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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1033

## Text

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."

he ee ea ae He

ee eg on ee oe oo biped hie enim, a ‘ix

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2330%3A1. Public record. Not legal advice.