from the earnings of
representative employees. To the extent that a compliance of-
ficer or a claimant voluntarily provides a respondent in ad-
vance of the hearing with information which eases its bur-
den, they are acting gratuitously. The whole purpose of a
hearing on a backpay specification is to permit a respondent
to establish interim earnings and any other mitigating matters
it may wish to assert. If information to support a respond-
ent’s case is made available at the hearing by a claimant, this
is time enough to fulfill any legal duty imposed on him. The
error at issue here was an obvious inadvertence of a trivial
character which was easily and readily corrected. Since any
correction attributable to this error has already been made,
the amended specification will not be further disturbed on
that account.
Lastly, Respondents argue that backpay should be tolled
following Bracken’s actions in quitting his employment at
Allen Iron Works and at Mid-South until he obtained other
employment because, by quitting these jobs, he willfully re-
621RYDER SYSTEM
18 Respondents filed with their brief two posttrial affidavits of a manage-
ment employee of Allen Iron Works in an effort to impeach Bracken’s testi-
mony concerning the reason why he left its employment. The matters recited
in the affidavit are quite consistent with Bracken’s testimony and in no way
serve to impeach him. The affidavit will not be admitted into evidence.
19 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
moved himself from the work force and should bear the con-
sequences of his actions. Bracken worked as an over-the-road
driver for Allen Iron Works. He quit his job because he was
forced to ‘‘run hot.’’ This means that Bracken was being di-
rected by his employer to operate his vehicle on a public
highway in excess of ten hours a day, the legal maximum
that an over-the-road driver may drive in any 24-hour period
under regulations promulgated by the United States Depart-
ment of Transportation. The obvious purpose of this impor-
tant regulation is to promote highway safety by reducing the
number of vehicle accidents attributable to driver fatigue.
Quitting one’s employment to avoid being charged with a
Federal safety violation and quite possibly to avoid an acci-
dent due to fatigue is a legitimate reason, so backpay will
not be tolled.18
Respondents also argue that backpay liability should be
tolled during the period following Bracken’s departure from
Mid-South Laboratories because, by quitting his job with this
employer, Bracken was willfully leaving the labor force and
thus not entitled to backpay. Bracken was paid a salary by
Mid-South and was being required to work between 50 and
70 hours a week. These conditions and earnings were in no
way comparable to what he would have experienced as an
employee of the Respondents. Bracken was discharged by
Mid-South because he told his employer that he would no
longer work a 70-hour week. This was a legitimate com-
plaint, so backpay will not be tolled. In light of these consid-
erations, I conclude that Tommy Bracken is entitled to an
award of net backpay in the amount of $51,356.72, plus in-
terest.
On the basis of the foregoing findings of fact and conclu-
sions of law, and on the entire record herein considered as
a whole, and pursuant to Section 10(c) of the Act, I make
the following recommended19
ORDER
Respondents Ryder System, Inc., Ryder Distribution Sys-
tems, Inc., DPD, Inc., and Ryder Distribution Resources,
Inc., Memphis, Tennessee, their officers, agents, successors,
and assigns, shall pay to the employees named below the
amounts of net backpay set forth after their names, with in-
terest thereon computed at the short-term Federal rate used
to compute interest on underpayments and overpayments of
Federal income taxes under the Tax Reform Act of 1986,
New Horizons for the Retarded, 283 NLRB 1173 (1987), less
withholdings for Federal and state income taxes and social
security:
Larry G. Elmore—$26,024.83 (interim)
W. David Elmore—$22,593.50
Harold C. Baker—$35,511.85
Bobby L. Goza—$54,984.67
Joe Gross—$12,800.85
Carl Briscoe—$79,267.98
Tommy Bracken—$51,356.72