401 F.3d 815 (7th Cir. 2005), 04-2359, Ryder Truck Rental v. N.L.R.B.

Docket Nº:04-2359
Citation:401 F.3d 815
Party Name:Ryder Truck Rental v. N.L.R.B.
Case Date:March 21, 2005
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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401 F.3d 815 (7th Cir. 2005)

RYDER TRUCK RENTAL, doing business as Ryder Transportation Services, Petitioner, Cross-Respondent,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

Nos. 04-2359, 04-2681.

United States Court of Appeals, Seventh Circuit.
March 21, 2005.
Argued Dec. 9, 2004

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Andrew M. McNeil (Argued), Bose, McKinney & Evans, Indianapolis, IN, for Petitioner in 04-2359.

Christopher W. Young (Argued), National Labor Relations Board, Contempt Litigation Branch, Washington, DC, Rik Lineback, National Labor Relations Board, Region 25, Indianapolis, IN, Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent in 04-2359.

Christopher W. Young (Argued), National Labor Relations Board, Contempt Litigation Branch, Washington, DC, Rik Lineback, National Labor Relations Board, Region 25, Indianapolis, IN, Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Petitioner in 04-2681.

Daniel C. Emerson, Andrew M. McNeil (Argued), Bose, McKinney & Evans, Indianapolis, IN, for Respondent in 04-2681.

Before FLAUM, Chief Judge, and BAUER and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Petitioner Ryder Truck Rental ("Ryder") seeks review of a decision of the National Labor Relations Board ("NLRB" or "Board") holding that Ryder violated §§ 8(a)(1), 8(a)(3), and 8(a)(4) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1), (a)(3), and (a)(4) ("NLRA" or "Act"). The NLRB has filed a cross-application for enforcement of its order. Because the Board's decision is supported by substantial evidence, we deny Ryder's petition

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for review and enforce the Board's order.

I. Background

On April 17, 2001, the International Association of Machinists and Aerospace Workers ("Union") filed a charge with the NLRB alleging that Ryder violated several provisions of the Act. Among other things, the Union alleged that Ryder violated §§ 8(a)(1) and (a)(3) of the Act by discharging employees Timothy Bullman and Allen Feldscher in retaliation for their support for the Union. This charge was later amended and consolidated with a separately-filed charge. An administrative law judge ("ALJ") heard the consolidated case between December 10 and December 13, 2001. On August 1, 2002, the ALJ issued a comprehensive, 55-page decision and order, concluding, in relevant part, that Ryder had violated § 8(a)(1) of the Act by:

(a) Requesting employees to report to management employees who in advocating the Machinists "harass" employees.

(b) Soliciting employee grievances and directly or impliedly promising those grievances would be remedied if they rejected the Machinists as their collective-bargaining representative.

(c) Threatening employees with the loss of vacation benefits if they voted for the Machinists, selected the Machinists as their collective-bargaining representative, or if Respondent entered into a collective-bargaining agreement with the Machinists.

(d) Informing employees that bargaining will start at ground zero like a blank sheet of paper, if its employees select the Machinists as their collective-bargaining representative.

(e) Creating the impression of surveillance of employees' union activities.

(f) Disparaging employees because of their support for the Machinists.

(g) Threatening employees with discharge because they provided testimony to the Board.

The ALJ also concluded that Ryder violated §§ 8(a)(1) and (a)(3) of the Act by discharging Bullman and Feldscher, and violated §§ 8(a)(1), (a)(3), and (a)(4) of the Act by suspending and issuing a final written warning to employee Otis Carpenter because he engaged in union activities and provided an affidavit to the Board.

The ALJ issued an extensive remedial order requiring Ryder, among other things, to: (i) cease and desist from each of its labor violations; (ii) reinstate Bullman and Feldscher and make them whole for any loss of earnings and other benefits they suffered as a result of the unlawful discrimination against them; and (iii) provide notice to all employees of Ryder's violations of federal labor law and inform employees of their federal rights.

On April 30, 2004, a panel of the Board affirmed the ALJ's findings of fact and conclusions of law and adopted the recommended order. 1

In its petition to this Court, Ryder only seeks review of the Board's conclusion that it violated §§ 8(a)(1) and (a)(3) of the

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Act by discharging Bullman and Feldscher. Ryder does not contest the Board's other conclusions or the corresponding portions of its remedial order, and we enforce the Board's order with respect to those uncontested issues. See Rock-Tenn Co. v. NLRB, 69 F.3d 803, 807-08 (7th Cir.1995). However, the unchallenged violations do not disappear altogether. Id. at 808. "They remain, lending their aroma to the context in which the contested issues are considered." Id. (quoting NLRB v. Shelby Mem'l Hosp. Ass'n, 1 F.3d 550, 567 (7th Cir.1993)).

We begin with a recitation of the relevant facts. Ryder is headquartered in Miami, Florida and is engaged nationwide in the business of renting, leasing, and servicing commercial vehicles. Ryder maintains three facilities in its Indianapolis customer business unit: Indianapolis East, Indianapolis West, and Indianapolis North. Each of the Indianapolis locations is staffed by, among others, technicians who perform major repair and maintenance on the trucks, and service island attendants who fuel, inspect, and perform minor maintenance. While the employees at Indianapolis North are represented by Teamsters Local 135, the employees at the Indianapolis East and West facilities have never been represented by a union.

A. Bullman's Organizing Activities

Bullman began working for Ryder as a T-1 technician in 1995, and by November 2000 was promoted to the T-3 level. 2 During this period, Bullman became concerned about the prospect of the Indianapolis West facility converting to a 24-hour, 7-day work schedule. He also learned that employees at a unionized Ryder facility in Cincinnati were earning more per hour than nonunion employees at the Indianapolis locations. Bullman contacted the Union and spoke with its business representative, John Silhavy, about organizing the Indianapolis East and West facilities. Around the same time, Bullman also e-mailed Ryder's human resources department in Miami to complain about the conversion to a 24-7 schedule and wrote to Rhae Buckley, the senior manager of human resources for the region, to complain about the lower pay of the Indianapolis shops compared to the Cincinnati shops.

On November 16, 2000, Bullman and Chad Luster, another Ryder employee, met with union representative Silhavy. Bullman and Luster signed a petition stating:

We believe that only through collective bargaining can we have a voice in our work place, achieve fair treatment for all, establish seniority and better benefits, wages and working conditions. Therefore, this will authorize the International Association of Machinists and Aerospace Workers, AFL-CIO to represent me in collective bargaining with my employer. This will also authorize the union to use my name for the purpose of organizing Ryder Transportation Services.

In the following days, Bullman approached fellow Ryder employees about signing the petition. Some employees informed Bullman's supervisor, Richard Woehlke, about Bullman's organizing efforts on behalf of the Union. Woehlke testified that he told these employees "if you feel you are being harassed then you need to put it in writing and then come see me."

B. Ryder's Response

On December 11, 2000, the Union submitted a petition for an election among the

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32 service attendants and technicians at the Indianapolis East and West facilities. Ryder management immediately began devising a strategy to respond to the petition. For the following three days, December 13, 14, and 15, 2000, Buckley met with Bill Herlihy, regional director of employee-labor relations, and Roger Cicchini, regional vice-president of operations, to "identify key participants, [and] set forth [an] action plan and key issues to be addressed." During these meetings, Buckley explained to Cicchini the "dos and don'ts" of conducting a union campaign, which he shorthanded as "TIPS"--meaning that management cannot threaten, interrogate, make promises to, or engage in surveillance of employees. The managers devised an extensive campaign schedule consisting of daily meetings between managers and employees in the shop. At these meetings, managers sought to explain the company's view that a union was not necessary and that they should give new regional general manager Michael Campanale a chance. 3

Adhering to this campaign schedule, Ryder managers met with employees almost daily until January 19, 2001, the planned election date. On December 19, 20, and 21, 2000, Buckley and Herlihy met with all six shifts of employees subject to the...

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