Transportation Systems, Inc.

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 and p , 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