Petition for Writ of Certiorari — Airlines Transportation Co. v. National Labor Relations Board

No.

IN THE SUPREME COURT CF

1986 TERM

AIRLINES TRANSPORTATION COMPANY,

Petitioner,

Vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

GEORGE W. JACOBY, ESQ.

1300 Fifth Avenue

Pittsburgh, PA 15219-6270

(412) 288-9448

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

ee

Il.

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT (HEREIN

"THIRD CIRCUIT") PROPERLY AFFIRMED THE

ORDER OF THE NATIONAL LABOR RELATIONS

BOARD (HEREIN “NLRB") AND GRANTED THE

NLRB'S APPLICATION FOR ENFORCEMENT.

WHETHER SUBSTANTIAL EVIDENCE SUPPORTS

THE NLRB'S CONCLUSION THAT EMPLOYEE

PAUL CONWAY (HEREIN "CONWAY") WAS DIS-

CHARGED FOR ENGAGING IN PROTECTED

CONCERTED ACTIVITY IN VIOLATION OF

SECTION 8(a)(1) OF THE NATIONAL LABOR

RELATIONS ACT, 29 U.S.C. SEC. 151,

ET SEQ. (HEREIN "THE ACT").

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW. .

TABLE OF AUTHORITIES. . .... .

OPINIONS BELOW. . . «© © © «© se « «

STATEMENT OF JURISDICTION ....

STATUTES INVOLVED . . «.« « « «© « e

STATEMENT OF THE CASE . . .« « « e«

REASONS FOR GRANTING THE WRIT. .

COMPG aCe oc tt tt ltl tl tl ll

APPENDIX

Order of the Third Circuit

eS ee ee

Decision and Order of the

National Labor Relations Board.

CERTIFICATION OF SERVICE. ....

ii

-30a

TABLE OF AUTHORITIES

Emporium Capwell Co. v. WACO, 420

Via Oe Saeteie « sk *. & eee Se ee

Food Fair Stores, Inc. v. NLRB,

Gok Dame wee SGA 22978 « 2 4 se 8 ee

Mastro Plastics Corp. v. NLRB,

See Siln 2Te Cheon «es 4 6% ee Se

NLRB v. City Disposal Systems,

$8 Ba COs Joon £hee ass es wae 8s

Suburban Transit Corporation v.

Romms 2a0 £.40 L010 (CA 3 £976) . « 6 oe

Teamsters Local 174 v. Lucas Flour,

309 Gils Se CAPER 6 eo Ss

iii

OPINIONS BELOW

The Judgment Order of the United

States Court of Appeals for the Third

Circuit affirming the Order of the

National Labor Relations Board granting

the application for enforcement. Both

Orders are set forth in the Appendix

herein beginning at Page la.

Pl a ass bet Go “se 4

STATEMENT OF JURISDICTION

On August 7, 1986, the Third Cir-

cuit entered a judgment order affirming the

order of the NLRB and granted the NLRB's

application for enforcement of its order

which is reported at 277 NLRB No. 37.

This Court has jurisdiction to review

the jdugment order of the Third Circuit by

virtue of 28 U.S.C. Section 1254 and 29

U.S.C. Section 160(e).

STATUTES INVOLVED

29 U.S.C. Section 157:

Employees shall have the right to

self-organization, to form, join, or assist

labor organizations, to bargain collectively

through representatives of their own choosing,

and to engage in other concerted activities

for the purpose of collective bargaining or

other mutual aid or protection, and shall

also have the right to refrain from any and

all such activities except to the extent

that such right may be affected by an agree-

ment requiring membership in a labor or-

ganization as a condition of employment as

authorized in Section 8(a)(3).

29 U.S.C. Section 158(a):

It shall be an unfair labor practice

for an employer - (1) to interfere with,

restrain, or coerce employees in the

exercise of the rights guaranteed in Section

(7) (29 U.S.C. Section 157).

f

STATEMENT OF THE CASE

ATC operates a limousine and bus ser-

vice for the purpose of transporting airline

passengers between Greater Pittsburgh Inter-

national Airport (herein "GPIA") and various

hotels in the Pittsburgh, Pennsylvania area.

Drivers for ATC, including Conway, are rep-

resented by Taxicab Drivers Local Union No.

128, a/w International Brotherhood of Team-

sters, Chaffeurs, Warehousemen and Helpers

of America (herein “Union"). At all times

relevant hereto, ATC and the Union were par-

ties to a collective bargaining agreement

dated July 6, 1979.

On November 6, 1981, Conway began

word at 1:15 P.M. and was scheduled to end

his shift at 9:45 P.M. After making several

trips on this date, at approximately 5:45

P.M. he arrived at the Sheraton Inn South,

a suburban hotel located nineteen miles from

GPIA. Service from the Sheraton to GPIA was

scheduled to leave at 6:00 P.M. in order to

arrive at GPIA at 6:30 P.M., with a return

trip from GPIA to the Sheraton at 7:00 P.M.

Upon his arrival, Conway called the

ATC dispatcher to inquire if there were any

6:00 P.M. passengers for the trip to GPIA.

He was told there was a passenger to be picked

up. However, no one was at the stop. At

6:05 P.M., Conway again called the dispatcher

and was informed that the 6:00 P.M. passenger

had canceled. Conway was instructed to re-

turn to GPIA. However, Conway failed to re-

turn to GPIA when instructed. Instead, he

made a personal telephone call. As a re-

sult, Conway did not arrive at GPIA until

6:55 P.M. when he bail dean expected much

earlier.

Upon his arrival at GPIA, Conway was

informed that there were four or five pas-

sengers for the 7:00 P.M. return trip to the

Sheraton. Conway refused to take this trip,

insisting that he was going to take his

thirty-minute lunch break. Under the terms

of the collective bargaining agreement, em-

ployees are entitled to a thirty-minute lunch

break between the fourth and sixth hours of

work. Conway told his supervisor, "Do what

you want with them, cab them or helicopter

or whatever, I'd like my lunch hour; I'm due

for lunch." Conway claimed the reason he was

insisting on his lunch break was that he

did not want to work overtime while other

drivers were laid off. It is unclear how

overtime would have been involved. Conway

was told he could take a fifteen-minute

lunch and leave at 7:15 P.M., but he insisted

on a full thirty-minute break.

Another ATC supervisor tried to per-

suade Conway to take the passengers to the

Sheraton. Conway told the supervisor, "I

don't care what he does with those passen-

gers. . . that's not my problem; it's theirs."

Due to Conway's refusal to make the trip, the

passengers were cabbed to their destination

at 7220 P.M.

On November 12, 1981, Conway was

questioned regarding his conduct on November

6, 1981, at a grievance meeting. Following

the meeting, Conway was terminated. The

Union chose not to arbitrate the legitimacy

of Conway's discharge.

Based on the above, the NLRB concluded

that ATC violated Section 8(a)(1l) of the Act

by discharging Conway. Thereafter, the NLRB

applied to the Third Circuit, pursuant to

Section 10(e) of the Act, for enforcement

of its order. The Third Circuit granted that

application.

REASONS FOR GRANTING THE WRIT

Section 8(a)(1) of the National Labor

Relations Act makes it an unfair labor prac-

tice for an employer "to interfere with,

restrain or coerce employees in the exercise

of the rights guaranteed in Section 7."

Section 7 of the Act guarantees employees

"the right to self-organization, to form,

join, or assist labor organizations, to bar-

gain collectively through representatives of

their own choosing, and to engage in other

concerted activities for the purpose of col-

lective bargaining or other mutual aid or

protection: «+ .« «°

The NLRB found that ATC violated

Section 8(a)(1) by discharging Conway for

insisting upon his contractual right to take

his lunch break. In reaching this conclusion,

the NLRB relies upon the Supreme Court's

decision in NLRB v. City Disposal Systems,

104 S. Ct. 1505 (1984).

EEE

av

City Disposal held, ina 5-4 decision,

that "concerted activities" includes an

honest and reasonable assertion by an indi-

vidual employee of a right grounded in a col-

lective bargaining agreement. That case

involved an employee who refused to drive an

unsafe vehicle pursuant to the collective

bargaining agreement which specifically

granted a right to refuse to drive unsafe

vehicles.

I. Conway's Activity Was Not Concerted.

Under City Disposal, in order to con-

stitute "concerted activity" the individual

employee's assertion of a contract right

must be “honest and reasonable." The Court

stated:

"As long as the employee's state-

ment or action is based on a

reasonable and honest belief that

he is being, or has been, asked

to perform a task that he is not

required to perform under his

collective bargaining agreement,

and the statement or action is

reasonably directed toward the

enforcement of a collectively

bargained right, there is no jus-

tification for overturning

Board's judgment that the employee

is engaged in concerted activity,

just as he would have been

had he filed a formal

grievance." (at p. 1514).

In the instant case, there is no ques-

tion that employees are entitled to a lunch

break. However, in the circumstances here-

in, Conway's assertion of his right to a

lunch break was not reasonable. First, he

had already taken a 15-minute break when he

admittedly made a personal telephone call at

approximately 6:05 P.M. Had he not taken the

time to make the call, he would have returned

to GPIA, as he had been instructed to do,

in plenty of time to take his lunch break

and be ready to take the 7:00 P.M. trip.

Regardless of which version of the delay is

accepted, i.e., when the phone call occurred

vis-a-vis the encounter with the passenger,

the delay was occasioned by Conway's failure

to follow the instructions he received at

6:05 P.M. to return to GPIA.

As a long-term employee, Conway would

have been fully aware of the necessity to

’ provide timely service to airline passengers.

Yet, Conway disregarded ATC's interest in this

regard. In Conway's view, it was ATC's prob-

lem, not his problem, that passengers would

have to find another means of transportation.

Second, Conway's assertion of his

right to a lunch break was not reasonably

directed toward the enforcement of a collec-

tively bargained right. In Conway's own

testimony, he noted that he was relying upon

his right to a lunch break, in effect, as a

ruse, to protest a condition completely un-

related to lunch breaks. He wanted to pro-

test the fact that 4 of ATC's 36 drivers

were on lay-off status. Accordingly, his

conduct would not be deemed "concerted."

Lastly, as the Court noted in City

Disposal, at some point an individual employ-

ee's action may become so remotely related to

ithe lay-offs were due t. a decline in pas-

sengers resulting from the Air Traffic

Controllers strike.

4 ll

the activities of fellow employees that it

cannot reasonably be said that the employee

is engaged in concerted activity, e.g., it

would not be a violation of the National

Labor Relations Act to discharge an employee

for purely personal "“griping." See, City

Disposal at 1512, note 10.

In the instant case, that Conway's

insistence on his lunch break in order to

protest the fact that employees were on lay-

off status was so remotely related to the

activities of his fellow employees can be

seen from the fact that his position does not

even make sense. There is no connection be-

tween Conway's right to a lunch break and the

lay-off status of other employees. Conway

tried to establish some link between the two

by claiming overtime was somehow involved,

but his explanation also makes no sense. Al-

though the NLRB claims overtime would have

been involved, there is no explanation or

basis for such a finding.

12

What does make sense is the fact

that by insisting on his lunch break at that

particular time, Conway was setting the

stage to obtain an early quit. This would

have been accomplished by waiting to take

the 8:00 P.M. trip from GPIA. However, this

effort was foiled by ATC requiring Conway to

"Shift," i.e., drive without passengers to the

Sheraton, at 7:30 P.M. in order to take the

8:00 P.M. return trip from the Sheraton.

Based on the above, applying the

principles set forth in City Disposal, Con-

way's conduct would not constitute "concerted

activity." Moreover, the dissenting opinion

in City Disposal demonstrates that City Dis-

posal was improperly decided and that such

individual conduct does not constitute con-

certed activity. Accordingly, ATC respect-

fully requests that this Court reconsider its

decision in City Disposal.

II. Conway's Conduct Was Not Protected.

Assuming arguendo that Conway's action

was "concerted," not all "concerted activity"

is protected. As noted by the Court in

City Disposal, the only issue presented was

whether the activity was "concerted", not

whether it was protected. For instance, an

employee may lose protection if he engages

in concerted activity in an abusive manner.

See, City Disposal at 1516.

In the instant case, Conway refused

to take the 7:00 P.M. run when instructed

to do so. Such refusal constituted a work

stoppage.

The collective bargaining agreement

between ATC and the Union provides for a

grievance-arbitration procedure to resolve

all disputes. Under Teamsters Local 174 vs.

Lucas Flour, 369 U.S. 95 (1962), such a pro-

vision creates, by implication, a no-strike

provision, Thus, employees of ATC have waived

their right to engage in work stoppages. Ac-

cordingly, Conway's refusal to perform ser-

vices constitutes a breach of the no-strike

provision and as such, renders his conduct

unprotected.

14

3

As noted in City Disposal at 1516,

no-strike provisions are a common mechanism

whereby parties agree employees will not

invoke their rights by refusing to work.

"In general, if an employee violates such a

provision, his activity is unprotected even

- though it may be concerted." See Mastro

Plastics Corp. v. NLRB, 350 U.S. 270 (1956).

See also, Suburban Transit Corporation v.

NLRB, 536 F.2d 1018 (CA 3 1976), and Food

Fair Stores, INc. v. NLRB, 491 F.2d 388

(CA 3 1974).

In Suburban Transit the issue presented

was whether the collective bargaining agree-

ment expressly or impliedly prohibited strikes.

As this Court noted:

". - e it is well-settled that

strikes carried out in viola-

tion of a no-strike provision

in a collective bargaining

agreement are not afforded the

protection of Section 7 and

that a discharge of employees

who engage in such strike

does not constitute an unfair

labor practice." (at 1020).

The grievance-arbitration language

involved in Suburban Transit, wherein this

Court found such language to prohibit

strikes, is similar to the language contained

in the ATC collective bargaining agreement.

Accordingly, ATC's employees have waived

their right to strike and by engaging ina

work stoppage, Conway was engaged in unpro-

tected activity.

More importantly, in Conway's own

view, he was refusing to work, not because

he wanted to eat lunch, but because he wanted

to protest the lay-offs of other drivers.

Clearly, the collective bargaining agreement

does not provide for such a right. To the

contrary, the collective bargaining agreement

requires employees to utilize the grievance-

arbitration procedure to resolve their dis-

putes with management.

In Emporium Capwell Co. v. WACO,

420 U.S. 50 (1975), employees by-passed their

contractual grievance procedure to protest

16

,

i

the employer's alleged discriminatory prac-

tices. The Court held such conduct to be

unprotected. Similarly, Conway's conduct

in by-passing the grievance procedure in order

to protest the lay-offs of other drivers was

unprotected. Accordingly, ATC did not

commit an unfair labor practice by discharg-

ing him.

a

CONCLUSION

For the foregoing reasons, Peti-

_tioner requests this Honorable Court to

issue a writ of certiorari to the United

States Court of Appeals for the Third

Circuit.

Respectfully submitted,

By

org) W. Jacoby,

Attorney for Peti

18

“*

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-3710

NATIONAL LABOR RELATIONS BOARD,

Petitioner

Ve

AIRLINES TRANSPORTATION COMPANY,

Respondent.

On Application for Enforcement

of an Order of the

National Labor Relations Board

(NLRB NO. 6-CA-15129)

Submitted Under Third Circuit Rule 12(6)

July 30, 1986

Before: ALDISERT, Chief Judge, and

HIGGINBOTHAM, Circuit Judge, and

RE, Chief Judge.*

*Honorable Edward D. Re, Chief Judge, United

States Court of International Trade, sitting

by designation.

la

JUDGMENT ORDER

After consideration of all contentions

raised by petitioner, it is

ADJUDGED, ORDERED and DECREED that

the order of the National Labor Relations

Board be affirmed and the application for

enforcement is granted.

Each party to bear its own costs.

BY THE COURT,

s/A. Leon Higginbotham

Circuit Judge

Attest:

s/Sally Mrvos

Sally Mrvos, Clerk

DATED: WG 7 1986

2a

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

AIRLINES TRANSPORTATION COMPANY

and Case 6--CA--15129

PAUL L. CONWAY, an Individual

Michael Poprik, Esq., for the General

Counsel

Timothy E. Finnerty, Esq., of Pittsburgh,

PA, for the Respondent.

DECISION

Statement of the Case

MARION C. LADWIG, Administrative Law

Judge. This case was tried at Pittsburgh,

Pennsylvania, August 10, 1982. The charge

was filed by Paul Conway December 2,

1981, and the complaint was issued

January 28, 1982. Conway and other airport

limousine drivers were complaining about

working overtime and through their con-

tractual 30-minute lunch period while four

7 hl dates are in 1981 unless otherwise

indicated.

j 3a

drivers were laid off during the air

traffic contzollers strike. To make this

point, Conway insisted on taking his

lunch break, causing him to miss a trip.

The primary issues are whether he was en-

gaged in protected concerted activity

and whether the Company, the Respondent,

unlawfully discharged him in violation of

Section 8(a)(1) of the National Labor

Relations Act.

On the entire record, including my

observation of the demeanor of the witnes-

ses, and after consideration of the briefs

filed by the General Counsel and the Com-

pany, I make the following

Findings of Fact

I. Jurisdiction

The Company, a Pennsylvania cor-

poration, transports passengers intrastate

between the airport and various locations

in Pittsburgh, Pennsylvania, where it

annually derives gross revenue exceeding

$500,000 and receives goods valued over

$2000 directly from outside the State.

The Company admits and I find that it is

an employer engaged in commerce within

the meaning of Section 2(2), (6), and

(7) of the Act and that the Union is a

labor organization within the meaning of

Section 2(5) of the Act.

A. Background

Limousine driver Paul Conway had

been employed 15 1/2 years and had a

spotless record.

Because of reduced business during

the air traffic controllers strike, which

began in August, the Company had its

first layoff in 36 years, laying off 4

of its 36 drivers (Tr. 181). In general

discussions among all the limousine

drivers, Conway and others stated they

did not feel they should be required to

work overtime or through their lunch

period on the "skeleton crew" while the

a OS :

men were laid off (Tr. 31--32, 76) and

that “it was unfair, it wasn't right to

be working overtime while there were men

laid off" (Tr. 90--91). They complained

to their driver representative that they

were doing the work of the laid-off men,

sacrificing their lunch periods and

working overtime (Tr. 126--127). It is

undisputed that management was aware of

this complaining, from employee complaints

at the dispatcher level (Tr. 91--92).

The collective-bargaining agreement

provides for overtime at time and a half

after 8 hours a day, and also provides

that employees "will have" a nonpaid one-

half-hour lunch period "to be taken be-

tween the fourth and sixth hours of work"

(G.C. Sah. 2, art. IV,A).

The Company admitted at the trial

that overtime is not mandatory (Tr. 180),

and admitted at page 8 of its brief that

"If a driver does not wish to waive his

lunch period, he will be permitted to go

to lunch without receiving warning, repri-

mand or discipline."

B. Conway's Discharge

1. Insisting on lunch period

On Friday, November 6, Conway went

to work at 1:15 P.M. and was due his 30-

minute lunch period by 7:15 P.M.

On his third trip from the airport,

he arrived at the Sheraton South (19 miles

away) about 5:45. At 6:05 he reported to

his dispatcher that the 6 o'clock passenger

was a no-show, and the dispatcher in-

structed him to return empty to the air-

port. Upon approaching his limousine,

however, Conway saw the tardy passenger,

who had already placed his luggage in the

limousine (Tr. 13). The passenger asked

Conway to wait a few minutes while he

finished his dinner (Tr. 15--16). Conway

agreed to wait, and while doing so, placed

a telephone call (to Supervisor John

Ja

Colosimo's brother about flight in-

struction (Tr. 16)). Conway then drove

the passenger to the airport, arriving

about 6:55, and took his lunch break

from 7 to 7:30.

Not being informed of the delay at

the Sheraton South, Dispatcher John

Koehler had planned to assign Conway to

take the 7 o'clock trip back to the

hotel. Both Koehler and Supervisor

Colosimo attempted to persuade Conway

to take only a 15-minute lunch break

and then take the five waiting passengers,

but he refused. He insisted on taking

his full 30-minute lunch period, stating

that he wanted to make the point that "we

should not work overtime while we had

men laid off." (Tr. 17--19, 36, 41,

46--47, 143--144, 155--156, 161, 164,

169--171, 173.)

Because of the Company's policy

of not having passengers wait as long as

8a

30 minutes (Tr. 146, 171), Dispatcher

Koehler ordered a taxicab for the five

passengers sometime between 7:15 and 7:20.

(At the limousine rate of $56.65, the

passengers paid a total of $28.25 for the

taxi ride. By a bookkeeping entry, the

related taxicab company charged the

Company the taxi fare of $24.)

There were no waiting passengers

at 7:30 when Conway finished his 30-minute

lunch break. Shortly after 7:30 he was

shifted to the Sheraton South to make the

8 p.m. return trip.

2. His discharge

On Monday, November 9, Chief Dis-

patcher Roy Dietz notified Conway by tele-

phone that President James Sinnott had

ordered him held off work for refusing a

trip. Conway denied refusing a trip,

stating "I just insisted on my lunch

hour, because I was due for lunch ac-

ai 9a

cording to the contract." Dietz then

said that a meeting with Sinnott was set

for Thursday, November 12. (Tr. 20.)

On November 12, Teamsters Local

128 President William Carson, Steward

Paul Dinert, and Conway met with Company

President Sinnott and Claims Manager

Robert Napolitan. Sinnott opened the

meeting by giving them statements by

Dispatcher Koehler and Supervisor Colosimo

to read (G.C. Exhs. 3 and 4). Both

statements reported that Conway had re-

fused to make the 7 o'clock trip to make

or prove a point. Sinnott asked Conway

for his reply. Conway recounted what

happened and admitted insisting on taking

his lunch period to make a point (Tr. 24--

28, 58--61). (As credibly testified by

Conway, who appeared to be an honest,

forthright witness, he told Sinnott in

the meeting (Tr. 27) that he made the

telephone call while waiting for the

10a

x passenger, not before the passenger ap-

peared as claimed in Koehler's statement

and as claimed by both Koehler (Tr. 143,

149) and Napolitan (Tr. 200, 202) at

the trial. Koehler and Napolitan, as

well as Colosimo, Lasuenui me by their

demeanor on the stand as being willing

to give any testimony that would help

the Company's cause.)

President Sinnott asked, “What's the

point you're trying to make?" (as recalled

by Conway (Tr. 28), or "What are you

trying to prove?" as recalled (Tr. 61) by

Local President Carson). After Conway

explained, "I don't feel we (emphasis

supplied) should have to work overtime

when men are laid off" (Tr. 28), Sinnott

stated, "Well you proved your point, you

no longer work for this Company" (Tr. 61),

"You're discharged for insubordination"

(Tr. 25). Steward Dinert protested that

Conway had been a driver for 15 1/2 years

and this was pretty severe punishment for

F | _

a one-time offense. Local President

Carson pointed out that it was the

driver's prerogative under the contract

to take his lunch period between the

fourth and sixth hours of work. “Speaking

to Conway, Sinnott responded that 16

years of service "does not give you the

right to tell me how to run the Company."

(Tr. 25--26, 61--63). Sinnott thus con-

verted the November 6 suspension into a

discharge.

On November 13, Claims Manager

Napolitan prepared a letter to the Union

for President Sinnott's signature (Tr. 206),

stating that Conway was dismissed for just

cause and that Conway, "due to delaying

tactics. . . did not arrive until 6:55 P.M.

and insisted that he be given his lunch

break even though he was needed to make

a trip and informed his supervisor that

he could cab passengers to their destina-

tion." In his January 28, 1982 pretrial

affidavit (G.C. Exh. 6), Napolitan ex-

;

:

;

Ting ie Nath Sa Wah Se nated

plained the discharge by stating that

Sinnott informed Conway at the November 12

meeting "that he was being discharged for

refusal to work, that refusal to take a

trip was insubordination." In its answer

(G.C. Exh. l(e)), filed February 5, 1982

(over 6 months before trial), the Company

asserted that its action in dismissing

Conway “was due to the action of the

Employee in failing to take a direct order

from his supervisor and causing the Respon-

dent to provide alternate means of tran-

sportation for its customers."

The General Counsel contends that

Conway was discharged for making the

point and bringing to the Company's

attention, by insisting on his contractual

lunch period, “the group complaint of

Respona»nt's drivers that it was unfair

of Respondent to expect them to work over-

time while their fellow drivers were

laid off."

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Kater lien Bh: dh

Cc. Shifting Defense

By the time of trial, the Company

had fabricated the defense that it had

discharged Conway, not for refusing to

take the 7 o'clock passengers during his

30-minute break but for refusing to take

them at 7:30, after the lunch break.

Thus, Claims Manager Napolitan

falsely testified that "There was no

problem about [Conway's] taking his

lunch between the fourth and sixth hours.

The problem was he refused to take the

passengers after lunch: (Tr. 208); “What

he was discharged for was the refusal to

take the passengers after seven thirty.

That's what Mr. Sinnott was upset about."

(Tr. 204). Napolitan falsely denied that

Conway stated at the November 12 meeting

that he refused to take the passengers

because he wanted to take his lunch (Tr.

212), despite Napolitan's admission in

l4a

his pretrial affidavit, "Conway stated

that he refused to take the passengers

because he wanted to take his lunch."

Supervisor Colosimo also gave false

testimony to support this fabrication,

although at one point he deviated from

the defense. When questioned about his

conversation with Conway (about 7:10 when

Dispatcher Koehler sent Colosimo over to

persuade Conway to take only a 15-minute

lunch break), Colosimo admitted that Con-

way responded, “I want to have my lunch

and then I'll go“ (Tr. 169). Appearing

to realize that this answer would undercut

the Company's defense, Colosimo quickly

changed his testimony and later claimed,

"He led me to believe he wasn't going to

take the passengers (Tr. 173). He further

claimed on cross-examination:

Q. Mr. Conway told you that he

did not desire to take the

people at seven thirty?

A. Yes.

“ l5a

Q. He did not say he would not

take the people at seven thirty?

A. He said he didn't care how we

got the people there.

Q. That he didn't care how you

got the people there, that

he was taking his lunch until

seven thirty?

As WE. FTE. 274. }

(I note that in his pretrial affidavit

(G.C. Exh. 4), Colosimo stated that Koehler

asked him to talk to Conway about making

the trip "after he was off lunch," but

that Conway “said he didn't want any over-

time" ---obviously referring to Conway's

refusal to accept overtime pay for the

last 15 minutes of an abbrieviated lunch

period and to take the passengers at 7:15.

Colosimo admitted at the trial (Tr. 164)

that he was asking Conway at 7:10 to take

the passengers then instead of waiting

until 7:30, and Koehler admitted (Tr. 161)

that Conway was refusing to take the pas-

sengers at 7:15.)

l6a

Also in support of the Company's

belated defense, Dispatcher Koehler

claimed that he would not have sent the

passengers by taxicab but would have

waited 30 ninates until after Conway's

lunch period if Conway had said he would

take the passengers then (Tr. 148), and

that the only reason he did not wait

was his belief that Conway would refuse

at 7:30 to carry them (Tr. 159--160).

I discredit this testimony as an obvious

fabrication. The Company had a policy

against having passengers wait 30 minutes.

Supervisor Colosimo admitted: "We don't

really make it a point to make people

wait a half hour. . . Five or ten minutes

people don't mind, but .. .a half hour.

We would lose the business, people would

get cabs or rent a car or something"

(Tr. 171). Furthermore, Koehler was

working under the supervision of Chief

Dispatcher Dietz, who candidly admitted

at the trial that he would expect the

17a

—————eeeereee

dispatcher to call a cab rather than

wait for the driver to take his (30-

minute) lunch break (Tr. 195--196).

I discredit the testimony that

Conway refused ons carry the passengers

after his 30-minute lunch break, and

credit his denial (Tr. 46) and his

testimony that of course he would have

taken the passengers at 7:30' if they

were still waiting "because I was making

the trip anyhow" (Tr. 19).

I therefore find without merit

the Company's contentions, at pages is

and 16 of its brief, that Conway "was

discharged for his refusal to take the

passengers at 7:30 P.M.," and that

“management reasonably believed that

[Conway] blatantly refused to take the

pasengers even after a half-hour lunch

period."

D. Other Defenses

The Company concedes in its brief

18a

that “arguably the Complainant [Conway]

did show empathy among the drivers on

the matter of layoffs," that "Conway

testified that during the three months

preceding his termination he and other

employees discussed their dissatisfaction

with the ramifications of the layoff," and

that “the Complainant may have had con-

versations relating to the employees'

interests" (R. brief 6, 9, 14). Yet the

Company argues: "It is clear from the

testimony presented that the Complainant's

activity was solely for his own benefit"

(R. brief 8). Neither the brief nor the

evidence, however, reveals any personal

interest or motivation that Conway may

have had for insisting on his lunch break

other than his making common cause with

other limousine drivers who were complain-

ing about working shorthanded and doing

the work of laid-off employees by working

overtime and through their lunch period.

19a

————K

& il

an eos

—" |

The Company contends that “the

Complainant failed to elicit testimony

showing that he had united with other

employees or acted individually in an

attempt to change the terms and conditions

of [employment at] the Respondent," and

“The facts and testimony do not sub-

stantiate any argument that he was dis-

missed because he attempted to enforce

any contractual provision" (R. brief 5,

ll--12). To the contrary, the evidence

is clear that he was discharged for "“in-

subordination" when he exercised his ad-

mitted contractual right to take the 30-

minute lunch break for an obvious purpose

of inducing the Company to reinstate one

or more of the laid-off drivers. As

found, President Sinnott told Conway at

the time of the discharge that he did not

have “the right to tell [Sinnott] how to

run the Company."

The Company argues that its dismis-

sal of Conway "was based upon its mastery

20a

of its own business affairs" and "It is

ver . cdl

not in the Respondent's interest to re-

tain employees who choose to ‘make a

point’ only to vindicate personal

motives" (R. brief 14, 19). To the con-

trary, when asked “What's the point you're

trying to make?" Conway told President

Sinnott, "I don't feel we the limousine

drivers should have to work overtime when

men are laid off." It is evident that

Sinnott was concerned with Conway's effort

to induce him to reinstate laid-off em-

ployees.

Finally, the Company argues "That

’ there was no protected concerted activity

which precipitated the dismissal," that

“It was Complainant's insubordination

rather than any alleged concerted activi-

ties that led to his termination," and

“That any alleged protected conduct was

not causally related to the Respondent's

action” (R. brief 5, 20).

ae

E. Concluding Findings

The Company admits that before the

unprecedented layoff of four limousine

drivers, the drivers had been permitted

to take their full 30-minute lunch periods

“without receiving_warning, reprimand or

discipline."

On this occasion, however, drivers

were complaining among themselves and to

management that it was unfair for them

to be working overtime while men were laid

off, and limousine driver Conway insisted

on taking his full lunch break, causing

him to miss a trip. When he explained to

President Sinnott that he did so to “make

a point” that he did not feel the drivers

should have to work overtime when men were

laid off, Sinnott discharged him for in-

subordination, telling him he did not have

“the right to tell [Sinnott] how to run

the Company."

After considering all the evidence

and circumstances, I find that the Company

was aware that Conway's conduct was re-

lated to group action in the interest of

the employees, Mushroom Transportation

Co. v. NLRB, 300 F.2d 683, 685 (3d Cir.

1964), and that the Company discharged

him for engaging in concerted activity

for the purpose of mutual aid or protec-

tion. Limousine drivers were laid off

for the first time in 36 years. The

Company was aware, from employee com-

plaints at the dispatcher level, that

drivers were protesting the layoffs and

were opposed to working overtime while

fellow drivers were still laid off. The

drivers had the admitted contractual

right to insist on taking their full 30-

minute break, even if no one else was

available to take a trip, but Conway was

the first driver to exercise that right

during the layoffs to "make a point" that

the drivers should not have to do the

work of laid-off employees by working

overtime.

23a

It was under these circumstances

that the Company fabricated the defense

that it discharged Conway for refusing to

take the passengers after his 30-minute

break, rather than for missing a trip by

insisting on his contractual right to

take his lunch break. I infer that the

Company shifted its defense at the trial

to conceal its determination to rid the

Company of Conway (despite his senior

status and his spotless record) to prevent

other drivers from following his. lead in

the protected concerted activity.

Accordingly, I find that the clear

preponderance of the evidence shows that

limousine driver Conway's participation

in concerted activity protected under

Section 7 of the Act was the sole reason

that the Company discharged him for "in-

subordination," and that he would not have

been discharged in the absence of this

242

protected concerted activity. I there-

fore find that the November 12 discharge,

effective November 9, violated Section

8(a)(1) of the Act. In view of this

finding, I do not deem it necessary to

rule on the allegation that the discharge

also violated Section 8(a)(3).

Conclusions of Law

By discharging Paul Conway November

9, 1981, for engaging in protected con-

certed activity, the Company engaged in

anunfair labor practice affecting commerce

within the meaning of Section 8(a)(1l) and

Section 2(6) and (7) of the Act.

Remedy

Having found that the Respondent

has engaged in an unfair labor practice,

I find it necessary to order it to cease

and desist and to take certain affirma-

tive action designed to effectuate the

policies of the Act.

The Respondent having unlawfully

discharged an employee, it must offer him

resinstatement and make him whole for any

loss of earnings and other benefits, com-

puted ona quarterly basis from date of

discharge to date of proper offer of re-

instatement, less any net interim earnings,

as prescribed in F. W. Woolworth Co., 90

NLRB 289 (1950), plus interest as com-

puted in Florida Steel Corp., 231 NLRB

651 (1977).

On these findings of fact and con-

clusions of law and on the entire record,

I issue the following recommended

ORDER

The Respondent, Airlines Transpor-

tation Company, Pittsburgh, Pennsylvania,

er 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

i. Sec. 102.48 of the Rules, be adopted

by the Board and become its findings,

conclusions, and Order, and all objections

to them shall be deemed waived for all

purposes.

its officers, agents, successors, and

assigns, shall

1. Cease and desist from

(a) Discharging any employee for

engaging in protected concerted activity.

(b) In any like or related manner

interfering with, restraining, or coercing

employees in the exercise of the rights

guaranteed them by Section 7 of the Act.

2. Take the following affirmative

action necessary to effectuate the policies

of the Act.

(a) Offer Paul Conway immediate

and full reinstatement to his former job

or, if that job no longer exists, toa

substantially equivalent position, without

prejudice to his seniority or any other

rights or privileges previously enjoyed,

and make him whole for any loss of earnings

and other benefits suffered as a result

of his discharge, in the manner set forth

in the remedy section of the decision.

27a

(b) Remove from its files any

reference to the unlawful discharge and

notify the employee in writing that this

has been done and that the discharge will

not be used against him in any way.

(c) Preserve and, on request, make

available to the Board or its agents for

examination and copying, all payroll

records, social security payment records,

timecards, personnel records and reports,

and all other records necessary to analyze

the amount of backpay due under the terms

of this Order.

(d) Post at its facilities in

Pittsburgh, Pennsylvania, copies of the

attached notice marked "“Appendix.">

Copies of the notice, on forms provided

by the Regional Director for Region 6,

33¢ this Order is enforced by a Judgment

of a United States Court of Appeals, the

words in the notice reading "POSTED BY

ORDER OF THE NATIONAL LABOR RELATIONS

BOARD “™ shall read “POSTED PURSUANT TO

A JUDGMENT OF THE UNITED STATES COURT OF

APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD."

28a

after being signed by the Respondent's !

authorized representative, shall be

posted by the Respondent immediately upon

receipt and maintained for 60 consecutive

days in conspicuous places including all

places where notices to employees are cus-

tomarily posted. Reasonable steps shall

be taken by the Respondent to ensure

that the notices are not altered, defaced,

or covered by any other material.

(e) Notify the Regional Director

in writing within 20 days from the date

of this Order what steps the Respondent has

taken to comply.

IT IS FURTHER ORDERED that the com-

plaint be dismissed insofar as it alleges

violations of the Act not specifically |

found.

Dated, Washington, D.C. March 15,

1983.

s/Marion C. Ladwig

Marion C. Ladwig :

Administrative Law Judge

29a

CERTIFICTION OF SERVICE

I, George W. Jacoby, Esquire, hereby

certify that I served a true and correct

copy of the within Petition for Writ of

Certiorari upon the following by United

States Mail, postage prepaid, on the Yh

day of _ NJousmber_, 1086.

Solicitor General (3 copies)

Department of Justice

Washington, DC 20530

Elliott Moore’ (3 copies)

Deputy Associate General Counsel

Stephen C. Smith, Esq.

National Labor Relations Board

Office of the General Counsel

Washington, D.C. 20570

pate: I1-Y-YG . my

George W. Tacobe Esq

Attorney for Petition

30a