*1 237 1979) (no However, implied private right of law is affirmed. action securities eral order stays plain- Bankruptcy of the which part prevent under Act to credi- using under fraud claims informal Commodity tors methods to collect tiffs’ debts). Exchange Act is reversed and remanded for proceedings court consistent district in the deci- concurring Rehnquist, Justice opinion. v. of University Chicago, sion of Cannon 718, 677, 99 60 U.S. S.Ct. 441 PHILLIPS, HARRY Senior Circuit (1979), 560 stated what I believe to (Concurring part Judge. dissenting guiding principle: be the part.) “far Congress better” for only is Not holding dissent of respectfully I from the when it private specify intends liti- so majority implied private right action, cause of but for gants under the Commodity action exists Ex- very of reason this in the Court future change exception, Act. With this concur extremely reluctant to imply a should opinion. majority of action specificity absent such on cause Legislative Branch. implied right of action My dissent hold the plaintiffs implied I would have no Congress, on the failure of issue is based right of action under the amended 1974, private specify the Act in it amended when Commodity Exchange Act. See Fischer v. private it intended to continue to allow Co., (N.D.Tex. F.Supp. 481 53 damage despite its creation Rosenthal actions of an reparations proce- administrative elaborate Mortgage Transamerica Advis- See
dure. Lewis,-U.S.-, 100 S.Ct.
ors, v. Inc. (1979) (Congress’ ex-
242, 146 62 L.Ed.2d of alternative provision means to en-
press 206 the Investment Advisors Act §
force precludes implication private of a
damage remedy thereunder); Securities In- Corp. Barbour, Protection v.
vestor
U.S.
INTERNATIONAL,
1733,
412,
(1975) (Secu-
Touche 442 U.S. (1979) (no L.Ed.2d 82
implied private damage remedy under 17(a) Exchange of the Securities Act of
§
1934); v. Taylor Brighton Corp., 616 F.2d 1980) (no (6th private Cir. implied dam- 11(c) OSHA); remedy
age Ryan § Co., 611 F.2d 1170 Edison
v. Ohio
EDWARDS, Judge. Chief International, Inc., Vic Tanny Petitioner court’s and the vacation of review seeks order, Labor Relations Board a National (1977). at 232 N.L.R.B. No. reported for enforce- cross-petition filed The upon which order. The facts of its ment any substan- turns are not decision be drawn but the inferences to dispute, tial application of law there- therefrom certainly are. Tanny operates health one of its 10 Vic Detroit City area in the spas Livonia, Michigan. In four fe- spa at the Livonia became instructors male dispute in a with John man- involved dispute Livonia club. The ulti- ager led to of the four instructors mately discharged. It is being refused to certain four premises togeth- and left the work assigned carry their over this issue er to manager who located at the area Tanny area office in Dearborn. Vic hearing before an Administrative After Judge, the ALJ that the three found discharged employees were fired for “insub- walk- preceding and that their ordination” motivating no role in dis- played unanimously The NLRB conclud- charges. the ALJ erred in his conclusion ed concerning discharges motivation of “at that the were motivated held part by employees’ participation least 24May walkout.” The Board’s decision the essential facts our consider- presents follows: as ation fit- operates “Respondent physical metropolitan in the Detroit clubs ness herein occurred at its events area. Hooth, Youngblood, L. Cox William Livonia, Michigan. May On facility in Mich., respon- Perry, Troy, B. James Rochelle instructor-employees dent. Szabo, Mitchell, Linda Reagan, jobs Janet walked off Moore, Deputy Patrick Szymanski, Elliott protest against Respondent’s allegedly Counsel, B., Wash- Gen. R. Associate pick up them to require pay- decision Director, C., Gottfried, Bernard ington, D. headquar- its supplies at checks roll N.L.R.B., Detroit, Mich., peti- Region Dearborn, Michigan, 14 miles ters tioner. Thereafter, Szabo, away. discharged. Lange were Judge, and EDWARDS, Chief Before BROWN JONES, Circuit Judges. [*] [*] [*] [*] [*] [*] outcome of her discussion above, disclosed the Respondent’s Dear- “As noted facility served as head- to her It born, Michigan, fellow instructors. Detroit for all clubs quarters Monday jobs area. On of each
metropolitan
off
to Dear-
go
walk
would
one
week,
facility
designate
each
an effort
conflict
resolve the
born
headquarters
travel
in or-
superior,
Supervisor
Baker’s
Area
*3
supplies
paychecks.
and
up
pick
to
der
McDowell.
William
of an
selection
to
Prior
Dearborn,
met
the
“At
the
trip
Dearborn
at
for the
employee
and aired
grievance.
McDowell
with
strictly
a
facility was made on
Livonia
were
they
advised
McDowell
them that
trip
was not a
basis.
voluntary
out
wrong to walk
and that their action
employ-
assignment and the
sought-after
subject
He
discharge.
rendered
vol-
general
a
displayed
reluctance
ees
they
that
return to Livonia
recommended
trip
though it
even
meant
for the
unteer
straighten
attempt
the matter
and
half hour’s pay.
an additional
receiving
Baker,
Baker.
also told
McDowell
with
Szabo,
Lange
were
Indeed, Reagan,
telephone,
subject
that they were all
that
arrangement
dissatisfied
so
up
and action was
to Bak-
termination
up
Mitchell ended mak-
employee
discretion.
er’s
fairly regular basis.
on a
trip
the
ing
club,
return to
“Upon their
Livonia
the
Mana-
Livonia Club
opinion
“In the
Reagan
speak
girls
asked Baker to
Baker,
primary
the
reason for
ger John
Baker
he
group.
responded that
aas
lay
dissatisfaction
the
the
speak with them but on an individ-
would
assign-
nature of
voluntary
Dearborn
the
During Baker’s conversation
basis.
ual
Accordingly, in order to remedy
ment.
read
Reagan produced and
with
situation,
assign
Baker decided to
grievances which included
list of
a
trip
on a ro-
the Dearborn
sup-
to Dearborn and the
the
both
basis,
tating
with each
travel-
Reagan
duties. When
plemental
every
once
weeks. Allowances
ing
either
perform
to refuse to
continued
special
for
be made
unforeseen cir-
functions,
two
Baker
her
informed
these
cumstances.
discharged.
was
likewise
she
Szabo
that
a
“On
Baker conducted
perform
either
and as
function
refused
meeting
explained
the rotating
Lange agreed
was terminated.
result
employees.
the
They
vocifer-
schedule
Dearborn
but refused to en-
to travel
decision,
protested the
ously
but to no
cleaning
informed
work. Baker
gage
appears
that the issue of
avail.
position
he would consider her
that
her
instructor-employees assisting in
these
then advise her of his
La-
decision.
when the maids were absent
cleanup duty
evening,
Lange
that
Baker contacted
ter
was debated.
her
notified
that he could not retain
24,May
Monday,
the roster for the
“On
the
proposed
conditions she
her
trip
posted
was
and Assistant
Dearborn
she was
terminated.
therefore
that
Kopka
Mary
Reagan
informed
Manger
Mitchell
both functions
responsible
making
she was
the
retained. The
re-
and was
termination
Reagan
day.
go,
refused to
trip that
indicate
ports
and Szabo
Kopka
whereupon
requested that she dis-
insub-
the result of
During
matter with
Baker.
cuss
they, respectively,
and because
ordination
ensuing
Reagan
conversation
”
job.’
‘walked out
‘walked out’
in her
go
adamant
refusal to
remained
omitted).
(Footnotes
thereto,
response
In
Dearborn.
reciting
facts,
Board rea-
Reagan for the remainder
suspended
After
as follows:
day.
soned
discussion,
above,
before
Reagan
the issues
“Following
“In view
(1)
pro-
coffee
the May
the club’s
room and there
24 walkout
went to
us are:
so,
pay
whole for
activity;
any
if
ment and made
loss of
tected
Respondent’s
discharging
conduct in
8(a)(1)
had
suffered as a result
employees motivated
the walkout.
violation.1
questions are answered in the
If both
that the
contends
Tanny
Petitioner Vic
affirmative,
then
must be
violation
of the four
con-
instructors did not
walkout
found.
protected
activity
within
stitute
“The
Counsel
General
contends
meaning of
7 of the National
Law Judge
the Administrative
should
Act, 29
151-168
Labor Relations
U.S.C. §§
that the
pro-
concluded
walkout was
no
evi-
that there is
substantial
(1976), and
agree.
We
tected
finding
Board’s
dence
case,
the circumstance of this
Under
engag-
instructors were
banding together
spontaneous
emphasis
walkout. The
in a
ing
stoppage
the form of a work
as a
ees
upon
is
petitioner
of their disagreement
manifestation
*4
1976,
in this record that on May
shown
employer’s
clearly pro-
conduct is
their
discharged
em-
employees, plus
the
R. B. v. Wash-
tected
to
Mitchell,
Debbie
did
refuse
indeed
ployee
Inc.,
Company,
Aluminum
ington
specific
given
by
orders
carry out
1099, 8
U
S.Ct.
298]
.S.
[82
petitioner’s earnest
Manager Baker.
It is
Center, Inc.,
General Nutrition
(1962);
insubordi-
that such refusal was
contention
(1975).
221 NLRB
nation, which was the sole
of their
cause
the
“We also find evidence to
discharges.
dis-
Counsel’scontention that the
General
motivated,
part,
in
charges were
at least
of7
the National
Relations
Labor
Section
in the
employees’ participation
by the
as follows:
reads
Act
First,
of-
Respondent’s
24 walkout.
Employees
to self-
right
shall have the
the
laid
employees
that
commented
ficials
form,
to
join,
organization,
or assist labor
discharge
walking
to
open
for
themselves
to bargain collectively
organizations,
Second, the
job.
information set
the
off
of
through representatives
their own
reports for both
in the termination
forth
in
engage
other concert-
to
choosing, and
reveals that their dis-
and Szabo
purpose
the
of collective
ed activities
result of
were the
both insubordi-
charges
other
bargaining
protec-
or
mutual
or
aid
having
job.
the
walked off
nation
tion, and shall also have
right
the
notations sufficient to es-
such
findWe
any or
all of such activities
refrain
that
the
walkout—a
tablish
extent
may
that
except
right
to the
such
activity precipitated
concerted
—
by
agreement requiring
affected
Therefore,
discharges.
we find that
the
membership
organization
in
labor
aas
8(a)(1)
violated Section
of the
Respondent
employment
in
as authorized
condition
discharging Reagan,
by
Lange, and
Act
158(a)(3) of this
title.
U.S.C.
section
rights
for exercising
in
their
Szabo
(1976).
§
under Section 7
the Act.”
guaranteed
omitted).
(Footnotes
appears
It
clear to
that
this court
employees
who were
the
thereupon
Board
concluded that the
The
had undertaken in concert
Reagan, Lange
discharges,
Szabo
grievances
several
regarding
discuss
discharge
em-
threat
made to those
working
Mitchell,
employer.
conditions with their
ployees
weekly
pertained
grievances
practices,
labor
in violation of Sec- These
unfair
objected
trip
of the
Dearborn to which each
8(a)(1)
tion
ordered
employees
requirement
be offered full reinstate-
substitute
with, restrain,
(a)
practice
shall be an unfair labor
interfere
em-
It
for an
or coerce
rights guaranteed
employer—
in
ployees
the exercise
title;
.
157 of
in section
(1976).
§
29 U.S.C.
(1962);
The additional two discharge slips recited “walk- RELATIONS NATIONAL LABOR on the job” as reasons and “walkout out” BOARD, Petitioner, dismissal, while obvi- for their v. activity, leader of the concerted ous discharge slip attitude” saying “bad given KATZ, d/b/a American P. Samuel represent greater sup- to us to even seems (Plant Respondent. 2), Mailers # for the Board’s port conclusion that 78-1001. No. unlawfully penalized 7 of exercising rights guaranteed by Section Appeals, States Court of United the NLRA. Circuit. Sixth will be The Board’s order enforced. April Argued BROWN, Judge, dis- BAILEY Circuit Decided senting. respectfully dissent. following dissent is based on the My by the were found Administrative and, without importantly, more are
Judge After these four had
dispute. after had returned
walked and their Dearborn conference with they were supervisor, separately inter- manager, and each of by the
viewed that if make was advised she would trips to pick up payroll
her share cleanup work do when the maid
cheeks ill, she would retained as an Reagan and Szabo refused to
ee. *6 task were thereupon discharged.
either agreed to make but refused help her cleanup; Baker advised he think it later that over but her. to do discharged Mitchell
day tasks was retained as an
both
ee. foregoing without dis- are
Since how see said that
pute, cannot can be (overruling decision of the Board Judge) to the effect
Administrative walkout) activity (the the concerted part” played
“at least the decision sup- these three employees is Moore, Winer, Deputy Michael S. Elliott con- ported by substantial evidence. the On Counsel, B., L. Gen. N. R. Susan Associate absolutely clear trary, it is that these C.,D. Washington, Papadopoulos, Tepper refusal employees were for their Director, Gottfried, Region Bernard is, work, do insubordination. Detroit, B., Mich., petitioner. R. Accordingly, in view of these Levin, Finkel, Levin, J. Garvett Robert facts, opinion my decision Mich., Adelson, Southfield, Dill, S. Glenn supported by evi- is not substantial respondent. dence.