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Abbey's Transportation Services Inc. v. National Labor Relations Board

decided: January 25, 1988.


The company petitions for review of a National Labor Relations Board order finding it in violation of Sections 8(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3) (1982) for deferring scheduled wage increases during a representation election, discharging two union activists, and interrogating employees on their union sympathies. The Board cross-petitions for enforcement of its order. The Board's order is enforced in its entirety.

Author: Kaufman

KAUFMAN, Circuit Judge:

The arduous task of parsing legitimate from unlawful motives in employer discharges of union activists has plagued both the courts and the National Labor Relations Board (hereafter "the Board") since the enactment of the National Labor Relations Act (hereafter "the Act") in 1935. Because of the rising number of unfair labor practice charges during union organizing drives, unlawful discharges currently are a pressing concern in fulfilling the Act's mandate to protect employees' rights to organize.

Today, the chances are one in twenty that a union supporter will be terminated during a union organizing drive. Weiler, Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA, 96 Harv. L. Rev. 1769, 1781 (1983). This widespread pattern of intimidation threatens the laboratory conditions requisite to free and fair election processes. Employees are certain to be discouraged from supporting a union if they reasonably believe it will cost them their jobs. Thus, the Board and the courts must carefully scrutinize dismissals during union organizing drives.

In the case at hand, two union activists, Hernan Orrego and William Restrepo, both senior employees, were discharged within thirty minutes of each other on the day the union formally petitioned for an election. Although Abbey's Transportation Services, Inc. (hereafter "the company") denies any knowledge of their union activity and proffers alternative bases for the terminations, the Board found that its claims were pretextual. Specifically, the Board, in an opinion reported at 284 NLRB No. 81, found that the company violated Section 8(a)(1) and (3) of the Act, 29 U.S.C. §§ 158(a)(1) and (3) (1982),*fn1 by discharging Orrego and Restrepo. The Board also charged violations of Section 8(a)(1) because the company deferred a scheduled wage increase during the campaign and interrogated employees on their union sympathies. The company now petitions for review of the order, and the Board has filed a cross-application for enforcement.

The company operates a limousine and charter bus service, providing transportation throughout the eastern United States and Canada. It primarily serves LaGuardia, Kennedy and Newark Airports through its limousine operation. The incident that sparked the dispute at issue with regard to William Restrepo was a charter bus trip to Washington, D.C., ferrying participants to a demonstration celebrating the 20th anniversary of Martin Luther King, Jr.'s famous 1963 civil rights march. A week after the August 27, 1983, excursion, Restrepo received his paycheck and complained to other drivers that he was shortchanged for the trip. He claimed that he had received only 20 % of the price of the charter rather than a combined payment of 20 %, his regular salary, and a $20 bonus.

On September 16th, Lester Feinberg, the company's president, called Restrepo into the office Feinberg shared with his son, Steven, the executive vice president. In the ensuing discussion, Restrepo called the elder Feinberg a "son of a bitch" and accused him of stealing his money. Feinberg's son, who witnessed the conversation, testified before the administrative law judge (hereafter "ALJ") the elder Feinberg asked for an apology. Restrepo denied the latter two assertions, contending that he called Lester Feinberg a "son of a bitch" only after the president had employed the same term. Except for an attempt by Feinberg's secretary to explain the pay calculation on September 17th, Restrepo did not hear about this incident again for a full week.

Meanwhile, Restrepo and his co-workers sought a more permanent solution to their wage grievances. On September 8th, Restrepo and Orrego met with officials of the New York Hotel and Motel Trades Council, AFL-CIO (hereafter "the union"), to inquire about joining the union. They were given blank union authorization cards for their co-workers to sign. Once a union receives cards from 30 % of the company's employees, it can usually petition the Board to conduct an election. Between September 8th and 15th, the two obtained the signatures of 31 of the drivers. Although there is an on-going dispute whether the total number of employees was 55 or 63 and thus whether a majority of employees had joined the union, the card count clearly exceeded the showing of interest required for an election.

After returning the signed cards to the union's office, Restrepo and Orrego informed most of the drivers that there would be a meeting at the union's headquarters on September 19th. Twenty-two drivers, including Restrepo and Orrego, attended this meeting at which union representatives discussed the benefits of unionization and explained the process of obtaining union recognition. Four days later, on September 23rd, the union filed its petition with the Board for a representation election.

Also on September 23rd, prior to receiving official notification of the union's petition, the company announced a meeting of most of its drivers for that evening. Thirty minutes before the session, Lester Feinberg called Orrego, an employee of 4 1/2 years, into his office and dismissed him. Feinberg told Orrego he was terminated for refusing a job two days earlier to pick up passengers at Kennedy Airport. Although Orrego attempted to explain the incident, Feinberg told him pointedly that he did not want to hear his version.

Immediately after Orrego left Feinberg's office, Feinberg summoned Restrepo, an 8 1/2 year veteran and one of the most senior drivers, and ordered him to leave too. According to Feinberg's son's account of the incident, the elder Feinberg claimed that Restrepo had failed to apologize for his outburst the week before and that he had complained about his pay to drivers from other companies. The "captive audience" meeting was held immediately thereafter. Although that meeting, unlike another session in October, did not result in a violation of Section 8(a)(1), it appears to have been designed to cultivate favor among the employees. At the meeting, Feinberg reminded employees of their eligibility for health benefits and resolved an overtime pay dispute favorably for the workers.

On September 29th, the company received official notification of the election petition and launched a forceful campaign to dissuade its drivers from voting for the union. The company distributed anti-union letters to the employees in their paychecks, and the Feinbergs explained these letters to those who questioned them. In October, the company held another meeting for its drivers. At that meeting, Lester Feinberg informed the drivers that he had to defer scheduled raises until after the union election.

The union lost the Board-conducted election by a vote of 14 to 33, with 5 ballots challenged by either the company or the union. The "challenged" ballots could not affect the results of the election. Thereafter, the union filed objections to the election, accusing the company of unlawfully discharging Restrepo and Orrego, laying off another employee, Fiorvante Ventanihla, for union activities and refusing to recall him, deferring scheduled wage increases until after the election, threatening employees that the company would close if they voted for the union, insisting that no worker could vote unless he had presented valid immigration papers, and keeping the union's meetings and activities under surveillance. The union charged that the company's conduct crippled its organizing efforts and damaged the laboratory conditions necessary to an election.

In preparing a response to these objections, Steve Feinberg brought most of the drivers to the office of the company's lawyer, Jeffrey Bernbach. In addition to other queries, Bernbach asked each of them, in the presence of Steve Feinberg, whether they had signed authorization cards. The greater number admitted they had, and these answers were included in the ...

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