Transportation Systems, Inc.

National Labor Relations Board - Board Decisions

Mar 28, 1975

217 N.L.R.B. 195 (N.L.R.B. 1975)

TRANSPORTATION SYSTEMS, INC. 195
Transportation Systems , Inc. and Jane Mt. Pleasant.
Case 29-CA-3984
March 28, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
plaint on October 1, which alleged that Ms. Tot. Pleasant was
a member of the Union and a supporter of the Coalition
which had engaged in various activities and programs in
opposition to policies and positions taken by the leadership
of the Union and that on or about August 19 Respondent had
issued two disciplinary warning slips and had suspended Ms.
Mt. Pleasant for I day because she had distributed Coalition
literature to Respondent's employees.
In its October 9 answer, as later amended at the hearing
in this roceeding Res ondent admitted the jurisdiction andp , p
On December 31, 1974, Administrative Law Judge commerce allegations, the status of the Union, and that the
John M. Dyer issued the attached Decision in this pro- Coalition, which consists of members of the Union, is en-
ceeding. Thereafter, the Respondent filed exceptions gaged in activities and programs in opposition to policies and
and a supporting brief positions taken by the leadership of the Union. Respondent
Pursuant to the provisions of Section 3(b) of the the -further admitted that it had issued two disciplinary warning
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt his
recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Aministrative Law Judge and hereby orders that
the Respondent, Transportation Systems, Inc., Brook-
lyn, New York, its officers, agents, successors, and as-
signs , shall take the action set forth in said recom-
mended Order.
I Contrary to the Administrative Law Judge, we find that the record
herein does not establish that the Taxi Rank and File Coalition is a labor
organization within the meaning of Sec. 2(5) of the Act. The Administrative
Law Judge's Conclusions of Law are accordingly amended. However, we
affirm the Administrative Law Judge's conclusion that Respondent violated
Sec 8(a)(3) and (1) of the Act since disciplining an employee for activities
on behalf of a group in opposition to the recognized union falls within the
proscriptions of Sec 8(a)(3). Selwyn Shoe Manufacturing Corporation, 172
NLRB 674, 676 (1968)
DECISION
slips to Jane Mt. Pleasant on about August 19 and had sus-
pended her for 1 day without pay but denied that its actions
in any way violated the Act.
All parties were afforded full opportunity to appear, to
examine and cross-examine the witnesses, and to argue orally
at the hearing in this matter held on October 31 in Brooklyn,
New York. General Counsel and Respondent have filed briefs
which have been carefully considered.
The principal question in this case is whether the Respond-
ent unlawfully restricted the distribution of literature on its
premises by giving warnings and a suspension to Jane Mt.
Pleasant. Respondent maintains that it has a right to forbid
any distribution of literature on its premises in what it consid-
ers a working area, while the General Counsel and the Charg-
ing Party maintain that distribution of literature is proper
and permissible where employees are congregated as long as
such distribution does not interfere with employeees' duties
while they are in the garage. On the basis of the evidence, I
have concluded that one written warning was probably justi-
fied but that the second written warning and the suspension
were not justified and were violative of Section 8(a)(1) and (3)
of the Act.
On the entire record in this case, including my evaluation
of the reliability of the witnesses, based on the evidence re-
ceived, my observation of their demeanor, and the nature and
manner in which responses were made, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT AND THE LABOR ORGANIZATION
INVOLVED
STATEMENT OF THE CASE
JOHN M. DYER, Administrative Law Judge: Ms. Jane Mt.
Pleasant- filed the charge against Transportation Systems,
Inc., herein called the Company or Respondent, on August
23, 1974,' alleging that she had been given warning notices
and suspended because of her activities in opposition to posi-
tions taken by Local 3036, New York City Taxi Drivers
Union, AFL-CIO, herein called the Union, and because of
her activities on behalf of the Taxi Rank & File Coalition,
herein called the Coalition, in violation of Section 8(a)(1) and
(3) of the Act.
The Acting Regional Director for Region 29 issued a com-
1 Unless specifically stated otherwise, all dates herein occurred in 1974
Respondent is a New York corporation with its principal
office and place of business in Brooklyn, New York, where
it is engaged in operating a fleet of taxicabs. During the past
year, Respondent's gross revenues were in excess of $500,000,
and during the same period of time it received directly from
points outside the State of New York automobile parts and
other goods and materials valued in excess of $50,000.
Respondent admits and I find that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
Respondent admits and I find that the Union and the
Coalition are labor organizations within the meaning of Sec-
tion 2(5) of the Act.
217 NLRB No. 42
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE UNFAIR LABOR PRACTICES
A. Background and Undisputed Facts
The cashier's window and the dispatcher's window face the
interior of the garage and the offices are between the entrance
and the exit. To the right of their offices is a radio office and
in front of the cashier's window and to the right is a counter
which the drivers use in figuring up their trip cards and
counting their money.
As the drivers pull their cabs into the gas line, they may
leave their cabs and go to the counter and start counting their
money and finishing their trip cards. As cabs are gassed, it
is necessary to move the other cabs up and drivers may be
back and forth between the cabs and the counter or the
cashier's window. There was testimony that the drivers may
be in line and have to leave the cashier's line and go move
their cabs and come back to the cashier' s line. Normally there
would only be a space of 10 to 15 feet from the counter or
the dispatcher and cashier's windows to the cabs in the gas
line and there is no obstruction between them.
There is no specific time when a driver is released from his
cab except if there is no one to replace him and he then runs
it through the gas line and parks it. Ordinarily the relief
driver may take over at any time after it is pulled into the gas
line until it is through the gas line so that the driver coming
in from a shift may be out of his cab cashing in and relieved
at that time or if he is not relieved may be in and out of his
cab moving his cab through the gas line and checking out.
John Acierno testified that sometimes when Corradi, the
gas man cannot get the drivers to move their cabs up, he is
called and has to come out and speak to the drivers. He could
make no estimate as to how often this occurred but indicated
it was a matter of reflex action to do it when it was necessary
and stated it happened often.
The drivers are paid on a commission basis of the fares or
"bookings" they have.
The Company has a driver's waiting room which is to the
left of the dispatcher's and cashier's office and on the other
side of the gas line immediately behind John Acierno's office.
John Acierno's office is on the far side of the exit on the other
side of the gas line from the dispatcher and cashier's office.
According to credited--testimony, the driver's waiting room is
not used much by drivers except for a few drivers who arrive
early and wait to be assigned cabs. There were various rea-
sons assigned for the drivers not using the waiting room,
including its use for radio classes, but principally it was be-
cause drivers could not hear their names called on the loud-
speaker. It was apparent that both incoming and outgoing
drivers congregate in the area of the cashier's and dispatch-
er's office and the counter. In good weather, some drivers
may go outside the garage, but the bulk of the drivers remain
inside near the counter.
In negotiations with the Union, the taxicab companies in
New York are represented by the Metropolitan Taxi Board
of Trade, herein called the Taxi Board. This is an association
of taxicab companies that has a rotating slate of officers.
During 1974, the president of the Taxi Board was Joseph
Acierno, Respondent's president.
In 1971, a contract was signed between the Union and the
Taxi Board which was accepted without being ratified by a
vote of the union members. Thereafter, the Coalition was
formed and proceeded to bung an action in court seeking
certain reforms and assurance that on any other contracts to
be negotiated that there would be ratification by the member-
Respondent's president is Joseph Acierno and his brother,
John Acierno, is the vice president. John Acierno is at Re-
spondent's garage between 5 and 6 days a week and will
occasionally drive a cab. He is in charge of the day-to-day
operations of the Company.
Respondent has approximately 90 taxicabs and, on any
given day, approximately 75 cabs are in service and are run
on a two-shift basis with the first shift of drivers reporting for
work,between 5 and 6 a.m. and keeping the cabs on the street
in service until between 3:30 and 5:30 p.m. During this latter
period of time, which some employees refer to as a shape-up
period, the first-shift employees bring the cars to the garage
and put them in the gas line . The cars remain their responsi-
bility to move through the gas line until a replacement driver
is sent to the cab. The second-shift employees take the cabs
out anywhere between 3:30 and 5:30 p.m. until they return
them the following morning.
When regular drivers, who are assigned to specific cabs,
report at the garage, they show the dispatcher their hack
license with their picture on it and receive their trip card. The
trip cards are filled out by the drivers showing the passengers
picked up and their fares and destinations. Those who are not
regularly assigned give their hack licenses to the dispatcher
who keeps them in order of the time they report and when
cabs are available he dispatches the drivers in sequence, call-
ing out their names over a loudspeaker system. According to
the testimony, there is so much noise in the shop during the
shift change time that on a number of occasions the drivers
do not hear their names called and the dispatcher will leave
his office and search for the driver for a short time before
calling the next driver in order. In dispatching the irregular
drivers, the dispatcher gives them their hack license and a trip
card.
Cab drivers finishing a shift pull their cabs into the gas line
and may be relieved of their duties if there is a regular driver
waiting to take over the cab, or when the dispatcher sends a
relief driver to the cab. If there is no relief driver, after pro-
ceeding through the gas line the driver will park the cab and
his duties with that cab are over for that day.
The garage has an entrance and exit facing on the same
street, some 50 to 75 feet apart. The drivers turn into the
garage and then make a continuous left turn in a semicircle
emerging from the exit. Gas pumps are stationed on each side
of the exit and normally, with more than one car in line, the
gas man will gas up two cabs at the same time with the front
cab pulling part way out onto the sidewalk and the second cab
pulling up close behind. There are automatic filler signals on
the gas pumps so that the gas man can insert the nozzles and
start the gasoline flowing into two cabs and in the meantime
check the water and oil levels of the cabs and see if they have
tire problems. The gas man, Ernie Corradi, estimated it takes
approximately 3 minutes to gas and check two cabs. As more
cabs come in, the gas line gets longer and occasionally
stretches out onto the street and in order to keep traffic mov-
ing through the block at times it is necessary to start a second
line of cabs inside the garage and on at least one occasion,
according to John Acierno, it was necessary to have three
lines of cabs inside the garage.
TRANSPORTATION SYSTEMS, INC.
ship. The parties agreed that company members of the Taxi
Board knew, following the legal proceeding brought by the
Coalition, that any new contract agreed to between the Union
and the Taxi Board would have to be ratified by the union
members. The 1971 contract expired in 1973 by its terms, but
the terms of the contract were continued in effect subject to
cancellation by either party on twenty-four-hour notice.
In the summer and fall of 1974, various members ran for
offices in the Union representing various slates of candidates.
One slate of candidates was put up by the Coalition and there
were at least two other slates in the contest which was to be
held in November. Jane Mt. Pleasant was elected the shop
steward for the company garage in the summer of 1974.
Following the 1973 contract expiration date, negotiations
were begun for a new contract . These negotiations reached
hard bargaining in the summer of 1974 and hints of an agree-
ment-were heard in August. The new contract provided some
different terms and rates, but by its terms it could only
become effective when and if a fare rise of 25 percent was
granted to the taxicab companies by the New York Public
Utilities Commission. When the terms became known, the
Coalition opposed the contract and sought to defeat it at a
ratification vote because it was opposed to any increase in taxi
fares. The Coalition claimed that when a previous fare rise
had been granted, the number of taxi patrons decreased and
the drivers experienced a loss of money rather than an in-
crease from a percentage of greater fares.
In mid-August, the Coalition staged a demonstration
which was covered by the various news media and there were
video broadcasts of interviews of various Coalition support-
ers. Jane Mt. Pleasant was at the demonstration and was
interviewed by some of the television newscasters and her
interview was broadcast on at least one channel . She stated
that the Coalition was opposed to the fare raise and the
contract and that taxicab drivers such as she could not afford
to take vacations , whereas the bosses could . She said that
increases in the contract should come from the companies'
profits and not from a fare raise.
Jane Mt. Pleasant, after becoming a shop steward, sought
and received more work than she performed previously so
that she could be present at the garage on a more regular basis
to handle any problems brought to her by the cab drivers. She
started working 4 days a week on the day shift. On Sunday,
August 18, when she reported for work, several cab drivers
told her that they had seen her on television on the Thursday
night before and that John Acierno had seen the interview on
television and was very angry about it. John Acierno was not
at the garage on that Sunday.
B. The Events of August 19
After working the day shift on Monday, August 19, Jane
Mt. Pleasant got to the garage between 3 and 3:30, ran her
cab through the gas line, parked it, and then checked in her
bookings for that day. She was standing near the counter with
a stack of Coalition handbills which severely criticized the
proposed contract and called for its defeat at the ratification
meeting when John Acierno came up to her. According to her
testimony, he told her that what she had said on the television
news program was a lie, that she had better learn to keep her
197
mouth shut if she was not able to speak the truth, and that
she was getting too smart for her pants.
Acierno testified that he did not recall just when he spoke
to Jane Mt. Pleasant about her television appearance, but
stated that he told her that, although he did not see her
television appearance, what had been reported to him was a
distortion of the facts, and that the reason she could not take
a vacation was because she was only working 2 days a week
and that her earning power was not enough to enable her to
take a vacation , whereas he was able to' take a vacation be-
cause he worked full time and that a comparison between
them was not proper.
She testified that after this conversation she handed out the
handbills and stayed mainly in the area around the counter
and did not interfere with drivers who were checking in be-
cause they are usually in a hurry to finish up and go home.
She said she would normally wait until they had taken care
of their cabs before she spoke to them. She spoke to a number
of drivers who were waiting to be dispatched and gave them
handbills. About three-quarters of an hour after her first
conversation with Acierno, she states he came back to her at
the counter and asked what she was distributing. She gave
him a copy of the leaflet and he read it and said that he did
not think she should be distributing in that area and that she
had no right to hand out literature in a working area of the
garage. She told him she was within her rights to stand at the
counter and hand out literature and that Acierno could check
that with his lawyer. A few minutes later he came back and
said that she could hand things out outside the garage or in
the drivers' waiting room. She replied that it was crazy to
suggest she make a distribution in the waiting room because
the drivers were not in there and she had to be where the
employees were. He told her that was not acceptable to him
and that if she did not stop distributing the handbills he
would give her a warning slip. She did not stop and he re-
turned to his office and came back shortly with a warning slip
which she at first refused to accept, but after being warned
that such action could be considered insubordination, she
accepted it. The warning slip stated, "1st warning. Giving out
literature on floor of garage at shift time."
She continued to give out the handbills but had only a few
left at that time. Acierno said he was going to give her another
warning, and went to his office, had one written, came back
and gave it to her. The second warning slip stated: "2nd
warning. Refuses to stop giving out pamphlets on floor, of
garage at shift time." Both of these warning slips were signed
by Company Manager J. , Guarglia. After handing her the
second warning, Acierno said he was also going to suspend
her from working the following day. She remained in the
garage for a short time and spoke to some of the drivers.
When she reported to work the following day she was not
given a cab and the dispatcher told her that he could not give
her one that day. On the next day that she reported back for
work, she did receive a cab and has worked on a regular
4-day-week basis since that time.
John Acierno testified that on August 19, Ernie Corradi,
the gas man, asked him to come out of his office and get the
drivers to move their cabs because the gas line was being held
up. He testified that when he got to the gas line he saw Jane
Mt. Pleasant handing out literature to drivers in their cabs
'and speaking to them and that the drivers were not moving
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their' cars. He amplified the testimony and said that she had
her head almost inside the window talking to the driver and
that he was holding a sheet of paper in front of the windshield
and had not noticed that he was holding up the line. When
he spoke to Ms. Mt. Pleasant, the driver of the cab immedi-
ately moved his cab up to the gas pump. He told Jane Mt.
Pleasant that she should not give out literature in that par-
ticular area or any area in the garage where people were
working, that it disrupted the operations of the garage. Jane
Mt. Pleasant responded that she had a right to give out
literature anywhere and at any time she wanted to in the
garage. To this response Acierno said he gave her a second
verbal warning saying she should not give out literature to
drivers on the gas line or when they were counting their
money or occupied at the cashier's window since they could
make mistakes. She replied she had a legal right to hand out
literature anywhere she wanted to and he could call his attor-
ney about it. He testified that he had his manager, Joseph
Guarglia, make out a warning slip which he then handed to
her and after an initial refusal to take it, he warned her about
insubordination and she took it. However, he said she con-
tinued to give out literature on the gas line and talk to the
drivers, and he warned her a third time. When she did not
stop handing out literature he returned to his office and a
second written warning was made which he handed to her as
she was standing by the cashier's window. Mr. Acierno stated
that he verbally warned her a fourth time before giving her
the second written warning, telling her that she could not give
out literature in a working area. She responded that she was
going to give it out and he told her that he was also suspend-
ing her for a day.
Mr. Acierno stated that at the time he gave her the second
notice she was by the cashier's window and not at the gas line
and he did not recall there being any hold-up in the gas line
at that time. He testified that as he was going to give her the
second written warning, Ms. Mt. Pleasant was talking to a
driver who was in the process of handing his money in at the
cashier's window. He stated that she should not have been
distracting someone who was cashing in, that by being dis-
tracted people make mistakes.
Ernie Corradi, the gas man, testified that after yelling at a
cab to move up and not getting any results and noting that
Jane Mt. Pleasant had her head almost inside the window
talking to the driver, he asked John Acierno to get the gas line
moving. He said that John Acierno came out of his office and
spoke to Jane Mt. Pleasant, but not to the cab driver. Corradi
testified that the cab did not move when Acierno first came
out, as Acierno testified, and did not move until after Acierno
had gone back to his office and come out a second time.
On rebuttal, Jane Mt. Pleasant denied that she had been
hanging inside a cab speaking to a driver for 3 minutes,
denied that she had interfered with the gas line, and stated
that she spoke mainly to night drivers. She did admit on
cross-examination that she probably did converse with people
who were in the cabs but did not recall any 3-minute conver-
sation. She said it was also possible that she spoke to people
who were in line to cash out.
It is true that the drivers who come in to gas up talk among
themselves, as they are in line to gas up or to cash in and have
to be asked to move their cabs and there are a number of
occasions when Ernie Corradi's pleas to move are not re-
sponded to quickly and Corradi asks Acierno to remonstrate,
with the drivers and he does so.
After she returned to work Jane Mt. Pleasant and John
Acierno had some words concerning some posters which the
Coalition group had placed on fairly new telephone booths.
Acierno stated he wanted them removed by the Coalition and
that the people who had posted things there were nothing but
dirty pigs. Both Acierno and Mt. Pleasant admit that they do
not like one another and cannot stand'to talk to one another.
Mt. Pleasant adds that as a shop steward restrictions have
been placed on her that were not placed on other shop stew-
ards in that she has to knock before entering Mr. Acierno's
door and get permission to make an appointment to speak
with Acierno concerning any problems that may come up
whereas it was her understanding that the previous shop
steward had free access to Acierno at any time he wished.
Jane Mt. Pleasant testified that she believes she has a right
to hand out materials in the garage as long as it does not
interfere or hold up the gas line or interfere with the drivers
who were checking in or out. She testified that she had proba-
bly spoken to drivers who had left their cabs and who were
in line and drivers who were in the cabs, but did not feel that
she held up any work.
John Acierno has the idea that literature should only be
dispersed in the drivers' waiting room in the garage or outside
the garage and that the working floor of the garage is not a
place where literature should be passed out because that is a
company work area.
After her second warning and her suspension, Jane Mt.
Pleasant went to the Union's headquarters and complained
about her treatment. She was told by the union officials that
she should not have been in the garage passing out those
materials . Acierno, in speaking to the union officials over the
telephone on this occasion, offered to negotiate with the
Union concerning distribution of materials in the garage.
There was testimony from Jane Mt. Pleasant and others
concerning various union personages who were running for
office in a union election scheduled for November who came
into the garage for varying periods and passed out literature.
According to Jane Mi. Pleasant, one individual named Leon
Fine (not a Respondent employee) stood 'by the counter
where she had stood on August 19, and passed out literature
from 3:30 to 5 p.m. and was not asked to stop. Ms. Mt.
Pleasant stated that she did not pass out literature for weeks
after receiving the second warning until she saw others in the
shop do so and she has done so since then and has not been
interfered with by Respondent.
Respondent has no specific warning system or an auto-
matic discharge. Warnings are given or a discharge or suspen-
sion may be given depending on what the individual infrac-
tion is and the fact that two warnings have been given in this
case does not mean that Jane Mt. Pleasant is susceptible to
discharge or suspension for any particular amount of warn-
ings.
Respondent in its brief claims that the contract between the
Union and the Taxi Board in article 26 prohibits activity
leading to the curtailment or interference with the operations
of an employer and on this basis feels that it has a right to
discipline anybody who interferes whatsoever with its opera-
tions. However, in reading article 26, this article is essentially
a no-strike clause and is couched in that frame and the use
TRANSPORTATION SYSTEMS, INC.
of such an article in the instant situation would seem to be
an overextension of the intent of that article and I would not
construe that article to have reference to the situation here.
C. Analysis and Conclusions
The situation of distributing literature to cab drivers is not
quite the same as distributing literature to employees in a
plant. The cab drivers are on the street and unavailable to be
reached by the Union or the steward during their normal
working hours. It is only when the cab drivers are through
with their working hours or before they actually start to work
serving the public that they are available at a garage which
would be the most convenient place for their being seen by
a shop steward or having literature distributed to them by the
union or those opposing the union.
The question of where literature can be distributed in a
garage would seem to be one of accommodation between the
parties. Certainly if the drivers' waiting room was used by all
drivers who were waiting assignments for cabs and by the
drivers who had just brought in the cabs as a place to figure
up their trip tickets and talk to their fellow drivers, this would
seem to be an appropriate place for the distribution of litera-
ture. However, it is clear from the testimony that the drivers'
waiting room -is not used in any such manner and that actu-
ally the drivers use the area between the cab gas line and the
dispatcher 's and cashier's offices as their congregation point.
According to the testimony, there may be anywhere from 15
to 20 drivers congregated around that area anywhere between
3:30 and 5:30 p . m. It would then seem that this would be the
natural area for any distribution of literature that would be
made. The essential point that both sides should be interested
in, however, is that any distribution should not interfere with
the process of the cabs going through the gas line or the
drivers checking in or being dispatched out.
After initially talking to Jane Mt. Pleasant around 3:30
p.m. and seeing a pile of literature in her hand , it does not
appear that Acierno was ready to forbid her distributing the
handbill in the garage and apparently she had not started any
such distribution . I believe from all the testimony that
Acierno was called out by Corradi to move the cars up in the
gas line and that Mt. Pleasant was at the gas line at that time
talking to a driver in a cab . Jane Mt. Pleasant's initial tes-
timony that she was by the counter all the time is bent some-
what by her testimony that she did not hang in a cab for 3
minutes talking to a driver and her later admissions that she
probably did talk to some of the cab drivers who were on the
gas line. I believe that Jane Mt. Pleasant did go to some of
the drivers who were waiting to have their cabs gassed and
with the interest in the proposed contract and the opposition
the Coalition sought to build against ratification, it is very
possible that a longer conversation than what she intended
ensued and the gas line could well have been held up. Such
interference with the process of cabs should not occur and
since I find that it did , Mr. Acierno was warranted in warning
Jane Mt. Pleasant not to hold up the gas line. Her reaction
that she could distribute literature at any time or place she
wished in the garage is not correct in that she can distribute
insofar as she does not holdup the necessary processes of the
Company. In this instance she was doing so and the first
written warning to her was , I find, proper . However some
199
suspicions are raised since it is apparent that Acierno did not
speak to the cab driver about the driver's holding up the line.
If we were to believe Corradi's testimony that suspicion
would become deeper since Corradi stated that the cab did
not move until after Acierno went to his office and came back
a second time.
Since Respondent allowed other, distributions in the garage
area which did not hinder operations of the garage and since
the employees are permitted to congregate in and around the
counter near the cashier's window , this would seem to be a
natural place for distribution of literature and conversation.
Certainly there is no prohibition of drivers either checking in
or going out from engaging in conversation with other drivers
in the gas line or while they are checking in or checking out
or counting their money . Jane Mt . Pleasant's statement that
she would not interfere with a driver or try to engage one in
conversation which would distract him when , for example, he
is counting money, since drivers usually wish to finish up and
go home, would seem to be a commonsense statement and
commonsense is what should prevail in the distribution of
literature at this point.
No contention is made by Respondent that Jane Mt. Pleas-
ant was in any way interfering with the gas line operation or
with people checking out at the cashier 's window or being
dispatched by the dispatcher at the time she received the later
verbal warnings and the second written warning . Respondent
here seems to rely on a potential for interference in that a
person counting money could make a mistake if he or she was
interfered with. The potentials for making mistakes are pres-
ent if anyone happened to talk to a person who was counting
whether in a friendly conversation or on a matter of serious
business and certainly the distribution of literature in this
area given the circumstances under which the Company oper-
ates in allowing people to congregate in this area would not
appear to have a tendency to interfere with the operations of
the garage.
The testimony is clear that John Acierno feels a great
animus towards Jane Mt. Pleasant as a spokesman for and
representative of the Coalition. I do not believe that the oc-
currences of August 19 would have started without there
being a holdup in the gas line. But once that occurred and
Acierno was fully aware of the attack on the contract made
in the handbill, he then got advice as to what the policy of
Respondent should be in literature distribution and enforced
the idea of banning literature distribution except for the driv-
ers' waiting room . This policy has not thereafter been en-
forced with the exceptions of when actual operations on the
garage floor have been interfered with and then by persons
other than employees.
I credit Mt . Pleasant regarding the other distributions
which she witnessed and her own distributions and in particu-
lar a distribution she made on behalf of the union shortly after
her suspension.
Selective enforcement of a rule is wrong particularly when
it is enforced to prohibit activities which are not interfering
with work processes . Here the activities are also opposed by
Respondent in its interests as regards the proposed contract.
The area around the counter and cashier's window is used
by the drivers with Respondent's acquiescence as their gath-
ering place and as such it is not a true working area . Distribu-
tion of literature here by an employee to other employees is
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only normal and natural. Respondent's forbidding Jane Mt.
Pleasant from distributing handbills in this area on August 19
and giving her verbal and a written warning and a suspension
for doing so is, I find and conclude, improper and violates
Section 8(a)(1) and (3) of the Act. This essentially is employee
free time and they may congregate there and talk among
themselves and distribution of handbills by an employee un-
der such circumstances is proper. Therefore, I will recom-
mend that the second warning notice and the 1-day suspen-
sion be withdrawn and expunged from her personnel file and
that she be recompensed for the suspension.
III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, and
therein found to constitute unfair labor practices in violation
of Section 8(a)(1) and (3) of the Act, occurring in connection
with Respondent's business operationsas set forth above in
section 1, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent engaged in the'unfair labor
practices set forth above, I recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act as follows:
Having found that Respondent discriminated against Jane
Mt. Pleasant on August 19, 1974, by orally warning and
giving her a second written warning and by suspending her
from 1 day of work because of her activities on behalf of the
Taxi Rank and File Coalition, I recommend that the second
warning slip and the suspension be removed and expunged
from her personnel file and that she be made whole for the
loss of pay she suffered as a result of the 1-day suspension and
that interest be appended to that sum as provided in F W.
Woolworth Company, 90 NLRB 289 (1950). Since it is a part
of the purpose of the Act to prevent the commission of unfair
labor practices, I further recommend that Respondent be
ordered to cease and desist from violating the Act in the same
or a similar manner. On the basis of the foregoing findings
and the entire record, I make the following:
CONCLUSIONS OF LAW
ORDER'
Upon the basis of the foregoing findings of fact and conclu-
sions of law and the entire record in this case considered as
a whole, it is recommended that the Respondent, Transporta-
tion Systems, Inc., Brooklyn, New York, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Unlawfully giving oral or written warnings and suspen-
sions to employees because of their activities on behalf of the
Taxi Rank and File Coalition.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights under
Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Make Jane Mt. Pleasant whole for the loss of pay she
suffered by reason of Respondent's discrimination against her
in accordance with the recommendations set forth in, the
section of this Decision entitled "TheRemedy."
(b) Post at its Brooklyn, New York, garage copies of the
attached notice marked "Appendix."' Copies of said notice
on forms provided by the Regional Director for Region 29,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof and maintained by it for 60 consecutive
days thereafter in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 29,-in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
3 In the event that 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union and the Coalition are labor organizations
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) and (3) of the Act
by unlawfully orally warning and giving a second written
warning and a 1-day suspension from work to Jane Mt. Pleas-
ant because of her activities on behalf of the Taxi Rank and
File Coalition.
Following a hearing in which the Company, the Union, and
the General Counsel of the National Labor Relations Board
participated and offered evidence, it has been found that we
violated the National Labor Relations Act. We have been
ordered to post this notice and to abide by what we say in this
notice.
WE WILL NOT unlawfully give oral or written warnings
or suspend employees from work because of their lawful
activities on behalf of the Taxi Rank and File Coalition.
TRANSPORTATION SYSTEMS, INC. 201
WE WILL rescind and expunge the second written WE WILL NOT in any like or related manner interfere
warning and the suspension given to Jane Mt. Pleasant with, restrain, or coerce employees in the exercise of
and reimburse her for the pay she lost as a result of the rights guaranteed under Section 7 of the Act.
suspension . TRANSPORTATION SYSTEMS, INC