National Labor Relations Board, Petitioner, v. C.r. Adams Trucking, Inc., and Michael Cates, Respondents, 767 F.2d 1276 (8th Cir. 1985)

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US Court of Appeals for the Eighth Circuit - 767 F.2d 1276 (8th Cir. 1985) Submitted June 7, 1985. Decided July 17, 1985

Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., for petitioner.

Thomas G. Bearden, St. Louis, Mo., for respondents.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

PER CURIAM.


Respondents C.R. Adams Trucking, Inc., and Michael Cates contest the Board's order awarding back pay to Bruce F. Pine and Robert Becker.1  The order awarded back pay to Pine for the period from September 11, 1979, to June 26, 1982, and stated that he was entitled to $17,462 with interest. Becker's back pay award was $18,438 with interest, and it covered the period from September 11, 1979, to June 30, 1982. Respondents argue in this appeal that Pine and Becker are not entitled to back pay past the Spring of 1980. They say that starting in the Spring of 1980, they switched from tandem trucks to tri-axle vehicles, and that tri-axles require driving experience that neither Becker nor Pine had.

The National Labor Relations Board adopted the ALJ's recommended order. The ALJ found that driving a tri-axle vehicle is more difficult and more demanding than driving a tandem truck. The employer's burden, however, is to show that Pine and Becker would have been discharged when the company converted exclusively to tri-axles. See NLRB v. Midwest Hanger Co., 550 F.2d 1101, 1104-05 (8th Cir. 1977), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977). The ALJ concluded that Adams and Cates had not met their burden, and substantial evidence supports his decision. The Board's order is enforced.

 1

The Board's order was entered on remand from our decision in NLRB v. C.R. Adams Trucking, Inc., 718 F.2d 869 (8th Cir. 1983), holding that respondents had unlawfully discharged Pine and Becker. The Board's order is reported at 272 NLRB No. 200 (November 27, 1984)