AIRLINES TRANSPORTATION COMPANY, PETITIONER V. NATIONAL LABOR RELATIONS BOARD No. 86-766 In the Supreme Court of the United States October Term, 1986 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Third Circuit Brief for the National Labor Relations Board in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument Conclusion Appendix OPINIONS BELOW The order of the court of appeals (Pet. App. 1a-2a) is unreported. The decision and order of the National Labor Relations Board (App., infra, 1a-5a), including the decision of the administrative law judge (Pet. App. 3a-29a), are reported at 277 N.L.R.B. No. 37. JURISDICTION The judgment of the court of appeals (Pet. App. 2a) was entered on August 7, 1986. The petition for a writ of certiorari was filed on November 5, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Board properly found that petitioner violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), by discharging an employee for asserting his collectively bargained right to take a lunch break. STATEMENT 1. Petitioner, Airlines Transportation Company, operates a limousine service that transports passengers between various locations in Pittsburgh and the Pittsburgh airport (Pet. App. 4a). During the relevant time period, the collective bargaining agreement that petitioner had negotiated with its limousine drivers' collective bargaining representative, Local 128, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union"), provided that "'employees will have a non-paid one-half (1/2) hour lunch period to be taken between the fourth and sixth hours of work'" (App., infra, 3a (emphasis in original)). Petitioner had sometimes asked its drivers to work through all or part of this lunch period for additional pay (Pet. App. 5a-6a), but the drivers were entitled to refuse the request and to take the lunch break provided by the contract (id. at 6a-7a). On November 6, 1981, one of petitioner's drivers, Paul Conway, began work at 1:15 p.m. and was therefore entitled to take a 30-minute lunch break between 5:15 p.m. and 7:15 p.m. (Pet. App. 7a). At 5:45 p.m., Conway arrived at the Sheraton South Hotel in Pittsburgh to pick up a scheduled passenger (ibid.). He could not find the passenger, so he called the dispatcher, at about 6:05 p.m., and told him that the passenger was a "no-show" (ibid.). The dispatcher instructed Conway to return to the airport (ibid.). When Conway returned to his limousine, however, he discovered that the passenger finally had arrived (ibid.). The passenger requested that Conway wait a few minutes so that he could finish his dinner, which Conway agreed to do (ibid.). While waiting for the passenger, Conway made a phone call (ibid.). When the passenger finished his dinner, Conway drove him to the airport, arriving at approximately 6:55 p.m. (id. at 8a). Shortly after Conway arrived, the dispatcher, John Koehler, asked him to drive a group of passengers to the hotel at 7:00 p.m. (Pet. App. 8a). Conway refused to do so, stating that, "'I'd like my lunch hour'" (App., infra, 3a (emphasis deleted from original)). Koehler protested that the passengers would have to take a taxicab to the hotel if Conway did not drive them (ibid.), to which Conway replied, "'Do what you want with them, cab them or helicopter or whatever, I'd like my lunch hour, I'm due for lunch'" (ibid. (emphasis in NLRB Decision)). He added that, if he waived his lunch period, his final trip would entail overtime and, given that other drivers were on lay-off, he did not like having to work overtime (Pet. App. 8a). Fifteen minutes later, while Conway was still on his lunch break, the supervisory dispatcher, John Colosimo, approached him and requested that he take the passengers to the hotel (App., infra, 3a). Conway again refused, reiterating that he "wanted (his) lunch hour because the contract says that it's due between four and six hours" (ibid. (emphasis in NLRB Decision)). By the time Conway finished his lunch break, the passengers were no longer there (Pet. app. 9a). Accordingly, the dispatcher sent him back to the hotel to make the 8:00 p.m. return trip to the airport (ibid.). Three days later, petitioner suspended Conway for taking the lunch break and for refusing to make the requested trip (Pet. App. 9a). Then, on November 12, 1981, after meeting with Conway and representatives of the Union, petitioner formally discharged him (id. at 10a-12a). 2. Conway filed an unfair labor practice charge with the National Labor Relations Board ("Board") (Pet. App. 3a). The Board held that petitioner violated Section 8(a)(1) of the Act, 29 U.S.C. 158(a)(1), by discharging Conway for engaging in the "protected," "concerted activity" of insisting on his contractual right to take a lunch break (App., infra, 1a-5a). Relying on this Court's decision in NLRB v. City Disposal Systems, Inc., 465 U.S. 822(1984), /1/ the Board noted that, "(t)o establish concertedness * * * , it is sufficient that an employee complaint communicate a reasonably perceived violation of a collective-bargaining agreement" (App., infra, 4a). It further found that, "(w)here, as here, the employee makes explicit reference to the contractual provision supporting his claim, there can be little question but that the employee is actively pursuing enforcement of that provision" (ibid.). Accordingly, "(i)n view of the protected character of this activity" (ibid. (footnote omitted)), and the fact "that this activity was the motivating factor in Conway's discharge" (ibid.), the Board held that petitioner's actions violated Section 8(a)(1) of the Act and ordered, inter alia, that petitioner offer Conway reinstatement and back pay (App., infra, 4a; see also Pet. App. 27a). 3. In an unpublished opinion, the court of appeals upheld the Board's decision and enforced its order (Pet. App. 1a-2a). ARGUMENT The Board's decision, upheld by the court of appeals, is correct. It is consistent with this Court's decision in NLRB v. City Disposal Systems, supra, and does not conflict with the decision of any other court of appeals. Accordingly, further review by this Court is not warranted. 1. In City Disposal, this Court held that "the assertion by an individual * * * of a right grounded in a collective-bargaining agreement" may constitute "concerted activity" (465 U.S. at 825 (footnote omitted)), "(a)s long as the employee's statement or action is based on a reasonable and honest belief that he is being, or had 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" (id. at 837). Here, the Board, affirmed by the court of appeals, found that Conway had made such an assertion. See App., infra, 3a-4a. Specifically, the Board found that Conway told petitioner's officials that "(t)he contract says that I'm due for lunch" (id. at 3a), that Conway "reasonably perceived" that these officials' actions constituted a "violation of (the) collective-bargaining agreement" (id. at 4a), and that Conway was "pursuing enforcement of (the contract) provision" when he made "explicit reference to (it)" (ibid.). This Court has indicated that it will not reexamine such factual findings after they have been affirmed by a court of appeals. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 491 (1951). Accordingly, "there is no justification for overturning the Board's judgment that the employee (was) engaged in concerted activity" (NLRB v. City Disposal Systems, 465 U.S. at 837). 2. In any event, petitioner's contention (Pet. 10-13) that Conway's action was "unreasonable" and thus not "concerted" is meritless. While Conway did take time at the hotel to make a personal phone call, he did so while he was waiting for a passenger to finish dinner; thus, Conway did not, as petitioner asserts (Pet. 10-11), have sufficient time both to take a lunch break and to be ready for a 7:00 p.m. trip. Furthermore, while Conway did say (Pet. 11-12) that he would not waive his lunch break because other drivers were on layoff, the Act clearly protects a single employee's invocation of collectively bargained rights "regardless of whether the employee has his own interests most immediately in mind" (City Disposal, 465 U.S. at 830). Finally, there is absolutely nothing in the record to support petitioner's claim (Pet. 13) that Conway was setting the stage for an "early quit"; the record shows only that Conway was between his fourth and sixth hours of work and that he wanted his lunch break. Thus, even if this Court were inclined to reexamine the Board's findings, the Board's judgment is supported by the record here. 3. There is likewise no merit to petitioner's contention (Pet. 14-17) that Conway's action was not "protected" by Section 7 of the Act because it constituted an unauthorized "work stoppage." Cf. City Disposal, 465 U.S. at 837 ("(i)n general, if an employee violates (a no-strike) provision, his activity is unprotected even though it may be concerted"). Conway did not breach any "no-strike" clause or any other provision of petitioner's contract with the Union. Rather, he exercised his contractual right to take his lunch break and to refuse his employer's request that he work through it. See Pet. App. 6a-7a. Thus, as the Board explained in General Motors Corp., 261 N.L.R.B. 516, 519 (1982) (cited by the Board here, see App., infra, 4a n.4), Conway "was not refusing to work in protest of a working condition, but was asserting a right to leave for a specific purpose explicitly covered by contract provisions." That is not a "work stoppage," but rather a "protected" activity under the Act. See City Disposal System, Inc., v. NLRB, 766 F.2d 969, 974 (6th Cir. 1985) (on remand from this Court, court of appeals finds that employee had contractual right to refuse to drive a truck that he believed was unsafe and thus was engaging in "protected" activity). CONCLUSION The petition for a writ of certiorari should be denied. CHARLES FRIED Solicitor General ROSEMARY M. COLLYER General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel DECEMBER 1986 /1/ An administrative law judge ("ALJ") initially determined that Conway was protesting on behalf of all of petitioner's drivers the fact that he was doing work of laid-off employees and that his discharge was unlawful under the rationale of Mushroom Transportation Co. v. NLRB, 300 F.2d 836 (3d Cir. 1964). See Pet. App. 22a-23a. This Court subsequently decided the City Disposal case, however, and the Board did not rely on the ALJ's rationale in forming its judgment. See App., infra, 2a. APPENDIX