NATIONAL LABOR RELATIONS BOARD, PETITIONER V. ROADWAY EXPRESS, INC. No. 82-2061 In the Supreme Court of the United States October Term, 1982 The solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eleventh Circuit in this case. Petition for a writ of certiorari to the United States Court of Appeals for the Eleventh Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-6a) is reported at 700 F.2d 687. The decision and order of the National Labor Relations Board (App. C, infra, 19a-52a) are reported at 257 N.L.R.B. 1197. JURISDICTION The judgment of the court of appeals (App. A, infra, 16a) was entered on March 17, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 7 of the National Labor Relations Act, 29 U.S.C. 157, provides in pertinent part: 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 * * * . Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), provides in pertinent part: 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) of this title * * * . QUESTION PRESENTED Whether the Board properly concluded, with respect to two separate incidents involving two different employees, that, in each case, the individual employee's honest and reasonable assertion of a right that is provided for in a collective bargaining agreement is concerted activity within the meaning of Section 7 of the National Labor Relations Act, 29 U.S.C. 157. STATEMENT 1. Respondent is engaged in the interstate transportation of freight and operates a terminal in Atlanta, Georgia (App. C, infra, 21a). Respondent and Local Union No. 728 of the International Brotherhood of Teamsters, Chauffeurs, Warehousement and Helpers of America (the Union) have been parties at all material times to collective bargaining agreements covering respondents' over-the-road and local freight forwarding, pickup, and delivery employees (ibid.). a. Albert T. Wilson is a dockworker and driver employed by respondent at its Atlanta, Georgia facility (App. A, infra, 2a). In early September, 1979, Wilson's supervisor mistakenly issued Wilson a warning letter regarding alleged mishandling of freight (ibid.). Although the erroneous warning letter did not result in any loss of pay to Wilson, under respondent's established policy, a second letter for the same offense could have resulted in discharge (App. C, infra, 22a). Wilson was, therefore, anxious to have the letter expunged from his files promptly. /1/ On September 5, 1979, Wilson showed the warning letter to assistant terminal manager Sammy Harmon, who agreed to investigate the matter. The next day Wilson asked Harmon whether the letter had been expunged and Harmon responded vaguely either that he had taken care of it or that he would (App. C, infra, 25a). Unsatisfied with this response, Wilson contacted union steward John Ellis and, on September 7, Wilson and Ellis asked superintendent Al Southern for permission to examine Wilson's personnel file (ibid.). Although the parties agreement authorizes the Union to examine records pertaining to a specific grievance, /2/ Southern refused to allow Ellis or Wilson to examine the file and instructed them to continue checking with Harmon. Because Harmon was not at work that morning, Wilson and Ellis went to terminal manager Carlton Shepard, who instructed Southern to allow Wilson to examine his file. After Southern finally showed Wilson and Ellis the file, which revealed that the erroneous warning letter was not among the listed warning letters, Wilson was satisfied that the warning had been expunged, and he returned to work (ibid.). Later that day, Southern asked Harmon about Wilson's warning letter. Harmon told him that he had already talked to Wilson about the letter and had told Wilson that the letter had been taken care of (App. A, infra, 25a). Southern then went to the dock and asked Wilson whether he had been assured by Harmon that the letter had been taken care of. Wilson replied, "yes" (ibid.). Southern then issued Wilson another warning letter, stating that, since Harmon had taken care of the earlier erroneous letter, Wilson "wasted * * * time" for approximately "10-15 minutes" by pursuing his grievance with other management officials (id. at 26a). b. William J. Howard had been employed as a driver by respondent for three years when, on November 23, 1979, he was scheduled to drive a truck from Atlanta, Georgia, to Memphis, Tennessee. Howard inspected the truck before departing, and he found that a brake shoe on one of the axles was protruding from the hub, that the shoe was loose and that air leaked from the brake system (App. A, infra, 26a). The parties' collective bargaining agreements prohibit respondent from requiring drivers to operate unsafe vehicles, /3/ or to violate government safety regulations. /4/ The agreements also require drivers to report equipment defects. Once defects are reported, respondent may not then require any employee to operate the reported vehicle until it is inspected by a mechanic. /5/ Respondent, however, has established a rule under which any employee who insists that a mechanic inspect the vehicle after a garage foreman discovers no defect will be issued a warning letter from wasting time and money if the mechanic also fails to discover any defect (App. A, infra, 4a). Howard reported the brake problem to garage operations manager W. E. Hartley (App. C, infra, 26a). Hartley checked the brakes and parking brake valve and told Howard that there was nothing wrong with either. He also warned Howard that if a mechanic were assigned to inspect the unit, Howard would probably receive a warning letter (ibid.) Howard insisted on an inspection and the mechanic concluded that the brakes were "alright" (id. at 26a-27a). Howard then received a warning letter for unnecessarily delaying freight (App. A, infra, 5a). 2. The Board, in agreement with its Administrative Law Judge, found that, in issuing the warning letters to employees Wilson and Howard, respondent violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), because it had disciplined employees for engaging in "concerted activities" within the meaning of Section 7 of the Act, 29 U.S.C. 157, i.e., seeking to enforce rights under the collective bargaining agreement (App. C, infra, 38a, 39a). In both instances, the Board found that the employees had acted reasonably in asserting their contract rights, and that respondent's actions had interfered with the employees' Section 7 rights (App. C, infra, 39a). In concluding that both employees had engaged in concerted activity, the Board relied (id. at 38a) upon its long-established doctrine that an individual's reasonable assertion of a right embodied in a collective bargaining agreement is concerted activity within the meaning of Section 7 of the Act. Interboro Contractors, Inc., 157 N.L.R.B. 1295, 1298 (1966), enforced, 388 F.2d 495 (2d Cir. 1967). Accord: T&T Industries, Inc., 235 N.L.R.B. 517 (1978). /6/ 3. The court of appeals declined to enforce the Board's order with respect to employees Wilson and Howard (App. A, infra, 1a-16a). The court acknowledged (id. at 15a) that the Board "presents an attractive argument for Interboro's validity"; but it read the former Fifth Circuit's opinion in NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (1973), which it felt bound to follow, as rejecting the Interboro doctrine (App. A, infra, 14a). The court concluded (ibid.) that the law in the Eleventh Circuit, "until stated differently by the court sitting en banc, adheres to the definition of concerted activities announced in Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964). That is, an individual's conduct may constitute protected concerted activity if engaged in to initiate, induce, or prepare for group action or relate to group action in the interest of other employees." /7/ See NLRB v. Datapoint Corp., 642 F.2d 123, 128 (5th Cir. 1981). REASONS FOR GRANTING THE PETITION On March 28, 1983, this Court granted the Board's petition in NLRB v. City Disposal Systems, Inc., No. 82-960; the issue in that case is identical to that presented here, viz., whether an individual employee's honest and reasonable assertion of a right that is provided for in a collective bargaining agreement is concerted activity within the meaning of Section 7 of the National Labor Relations Act, 29 U.S.C. 157. /8/ Accordingly, the Court should hold this petition pending its decision in City Disposal Systems, Inc. /9/ CONCLUSION The petition for a writ of certiorari should be held pending the Court's decision in NLRB v. City Disposal Systems, Inc., No. 82-960; and then disposed of as appropriate in light of that decision. Respectfully submitted. REX E. LEE Solicitor General WILLIAM A. LUBBERS General Counsel National Labor Relations Board JUNE 1983 /1/ Under the parties' collective bargaining agreements, an employee may appeal a warning letter within 10 working days (App. A, infra, 2a n.1). Article 45, Section 1 of the Southern Conference Area Over-the-Road Motor Freight Supplemental Agreement 119-120 (Apr. 1, 1979 to Mar. 31, 1982) (GCX 4) (hereinafter "Supplemental Agreement") provides in pertinent part: "'Appeal from discharge, suspension or warning notice within ten (10) regular working days by written notice, and decision reached within fifteen (15) days from the date of discharge, suspension or warning notice'" (App. C, infra, 22a). Pursuant to respondent's established policy, an employee who fails to appeal a warning letter forfeits his right to make a subsequent challenge to it, and thus respondent may later base additional disciplinary action on the unchallenged warning (App. A, infra, 2a n.1). /2/ Article 44, Section 4 of the Supplemental Agreement (at 119) states in relevant part (GCX 4): The Local Union, the State or Multiple State Committee or the Southern Conference Area Grievance Committee shall have the right to examine time sheets and any other records pertaining to the computation of compensation of any individual or individuals whose pay is in dispute, or records pertaining to a specific grievance. /3/ Article 16, Section I of the National Master Freight Agreement 57 (Apr. 1, 1979 to Mar. 31, 1982) (GCX 4) (hereinafter "Master Agreement") provides (App. C, infra, 21a): The Employer shall not require employees to take out on the streets or highways any vehicle that is not in safe operating condition, including but not limited to acknowledged overweight or not equipped with safety appliances prescribed by law. It shall not be a violation of this Agreement where employees refuse to operate such equipment unless such refusal is unjustified. /4/ Article 16, Section 2 of the Master Agreement (at 57) (GCX 4); App. C, infra, 22a) provides: Under no circumstances will an employee be required or assigned to engage in any activity involving dangerous conditions of work or danger to person or property or in violation of any applicable statute or court order, or in violation of a government regulation relating to safety of person or equipment. Federal Highway Administration regulations provide in pertinent part: "No motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the following parts and accessories are in good working order * * * : Service brakes, including trailer brake connections. Parking (hand) brake * * * " 49 C.F.R. 392.7. /5/ Article 16, Section 4 and 4(a) of the Master Agreement (at 58) provides (App. A, infra, 4a).: Employees shall immediately, or at the end of their shift, report all defects of equipment. * * * The employer shall not ask or require any employee to take out equipment that has been reported by any other employee as being in an unsafe operating condition until same has been approved as being safe by the mechanical departments. /6/ The Board also found (App. C, infra, 42a) that respondent did not violate Section 8(a)(1), (3), and (4) of the Act, 29 U.S.C. 158(a)(1), (3), and (4), when it issued warning letters and suspensions to a third employee, Saint E. Bell, Jr., and subsequently discharged him. The Board concluded that Bell's conduct leading to one of the warning letters was unprotected because Bell made unprovoked, insolent remarks to the supervisor during the grievance-related discussion (App. C, infra, 29a, 42a); that three other warning letters were based on Bell's having taken excessive breaks and having behaved disrepectfully toward supervisors, rather than on his inclusion in the list of witnesses scheduled to testify in a Board proceeding or on any other activity protected by the Act; and that respondent's suspensions and ultimate discharge of Bell were not unlawful because they were disciplinary actions taken in response to bad faith claims of contract rights by Bell that constituted a "pattern" of "noncooperation and resistance to the instructions of his supervisors" (id. at 46a). Accordingly, the Board dismissed all allegations of the complaint relating to employee Bell (id. at 51a). /7/ The court acknowledged that Buddies Supermarkets was factually distinguishable since that case did not involve an employee claim under an existing collective bargaining agreement (App. A, infra, 14a). Nevertheless, the court read the opinion in Buddies Supermarkets as clearly having rejected the Board's Interboro doctrine. /8/ A copy of our brief in City Disposal is being sent to respondent. /9/ We, of course, do not seek review of the court of appeals' decision insofar as it upheld the Board with respect to the dismissal of allegations pertaining to employee Bell, and we have not printed in the appendix the court's separate judgment denying Bell's petition for review. Bell did not intervene in the proceeding initiated by Roadway's petition for review. Appendix Omitted