N.L.R.B. v. Browne

• Decision Date: 28 November 1989
• Docket Number: No. 182,D,182
• Citation: 890 F.2d 605
• Parties: 133 L.R.R.M. (BNA) 2156, 113 Lab.Cas. P 11,684 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Donald BROWNE d/b/a Bailey Distributors, Respondent. ocket 89-4062.
• Court: U.S. Court of Appeals — Second Circuit

Page 605

890 F.2d 605

133 L.R.R.M. (BNA) 2156, 113 Lab.Cas. P 11,684

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Donald BROWNE d/b/a Bailey Distributors, Respondent.

No. 182, Docket 89-4062.

United States Court of Appeals Second Circuit.

Argued Sept. 20, 1989.

Decided Nov. 28, 1989.

Richard S. Boris, New York City (Neal D. Haber, Moss & Boris, New York City, of counsel), for respondent.

Judith A. Dowd, Supervisory Atty., NLRB, Washington, D.C. (Joseph E. Desio, Acting General Counsel, Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, Frederick C. Havard, NLRB, Washington, D.C., of counsel), for petitioner.

Before VAN GRAAFEILAND, MESKILL and KEARSE, Circuit Judges.

MESKILL, Circuit Judge:

This is a petition for enforcement of a supplemental order of the National Labor Relations Board ("NLRB" or "Board") pursuant to section 10(e) of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. Sec. 160(e), directing Respondent Donald Browne, d/b/a Bailey Distributors ("Bailey" or "Company"), to pay discriminatee Timothy Nevins $171,912, plus interest, in back pay and to reinstate certain pension benefits.

Notwithstanding the uncontested fact that Nevins' New York State driver's license was either suspended or revoked for most of the back pay period in question, the Board based its calculation of his back pay award on a "driver's" commission rate. In resisting enforcement of the Board's order, Bailey contends that Nevins' back pay should not have been calculated at the "driver's" rate for the period of time that Nevins' was legally prohibited from serving as a driver of Bailey's delivery trucks and that Browne's April 27, 1987 offer of reinstatement tolled the Company's back pay liability.

We deny enforcement of the petition and remand for recalculation of the back pay award.

BACKGROUND

The genesis of this proceeding is a Supplemental Decision and Order of the NLRB, dated April 14, 1987 and reported at 283 N.L.R.B. 647 (First Supplemental Order), in which Browne, as owner and operator of Bailey Distributors, was found to have discriminatorily denied Nevins employment as a "driver's helper" on January 5, 1981 in violation of sections 8(a)(1) & (3) of the NLRA, 29 U.S.C. Secs. 158(a)(1) & (3). ¹ The 1987 order directed Browne to offer Nevins employment "in the position for which he is qualified and in which he would have been employed but for the discrimination against him," and to fully compensate Nevins for "any loss of earnings or ... benefits suffered as a result of the discrimination against him." Donald Browne d/b/a Bailey Distributors, 283 N.L.R.B. 647, 648 (1987). On August 5, 1987, we entered a consent judgment enforcing the order.

Thereafter, by letter dated April 27, 1987, Browne offered Nevins a position with Bailey as a driver's helper. In addition, pursuant to the issuance of a Backpay Specification and Notice of Hearing, a hearing to determine Bailey's back pay liability was held before an Administrative Law Judge (ALJ) on November 30 and December 1, 1987. Testimony at the hearing established that between 1977 and January 2, 1981, Nevins was employed sporadically by Bailey as a relief driver and a driver's helper. Nevins also worked briefly as a regular driver on a newly established route that was cancelled in September 1980 for economic reasons. Furthermore, on a number of occasions prior to 1981, Browne had informed Nevins that he would be given the next delivery route to become available and that Nevins should "hang in there" until one of the drivers retired. However, on January 5, 1981, following the termination of one of Bailey's regular drivers, Nevins was offered continued employment only as a driver's helper, and only on the condition that he accept forty to fifty dollars a day "off the books"--i.e., in contravention of the wage and benefit provisions of the collective bargaining agreement between the Soft Drink Workers Union and the New York Pepsi-Cola Distributors Association, Inc., of which Bailey is a member.

Further testimony revealed that Nevins' driver's license had been either suspended or revoked for most of the six and one-half year back pay period in question. ² Although Nevins testified that on January 5, 1981 he held a valid Class 1 license, which authorized operation of Bailey's large commercial delivery vehicles, see N.Y.Veh. & Traf.Law Sec. 501 2(a) (McKinney Supp.1989), that license was suspended on June 16, 1982 for failure to pay certain summonses. Before this suspension was lifted, Nevins' license was again suspended on March 29, 1983. On May 13, 1987, Nevins was issued a Class 5 license, which authorized only the operation of passenger vehicles and small commercial trucks. See id. Sec. 501 2(e) (McKinney 1986). This license was revoked on June 23, 1987 for operating a vehicle without insurance. After surrender of his license on November 30, 1987, Nevins obtained a Class 5 "restricted use license" on December 21, 1987 pursuant to N.Y.Veh. & Traf.Law Sec. 530 (McKinney Supp.1989), which provides, in pertinent part, that "[a] person whose driving license ... has been ... suspended or revoked ... and for whom the holding of a valid license is a necessary incident to his employment ... may be issued a restricted use license." This license was suspended on November 11, 1988, but reinstated on January 10, 1989. Thus, during the period between June 12, 1982 and January 10, 1989 Nevins drove legally for approximately twelve months--i.e., from May 13, 1987 to June 23, 1987 and from December 21, 1987 to November 9, 1988.

On January 29, 1988, the ALJ ruled, inter alia, that although Nevins was discriminatorily denied hire as a "driver's helper," he was entitled to back pay calculated at a "driver's" commission rate from February 15, 1981 forward, since he would have been promoted to a driver's position by that date. Furthermore, the ALJ rejected Bailey's contention that Nevins' lack of a valid Class 1 driver's license from June 16, 1982 forward, mandated that his back pay be calculated at the driver's helper rate. Finally, the ALJ concluded that Browne's April 27, 1987 offer of reinstatement did not toll Bailey's back pay liability, as the offer had been improperly tainted by threatening statements made by Browne to Nevins on May 7, 1987--four days prior to Nevins' written acceptance of the offer. On February 14, 1989, the NLRB affirmed the ALJ's rulings and issued a Second Supplemental Order awarding Nevins $171,912, plus interest, in back pay and the restoration of certain pension benefits. The Board presently seeks enforcement of its Second Supplemental Order.

DISCUSSION

In resisting enforcement of the NLRB's Second Supplemental Order, Bailey contends that (1) the NLRB erroneously concluded that Nevins' back pay should be calculated at the "driver's" rate for the period of time that his driver's license was suspended or revoked; and (2) the NLRB erroneously concluded that Browne's April 27, 1987 offer of reinstatement, "which was unconditionally accepted by Nevins," did not toll the Company's back pay liability.

A. Standard of Review

Section 10(c) of the NLRA, 29 U.S.C. Sec. 160(c), provides, in pertinent part:

If ... the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue ... an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this subchapter.

29 U.S.C. Sec. 160(c). In fashioning a particular remedy pursuant to section 10(c) the NLRB is given broad discretion, Detroit Edison Co. v. NLRB, 440 U.S. 301, 316, 99 S.Ct. 1123, 1131, 59 L.Ed.2d 333 (1979), and its remedial choice is subject to limited judicial scrutiny. Shepard v. NLRB, 459 U.S. 344, 349, 103 S.Ct. 665, 669, 74 L.Ed.2d 523 (1983); NLRB v. Local 3, Int'l Brotherhood of Elec. Workers, 730 F.2d 870, 879 (2d Cir.1984); Teamsters Local 115 v. NLRB, 640 F.2d 392, 399 (D.C.Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981). On review, this choice will not be disturbed " 'unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.' " Fibreboard Paper Prods. Corp. v. NLRB, 379 U.S. 203, 216, 85 S.Ct. 398, 405, 13 L.Ed.2d 233 (1964) (quoting Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943)); see also Bagel Bakers Council of Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir.1977) (per curiam) (remedial choice can be reversed "only if ... the method chosen was so irrational as to amount to an abuse of discretion"). Underlying factual findings of the NLRB will be conclusive if they are supported by substantial evidence on the record considered as a whole. 29 U.S.C. Sec. 160(e); see also Local 3, 730 F.2d at 876.

B. The Merits

1. Back Pay Calculation

The Board based Nevins' back pay calculation on the earnings of three Bailey employees who had been hired as "driver's helpers" and subsequently promoted to "drivers." The ALJ's finding that "had Nevins been employed as a helper by Browne [on January 5, 1981] ... he would have [eventually] become the driver of the fourth truck route" is adequately supported by substantial evidence. Our review therefore focuses on the Board's method of calculating Nevins' back pay after he became entitled to a "driver's" position. Bailey argues that since a Class 1 license was functionally necessary for Nevins' employment as a "driver," back pay should not have been calculated at the "driver's" commission rate during the period of time that Nevins was "legally prohibited from operating the Company's trucks." We agree.

While the NLRB's discretion in...