INTERNATIONAL TRANSPORTATION SERVICE, INC., PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT
No. 05-1063
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 27, 2006 Decided June 2, 2006
Consolidated with 05-1126
Scott J. Witlin argued the cause and filed the briefs for petitioner. Stanley R. Strauss and Brian W. Steinbach entered appearances.
Ruth E. Burdick, Attorney, National Labor Relations Board, argued the cause fоr respondent. With her on the brief were Arthur F. Rosenfeld, Acting General Counsel, John H. Ferguson, Assistant General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Julie B. Broido, Senior
Before: SENTELLE, HENDERSON and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: International Transportation Service, Inc. (“ITS“) petitions for review of a National Labor Relations Board (“the Board” or “NLRB“) order finding it in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (“NLRA” or “the Act“),
I.
ITS operates a container terminal at the port of Long Beach through which imports and exports pass continuously. Through its membership in the Pacific Maritime Association (“PMA“), the company indirectly employs longshoremen represented by local unions affiliated with the International Longshore and Warehouse Union (“ILWU“). ITS directly employs its office clerical workers, a bargaining unit represented by the Office Clerical Unit (“the Union“) of ILWU. The company also employs a single “Payroll and Billing Representative” whose union representation is the subject of this case.
During past bargaining with ITS on behalf of the office сlerical bargaining unit, the Union also attempted to negotiate on behalf of the Payroll and Billing Representative. Each time,
Two Union representatives and Tartaglia immediately responded by picketing. No other ITS employees joined the picket line, but many ILWU-affiliated employees ceased working. The work stoppage, having brought the terminal to a halt, prompted ITS to request expedited arbitration with ILWU through the PMA. Within a few hоurs, the arbitrator concluded that the picket line was not bona fide and ruled in the company‘s favor, allowing ITS to refuse to pay employees who honored the picket line. Although not subject to the arbitration, the Union and Tartaglia ended the picket line following the ruling.
The short work stoppage cost ITS a significant amount of money and goodwill with its customers. It caused a mile-long truck backup, delayed several shipments, and cost upwards of $90,000. In addition, despite the arbitrator‘s award, many workers who honored the picket line did not return until the next day. Because her actions triggered the events, ITS fired Tartaglia on February 8.
The Union filed an unfair labor practice charge against ITS for Tartaglia‘s termination. The NLRB‘s Regional Director issued a complaint based on that charge, alleging that ITS violated Section 8(a)(3) and (1) of the NLRA by discharging
ITS filed exceptions, arguing that it committed no violation because Tartaglia did not engage in activity protected by the Act. Specifically, ITS argued that the Union‘s recognitional picketing violated Section 8(b)(7)(C) because the Board could not certify Tartaglia as a single-employee bargaining unit. By assisting the Union‘s unlawful actions, therefore, Tartaglia could not receive the Aсt‘s protection under ITS‘s theory. ITS also argued that Tartaglia was either a managerial or supervisory employee not subject to the protections of the Act.
The NLRB rejected ITS‘s exceptions and adopted the ALJ‘s ruling, which held on two alternative grounds that Tartaglia had engaged in protected activity. First, relying on Teamsters Local Union No. 115 (Vila-Barr Co.), 157 NLRB 588 (1966), it concluded that a union does not violate Section 8(b)(7)(C) when it pickets for recognition of a single-employee unit. ITS pressed the Board to abandon Vila-Barr in light of a Seventh Circuit case that questioned its correctness, see Int‘l Bhd. of Teamsters v. NLRB, 568 F.2d 12, 18 (7th Cir. 1977) (“Purolator Security“), but the Board declined. It therefore concluded that neither the Union nor Tartaglia unlawfully picketed for recognition.
Second, the Board alternatively held that Tartaglia‘s picketing was protected even if the Union‘s was prohibited. Concluding that Tartaglia did not act as the Union‘s representative or agent, the Board refused to impute any wrongdoing by the Union to Tartaglia. The Board also found that the Act protected Tartaglia‘s individual picketing because it was “union activity.” Even though she did not act in concert with other employees, it considered the union activity inherently
ITS timely petitions for review of the Board‘s order, and the Board cross-applies for enforcement. The company raises three challenges to the Board‘s order. First, it argues that Tartaglia did not engage in protected, concerted activity when she joined the Union‘s picket line. It therefore urges this court to reject Vila-Barr and find that Section 8(b)(7)(C) prohibits recognitional picketing for single-employee bargaining units. Second, ITS argues that Tartaglia was either a managerial or supervisory employee not subject to the Act‘s protections. Third, ITS argues that the Board improperly refused to hеar evidence of Tartaglia‘s misconduct prior to fashioning a remedy. Because we agree that Tartaglia did not engage in protected activity, we do not address the other arguments.
II.
We review the NLRB‘s orders under a deferential standard. If supported by substantial evidence, the Board‘s findings of fact are conclusive.
In this case, the Board held that ITS violated Section 8(a)(3) and (1) of the Act by firing Tartaglia after she picketed for recognition of herself as a single-еmployee bargaining unit. Under Section 8(a)(1), an employer may not “interfere with, restrain, or coerce employees in the exercise of the rights
The Section 7 right to collective bargaining has never extended to single-employee bargaining units. As the Board has recognized since 1936, “the principle of collective bargaining presupposes that there is more than one eligible person who desires to bargain.” Luckenbach Steamship Co., 2 NLRB 181, 193 (1936). A single-employee bargaining unit by definition excludes all other eligible persons from the bargaining process. Accordingly, the Board will not certify single-employee bargaining units because the Act does not empower it to do so.
The Board‘s inability to certify a bargaining unit has ripples in other areas of labor law, including Section 8(b)(7)(C) of the Aсt, which forbids unions from picketing “where such picketing has been conducted without a petition [for election] being filed within a reasonable period of time not to exceed thirty days from the commencement of such picketing.”
In Vila-Barr, the Board exempted single-employee units from this general rule, thus creating conflict with the mixed-guard cases. Although the Board will not certify single-employee units, it held in Vila-Barr that Section 8(b)(7)(C) does not prohibit unions from pickеting for recognition of such a unit. 157 NLRB 588. The Board reasoned that it would be “inequitable” to deny the right to picket for recognition of such units because “[t]here is no statutory or other policy against representation of an individual employee in a stable one-man unit by an authorized representative.” Id. at 589-91.
The Seventh Circuit has called Vila-Barr into question. Upholding the Board‘s rule on mixed-guard units, it broаdly stated that Section 8(b)(7)(C) “bars recognitional picketing after it is determined that no Board-conducted election will be held.” Purolator Security, 568 F.2d at 18. In dictum, the court further stated that Vila-Barr “was incorrect.” Id. at 18 n.12. The court disagreed with the Board‘s distinguishing of Vila-Barr from the mixed-guard cases and concluded the same policy—“to stop unions from imposing their will on employers and employees“—applies to preclude recognitional picketing for single-employee units. Id.
We too have held that Section 8(b)(7)(C) “appears to contemplate picketing by way of prelude to an election.”
The Board understandably followed Vila-Barr as precedent,2 but we are not so bound. See Alabama Mun. Distribs. Group v. FERC, 312 F.3d 470, 473-74 (D.C. Cir. 2002). No rational distinction supports the Board‘s different treatment of single-employee units and mixed-guard units for purposes of recognitional picketing. The fact that the Act prohibits the certification of mixed-guard units, see
The Board‘s error runs deeper. Even if Tartaglia did not personally engage in prohibited activity by joining the picket line, the Board did not explain why her assistance of prohibited activity would otherwise be protected. The Act does not protect all nonprohibited activities: Rather, it protects some activities, prohibits some, and leavеs others in a suspended state, neither authorized nor punishable. The Board‘s decision not to impute wrongdoing to Tartaglia means only that she did not violate the Act. It does not thereby usher her into the safety of Section 7.
Furthermore, the Board‘s ruling creates perverse protections for employees. It immunizes from employer discipline those employees who aid a union‘s unlawful activities. Presumably, the ruling would also protect an employee who helps a union vandalize his employer‘s property simply because he assisted a union. We decline to adopt this “Union made me do it” defense for employee misconduct. The Act does not protect an employee for assisting a union‘s unlawful acts.
We also reject the Board‘s alternative holding that Tartaglia‘s so-called “union activity” was the kind of concerted activity protected by Section 7. To be sure, the Supreme Court
This court has also approved of the Board‘s rule in Meyers: Concerted activity “encompasses [only] those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management.” Prill v. NLRB, 835 F.2d 1481, 1484 (D.C. Cir. 1987) (alteration in original). Accordingly, “concerted activity includes circumstances where individual employees work to initiatе, induce or prepare for group action.” Citizens Inv. Servs. Corp. v. NLRB, 430 F.3d 1195, 1198 (D.C. Cir. 2005). To that end, employees engage in concerted activity when bringing group complaints to management‘s attention. Id. at 1199. The touchstone for concerted activity, then, must be some relationship between the individual employee‘s actions and fellow employees.
Tartaglia‘s personal picketing did not involve collective action for “achiev[ing] common goals” any more than the Union‘s picketing. City Disposal, 465 U.S. at 830. She did not assert a right obtained under a collective bargaining agreement through prior group aсtion, as had the employee in City Disposal. Indeed, she had been repeatedly excluded from the office bargaining unit and therefore had no rights to assert from prior collective action. Neither did she act on behalf of other employees. She instead requested recognition of the Union as her personal bargaining representative. Even upon a sucсessful picketing campaign, she had no interest in spurring group action; rather, any resulting agreement would have been a personal agreement with ITS not applicable to any other employee. Her picketing therefore did not raise the “truly group complaints” necessary for a finding of concerted activity.
Consequently, the Board hаs demonstrated no relationship between Tartaglia‘s individual action and any effect on, or
III.
For the above reasons, we grant the petition for review.