NATIONAL LABOR RELATIONS BOARD, PETITIONER V. ROADWAY EXPRESS,

   INC.

   No. 82-2061

   In the Supreme Court of the United States

   October Term, 1982

   The solicitor General, on behalf of the National Labor Relations
Board, petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Eleventh Circuit in this
case.

   Petition for a writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                            OPINIONS BELOW

   The opinion of the court of appeals (App. A, infra, 1a-6a) is
reported at 700 F.2d 687.  The decision and order of the National
Labor Relations Board (App. C, infra, 19a-52a) are reported at 257
N.L.R.B. 1197.

                             JURISDICTION

   The judgment of the court of appeals (App. A, infra, 16a) was
entered on March 17, 1983.  The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   Section 7 of the National Labor Relations Act, 29 U.S.C. 157,
provides in pertinent part:

         Employees shall have the right to self-organization, to form,
      join, or assist labor organizations, to bargain collectively
      through representatives of their own choosing, and to engage in
      other concerted activities for the purpose of collective
      bargaining or other mutual aid or protection * * * .

   Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.
158(a)(1), provides in pertinent part:

         It shall be an unfair labor practice for an employer

         (1) to interfere with, restrain, or coerce employees in the
      exercise of the rights guaranteed in section (7) of this title *
      * * .

                          QUESTION PRESENTED

   Whether the Board properly concluded, with respect to two separate
incidents involving two different employees, that, in each case, the
individual employee's honest and reasonable assertion of a right that
is provided for in a collective bargaining agreement is concerted
activity within the meaning of Section 7 of the National Labor
Relations Act, 29 U.S.C. 157.

                               STATEMENT

   1. Respondent is engaged in the interstate transportation of
freight and operates a terminal in Atlanta, Georgia (App. C, infra,
21a).  Respondent and Local Union No. 728 of the International
Brotherhood of Teamsters, Chauffeurs, Warehousement and Helpers of
America (the Union) have been parties at all material times to
collective bargaining agreements covering respondents' over-the-road
and local freight forwarding, pickup, and delivery employees (ibid.).

   a. Albert T. Wilson is a dockworker and driver employed by
respondent at its Atlanta, Georgia facility (App. A, infra, 2a).  In
early September, 1979, Wilson's supervisor mistakenly issued Wilson a
warning letter regarding alleged mishandling of freight (ibid.).
Although the erroneous warning letter did not result in any loss of
pay to Wilson, under respondent's established policy, a second letter
for the same offense could have resulted in discharge (App. C, infra,
22a).  Wilson was, therefore, anxious to have the letter expunged from
his files promptly.  /1/

   On September 5, 1979, Wilson showed the warning letter to assistant
terminal manager Sammy Harmon, who agreed to investigate the matter.
The next day Wilson asked Harmon whether the letter had been expunged
and Harmon responded vaguely either that he had taken care of it or
that he would (App. C, infra, 25a).  Unsatisfied with this response,
Wilson contacted union steward John Ellis and, on September 7, Wilson
and Ellis asked superintendent Al Southern for permission to examine
Wilson's personnel file (ibid.).  Although the parties agreement
authorizes the Union to examine records pertaining to a specific
grievance, /2/ Southern refused to allow Ellis or Wilson to examine
the file and instructed them to continue checking with Harmon.
Because Harmon was not at work that morning, Wilson and Ellis went to
terminal manager Carlton Shepard, who instructed Southern to allow
Wilson to examine his file.  After Southern finally showed Wilson and
Ellis the file, which revealed that the erroneous warning letter was
not among the listed warning letters, Wilson was satisfied that the
warning had been expunged, and he returned to work (ibid.).

   Later that day, Southern asked Harmon about Wilson's warning
letter.  Harmon told him that he had already talked to Wilson about
the letter and had told Wilson that the letter had been taken care of
(App. A, infra, 25a).  Southern then went to the dock and asked Wilson
whether he had been assured by Harmon that the letter had been taken
care of.  Wilson replied, "yes" (ibid.).  Southern then issued Wilson
another warning letter, stating that, since Harmon had taken care of
the earlier erroneous letter, Wilson "wasted * * * time" for
approximately "10-15 minutes" by pursuing his grievance with other
management officials (id. at 26a).

   b. William J. Howard had been employed as a driver by respondent
for three years when, on November 23, 1979, he was scheduled to drive
a truck from Atlanta, Georgia, to Memphis, Tennessee.  Howard
inspected the truck before departing, and he found that a brake shoe
on one of the axles was protruding from the hub, that the shoe was
loose and that air leaked from the brake system (App. A, infra, 26a).

   The parties' collective bargaining agreements prohibit respondent
from requiring drivers to operate unsafe vehicles, /3/ or to violate
government safety regulations.  /4/ The agreements also require
drivers to report equipment defects.  Once defects are reported,
respondent may not then require any employee to operate the reported
vehicle until it is inspected by a mechanic.  /5/ Respondent, however,
has established a rule under which any employee who insists that a
mechanic inspect the vehicle after a garage foreman discovers no
defect will be issued a warning letter from wasting time and money if
the mechanic also fails to discover any defect (App. A, infra, 4a).

   Howard reported the brake problem to garage operations manager W.
E. Hartley (App. C, infra, 26a).  Hartley checked the brakes and
parking brake valve and told Howard that there was nothing wrong with
either.  He also warned Howard that if a mechanic were assigned to
inspect the unit, Howard would probably receive a warning letter
(ibid.) Howard insisted on an inspection and the mechanic concluded
that the brakes were "alright" (id. at 26a-27a).  Howard then received
a warning letter for unnecessarily delaying freight (App. A, infra,
5a).

   2. The Board, in agreement with its Administrative Law Judge, found
that, in issuing the warning letters to employees Wilson and Howard,
respondent violated Section 8(a)(1) of the National Labor Relations
Act, 29 U.S.C. 158(a)(1), because it had disciplined employees for
engaging in "concerted activities" within the meaning of Section 7 of
the Act, 29 U.S.C. 157, i.e., seeking to enforce rights under the
collective bargaining agreement (App. C, infra, 38a, 39a).  In both
instances, the Board found that the employees had acted reasonably in
asserting their contract rights, and that respondent's actions had
interfered with the employees' Section 7 rights (App. C, infra, 39a).
In concluding that both employees had engaged in concerted activity,
the Board relied (id. at 38a) upon its long-established doctrine that
an individual's reasonable assertion of a right embodied in a
collective bargaining agreement is concerted activity within the
meaning of Section 7 of the Act.  Interboro Contractors, Inc., 157
N.L.R.B. 1295, 1298 (1966), enforced, 388 F.2d 495 (2d Cir. 1967).
Accord:  T&T Industries, Inc., 235 N.L.R.B. 517 (1978).  /6/

   3. The court of appeals declined to enforce the Board's order with
respect to employees Wilson and Howard (App. A, infra, 1a-16a).  The
court acknowledged (id. at 15a) that the Board "presents an attractive
argument for Interboro's validity";  but it read the former Fifth
Circuit's opinion in NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714
(1973), which it felt bound to follow, as rejecting the Interboro
doctrine (App. A, infra, 14a).  The court concluded (ibid.) that the
law in the Eleventh Circuit, "until stated differently by the court
sitting en banc, adheres to the definition of concerted activities
announced in Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685
(3d Cir. 1964).  That is, an individual's conduct may constitute
protected concerted activity if engaged in to initiate, induce, or
prepare for group action or relate to group action in the interest of
other employees." /7/ See NLRB v. Datapoint Corp., 642 F.2d 123, 128
(5th Cir. 1981).

                   REASONS FOR GRANTING THE PETITION

   On March 28, 1983, this Court granted the Board's petition in NLRB
v. City Disposal Systems, Inc., No. 82-960;  the issue in that case is
identical to that presented here, viz., whether an individual
employee's honest and reasonable assertion of a right that is provided
for in a collective bargaining agreement is concerted activity within
the meaning of Section 7 of the National Labor Relations Act, 29
U.S.C. 157.  /8/ Accordingly, the Court should hold this petition
pending its decision in City Disposal Systems, Inc.  /9/

                              CONCLUSION

   The petition for a writ of certiorari should be held pending the
Court's decision in NLRB v. City Disposal Systems, Inc., No. 82-960;
and then disposed of as appropriate in light of that decision.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   WILLIAM A. LUBBERS

      General Counsel National Labor Relations Board

   JUNE 1983

   /1/ Under the parties' collective bargaining agreements, an
employee may appeal a warning letter within 10 working days (App. A,
infra, 2a n.1).  Article 45, Section 1 of the Southern Conference Area
Over-the-Road Motor Freight Supplemental Agreement 119-120 (Apr. 1,
1979 to Mar. 31, 1982) (GCX 4) (hereinafter "Supplemental Agreement")
provides in pertinent part:  "'Appeal from discharge, suspension or
warning notice within ten (10) regular working days by written notice,
and decision reached within fifteen (15) days from the date of
discharge, suspension or warning notice'" (App. C, infra, 22a).
Pursuant to respondent's established policy, an employee who fails to
appeal a warning letter forfeits his right to make a subsequent
challenge to it, and thus respondent may later base additional
disciplinary action on the unchallenged warning (App. A, infra, 2a
n.1).

   /2/ Article 44, Section 4 of the Supplemental Agreement (at 119)
states in relevant part (GCX 4):

      The Local Union, the State or Multiple State Committee or the
      Southern Conference Area Grievance Committee shall have the
      right to examine time sheets and any other records pertaining to
      the computation of compensation of any individual or individuals
      whose pay is in dispute, or records pertaining to a specific
      grievance.

   /3/ Article 16, Section I of the National Master Freight Agreement
57 (Apr. 1, 1979 to Mar. 31, 1982) (GCX 4) (hereinafter "Master
Agreement") provides (App. C, infra, 21a):

      The Employer shall not require employees to take out on the
      streets or highways any vehicle that is not in safe operating
      condition, including but not limited to acknowledged overweight
      or not equipped with safety appliances prescribed by law.  It
      shall not be a violation of this Agreement where employees
      refuse to operate such equipment unless such refusal is
      unjustified.

   /4/ Article 16, Section 2 of the Master Agreement (at 57) (GCX 4);
App. C, infra, 22a) provides:

      Under no circumstances will an employee be required or assigned
      to engage in any activity involving dangerous conditions of work
      or danger to person or property or in violation of any
      applicable statute or court order, or in violation of a
      government regulation relating to safety of person or equipment.

   Federal Highway Administration regulations provide in pertinent
part:  "No motor vehicle shall be driven unless the driver thereof
shall have satisfied himself that the following parts and accessories
are in good working order * * * :  Service brakes, including trailer
brake connections.  Parking (hand) brake * * * " 49 C.F.R. 392.7.

   /5/ Article 16, Section 4 and 4(a) of the Master Agreement (at 58)
provides (App. A, infra, 4a).:

      Employees shall immediately, or at the end of their shift,
      report all defects of equipment.  * * * The employer shall not
      ask or require any employee to take out equipment that has been
      reported by any other employee as being in an unsafe operating
      condition until same has been approved as being safe by the
      mechanical departments.

   /6/ The Board also found (App. C, infra, 42a) that respondent did
not violate Section 8(a)(1), (3), and (4) of the Act, 29 U.S.C.
158(a)(1), (3), and (4), when it issued warning letters and
suspensions to a third employee, Saint E. Bell, Jr., and subsequently
discharged him.  The Board concluded that Bell's conduct leading to
one of the warning letters was unprotected because Bell made
unprovoked, insolent remarks to the supervisor during the
grievance-related discussion (App. C, infra, 29a, 42a);  that three
other warning letters were based on Bell's having taken excessive
breaks and having behaved disrepectfully toward supervisors, rather
than on his inclusion in the list of witnesses scheduled to testify in
a Board proceeding or on any other activity protected by the Act;  and
that respondent's suspensions and ultimate discharge of Bell were not
unlawful because they were disciplinary actions taken in response to
bad faith claims of contract rights by Bell that constituted a
"pattern" of "noncooperation and resistance to the instructions of his
supervisors" (id. at 46a).  Accordingly, the Board dismissed all
allegations of the complaint relating to employee Bell (id. at 51a).

   /7/ The court acknowledged that Buddies Supermarkets was factually
distinguishable since that case did not involve an employee claim
under an existing collective bargaining agreement (App. A, infra,
14a).  Nevertheless, the court read the opinion in Buddies
Supermarkets as clearly having rejected the Board's Interboro
doctrine.

   /8/ A copy of our brief in City Disposal is being sent to
respondent.

   /9/ We, of course, do not seek review of the court of appeals'
decision insofar as it upheld the Board with respect to the dismissal
of allegations pertaining to employee Bell, and we have not printed in
the appendix the court's separate judgment denying Bell's petition for
review.  Bell did not intervene in the proceeding initiated by
Roadway's petition for review.

   Appendix Omitted