Kenneth P. Prill v. National Labor Relations Board

PRILL, Petitioner, v. Kenneth P. LABOR

NATIONAL RELATIONS BOARD, Respondent.

No. 84-1064. Appeals, United States Court District of Columbia Circuit.

Argued Nov. Decided Feb. Amended As Feb. 26 1985.

Ellis Boal,Detroit, Mich., petitioner, for Fleischer, N.L.R.B., Atty. David Wash- D.C., ington, with whom Wilford W. Johan- sen, Acting General Counsel and Elliott Moore, Deputy Counsel, Associate General N.L.R.B., D.C., Washington, brief, were on respondent. for jra Katz, Pa., jay Philadelphia, was on Rights Project, brief Workers’ Law et reversal, ab) curiae, urging amicus WALD, EDWARDS, BORK, Before Judges. Circuit „ , Bork, , Judge, Circuit dissented and opinion.

filed Opinion for the Court filed Circuit

Judge HARRY T. EDWARDS. Dissenting opinion Judge filed Circuit B0RK- EDWARDS, Judge: HARRY T. Circuit Prologue !(cid:127) review, petition On this we consider a Prill, petitioner, case in Kenneth 942 the solely and on behalf of not bv job at his discharged from

was he because Industries, (“Meyers”), Inc. Finding Prill himself.”3 had acted of a condition the unsafe about complained behalf,”4 “solely and on his own alone trailer, including a com- and truck company unprotected by held his conduct sec- Board following an acci- authorities state plaint tion 7. refused, safety he dent, because and and driving the truck reasons, to continue An investi- accident. following the trailer It is not responsibility of the courts determined officials by state gation second-guess judgments the lawful of due unsafe in fact was vehicle company the NLRB. The Board granted has been hitch, and damaged and faulty brakes authority broad to construe the NLRA in Not- Meyers. against issued was citation light expertise. of its In appropriate cir- condi- concededly unsafe withstanding the cumstances, may the Board even elect to vehicle, fired because was Prill of the tion modify abandon precedent. or established could they decided company officials However, judicial deference is not accorded cops all “calling the him have a decision of the NLRB when the Board time.” view, pursuant acts to an erroneous of law and, consequence, as a fails to exercise the delegated by Congress. discretion to it discharge, Prill against his protest In charge with practice labor an unfair filed Board Relations Labor National In the case, instant we was find “Board”), complaint and (“NLRB” or Board erred when it decided that An Administrative its Meyers. new against issued definition of “concerted existing following activities” (“ALJ”), Judge was Law mandated the NLRA. conduct Prill’s Because found that precedent, Board Board misconstrued the bounds of activity] law, “concerted constituted opinion stands on a faulty legal 7 premise under section protection” or mutual aid and adequate without Act rationale. Relations Labor Accord- the National ingly, we remand this case his “Act”),1 princi- recommended (“NLRA” or ples of SEC v. Board, Chenery However, Corp.,5 so that the reinstatement. full Board may reconsider member, the scope reversed of one “con- dissent over certed activities” under section AU, its earli- overruled We ex- the decision press no as to the complaint correct decisions, dismissed test of er “concerted activities;” require we Prill’s rejecting Meyers.2 against the Board exercise the full a new definition measure of adopted ad- charge, the ministrative granted discretion activities;” enunci- under the to it Con- “concerted gress and reconsider is not conduct matter test, free from ated its erroneous conception “engaged with unless it is bounds of “concerted” the law. employees, authority or on practice for an labor be an unfair provides: It shall § U.S.C. 157 § 1. NLRA employer— right to self-or- have the Employees shall with, restrain, em- (1) or coerce to interfere form, or- join, assist labor or ganization, to rights guaran- through ployees exercise of collectively in the bargain ganizations, choosing, this title. and to 157 of own teed in section representatives of their activities for engage other concerted Indus., No. N.L.R.B. bargaining mu- or other purpose of collective 6, 1984) (hereinafter (Jan. re- have the shall also protection, and L.R.R.M. tual aid "). activi- "Meyers or all of such from right refrain ferred to as right that such except extent ties requiring agreement mem- by an be affected bership L.R.R.M. at Id. at organization as a condition a labor in section employment as authorized at 1030. 115 L.R.R.M. 4. Id. at 158(a)(3) title. of this NLRA, U.S.C. 8(a)(1) Section L.Ed. 626 U.S. 5. 318 (1982), provides: 158(a)(1) replacement secure impossible to Background II. parts pur- that new parts; Prill insisted Facts A. trip, during After his next chased. inoperative, Prill by the Administra- remained the brakes found The facts were the brakes would accepted again Faling when asked Judge6 and Law tive on re- undisputed Board,7 largely simply referred to repaired, are but was as a skilled hired Prill was Kenneth Beatty. Maynard view. Indus- by Meyers April on driver engaged Xenia, Ohio, tries, Michigan company subsequent trip a to a On Prill alu- manufacture, distribution and sale stopped inspection at a roadside conducted Prill products. and. related boats minum Highway Patrol. a Ohio State As years before for several driven trucks had inspection, result truck was had Meyers, and he for to work going defects, a issued citation for number of training as a mechan- years of two received including the brakes. When Prill returned he was period Throughout ic. Michigan, to he the citation showed to Fal- good had a work Meyers, he employed by ing together post- and submitted with his record. trip paperwork. assigned Prill drive a to red Ford During the June, 1979, first two weeks in accompanying truck and its trailer to haul driver, Gove, another Ben drove Prill’s facility in Meyers’ from main Tecum- boats equipment trip Sudberry, on a to Ontario. seh, Michigan, throughout to dealers Gove testified before the ALJ that he expe- country. began Prill experience soon to rienced a steering problem which made it problems equipment, especially with his difficult steering to hold road and the trailer’s brakes.8 and “caused with [the discussing problems addition In to these to swerve and back forth like truck] Ken drivers,9 Prill made with numerous described,” Prill nearly causing an acci- complaints supervisor, Faling, to his Dave dent.10 When Faling’s Gove went to office company president, Beatty, Alan to and to submit post-trip report, his Prill was mechanic, Maynard, to Buck after re- there at the same time to paper- receive turning trips from which the on brakes trip. work for the next Gove described the malfunctioned. steering problems and Faling, brake stated, in presence, Prill’s that he would example, trip, On one while he was again not drive the truck until it was re- Illinois, driving through Chicago, Prill nar- paired.11 Faling promised to make the rowly escaped his an accident when brakes repairs. needed during stop heavy failed sudden traf- early July, driving Prill was through Faling fic. On his return Prill asked Athens, Tennessee, when he had an acci Maynard repaired, to have the brakes dent which the Board found was caused Maynard’s unsuccessful. efforts were He the malfunctioning pickup brakes.12 A Prill that the axles were so old that it told Indus., Inc., 7-CA-17207, slip op. 6. Case 10. Tr. at J.A. 86. (Jan. 1981), reprinted Appen- at 2-5 in Joint ("J.A.") (hereinafter dix 281-84 referred to hearing 11. Gove testified at the that he told Decision”). as "ALJ Faling, “I wouldn’t take the truck as far as back, reapired Clinton and until ... someone 1-2, 13-15, Meyers at L.R.R.M. at 7. 1029-30. it, it. I who [sic] didn’t care done but I wasn't explained testimony going As 8. Prill in his before drive it no further.” Tr. at J.A. ALJ, braking equipped sys- brief, his vehicle was In its the Board reads this statement to compo- the trailer tems both the truck and mean that Gove did not care who drove the although systems, they These nents. operated can be agree truck. Brief for NLRB at 3. We with the ordinarily independently, would func- 1-2, petitioner, Reply Brief Petitioner at together pedal depressed. tion On the vehicle when the brake reading the more natural Gove’s statement is Prill, however, assigned to repaired that he did not care who the truck so essentially inopera- brakes on the trailer were long repairs were made. Hearing 1980) Transcript (Aug. See tive. 16-17, ("Tr.”) at J.A. 40-41. 115 L.R.R.M. See Tr. at J.A. 42. trailer, years.16 rear of Prill’s that for the end truck left At struck sending jack-knife and causing conversation, Beatty the truck to Seagraves decid giving a into After a ditch.13 both vehicles Maynard ed to send down check the highway patrol at statement to state equipment. „ , ., , , accident, the , Prill unsuccess- .. ... the scene of ’ , , „ , , „ , , ,, conversation, .. After Prill decided to„ „ „ fully sought truck trailer to have the . . .. , ,, j , (cid:127) contact Tennessee Public Service Com- i U1. mspeeted by public' „ comm service state ...... arrange inspection for an mission official ission14 inspection of the vehicle. resulted accident, Mey Prill Following the called putting the out of citation cauge unit service be Beatty at ad president ers Alan home to brakeg tQ and d e wag baged bad and of exten vise him of the incident gev. area. The dtation wtch as ® (cid:127) amage sive o e um ^ Department Transportation regula- eral ,. , togeth- . . . „ OA„ Pnll and trailer to chain tractor K , , , , , „ , tions, including 396.4, . ™ ? 49 C.F.R. ’ ,. ,.’ „ ,. er the trailer back lecumseh and tow e °f “ unsaf« repairs. responded Prill that “it would be operatfn ^ notify Pn” was instructed to it a possible to do would still be cle.17 °r Service Public Commission imme Pohe® highway” the hitch hazard on the because lately if anyone attempted to move might give way and area cracked was and required repairs vehicle before were made. Beatty repeated that cause accident.15 an Maynard When arrived in later Tennessee home, Prill chain tow the trailer should and citation, day, the same Prill showed him the him if he insisted he could but told that Maynard Beatty and then decided it. look at have a mechanic Tennessee , , „ „ Beat- repairing ... . trailer was not worth , be sold and should n -n Prill ,, following morning, ... r called .. , j , , , tires, , , , L- nT b scrap removing for after spoke Wayne him ty at and to and to work days Prill for reported Two later work Seagraves, company’s president vice Wayne Seagraves’ was to summoned production. upset Prill for Both were office, questioned where he was about the Tennessee, was and demanded still damage accident and to the truck. Both why yet know he had left. Prill stated Seagraves Beatty Prill he why asked the vehicle unsafe was because request had not the trailer back as damaged hitch lacked towed trailer was ed; Prill Seagraves responded responded that this would have brakes. running like company had been its trucks both unsafe and unlawful.18 At the been being operated agency highway, that the on a it is discovered conceded before condition, was not fault and it was not to be such unsafe be accident Prill's shall discharge. operation only a ALJ Decision continued in nearest consideration his effected, place repairs safely be J.A. 282. where can operations be and even such only permitting shall conducted 34-35, 14. Tr. at J.A. 58-59. public if it be less hazardous to the than .„ high- the vehicle remain on 15. Tr. at J.A. 60. ^ay. J.A. 61. Tr. pr;|j Seagraves that he testified told "that requires law that all are vehicles that involved regulation in 17. 49 C.F.R. § 396.4 inspected by lu an authority be either state accident herein, provided at the time of the events effect certified of or a mechanic somekind as follows: they put are or back before moved M operations forbidden. Unsafe highway again. Tr. at J.A. Prill testi permit require a shall or No motor carrier relying fled that in this conversation he was by any driver to drive motor vehicle revealed Safety 396.6 of the Federal Motor Carrier operation inspection to be condi or in such Regulations, in a which were contained manual operation or would hazardous tion that its published by High truck the Federal for way drivers likely the vehicle to result in a breakdown of Administration, Department U.S. of Trans any any drive motor vehicle nor shall driver provided portation. The section follows: reason of its mechanical condition vehicles, inspection, imminently operate Damaged as to so hazardous require likely permit or accident or a breakdown No motor carrier shall cause an any nor driver drive a motor vehicle driver to drive shall of the vehicle. If while individual, conversation, plaints made an Seagraves told even absent end discharged “we employees, Prill that he was because authorization “if the calling cops like this all you can’t have matter at issue is of moment to the the time.” employees complaining and if that mat- brought manage- ter is to the attention of Decisions the ALJ and B. The spokesman, voluntary ap- ment pointed purpose, long for that so as such facts, the ALJ the basis of these speaking On person is for the benefit of the discharged Prill because found that was group.”24 interested safety complaints and his refusal to his Co.,25 In Alleluia Cushion unsafe in accordance with drive an vehicle extended the doctrine of constructive con- Transportation regula- Department certed to include an individual em- Relying tions.20 on the rationale Allel- ployee’s efforts to invoke state and federal Co.,21 the ALJ held that uia Cushion regulating occupational safety. laws Prill’s actions were “concerted activities discharged Alleluia protection” mutual aid or under section notifying Occupational the California Safe- NLRA, protected, and thus be- 7 of the (OSHA) ty and Health Administration of all em- they inured to the benefit cause plant. Observing unsafe conditions at his In order to understand this con- ployees.22 working conditions are matters that “[s]afe clusion, necessary briefly to review the it is continuing great concern for all doctrine of development of the Board’s workforce,” filing and that within activity.” “constructive complaint OSHA “was an action taken During past years, 25 the Board has the guaranteeing Respondent’s furtherance of concept of “concert- gradually extended the rights employees their under the California under section 7 to include ed activities” Act,” Safety Occupational and Health types of actions taken certain Board held that example, under the so- employees. For incongruous public would be [i]t doctrine, Board has called Interboro policy occupational enunciated such single long held that the assertion safety legislation presume to from a collec- employee rights of derived sup- absent an outward manifestation protected un- bargaining agreement is tive port, Henley’s employees did not fellow reasoning that such an on the der section agree compli- with his efforts to secure of the concerted action act is an extension statutory obligations im- ance with the agreement and that produced that Respondent for their benefit. posed rights of all covered affects the Rather, since minimum safe and health- addition, in agreement.23 In a series by the protec- employment conditions for the developed ful Board since of cases well-being employees has protects corn- tion and section 7 position that Contractors, Inc., damaged 157 N.L.R.B. in an 23. See Interboro has been motor vehicle which (2d inspection (1966), enforced, cause until F.2d 495 accident or 1298 388 person qualified Cir.1967); to ascer- Bunney been made N.L. has Bros. Constr. 139 damage and of the (1962). nature and extent tain the R.B. damage relationship to the safe of such vehicle, nor shall such operation motor (1971); Corp., 24. Carbet 191 N.L.R.B. person operated such until vehicle be motor Hugh Corp., H. Wilson 171 N.L.R.B. operating con- be in safe it to has determined (3d Cir.1969), (1968), enforced, 414 F.2d 1345 dition. denied, U.S. cert. (1978). 396.6 49 C.F.R. (1970); Guernsey-Muskingum Elec. L.Ed.2d 115 Coop., en J.A. 68. 124 N.L.R.B. 19. Tr. (6th Cir.1960). forced, 285 F.2d 8 8-9, J.A. 287-88. Decision at 20. ALJ (1975). 25. 221 N.L.R.B. 999 221 N.L.R.B. 9-10, 288-90. J.A. Decision 22. ALJ legislatively public, employee declared to al and

been be com- who “[a]n interest, public the consent and overall plains safety about of a particular from the concert of action emanates speaks safety of any employ- truck statutory rights. such mere assertion may ee who drive that truck.”29 The ALJ employee speaks Accordingly, where complaints prior held that also Prill’s statutory provi- up and to enforce seeks clearly accident “were concerted because safety relating occupational de- sions to Gove,” they joined by were driver had who employees, signed all for the benefit complaints supervisor made similar to Dave that fellow the absence of evidence Faling Therefore, in Prill’s presence.30 representation, such employees disavow discharge ruled AU that Prill’s violated implied thereto will find an consent we 8(a)(1). section activity to concerted.26 and deem such be disagreed The Board dismissed com- The rationale of Alleluia thus was Overruling complaint. Alleluia and its (1) famil- posed of stands: the Board’s two progeny, argued activity should iar view an individual’s could be if it in- “concerted” in fact protected if it relates a matter of be action,” group “some kind of volved (2) a employees, “mutual concern” criticized Alleluia as inconsistent with specific rationale that concert be more statute because support it allowed rights asserts presumed when an individual presumed proven.31 rather than Claim- under a statute enacted for the benefit ing to return to “the standard on which the employees.27 Alleluia,”32 Board and courts relied before Applying principles of Alleluia following announced test for ALT in case progeny,28 the instant protected activity: protected Prill’s held conduct general, find an Prill’s drive 7. He reasoned that refusal to “concerted,” shall require we by Department the vehicle was mandated engaged authority it be in with or on the Transportation regulations re- employees, solely by of other and not safety particu- flected a for the concern gener- lar drivers as well as that of the on behalf of the himself. Once generally rejected by appeals. 26. Id. at were courts of See, NLRB, e.g., Co. v. Ontario 637 F.2d Knife 20-21, Kreme, (2d Cir.1980); Krispy supra; See 15 at 1031-32 840 Pelton 27. L.R.R.M. Zimmerman, Casteel, (7th Cir.1980); (Member dissenting): Gorman & Inc. v. 627 F.2d 23 Finkin, (9th Bighorn Requirement Beverage, and the NLRB v. 614 The Individual F.2d 1238 Cir.1980); Co., see, supra. Labor Relations "Concert” Under the National Dawson Cabinet But Act, Co., e.g., Fry Roofing Lloyd 130 305 NLRB v. U.Pa.L.Rev. A. 651 F.2d (6th 1981); Cir. NLRBv. 442 Ambulance Serv. cases, later Board the reason- In the extended Inc., (1st Cir.), Bedford, New F.2d 88 564 protect rights ing to assertion of enforc- Alleluia (1977); ing mem. 229 106 see also N.L.R.B. statutes, complaints as well as to under other Serv., v. Parr NLRB Lance Ambulance 723 F.2d employ- over matters of mutual concern and to below, (7th 1983). 579-80 Cir. We discuss complaints employer rather than ee made infra, 72 see note the relevance of these deci- See, agencies. e.g., Krispy governmental to sions to the case. instant Corp., Doughnut N.L.R.B. 1053 Kreme 245 denied, (4th (1979), F.2d 304 claim); 635 enforcement 28. particular, Moody, AU relied on Pink Cir.1980) (worker’s compensation Steere Inc., (1978), N.L.R.B. 39 which the (1978) (protest Dairy, N.L.R.B. 1350 8(a)(1) a violation of section facts found on conditions); working Cycle pay & over Self nearly Meyers. identical to those in (1978) (un- 237 N.L.R.B. 75 Marine Distrib. employment compensation claim); Surrey Air 29. AIJ Decision at 9-10, J.A. 288-89. Corp., 229 N.L.R.B. enforcement denied, (6th Cir.1979) (inquiry con- 601 F.2d 256 30. Id. at J.A. ability payroll); cerning employer’s meet to Co., 228 N.L.R.B. Dawson Cabinet enforce- 8-10, (8th Cir.1977) denied, L.R.R.M. at (pro- ment Act). 1027-28. comply Pay Equal test over failure did not re- While Alleluia decision itself 32. Id. at review, post-Alleluia judicial decisions L.R.R.M. at ceive concerted, protect group engaged is found to an action in by employ- if, 8(a)(1) violation will be found addi- protection, ees for their mutual aid and was tion, protected employer knew of the encompass intended to case individu- employee’s activity, nature of the activity presented al Therefore, here.”37 protected by concerted was the Board held that Prill’s discharge did Act, employment and the adverse action rights not violate his under section 7.38 (e.g., discharge) at issue was motivated employee’s protected Analysis III. activity.33 standard, Applying this the Board held A. Standard Review “solely that Prill had alone and acted his Because the Board is entrusted he refused to own behalf” when drive the “responsibility adapt with the truck and contacted the Tennessee Public the Act to life,”39 Service Commission.34 As to whether changing patterns of industrial complaints prior Prill’s to the accident were reasonable construction of the byAct Gove, joined by the Board found that the Board is entitled to considerable defere merely record that “Prill was clear over- nce.40 An agency decision be sus cannot complaint heard Gove’s while the office tained, however, where it is based not on Stating on another matter.”35 that “the agency’s judgment own but on an erro most that can be inferred from this scenar- neous of the view law. For it is a funda employee io is that another was individual- principle mental of law that “an administra ly concerned ... about the truck’s condi- upheld tive order cannot be unless the tion,” “[tjaken by the Board ruled that grounds upon agency which the acted in itself, individual concern, employee ... exercising powers upon were those openly even if manifested several em- which its action can be sustained.”41 As basis, ployees on an is not suffi- Court stated in its landmark prove concert cient evidence of ac- Chenery Corp.: SEC decision in 36 Although tion.” the Board admitted to [agency] upon action is based a de- [I]f “[ojutraged respondent being termination of law as to which the re- expense of its driver and oth- who —at viewing authority of the courts does traveling highways— ers nation’s play, come into order not stand if clearly attempting squeeze the last law____ agency has misconceived the drop just a trailer that had of life out of orderly functioning process clearly given up ghost,” [T]he it nevertheless requires grounds upon of review that the it did not “that sec- concluded that believe legitimize agency tion framed as was administrative acted be (footnotes protection L.R.R.M. at 1029 ed to cut off for the Id. at individu- omitted). rights” al who asserts collective violat- history spirit ed “the of Federal labor laws." 16, L.R.R.M. at 1030. 34. Id. at 115 20, (Member Id. at L.R.R.M. 115 at 1031 Zim- merman, dissenting). Id. 17, (emphasis 115 L.R.R.M. Id. at Inc., 251, Weingarten, 39. NLRB v. J. 420 U.S. original). 266, 959, 968, (1975). S.Ct. 43 L.Ed.2d 171 18, at 1031. The Board Id. at 115 L.R.R.M. — See, Inc., e.g., City Disposal Sys., NLRB v. added, paraphrasing Miller’s dissent Chairman U.S.-, 1505, 1510, 147, (1973), 104 S.Ct. 79 L.Ed.2d 839 G.V.R., N.L.R.B. (1984); 488, Department Ford Motor Co. v. 441 U.S. God nor the that it was "neither (1979). empow- "not 60 L.Ed.2d 420 Transportation," and that it was 99 S.Ct. immorality illegality or even all ered to correct arising fabric of Federal and under the total 80, 95, Chenery Corp., 41. SEC v. U.S. Meyers at 115 L.R.R.M. at 1031. laws.” state 454, 462, (1943) (“Chenery”); S.Ct. 87 L.Ed. 626 194, 196, Chenery Corp., see also SEC v. 332 U.S. dissented, arguing of the Board 38. One member 1575, 1577, (1947). 67 S.Ct. 91 L.Ed. 1995 concept of concert- "use [of] that the Board’s 94 8 dally adequately sus- on the basis of

clearly disclosed and recent Court decisions, assuming tained.42 that the Board erred in NLRA present that the its inter- mandates concisely by stated principles were These pretation of In “concerted activities.” oth- separate opinion in in his Judge Bork words, er opinion wrong Board’s Federation Amer- Parenthood Planned insofar as it agency holds that the is with- ica, Inc. v. Heckler:43 out discretion to construe “concerted activi- Corp., Chenery v. 318 U.S. Under SEC except ties” Meyers indicated 87 L.Ed. 626 we 63 S.Ct. Second, validity contrary of an administra test.46 to the view ex- judge the must solely grounds “the regulation Board, on pressed by tive we find [agency] itself based upon which represent test does not return to a 63 S.Ct. at 459. action.” Id. at the standard relied on the courts and agency regulation must be particular, an Alleluia, the Board before but instead con- invalid, though agency even declared stan- stitutes a new and more restrictive ¿ard. adopt regulation in might be able conclude We therefore because discretion, if it was the exercise of its faulty the Board’s decision stands on a judg [agency on the own not based s] legal adequate premise and without ration- unjustified as ment but rather on ^ we must remand the case for reconsid. erat¡on Congress judgment sumption that was regulation that such desirable.” [a is] Communications, Inc., 346 FCC RCA B. The Test 86, 96, 998, 1005, 97 L.Ed. 73 S.Ct. U.S. regulation If on based in this The Board announced case law, applicable incorrect view of an general, to find an «[i]n that> activit regulation promulgated, cannot stand as require to be we shall <concerted/ the mistake of the administrative unless ¡t ^ d with or on the author. , , , , ,, , ., , body clearly bearing . » , had no is one that , ,, lty employees, solely by of other and not ' , procedure „ used or the substance .. himself. A .. J , ., „ , , „ ,, , employee . . and on behalf , „ , . of decision reached. Massa ~ . . at oral c As counsel for the Board confirmed h u s e t ts States, ,. , ,, , 377 U.S. Trustees v. United . . argument, requires test m effect 1236, 1245, 12 L.Ed.2d 268 84 S.Ct. employees join in two or more or authorize (1964)44 , ,. „ conduct can be “concerted” before teachings Chenery We think that the gection 7_ plainly implicated in this case. The are The Board’s decisions since indi- clearly con- reveals that it Board’s strictly cate that the new definition will be adoption a narrow test for sidered its only activity clearly construed include “concerted activities” to be mandated both employees, joined in or endorsed merely itself and to be the NLRA Thus, complaint by find that individ- return to “the standard which ual was made “on of” behalf courts relied before Alleluia.”45 We others, require the Board in effect will misinterpreted the that the Board

believe First, think, respects. espe- complaint specifically have been autho- law in two we Friendly, Chenery erally at 462. Revisited: 42. 318 U.S. at Reflections on Reversal and Remand Administrative Or ders, 1969 Duke L.J. 199. (D.C.Cir.1983). 43. 712 F.2d 650 11, Meyers at at 45. 115 L.R.R.M. 1029. J., (Bork, concurring part and at 666 44. Id. dissenting part); see also FCC v. RCA Com- whether, 7, 998, express munications, 86, 46. We no view on under § S.Ct. 346 U.S. may adopt Meyers the test as an (1953); Dep’t States White v. United L.Ed. 1470 209, exercise of discretion. (D.C.Cir. Army, 720 F.2d 210-11 the Harris, 1983); Diplomat Lakewood Inc. v. The (D.C.Cir.1979). gen- at See 47. at 115 L.R.R.M. 1029. 1018-19 Further, employees.48 group a sin- “some sort of action” by present other to be rized complaint files a with a order to find conduct to gle employee who be concerted opinion agency not held to have en- under section 7.52 The will be criticized state Alleluia activities, norm, regardless deviating for from in concerted this gaged post-Alleluia by is shared that the Board’s clearly his concern observed de- how rejected by cisions had been the employees.49 courts of appeals.53 The Board concluded: Board’s reveals it be- foregoing reasons, For all the we are construction of “concert- present lieved its per se persuaded [Alleluia ] the required by activities” both to ed activity standard of concerted is at used and to be a return standards NLRA odds with Act. The Board and courts as well as the Board itself considered, first, always courts whether before Alleluia. Although it conceded concerted, activity [actually] legislative history of Section 7 that “the then, protected. whether it is This ‘concerted specifically define activ- does ” approach is mandated the statute it- ity,’ the Board maintained that “it does self, requires activity that an Congress considered the con- reveal “protected.” both “concerted” A pur- united in cept in terms of individuals finding particular Board that a form of goal.”50 The ar- of a common suit group sup- warrants emerged gued interpretation a similar port labeling is not a sufficient basis for language analysis of the of section from an “concerted” within pre-Allel- 7.51 The Board then reviewed meaning of Section. 7. that, uia decisions to show “[c]onsistent interpretation,” they had with this Mills, Inc., See, production process clogged e.g., Mannington 272 N.L.R.B. as a result of a air 1984); (Sept. employees complained manage- 117 L.R.R.M. 1233 see vent. Some No. Co., fumes, Erecting Dismantling & N.L. ment about also Allied without success. 30, 1984). (April day employees R.B. No. 116 L.R.R.M. 1076 The next sent to the were doctor; Mills, Mannington employee, employer's hospitalized William three were In Frie, periods tal, up hospi- respondent's to two weeks. While in the was a crew leader in the employee severely rep most ill shipping department, as from as well the elected complaint department’s employees fumes filed a about incident with resentative of that committee, discharged joint the state OSHA. She was later company’s safety man pro-union activity. this action and for her Be- safety agement-employee for both forum employee cause it found no evidence that nonsafety Shipping department complaints. filing support of others before had solicited ‘‘long-standing employees complaint” had a complaint, her the Board held her un- employer’s practice requiring about the upheld concerted under and therefore night-shift perform loading operations crews to discharge her to the extent that it was motivated July previous unfinished shift. In left activity. by her OSHA-related 1980, Frie, "acting capacity in his as complaint representative,” with the raised 115 L.R.R.M. at 1025-26. up safety to take it with committee and was told October, night-shift foreman. he dis Board, wording According to the "[t]he cussed the matter with the foreman and stated night-shift employees that section demonstrates that the statute envi- would refuse to that the perform of collective assignments Up sions ‘concerted’ action terms in the future. such that, activity: of or assistance to a holding discharge, the formation Frie’s the Board stated group, representative testimony on behalf of a accepting or action Frie’s that a number even group.” 115 L.R.R.M. at 1026. This Id. had indicated to him that of other they work, statutory language appears interpretation nothing perform would refuse to roughly, correspond, stan- they somewhat had authorized the record showed that adopted Meyers, that action employer. dard which holds to make such a threat him "engaged Thus, on the Meyers, is concerted if it is in with or the Board concluded authority employees," of other id. at individual rather than Frie’s threat constituted activity. L.R.R.M. at 1029. at 1026. 52. Id. at 115 L.R.R.M. 271 N.L.R.B. No. Elec. In Jefferson 21, 1984), (Aug. 117 L.R.R.M. 8-10, L.R.R.M. at 1027-28. exposed fumes from a 53. Id. at to noxious workers was

950 rationale, analysis, garded as based on the same foregoing we

Based on the activi- concept requirements of concerted hold that the Board’s view of the of section does not Alleluia ty first enunciated reading by confirmed 7. This principles inherent comport whole, opinion as a which is devot- Board’s instead, rely, Act. We 7 of the Section primarily criticizing Alleluia as incon- ed “objective” standard of concert- upon the the Act and contains not a sistent with on which the standard ed —the justification word of its new standard Alleluia. courts relied before Board and Thus, policies of the of the statute. terms hereby overrule Allel- Accordingly, we even if the dissent were correct that the progeny.54 and its uia regard adoption not its of that Board did clear, foregoing passage makes theAs statutorily compelled, it standard as would rejecting Allel- Board believed necessary to remand under still be Chen- test, Meyers it was adopting uia the Board ery because that event would applied by the returning to the standards given no rationale whatsoever for the have Alleluia, by the Board before courts adopted. standard it by “mandated approach was view, Because, justified in our the Board the statute itself.” required its new test as section 7 and as view, clear Contrary to the dissent’s it is return to traditional standards for con- opinion that it considered from the Board’s activity, grounds these certed we consider rejection of also not its Alleluia but in- they are correct to determine whether adoption to be its standard terpretations of law.55 passage statute. In the above, “per contrasts the quoted ” approach standard of Alleluia with se That the C. The Board’s Determination traditionally taken it claims was “[t]he Statutorily Re- Standard courts,” required that Board and quired actually protec- conduct be of the deci- Our review Court’s approach, 7. This tion under section interpreting sions section 7 convinces us maintains, “is mandated the stat- Board view, that, contrary Board’s the stat- shortly Board states there- ute itself.” The utory language compel adopt it to does “upon ‘objective’ rely after that will present activi- definition “concerted stan- standard of concerted —the ties,” gives but rather the Board substan- relied the Board and courts dard which responsibility scope to determine the tial Alleluia;’’ proceeds it then to artic- before light policy provision of its own think it ulate the standard. We expertise. The Court has judgment and stan- hardly more clear that the could upheld the Board’s construction broad ap- adopts is the same dard contexts,56 has variety 7 in a by the proach it claims “mandated ‘spe- emphasized that “the Board has the Moreover, itself.” the Board’s statute “ provi- applying general cial function oc- adoption ‘objective’ standard” complexities Act to the sions of the as its almost in the same breath over- curs ”57 Alleluia, evidently re- industrial life.’ ruling of and was 959, 251, Inc., 10-11, (foot- Weingarten, S.Ct. 43 420 U.S. 115 L.R.R.M. at 1028-29 Id. ' omitted). (1975); Washington proceeded Alu- NLRB v. note The Board then L.Ed.2d 1099, concerted activi- S.Ct. 8 L.Ed.2d articulate its new standard for minum 370 U.S. 11-12, ty. at 1029. Id. at 115 L.R.R.M. Communications, Inc., 346 See FCC v. RCA Weingarten, 420 U.S. NLRB v. J. 998, 1002, 86, 91, 73 S.Ct. 97 L.Ed. U.S. (1975) 43 L.Ed.2d 171 95 S.Ct. (1953); Chenery, S.Ct. at 459. 318 U.S. at Corp., (quoting U.S. v. Erie Resistor NLRB 1139, 1149, 10 L.Ed.2d 308 83 S.Ct. See, Eastex, e.g., U.S. Inc. v. omitted). (citations (1963)) (1978); NLRB v. J. 57 L.Ed.2d 428

1

951 Term, employees City Disposal permit in NLRB v. fellow in order to Last it to be Supreme Court said that specifically engaged the the individual is Systems,58 in con- activity.”61 Board certed rejected view that the was with Court continued: authority interpret to “concerted activi out Although interpret one could broadly purposes to effectuate of ties” phrase, “to in engage concerted activi- ” in City Meyers, 7. In as Disposal, ties, to ato situation in which refer discharged truck when a driver was he employees two or more are working to- to a that he refused drive vehicle reason gether at the same time and the same ably believed to unsafe because of be place goal, toward a common the lan- Prill, however, faulty § brakes. Unlike guage 7 does to of confine itself Brown, employee in City Disposal, James § meaning. fact, such a narrow 7 bargaining covered a collective was joining assisting itself defines both permitted him to agreement which refuse organizations labor in a —activities drive an unsafe unless the refus vehicle single employee engage can eoncert- —as unjustified. The Board held al Indeed, ed activities. even the courts under the protected Brown’s conduct Inter that rejected have the Interboro doctrine Circuit, following doctrine. The Sixth boro recognize possibility that an individu- prevailing appeals, view in the courts of employee may engaged al in concerted ground enforcement that denied In activity when he acts alone.62 was inconsistent with a literal terboro Because the Court found that the mean- 59 reading of concerted activities. ing of subject “concerted activities” was Circuit, Reversing the Sixth varying interpretations “differing based on made clear that section 7 does not regarding Court views the nature of the relation- compel narrowly interpretation ship literal of that must exist between the action of activities,” “concerted rather is to employee individual and the actions light of its ex- 7 apply,” construed order for it held question pertise agreeing labor relations. While was for the Board light expertise the term “con- resolve in its with labor enough relations, activity” “clearly long judgment as certed embraces was rea- employees joined activities of who have sonable.63 The concluded Court that the together in order to achieve common Interboro doctrine embodied a reasonable view, emphasized goals,”60 agreeing the Court Board that “[t]he from right is not the lan- invocation of a rooted in a self-evident collective “[w]hat precise bargaining agreement unquestionably of the Act manner guage integral part process of an particular gave in which actions individual rise agreement,” process employee must be linked actions of that extends — U.S.-, 61. 104 S.Ct. 79 L.Ed.2d 839 104 S.Ct. at 1511. (1984). (footnote (empha=is omitted). As NLRB, City Disposal Sys., v. Inc. 683 F.2d Id¿ ^ed) noted, reject *e the courts that curiam); see, (6th Cir.1982) e.g., (per Royal 1005 ,Slfrfme ^ recognition ed their interboro hunted of this NLRB, (9th v. F.2d 374 Cir. Co. Dev. however, activity, of concerted to two situa NLRB, 1983); Roadway Express, Inc. v. 700 F.2d — *?Pe U) employee tlons: that in the Ione whlch m- Cir.1983), vacated, (11th U.S. 693-94 (2) group activity, tends to induce -, (1984); L.Ed.2d 104 S.Ct. employee representative which the acts as a Supermarkets, v. Buddies 481 F.2d NLRB employee.” at least one other Id. 104 S.Ct. (5th Cir.1973) (dictum); NLRB (citations omitted). City Disposal, of After (3d 440 F.2d Cir. Northern Metal course, it is at least a clear that third instance 1971); see also Kohls v. protected (D.C.Cir.1980) action is (expressing doubts about 176-77 denied, rights ), validity cert. section 7—the rooted in of Interboro 450 U.S. assertion agreement. bargaining 67 L.Ed.2d 363 collective (citing Meyers at 104 S.Ct. at 1511 63. 104 S.C. -11. 1510 1025). L.R.R.M. at one an- union to the his fellow combine with of a organization from the way.”68 any particular bargaining a collective enforcement through group ac- achieved agreement Disposal City Thus, unmistakably makes that, contrary in tion.64 to the Board’s view clear Meyers, neither the language histo- nor the the Interboro found that The Court also requires 7 that the term “con- ry of section con- inconsistent with the doctrine was interpreted protect certed activities” be to enacting section 7.65 in gressional intent narrowly of only the most defined forms provision,66 history of that Reviewing the by employees, the common action and that Congress, in en- concluded Court responsibility to de- Board has substantial 7, “sought generally to had acting section scope protection of in order to termine the power of the em- bargaining equalize The promote purposes of the NLRA. by employer allow- that of his ployee with recognize the failure in to Board’s together in confront- ing employees to band authority interpretative its own extent of regarding the terms and employer ing an significant consequences. For exam- has employment.”67 Most of their conditions ple, past, in the both the Board and some the Court observed importantly, necessary held that it is courts have Congress in- no indication that “[tjhere protection to accord certain circumstances protection protect to situations in to to limit this conduct order tended individual development activity.69 of collective Simi- activity and that of in which an engaged Id., protect only conduct in intended not S.Ct. at 1511-12. 104 employees, but rather to extend two or more at 1512. 65. Id. 104 S.Ct. protections group to which the same conduct See Brief for individual actions were entitled. protection explained, for the Court 66. As 26-29; of Amici Curiae Petitioner at Brief originated 6 and 20 of §§ activities concerted (WRLP) Rights Project and Phila- Workers’ Law 730, 731, Act, 323, Clayton Stat. 738 ch. 38 Project Safety delphia Occupational Area (1915) (currently 17§ codified at 15 U.S.C. (PHILAPOSH) interpreta- 11-17. This Health at (1982)), (1982); 2 of the § § U.S.C. 52 29 support history of 7 has the of a § tion of the Act, ch. 47 Stat. 70 Norris-LaGuardia See, e.g., & Gorman number of commentators. Finkin, (1933) (currently 102 § codified at 29 U.S.C. 331-46; Lynd, supra The note at (1982)). provisions enacted to ex- These were Right Engage Activity in Concerted Un- After peaceful empt labor activities from the reach of Study Legislative History, Recognition: ion A and the common law federal antitrust laws Note, (1975); Individual 50 Ind.L.J. 726-34 conspiracy, which held doctrine of unlawful Unorganized Employ- Rights Organized and protests that would have been lawful that labor Act, 58 ees the National Labor Relations Under by single individual were nevertheless if made (1980); see also Illinois 1006-08 Tex.L.Rev. group. Norris- conducted unlawful if NLRB, Transp. Corp. F.2d 289 v. Ruan 2, Congress it Act declared that § LaGuardia J., (8th Cir.1968) (Lay, dissenting). We find n. 6 public policy United States that of the was unnecessary argument it to consider be free from ... worker shall "the case, however, present since we find coercion, interference, restraint, of em- or the ployers event, mistaken in its view self-organization or in other con- ... interpretation language, history, prior purpose collective bar- activities certed consider left it without discretion to §of protection." gaining aid or Id. or other mutual adopting interpretation the Act. a broader added). Clayton (emphasis The and Norris-La- however, Acts, legal granted protection Guardia 104 S.Ct. at 1513. against rights only interference to these injunc- through use the labor courts federal 68. Id. Congress adopted In- the National tion. When Act, 7(a), NLRB, See, 48 Stat. § Relations ch. e.g., Hugh Corp. dustrial H. Wilson 372, 7, NLRA, (1933), Cir.1969) (“To (3d ch. 49 Stat. protect § and the con- F.2d language bloom, adopted 2 of the protection § must in full certed activities necessarily rights ‘intended, Act to define employer Norris-LaGuardia employees against contem- be extended to action, and disci- coercion plated ... lest even referred to' City Disposal, pline employ- destroy as. well. See employer the bud of retaliation Finkin, supra generally bettering employ- Gorman & See terms of 1512-13. aimed at ee initiative conditions.”) working (quoting Mush- note 331-46. ment and (3d amici, argues Transp. Co. v. joined by room petitioner, Cir.1964)); cases cited in note 79 history 7 was that NLRA basis of this infra. larly, in City Disposal, scope Court authority of its under section 7. Our 8(a)(1) observed that under section remand in this permit case will possible Act employer for an to reconsider light “[i]t of the Su- practice commit an unfair labor dis- preme intervening Court’s decision in City charging who is not himself Disposal. involved but whose employees’ actions are related to other con- D. Decisions the Courts and Board certed activities in such a manner as to Alleluia Before discharge render his an interference or re- We also think that the Board was mistak- straint on those activities.”70 In Meyers, en in adopting its claim in Meyers the

however, the Board failed even to consider test, simply it was returning to “the stan- discharge whether the employee of an be- dard on which the Board and courts relied safety cause of his complaints would dis- before Alleluia.”71 Because the Board re- courage other employees engaging from in misreading lied on a precedent of in select- improve working collective con- ing the new standard in Meyers, we re- ditions. mand the decision for reconsideration un- recognize We that the Board did not have principles der the of Chenery,72 the benefit of the opinion Court’s City Disposal in Meyers, when it decided The adopted by test the Board in this fact well have contribut- derives from the Ninth Circuit’s one-sen- misconception ed to the Board’s per the tence curiam in Electri- Pacific 70. 104 S.Ct. at n. occupational ed did safety not involve or other statutory rights, but rather involved individual employee protests job See, about at conditions. L.R.R.M. NLRB, e.g., (2d Ontario Co. v. 637 F.2d 840 Knife Cir.1980); Casteel, NLRB, Pelton Inc. v. brief, 7, 24-27, F.2d In its Brief for NLRB at the (7th Cir.1980). cases, In such the urges uphold partly Board us to its decision complaint may appear to the court to be little "reasonably acquiesced” judi- because it in the "personal gripe” more unworthy than a pro- doctrine, rejecting cial decisions the Alleluia see Casteel, tection under § 7. See Pelton 627 F.2d supra. argument ignores This note the basic rejecting at 29. Few of the cases Alleluia in- rejection distinction between the Board’s of the see, safety, volved e.g., matters of Causley Jim sweeping principle Alleluia and its establish- Pontiac, supra; Bighorn Beverage, supra, and we ment of the rejec- new standard. The Board's are aware of no such cases in which the conduct way required adopt tion of Alleluia no in it to employee for which disciplined the was was Meyers. the test enunciated in law, required by present as in the case. In well, For other reasons as we find the deci- quite case Meyers, similar on its facts to NLRBv. sions on which the Board relies to be of limited Co., Lloyd Fry Roofing (6th A. 651 F.2d 442 deciding First, present value in many case. Cir.1981), upheld the Sixth Circuit the Board’s rejected of the cases that Alleluia relied on rea- finding discharged that a truck driver who was soning or on disapproved earlier decisions that safety complaints for his engaged was in con- all forms of activity,” "constructive concerted protected by duct § 7. While the court found including See, e.g., Interboro doctrine. Jim group that there had been considerable involve- NLRB, Causley Pontiac v. 620 F.2d 126 n. 7 issue, safety ment in the it also relied on the (6th Cir.1980) (finding adoption oí Alleluia fore- Alleluia, principles concluding that the driver ARO, (6th closed Inc. v. 596 F.2d 713 protected "attempt[ed] was because he had Cir.1979)); Bighorn Beverage, NLRBv. 614 F.2d safety inspection regu- enforce federal and state (9th Cir.1980) (relying on several provide lations intended to all rejecting Interboro); criticizing decisions job awith safe environment and the means to Co., NLRB v. Dawson Cabinet protect against job themselves hazards.” Id. at (8th Cir.1977) (relying 1082-84 on NLRB v. (emphasis original). The Board made no (3d Cir.1971), Northern Metal 440 F.2d 881 Lloyd Fry reference to the A. decision in its Supermarkets, and NLRB v. Buddies moreover, 481 Meyers opinion; it made no effort to (5th Cir.1973)). F.2d concedes, 719-20 As the Board consider whether the case of an who see Brief for NLRB at 26 n. discharged required for conduct laws de- City rationale of such cases does signed not survive employees may for the benefit of all Disposal. distinguishable judicial from the decisions that Furthermore, many judicial rejected theory implied decisions have activity concerted refusing to hold individual action to be concert- in other contexts. Electri- respects v. NLRB.73 important

cord Co. least than the stan- The two Pacific however, traditionally applied by the Board standard, cord has been followed dards Circuit, activity. as an courts to define concerted least only in Ninth First, activity. Board and courts have concerted both the exclusive definition test, brings Electricord Furthermore, long held that individual who Pacific upon by group complaint Ninth attention of man- relied had been the Interboro doctrine, agement engaged rejecting Circuit designated he or au- effectively disapproved though the Su- even was Disposal, City spokesman by group.77 at least inso- thorized to be a Court preme however, test, In applied applying action in the as it to individual far bargaining.74 essentially is Board that such It has context collective complaint specifically authorized noteworthy that no other court has have been equally Electricord to be defining protected order followed Pacific under section 7.75 7.78 “concerted activities” Second, long courts have followed most courts have histori- approach defining efforts to

cally a broader Board’s view taken particular, employees in of com- scope support enlist other section 7.76 Meyers by goals protected 7.79 The appears test to be narrower at mon is Note, Cir.1966) curiam). (9th (per employees. Require- See The F.2d interests of 73. 361 310 NLRA, granting enforce- Action Ninth Circuit's statement ment "Concerted" Under the 53 The of 514, gives (1953). no indication that test there ment 516-20 Colum.L.Rev. necessarily to be intended NLRB, exclusive. stated 840, v. 637 F.2d 845 Ontario Co. See, McCauley e.g., As Knife 77. NLRB v. Charles H. Cir.1980), (2d authority cites the Board as which socs., 685, Inc., (5th B 657 F.2d Cir. Unit 688 Electricord, test to for its new in addition NLRB, 1981); Pacific Corp. Hugh F.2d H. Wilson v. 414 22, Meyers at 12 115 L.R.R.M. at 1029 n. see n. 1345, denied, (3d 1969), Cir. cert. 397 1349-50 standard, 22, articulates no such but rather 943, 935, (1970), U.S. 25 90 S.Ct. L.Ed.2d 115 protected to under activi- § holds ty be "the (1968); enforcing 1040 171 N.L.R.B. NLRB or, if undertaken an must ‘concerted’ Guernsey-Muskingum Co-op., Elec. 285 F.2d ..., looking group towards individual must (6th 1960), enforcing 12 618 Cir. 124 N.L.R.B. 637 F.2d at 845. action.” (1959); Corp., 191 N.L.R.B. 892 Carbet NLRB, Royal Co. v. 703 F.2d 74. See Dev. supra. 78. See note 48 (9th Cir.1983), disapproved City Dis- 372-74 posal, 104 S.Ct. at 1508 n. See, Root-Carlin, Inc., e.g., N.L.R.B. 92 ARO, (6th F.2d Inc. v. 596 718 In Co., (1951); 1314 Central Steel Tube 48 N.L.R.B. 1979), the a stan- Cir. Sixth Circuit formulated 604, 612-13, (8th enforced, Cir. 139 F.2d 489 activity that resembled—al- dard for concerted Root-Carlin, 1943). dis- an was In though it was broader than —the Electri- Pacific charged discussing em- with various other for adopted by Meyers: the Board in cord test plant. ployees a need to form union at their complaint or an claim to For Holding protected, the conduct it to concerted action the Act amount stated, “Manifestly, guarantees of sec- solely been made on behalf of must have activity 7 to tion of the Act extend concerted employee, but it be made an individual must speaker inception which involves of or least be on behalf at listener, indispens- activity and a for such is an inducing object preparing of or made preliminary step employee self-organiza- to able group arguable some ba- action and have tion.” N.L.R.B. at 1314. bargaining agreement. in the sis collective Meyers, view that in order to maintain its reversing at the Sixth Circuit 596 F.2d 718. In traditionally has “some kind the NLRB City Disposal, Supreme implicitly Court in disapproved concerted, group of action” to find conduct well, standard as at least as this resting ra- as on the Board treated Root-Carlin rights applied to the of under a collec- assertion involved “interac- tionale that the conversations bargaining agreement. See at tive 4-5, among employees." Meyers tion 1509-10. Although Root-Carlin at 1026. L.R.R.M. Board Indeed, point, n. early N.L.R.B. at as a review of the mentioned policy ground primarily found that the Board had relied Board’s decisions adopted de- protecting was interpretation such essential an that in effect Thus, employee self-organization. velopment granted protection even to individual following year, explaining principle tendency further the that had a to common Transportation Mushroom leading case is protected.82 such conduct clear, It is not NLRB,80 Co. v. the however, which holds that conduct is standard would protect protected “engaged if it individual’s in with efforts to the ob- induce group action.83 ject initiating inducing or preparing group action or ... had some relation Transportation Mushroom The stan- to action in the interest employ- given dard has varying been interpreta- ees.”81 As the Court indicated in tions appeals. the courts of Some City Disposal, practically all courts follow applied courts have the standard narrow- Transportation Mushroom in holding ly;84 given others have it a expansive more stated, "Group subsequent action is not deemed a cases gener- show that the definition prerequisite activity, ally for the strictly. reason important- will be construed More single person’s prelimi- that a ly, action be the Board had available to it several nary step acting in concert.” Salt River judicial Val- decades of and administrative decisions Ass’n, ley Water Users N.L.R.B. construing Despite § 7. its claim to be re- (1952) (footnote omitted), in relevant turning interpretation to an generally accepted enforced part, (9th Cir.1953). Alleluia, however, before adopt it did not Board continued to follow this view in later standard, Transportation Mushroom which is See, e.g., Hanger-Silas cases. Mason & Mason accepted, standard, least as a nonexclusive (1969), 179 N.L.R.B. 439-40 appeals. most adopt courts of enforce- Nor did it grounds, (8th ment denied on other Cir.1971). 449 F.2d 425 case, language of the ARO supra, see note 75 incorporated both the Mushroom Trans- opinion Meyers The Board's also relied on portation and Electricord standards. In- Pacific Mfg. Corp., Continental 155 N.L.R.B. 255 stead, adopt the Board chose language which the Board found no concerted assume, might Electricord alone. One Pacific employee presented management where an therefore, that the Board’s choice not to endorse complaint that she claimed was shared language Transportation Mushroom employees although they were too deliberate. frightened speak up themselves. As our dis- Several decisions since contain some- shown, cussion has we find that Continental did conflicting what indications on whether the represent not the dominant trend of the Board’s group Board will hold efforts to induce action pre-Alleluia decisions. See also Gorman & Fin- Meyers. to be Hy- concerted under In United kin, supra (character- note at 297-98 & n. 37 Servs., Inc., draulic 271 N.L.R.B. No. izing questionable Continental as and inconsist- (June 1984), L.R.R.M. majority Indeed, decisions). ent with Board’s other less question declined to decide the whether an em- Continental, Board, than two months after ployee’s complaint distribution of a to his co- Alleluia, anticipating in a decision held that an activity, workers holding constituted concerted who, employee without authorization from oth- employee’s discharge unlawful on other employees, complaint er Depart- filed a with the grounds. Member Dennis would have held the seeking investigation ment of Labor of protected, relying conduct not on the employer whether her Equal Pay was in violation of the Meyers'citation standard itself but on to Ontario engaged protected Act was in con- NLRB, (2d Co. v. 637 F.2d Cir. activity certed Montgomery under 7.§ Ward & Knife 1980). cases, supra. Co., See note 73 In two recent 156 N.L.R.B. 10-11 panels divided of the Board relied on Mushroom (3d 1964). Transportation 80. 330 F.2d 683 Cir. promote group to hold efforts to Co., action concerted. See Walter Bruckner & (Dec. 273 N.L.R.B. No. Id. at 685. 118 L.R.R.M. 1127 14, 1984); Vought Corp., 273 N.L.R.B. No. 161 (Dec. 1984). cases, however, 1511; see, both e.g., Owens-Corning 82. 104 S.Ct. at (who NLRB, consisted of Fiberglas Member Dennis Corp. v. 407 F.2d separately (4th 1969) ("The Hydraulic) wrote in United single employ Cir. of a (who longer enlisting support Member Zimmerman employ ee in is no of his fellow Board); protection ees for their mutual aid Chairman Dotson is as dissented or de- activity’ ordinary group clined to much- ‘concerted as is reach the issue. activity. The one seldom exists without See, e.g., Datapoint Corp., NLRB v. other.’’). (5th 1981); Casteel, Cir. Unit A Pelton Inc. v. NLRB, (7th Cir.1980); 627 F.2d 23 NLRB v. suggest 83. Several considerations that such con- (3d Cir.1971); Northern Metal 440 F.2d 881 First, protected Meyers. duct is not (7th Indiana Gear Works v. 371 F.2d 273 granting protection to the lone who 1967). Cir. A number of courts relied on Mush- group easy seeks to induce action is not to fit Transportation reject room to the Interboro doc- language Meyers, within the of and the Board’s constrained, authority Third therefore under the emphasizing the Cir- interpretation, protected if Chenery, conduct is to remand this case for recon- cuit’s statement that of in action it “had some relation sideration the Board. Further, a num- employees.”85 interest of expressed the view ber of cases have Conclusion employee engages in concert- an individual that, adopting Meyers hold in test We purpose of his acts is ed when the activities,” of “concerted the Board failed workers.86 promote the welfare of other expertise, rely judgment on its own case, found Finally, in one the Sixth Circuit and instead its decision on an errone- based quite on close to facts ous view of law. Court’s Meyers.87 in those City Disposal in makes clear that decision in this We do not undertake to decide give the Board is not narrow- required to fol- case whether the Board is ly interpretation literal to “concerted activi- any particular approach to concerted low ties,” authority has to “de- but substantial Rather, we re- activity under section 7. scope 7 ‘... in the first fin[e] in these cases order to see whether view variety instance as considers wide that, the Board was correct its view ”88 Moreover, come it.’ cases that before test, doing adopting Meyers it was no view, that, contrary to the Board’s we find conforming than to “the standard on more standard does not constitute a Board and courts relied before which the traditionally mere return to the standards clear, As we tried to make Alleluia.” have courts to applied the Board and the reading precedent any judicial fair re- activity, instead is define concerted in Meyers the Board’s test veals substantially more restrictive. substantially important narrower re- for con- spects than the various standards This is not a case in which the “mistake activity that have been followed certed body the administrative is one that clear- most of the courts of past Boards and ly bearing procedure used or had no conclude appeals. We therefore reached.”89 As the substance of decision test, Board relied adopting Meyers shown, the Board and our discussion has misinterpretation judicial decisions variety appeals taken a courts have prior its own cases. approaches defining “concerted activi- ties,” might result relief some of highlights the lack of Our conclusion Moreover, petitioner. the result for the meaningful support Board’s for the given only on the case will often turn Board’s deci- in this case. Not is the (as governing standard also on the manner faulty legal premise grounded on a sion applied, and this in which that standard is part supra), III.C. it is also shown by by are well be influenced whether flawed a lack rationale. We Inc., Div., Allen, See, (8th 1977); e.g., Supermarkets, Randolph Ethan v. Buddies Cir. trine. NLRB 706, 714, Cir.1973); (1st Cir.1975); Inc., (5th NLRB v.C & I Northern 513 F.2d 708 481 F.2d 719 977, Inc., (9th Metal, Conditioning, F.2d 978 supra. decisions were overruled Air 486 These NLRB, Thus, Cir.1973); Transp. Corp. by City Disposal. v. it is clear that while Illinois Ruan J., 274, Cir.1968) (8th (Lay, generally Transportation establishes 404 F.2d 288-90 Mushroom dissenting); ap- Serv. Co. v. see abo Keokuk Gas a minimum definition of concerted NLRB, Cir.1978). (8th appeals, plied it is not exhaus- 580 F.2d 333-34 in the courts tive. Roofing Lloyd Fry 651 F.2d 87. NLRB v. A. Allen, Inc., See, Div., (6th Cir.1981). e.g., Randolph Ethan 442 (1st Cir.1975); Hugh H. F.2d 708 Wil- 513 (quoting NLRB, (3d City Eas Disposal, 104 S.Ct. at 1510 Corp. son 414 F.2d tex, NLRB, 98 S.Ct. Cir.1969); Inc. v. 437 U.S. Signal & Gas Co. v. Oil 2505, 2513, (1978)). (9th Cir.1968). 57 L.Ed.2d 428 F.2d 342-43 States, See, McCauley e.g., As- Massachusetts Trustees v. United NLRB v. Charles H. 235, 248, socs., Inc., (5th 12 L.Ed.2d B. U.S. F.2d Cir. Unit Sencore, 1981); NLRB v. we, Although Board, the standard to be dictated like Board believes find the adopted as a itself or rather by egregious, the statute facts this case to be we policy in order to effectuate the matter of way stress that this in no forms the basis Thus, say the Act. we cannot purposes of Nonetheless, of our decision. we think clearly error in this case the Board’s highlight the facts of this case bearing no on the result reached. had give Board’s failure to judg- a considered ment on the issues involved. In the Board, remand to the Rather than case, present upheld the Board the dis- would have this court determine for dissent charge refusing of an to drive whether, applying City Disposal itself a vehicle determined to be unsafe state analysis, the conduct at issue here is suffi- authorities, despite the fact that both the ciently to the actions of other em- related employee and the protected company were under ployees that it should be held believe, however, legal obligation operate 7. We not to under section vehicle.90 Moreover, such a determination is for the Board and the Board’s decision in Meyers court to in the produces anomaly not for this make first that a unionized instance. The dissent’s extensive efforts complains safety worker who about or oth- provide justification distinguishing er matters bargain- covered a collective rights the assertion of within and between ing agreement protected will be held bargaining a collective context without City Disposal, Interboro and while an un- only underscore the failure of the Board to organized employee protec- will be denied provide a reasoned basis for such a distinc- engaging tion for in identical conduct. We opinion. tion in its own Our remand this agree the Board that responsibility with its case is intended to afford Board a full apply is to the National Labor Relations opportunity light to consider such issues in Act and not to enforce all state and federal analysis City Dispos- of section 7 mean, however, law. This does not al. respect to matters within discre- tion, ignore policy should unaccountably characterizes The dissent implications of its decisions. opinion holding our that the Board had adopt discretion under section 7 the Al- Because we have determined that it was However, as leluia doctrine. we have “improper suppose for the [Board] clear, necessary do not find it made we adopted the standard it has is to be derived validity any consider the of Alleluia or policy without more from a national de- case, other test of concerted legislation courts,”91 fined express no on this and we issue. remand the Board for we case recon- urges grounds The dissent also on various scope sideration of the of “concerted activi- unnecessary that remand is because ties” under section 7.92 Board’s error in this case is “harmless.” So ordered. agency We do not believe that an decision can sustained under notion of BORK, Judge, dissenting: Circuit agency error” “harmless where has Prill to exercise its discretion Petitioner asks this court to set failed lawful provided no rational for its aside an order of the has basis deter- National Labor Rela- denying mination. tions Board him reinstatement and Act, Management supra. See note 18 bor Relations 29 U.S.C. 143 § 90. (1982), argument supports his that his conduct Communications, Inc., 91. FCC v. RCA 346 U.S. protected § is under 7. The Board declined to 86, 94, 998, 1004, (1953). 73 S.Ct. 97 L.Ed. 1470 ground reach this issue on the that it was nei- litigated by ther raised nor the General Counsel case, disposition In of our of this we 92. view 1, hearing. Meyers at the at 1 n. 115 L.R.R.M. at have no occasion consider whether 1025 n. 1. We find no on which to disturb basis application of Board’s its new standard this ruling by supported by the Board. case was substantial evidence. argues petitioner The also that the Board was § to determine whether 502 of the La- safety designed al for the determined that benefit of all The Board other relief. Industries, Inc., employees, any in the absence of evidence Meyers employer, Prill’s repre- that fellow disavow such practice an unfair labor not commit did sentation, implied find we will an consent Prill, the conduct for discharging because activity thereto and deem such con- be discharged not “con- Prill was which was concept The held “the certed.” Board section 7 of the activity]” under certed first enunciated in Al- activity of concerted (“NLRA” Act Relations National Labor leluia comport principles does not with the Meyers In- “Act”), 29 U.S.C. Act,” inherent Section 7 and as- Inc., dustries, 268 N.L.R.B. No. rely “upon serted that it would instead (Jan. 6, 1984) (hereinafter L.R.R.M. ‘objective’ activity— standard of concerted view, “Meyers ”). my In to as referred the Board the standard which result seems to me reached a Board Meyers courts relied before Alleluia.” at 7. If Prill’s actions compelled at The 115 L.R.R.M. 1028-29. “concerted,” any called almost might be proceeded then to set forth a definition of might so characterized and actions be activity attempt concerted that “is an at a Congress into qualifying word that wrote one, comprehensive we caution that it [but] effectively removed the statute would be is no means exhaustive. We acknowl- event, But, any the Board’s from it. edge myriad of factual situations that interpretation provision of the is reasonable arisen, arise, have and will continue to upheld hesitation. and should be without Id., this area of the law.” 115 L.R.R.M. at Meyers The fol- reformulation I. general, lows: to find an “[i]n purport majority The does not to disturb ‘concerted,’ require shall we findings of fact in this of the Board’s engaged that it in with or on the author- ground It is therefore common case. ity employees, solely by of other and not refusing discharged Prill to drive was and on behalf of the himself.” entering safety vehicle and com- an unsafe (footnote Id. at 115 L.R.R.M. at 1029 plaints employer the vehicle to his about omitted). See authorities. at and to state that, majority dispute The if the does 115 L.R.R.M. at 1030. It is also common valid, test Prill’s conduct is not ground “Prill alone refused to drive concerted and therefore cannot be trailer; he alone contacted the truck Act, 8(a)(1) protected under section Public Commission the Tennessee Service § 158(a)(1) (1982). majority 29 U.S.C. accident; and, prior to the acci- after the holding also refrains from that Prill’s con- dent, authori- he alone contacted Ohio duct under section solely his ties. Prill acted own behalf.” whether, “express and claims to no view on Meyers at at More- 115 L.R.R.M. § 7, may adopt the Board over, undisputed it is that as to a similar Maj. op. test act as an of discretion.” at complaint presence by in Prill’s an- made Nonetheless, 948 n. 46. invoking SEC driver, Gove, the same one about Corp., Chenery 318 U.S. 63 S.Ct. vehicle, judge correctly made no factu- “the (1943), majority 87 L.Ed. 626 sets aside finding any way Prill al and Gove the Board’s order and remands this case to protest the truck’s condi- joined forces to grounds the Board on the that “the Board Meyers 16-17, 115 L.R.R.M. at tion.” misinterpreted respects.” the law in two Maj. op. First, ar- applying section 7 to this the course gues that the decision in Court’s — case, City Disposal Systems, U.S.-, overruled its decision Alleluia Cushion (1984), 221 N.L.R.B. 79 L.Ed.2d 839 unmistakably contrary had held that “where clear “makes Meyers, in employee speaks up and seeks to enforce to the Board’s view neither the relating occupation- language history nor the of section 7 re- statutory provisions (1984)(citations the term ‘concerted activities’ L.Ed.2d 839 quires quotation omitted). protect only the interpreted question most marks The for decision appear straightforward: forms of common narrowly defined action would to be is the employees, and that the Board has sub- Board’s by new of section construction 7 rea- responsibility to determine the sonable or not? The stantial anomalous character scope protection promote majority’s analysis in order to by is well shown purposes of the NLRA.” Maj. op. at the fact that majority never answers Second, majority “contrary question. states that Board, expressed by we view reading is, The Board’s of section in my repre- find that the test does not view, reasonable, altogether and neither by sent a return to the standard relied City Disposal any nor Supreme by the Board the courts and before Allel- .suggests Court decision otherwise. uia, instead constitutes a new and City Disposal, Supreme upheld Court more restrictive standard.” Id. at 948. doctrine, the Board’s Interboro Because, view, majority’s in the right assertion of a adopted in its discretion could a defini- have created a collective-bargaining agree- peti- tion of concerted under which ment is treated as activity. See tioner’s conduct would be held to be con- Contractors, Inc., Interboro 157 N.L.R.B. certed, required. remand As I shall (1966), enforced, 388 F.2d 495 show, majority it is the rather than the (2d Cir.1967). The Court noted that the law, misinterpreted has and Board in Meyers distinguished had cases mistakes, alleged in event the Board’s involving the Interboro doctrine from the existed, they if would be harmless error run of section 7 cases because Interboro

under the facts of this case. cases concern conduct that relates back to collective-bargaining agreement, and con- II. cluded that case is thus of no “[t]he ,n. relevance here.” 104 S.Ct. at 1510 6.1 A. suggests, That remark alone strong- rather case, proposed In this the Board has think, ly one would City Disposal does applied regards test which new not control certainly this case and does not Congress’ consistent with in employ- intent support majority’s position. ing the words “concerted activities” sec- tion 7 of the NLRA. As the rec- question The Court described the ognizes, defining scope “the task of of which its was addressed as “wheth- § § perform 7 is for the Board to in the first er application the Board’s 7 ... variety

instance as it considers the wide reasonable.” 104 S.Ct. at Court it, and, cases that come before on an dispute issue summarized the over the Interboro implicates expertise “merely labor rela- doctrine as one that reflects differ- tions, a ing regarding reasonable construction views the nature of the rela- tionship Board is entitled to considerable defer- that must exist between the action City Disposal Systems, ence.” NLRB v. of the individual and the actions Inc.,--U.S.-, 1505, 1510, apply.” order for 7 to Though originated [,] according the Second Circuit the In- Interboro 7§ ... should be read doctrine, terboro that court found no inconsist- its terms.” Id. cases were treated Interboro ency rejecting the Board’s later efforts—of specially bargaining agree- because "a collective example which Alleluia is one find concert- ment ... is itself the —to result concerted activi- "any ed case in which a cause ad- rationale, course, ty.” very Id. That is cen- by an vanced individual would redound to the Supreme reasoning City tral to the Court’s employees.” benefit his fellow Ontario Knife Disposal, see 104 S.Ct. at 1511. Hence Ontario (2d Cir.1980). Co. v. validity tends to confirm the of the dis- Knife court, Writing Judge Friendly urged for the tinction between the Interboro and Alleluia doc- "except agreements in the context of between an Meyers, trines drawn the Board in and relied employer and his which are them- City Disposal. Court in activities, product selves the of concerted as in (emphasis group at 1511 tween individual City Disposal, S.Ct. conduct and action indicates, added). language some precedent finding As this as a condition concert- the individual’s real connection between activity, interpretation ed is a reasonable presupposed group action was conduct and If section 7. the Board in had held contending viewpoints before both that the Interboro doctrine is inconsistent way repudiated in no the Court Court—and meaning with the of section I would For, requirement. threshold as the agree City Disposal require would us process say, on to of which Court went reject reasoning. the Board’s If the bargaining agreement is a the collective Board had held that type some other part single, activity,” collective which is “a equally individual conduct that was directly through the enforcement of the “extend[s] group related to action could not be “relationship” agreement.” Id. The activity consistently deemed concerted individual asser- Court identified between 7,1 agree would City Disposal rights derived from a collective- tions of strongly suggest would the Board was agreement bargaining action wrong. happened But that is not what was, moreover, essentially identical to the here. perceived group action and one it between Meyers repudiated doctrine, the Alleluia “joining assisting the individual acts of protest grounded which deems individual organization, explicitly labor which protection a worker statute to be concerted concerted,” recognizes as Id. 104 S.Ct. at activity any employ- whether or not situation, the latter individu- protest. ees are involved in the Alleluia’s time, may al’s “actions be divorced activity required test for concerted less well, in location as from the actions of than relationship a “remote” between indi- employees. integral Because of the fellow group activity required vidual and no —it relationship among employees’ ac- relationship City Disposal at all. is there- tions, however, Congress viewed em- each completely fore consistent with the Board’s ployee engaged activity.” concerted concept determination that “the of concert- added). (emphasis Id. In a footnote the ed first enunciated in Alleluia does added, course, point Court at some “[o]f comport principles not with the inherent in may actions become Section 7 of the Act.” at remotely so related to the activities of fel- L.R.R.M. at 1028. employees reasonably low that it cannot employee engaged said that the in con- Beyond I do not think City activity.” certed n. Id. S.Ct. Disposal establishes that the Board has briefly legisla- 10. The Court examined the discretion to adhere to the Alleluia doc- and, history finding tive of section trine.2 Nor is there basis in the lan- “fully Interboro doctrine consistent with guage of majority’s sug- section 7 for the congressional intent,” id. S.Ct. at gestion that “the case of an who concluded that “the doctrine constitutes a discharged conduct laws interpretation of reasonable the Act.” Id. designed for the benefit of all 104 S.Ct. at 1516. distinguishable judicial from the City Disposal rejected theory establishes that the decisions that have doctrine, presupposes implied Interboro in other con- texts.” imaginary relationship Maj. real and not be- at 953 op. n. 72. City Dis- Thus, majority holding ing 2. denies that it is that the the Alleluia doctrine. while di- adopt rectly Board has discretion under section 7 to the Alleluia majority endorsing sweeping princi- "the Alleluia enough. ple,” doctrine. Fair But the maj. op. majority also 953 n. explain suggestion, does not how its ground fails to show that there is a middle complaints relating safety that individual stat- general approach between Alleluia and the tak- distinguishable utes are from other individual which, consistently en the Board in complaints, language can be reconciled with the language with the of section could result in a except by of section 7 reliance on one or both of finding of concerted in this case. underly- the rationales the identifies as icy, group clear that the words “concert- posal makes behavior becomes ac- tion, requirement activity to reach indi- and the ed activities” were intended be drops “concerted” from the group that is activ- law. vidual conduct linked it ity any ways, in of several reaffirms Thus, Meyers in the Board found that there longstanding the rule that must be framework, “under analytical the Alleluia group activity and clear nexus both be- the questioned purpose Board whether the activity and the individual’scon- tween that of activity protect the one was it wished to destroyed duct. The Alleluia doctrine the and, so, if activity it then deemed the ‘con requirements group statutory of action and certed,’ regard to without its form. This is and a nexus between that action the indi- per the the essence of se of con standard conduct, thereby reading the vidual’s word activity.” Meyers certed at 115 L.R. altogether. out of “concerted” per R.M. at pre 1027. This se standard City Disposal The Court’s careful effort to “ought sumes that of group what to be ground in the Interboro doctrine the lan- concern,” 10, 115 id. at at is L.R.R.M. guage proposition of section 7 confirms protection the mutual aid or of other “§ according ... should read be employees, and therefore in that when an NLRB, its terms.” Ontario Co. v. employee protests dividual over some such Knife (2d Cir.1980). 637 F.2d There is matter engaging activity. he is in concerted reading “according no of section 10, 115 to its Id. at L.R.R.M. at The Board 1028. finding would approach terms” that allow a of con- practice contrasted this with the or in and the certed action this case Board courts Allel Alleluia- before uia, “generally Therefore, analyzed concept which type generally.3 cases I while protected activity agree concerted first con with Board sidering whether some kind of had no action believed it discretion adhere to and, then, only considering occurred wheth doctrine, my Alleluia view the er that purpose action was of mutu entirely Board’s belief was correct. Since 4-5, al protection,” aid or Meyers at appeal an to a statute individual’s about L.R.R.M. and held that the Allel protection worker involves other workers approach uia “at was odds with the Act.” only they in the sense that “should” be Id. at 115 L.R.R.M. at 1028. protection, it concerned such is diffi- cult to see how that case differs from one Precisely understanding same in- protests which an individual about City forms where Court Disposal, not- matter in the estimation Board ed employee’s at the that an asser- outset court, or a “should” be of concern to other right tion of a from derived a collective-bar- Thus, hand, by sleight gaining agreement workers. Board falls “within the ‘mutu- judicial policy replaces congressional pol- protection’ standard, regardless al aid or sure, doctrine, reading Judge Lay To be there is one of section 7 Interboro see id. at so purports which ratify literal which would interpretation was not to take his fur- reading however, Alleluia That doctrine. Clearly, ther than he once the did. suggested dissenting in the in Illinois meaning activit[y]” of "concerted is defined in Transport Corp. Ruan it, activity terms of the words that follow is Cir.1968) J., (8th (Lay, dissenting): "The purpose concerted if it is either "for the activity’ directly words ‘concerted are related bargaining collective or other aid or mutual purpose and defined in terms of their intended protection.” (1982) (emphasis 29 U.S.C. 157 bargaining' of ‘collective or other ‘mutual aid or added). protection.’ phrases are interrelated and literal, reading truly This is for it makes meaning derive substantive from each other." utterly super- the word "concerted” section 7 reading, On this Id. long fluous: so an individual’s is for conduct is some be found to exist "if there reason- protection" employ- the "mutual aid or of other relationship connecting able con- always ees it And will deemed concerted. protection’ duct with ‘mutual aid and both the upon other rights collectively recognized is based such reading rejected City Disposal Court in bargain- —the within a explicitly, implicitly the latter but no former ing agreement.” Id. at In the dissent’s clearly. less view, validity p. See Illinois Ruan turned on infra thing. say such The Board did not that the has his own inter- whether requires the exact formulation it tenta immediately City in mind.” Dis- Act most ests (citation tively adopted general, omit- said at 1510-11 posal, —it approach considers reading pre-Alleluia ted). accepted the the Court Had concerted, “first, iden- whether that the Board of section 7 then, protected,” doctrine, whether it is underlying the Alleluia tified as statute itself.” “mandated simply have said that because could 10, 115 simply at 1028. That is collective-bargaining at L.R.R.M. in a rights contained saying that section way another of 7 does for the mutual aid agreement are secured find not authorize the Board to concerted employees who work protection of all or activity merely because one individual’s ac agreement, an individual’s as- under that tivity matters that affect the well- right must be deemed concerns any such sertion of fact, however, employees, being other and so falls with activity. In to be concerted protection” “mutual aid or standard. inference from the find- no the Court drew aspect legal protection” analysis is the of its “mutual aid or This ing that Instead, is the Court that the Board claims “mandated” met. standard had been Act,4 and, I have demonstrated in Part doc- as its decision that the Interboro based interpretation supra, of sec- II-B Board’s view that section reasonable trine is a relationship point it without discretion on this is integral between leaves tion 7 on entirely fully and consistent process bargaining collective reasonable —which Disposal.5 City the with indisputably is —and rights on a collective assertion of based Disposal, bargaining agreement. City C. then, is suggestion no that it with- contains agreed majority if I Even with the that to adhere to the in the Board’s discretion re- the Board’s held that section 7 any theory or to other Alleluia doctrine quired adopt it to a definition of “concerted activity that is not “constructive” concerted test, activit[y]” no than the broader grounded language in the of section 7. if I that a and even were convinced such erroneous, holding I would not remand B. in this case. On the facts as must take we however, them, claims, my that there is in view no definition the majority also would, propose that “the Board could that consistent- City Disposal establishes ly language it opinion wrong is insofar as holds with the of section afford Board’s petitioner finding agency discretion to relief. For there is no that is without except petitioner’s any in- activities’ here that conduct was construe ‘concerted Maj. op. way group activity. In order to in the test.” related to dicated here, wrong claim is because flatly 948. This find concerted implied any forced to hold that con- Board nowhere held or would have been ey deny did that “section framed as reaches a result in the erroneous belief 4. The Board result, group legitimatize protect compels and action it was to the statute the court should engaged by employees for their mutual aid reversing if result remand rather than encompass protection, was intended to agency might upheld have been had the instead activity presented here.” case of Because the Board's relied on its discretion. most, at 1031. At 115 L.R.R.M. interpreting is not broad discretion in section 7 a claim that the result in this case that denial is enough to allow the Board to adhere to the language purpose compelled by the doctrine, Prill’s conduct Alleluia or to hold that indubitably claim that rests on section 7—a theory, other there is no was concerted on interpretation of the statute. reasonable remanding would basis for this case. Remand Chenery formality. does be "an idle useless Communications, Inc., 346 U.S. 5. FCC v. RCA judicial require review of that we convert on which the 97 L.Ed. agency ping-pong game.” NLRB action into reaching majority relies in the conclusion Wyman-Gordon 766 n. 394 U.S. here, inapposite. simply remand is n. 22 L.Ed.2d 709 S.Ct. agen- holds that when an RCA Communications aside, boro cases employees presumed requires can where two Board now be cert (1) equip- piece the same some evidence of intent to in- complain actually about occasions, merely (2) activity, be- duce concerted or on different some evi- ment complain was dence the second of mutual reliance the conduct or cause support employees, (3) employee’s protest. of the first Ob- some aware agreement an actual viously, employee’s protest would evidence of between first presump- protest given situation, concerted even under this as a not be treating precedent finding to a Hence the Board would condition of concert- tion. Nothing more than this can protest as concerted not be- ed action. the second made reliably Meyers, out was related to cause from merely em- does not because it resembled another establish language interpretation individual conduct. The ployee’s runs counter to a read- 7 does not admit of such the case of section law. Procedure ing. Since Administrative proof The this is that neither of requires regard due

Act us to review with respects” important “two in which the ma- error,” prejudicial “the rule of 5 U.S.C. Meyers jority finds test “narrower” deny I and petition would traditionally than “the standards applied Meyers alleged infirmities in let the the Board and the courts to define concert- challenge occasion. await on another test ed activity,” maj. op. 954, at can be estab- lished on the basis of the record and deci-

III. present sion in majority’s case. The claim, majority second finds in that The flaw the initial “the new will definition Meyers misreading precedent strictly is “a be construed to only include activi- selecting Maj. op. ty clearly joined the new at in or standard.” endorsed other 953. The majority’s employees,” id. at see also reading forced id. at Meyers wrongly solely test that the presupposes rests majority’s reading intends subsequent Board that test to be exhaustive of the Board’s decisions Mills, Mannington every and resolves doubt in favor of con- 272 N.L.R.B. No. Meyers struing appears (Sept. 1984), so that it 117 L.R.R.M. 1233 test and Board, Erecting possible. Dismantling Allied & as The it bears as narrow Mey- emphasizing, explicitly (Apr. stated that N.L.R.B. No. L.R.R.M. 1076 exhaustive, 30, 1984). ers See maj. op. test is not meant to and at 948-949 n.& grapples itself, 48.6 In Meyers only be modified as the Board indication “myriad given of factual as to the Board’s in “en- situations” standard expected to arise section 7. cases can be under dorsement” is the remark Board’s Meyers at 1029. It is 115 L.R.R.M. at is that “there no evidence here ...

virtually any certain that there at least one either relied measure Gove] [Prill category of cases the Board treat as when each would the other refused to drive the Meyers Meyers exceptions to the test: involv- 'at cases truck.” 115 L.R.R.M. at rights assertion of a collec- that no reliance ing only 1030. That reveals tive-bargaining agreement (for the Board will not constitute authorization —it does the Interboro distinguished line specifically not tell us how much reliance will suffice. cases, Meyers see id. at principal at Similarly, 115 L.R.R.M. indication in test, Meyers 1028). scope applied The as as to the of the words “with ... - case, Meyers Inter- employees” of this holds test facts addition, (in prior activity the facts of Co. v. which the same Ontario Knife Cir.1980), (2d which the participant) clearly 637 F.2d 840 that was test, support Meyers cited rath- for the same related to the issue involved in the refusal clearly Mannington Milts er resemble those in work, 842-43, suggests 637 F.2d at at see Erecting Dismantling Allied Co. Ontario & degree of least this strict construction has some Knife, in an found no concerted support in the case law. authoritative work, employee's despite refusal Moreover, subsequent if deci- no evidence even these “there is finding that Board’s here, properly be considered plan of sions could any concerted there was here that simply there is no connection between this Meyers Prill.” between Gove action and the result From this we criticism of the test 1030.7 L.R.R.M. at majority in this case. The con- will not find a reached infer that can that, even if the Board did misinter- two em- cedes of action” where plan “concerted law, pret pre-Alleluia case remand would piece the same complain about ployees occasions, clearly inappropriate if that mistake had even be on different equipment bearing on the of the decision employee was aware of no substance though the second maj. op. petitioner as to Prill. protest. The Board’s reached See the first at 956. Since plan of action” there was “concerted no use of the words evidence that any way joined in or agreement be- other kind of suggests that some conduct, established, petitioner’s endorsed branch the two must tween critique possibly agree- majority’s cannot express unclear how remains be, the outcome here. record is barren of affect for the ment must agreement. suggesting even evidence majority’s objection is that The second go beyond “it is not clear that the stan- willingness to majority’s protect us to dard an individual’s efforts the record before would confines of Maj. op. induce action.” has been to at 955. test consider how subsequent cases is The notes that the Board declined by the Board in applied reviewing question post-Meyers an to in a We are reach highly questionable. case, case, see Board in this id. 955 n. proceeds issued order to engage highly speculative enterprise in the regulation promulgated after no- rule or a rulemaking, deducing, in we of from the Board’s choice of which tice-and-comment citations, how the chal- that the Board will not hold indi- necessarily consider must group action to applied in whatever vidual efforts to induce lenged rule will be gives im- Meyers majority If the concerted. Id. The the likely are to arise. cases test, Prill, test, pression Meyers rea- that the whose word- applied petitioner to is a as statute, ing Ninth interpretation of the is borrowed from the Circuit’s sonable language The in Electricord v. should be sustained. reasonable- Co. order Pacific (1966) NLRB, (per curiam), applied in 361 F.2d 310 test as subse- ness represents reviewed a conscious choice on the quent cases can and should be part adopt to a formulation that no orders in those cases come before Board’s when the followed,8 rejecting other circuit has while a court. can, think, meaning. give of is that more sensible I would it that What we I confident meaning. employer if the Board does not mean that keys here offered the to Prill’s truck to each had day, wording drivers one and each had The Board borrowed the of its non- of his assembled it, the Board would find no exhdustive test from that one-sentence refused to drive circumstances, authority opinion, supporting activity. but it also cited as Under such concerted very strong Judge Friendly’s opinion parallelism trenchant for the Sec- would be evi- conscious NLRB, spontaneous quite in Co. v. 637 concerted activi- ond Circuit Ontario dence of ty. Knife Co., Washington Judge Friendly recognized F.2d v. Aluminum NLRB Cf. (hold- (1962) general exception "inducement” to the rule that U.S. 82 S.Ct. 8 L.Ed.2d 298 working only protesting ing spontaneous concerted comes within walk-out plant pro- "§ which he traced to the fact that 7 is in a non-union concerted conditions "indi-, Instead, activity). say per it limited to concerted se. tected The Board did concern, ‘right engage openly protects in concerted if mani- to even vidual ” employees F.2d at 844- on an individual activities.' Ontario fested basis, several Knife engage right prove to to concert 45. Since workers have the is not sufficient evidence action,” Friendly agreed activity, Judge Meyers at 115 L.R.R.M. at concerted recognized in Mushroom mean "as the Third Circuit words could be taken to and those NLRB, (3 degree cooperation Transportation 330 F.2d 683 visible is not Co. even this Cir.1964), employers em- activity. cannot obstruct an But that remark is dictum— concerted different, narrower, rights. ployee's Indi- efforts to exercise those and will also bear a it standard, which, minimum, accord- cated at a predominant individual efforts set out in Mush- ing majority, is that to induce action that “involve[J ” listener, Transportation speaker Co. v. room and a id. at (3d Cir.1964). Root-Carlin, The Mushroom (quoting F.2d 683 L.R.R.M. at 1026 differs from the Transportation standard (emphasis 92 N.L.R.B. at 1314 added principally explicitly in that it Meyers test Board in Meyers)), will be treated as “a conversation constitute states that speaker, employee, when concerted although it listener, a concerted involves addressing the another employ- listener, qualify only speaker and a but to ee. such, appear very at the least must Indeed, any reading of Meyers fair engaged with the object that it was incorporating would it as treat initiating inducing preparing or or standard, Transportation Mushroom at or had some group action that it relation applied by least as court framed it. employ- group action the interest of the precisely It was because “interaction” F.2d ees.” 330 at 685. among employees present in the conversa- majority The has overlooked the Board’s Root-Carlin, tion in Inc. was absent finding neither Prill’s refusal to drive Transportation Mushroom that the court refusal, nor earlier the truck driver Gove’s latter case found that the individual Prill was an accidental and silent which was not conduct concerted. It witness, sup- to enlist “intended result, despite reached that the fact that 17,115 port employees,” Meyers at of other discharged employee “had in the been majority L.R.R.M. 1031. If were of talking employees habit to other right thinking elimi- that the test advising rights,” them their as to F.2d category nates the “inducement” of cases because was no there evidence that activity, from the definition of his “talks with his fellow in- would had no need make have any part volved effort on his or their finding. promote any initiate concerted action to anything do about the various matters as majority slights also Board’s dis- advised men or to do Root-Carlin, Inc., [he] cussion of 92 N.L.R.B. anything complaints griev- about which the cites as one may which they ances have discussed with leading holding that cases A finding him.” Id. at 684-85. of no attempts activity to induce are concerted present activity concerted in the case would Mey- The themselves concerted. Board in seem to follow from as one Mushroom ers relied Root-Carlin of a series fortiori present in the “defin[ing] Transportation it read case cases concerted —for activity employee in terms of in there was not even a conversation interaction between support goal,” Meyers petitioner of a common com- another about grievances, 115 L.R.R.M. at 1026—cases the Board mon let alone one to- directed clearly approved. plainly activity.9 The Board indi- wards concerted therefore, concrete, activity protected, vidual can if be it set that test in nor should rush to we ‘looking group right is toward action.’ Mushroom in a in which assume case “the Transportation, it, 330 F.2d at 685.” engage in ... activities” is concerted before adopt Judge Friendly’s statutory argument pow- will Mushroom Trans- is a one, giv- wrong portation statutory grounds and it what with standard on the erful indicates Here, holding Judge by Friendly standard in of exactitude en Ontario Knife. majority Meyers demands of the The presented, test. that issue was not because there was focused, Meyers quite understandably, petitioner’s Board in no evidence whatsoever con- group on the words "concerted activities” in section "looking duct was action.” toward although clearly indicated that it would majority correctly 9. The notes that Prill talked some

treat at least "inducement” cases as involv- (cid:127) ing activity, majority right drivers the defective brakes on in about concerted truck, finding difficulty bringing see J.A. at is no some cases his Tr. at but there such language within the literal test. indication that these conversations concerned a grievance, e.g., pattern shoddy suppose But we are not to that the Board will common J., (8th Cir.1968) dissenting). (Lay, It majori- “inducement” branch rests, then, misreading of response the choice to critique is a sufficient ty’s Beyond opinion. concerted before it require that be possi- alleged could error way in this protected “is one decided Con- be case this would bly the outcome affect gress it drafted It is not a when held that could have where if the Board be can undone the courts for choice that be employ- another employee overhears one Pont de policy reasons.” E.I. du Nemours Gove’s), (as an ef- complaint Prill did ee’s NLRB, n. 2 & Co. v. 707 F.2d activity on the concerted fort to induce Moreover, Cir.1983). (9th as the four dis- part should be inferred second City Disposal pointed senting Justices Any inference would such without more. (without majority), controversion out majority has not and the preposterous, degree “[b]y providing an increased of stat- holding, let single case as so pointed to a participating utory coverage employees authority line of a clear alone established encourage process, the labor laws in that Consequently, if the even to that effect.10 procedure ‘practice preserve criticisms of the Board’s majority’s dubious bargaining.’ The fact two collective Meyers prove reading the case law coverage employees acting together receive well-founded, they harmless error that are acting alone does not is there- where one case. support a remand cannot entirely consistent the labor laws’ fore emphasis on collective action. See NLRB ÍV. Mfg. v. Allis-Chalmers 388 U.S. years protests recent There have been 18 L.Ed.2d 1123 87 S.Ct. activity” requirement the “concerted Maddox, (1967); Republic Corp. v. Steel any- results that produces such anomalous 650, 653, 614, 616, 13 379 U.S. reading resembling a literal of sec- thing Disposal, (1965).” . City L.Ed.2d 580 See, e.g., 7 should abandoned. Gor- tion (O’Connor, J., (ad- dissenting) at 1518 S.Ct. Finkin, The Individual and the man & omitted). Because ditional citations what the Na- Requirement “Concert” Under compelled by that Act, the Board did here was Relations tional Labor U.Pa.L. choice, congressional uphold I would Illinois Ruan (1981); see also Rev. 286 Transport Corp. v. respectfully order.11 I therefore dissent. appeals; had the courts of even when the courts Industries that maintenance prompted orders, they complaints have drivers about have enforced the Board’s from other trucks, they sought generally done so because found actual or that Prill to enlist the aid their employ- any way. to which the individual of other drivers in See, immediately e.g., ee's conduct was related. (finding does cite a line of cases includ- Hugh Corp., 10. The F.2d H. Wilson at 1354 substance, ing Coop., Guernsey-Muskingum Elec. because "[i]n (6th (1959), enforced, gripe. They They 285 F.2d 8 N.L.R.B. 618 had a assembled. Cir.1960), Hugh Corp., presented grievance management____”); H. Wilson 171 N.L. and their (3d (1968), enforced, Coop., 414 F.2d 1345 Guernsey-Muskingum R.B. 1040 Cir.1969), F.2d Elec. (finding the Board treated individual in which "a reason- because they complaints protected as if related to that the men in- able inference can be drawn employees they grievance to other and if the matter of moment had a volved considered that decided, themselves, acting they among for the benefit of the individual was would group. maj. op. & n. 24. up management”). interested at 945 See take it with holdings of those cases are little differ- But the narrower) (and, majority’s suggested the Al- anything, limitation of from one of the ent if underlying presumption to situa- as leluia of concerted identifies rationales employee’s conduct is Board’s familiar view tions where the by the Alleluia doctrine: "the employees protected can- laws intended to benefit all that an individual’s should language any way to the to a matter of ‘mutual concern’ to not be linked in if it relates employees.” Maj. op. completely unpersua- rationale, and is therefore 946. That II-A, policy that underlie in Part reads the word "concert- sive. The considerations as I show majority’s suggestions support City should be addressed and finds no ed" out of section Disposal. And, exposi- legislature as be "fa- or to the state courts while that rationale miliar,” repeatedly rejected In this connection it been tors of the common law. it has also

EDWARDS,

Before TAMM and Circuit MacKINNON, WILSON, Judges, and Appellant v. Senior Circuit M.T.

Robert Judge. Director, TURNAGE, Acting

Thomas ORDER System. Selective Service PER CURIAM. No. 83-2323. For reasons set forth in accompa- Appeals, United States Court of memorandum, nying it is hereby District of Columbia Circuit. court, sponte, sua ORDERED judgment that the filed herein

Feb. vacated, hereby December 1984 are and this case is transferred to the United Appeals States Court of for the Federal pursuant Circuit to 28 U.S.C.

MEMORANDUM

The United Appeals States Court of jurisdic- Federal Circuit has exclusive appeals tion of final from decisions of both courts, jurisdiction district when the part that court was based whole or in § 1346(a)(2) (1982) (the' 28 U.S.C. Tucker Act), United States Claims Courts. § 1295(a)(2) (3) (1982) (the 28 U.S.C. & Fed- Improvement Act). eral Courts For this reason, we vacate our decision on the mer- its of this case issued December 750 F.2d 1086. proce-

Because we transfer this case for only, may reasons necessary dural not be for the Federal Circuit reconsider the opinion. of our merits When are cases transferred between courts of coordinate jurisdiction judges or different of the same statute, however, noteworthy adoption whistle-blowing go the recent in some did not "public policy" exception discharged, of a states to the em into effect until Prill after ployment-at-will appear pro would doctrine it is also unclear whether statute’s definition (cid:127) predic body" "public agencies tect who find themselves in a of other includes See, petitioner’s. e.g., 15.361(d). Mich.Comp.Laws ament such Petermann See states. Ann. § Teamsters, adoption whistle-blowing v. International Bhd. Cal. Even before (1959); statute, App.2d 344 P.2d 25 Palmateer v. there is some reason to think that Prill Co., International Harvester 85 Ill.2d have would had a cause of action state (1981); Detroit, 421 N.E.2d v. Ill.Dec. Sventko common law. See T. & Trombetta I.R.R., Kroger Mich.App. (1978) Mich.App. 245 N.W.2d 265 N.W.2d 385 Indeed, (1976). Michigan, (holding allegations employee where that an employed, discharged refusing falsify pollution located and where Prill was en has con- giving reports acted a statute dis who is trol law to be filed charged reporting suspected agency violation state state a claim for can which relief law). body public granted Michigan federal state law to a a cause of it is But pay. pre-empt develop- action for reinstatement with back Mich. for us or the Board to these Comp.Laws Ann. to .364 That §§ 15.361 ments.

Case Details

Case Name: Kenneth P. Prill v. National Labor Relations Board

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 26, 1985

Citation: 755 F.2d 941

Docket Number: 84-1064

Court Abbreviation: D.C. Cir.