concerted action by employees in lobbying legislators regarding national policy issues which affect their job security can be considered action for "mutual aid or protection," which is protected under Section 7 of the Act
How later courts described this case
- concerted action by employees in lobbying legislators regarding national policy issues which affect their job security can be considered action for "mutual aid or protection," which is protected under Section 7 of the Act
- lobbying legislators regarding national policy issues which affect job security
- "Where discriminatory conduct is directly related to protected activity . . . , such conduct is inherently destructive . . . ."
- express reference to balancing
Written by the judges who cited it.
The opinion
ANTHONY M. KENNEDY,
Circuit Judge (dissenting):
I do not agree with the majority that the Civil Engineering Society’s lobbying with regard to national immigration policy was a protected activity under the Labor Act. Section 7 primarily protects concerted activities by employees seeking to affect the way in which their own employer treats *1387 them. Thus as a general rule, the activity must concern “a matter with respect to which the employer had the power and right to do something about.” G & W Electric Specialty Co. v. NLRB, 360 F.2d 873, 876 (7th Cir. 1966). Our court has adopted a similar test, that a protected activity must seek a specific remedy for a work-related complaint or grievance. Shelly & Anderson Furniture Manufacturing Co. v. NLRB, 497 F.2d 1200, 1202-03 (9th Cir. 1974).
It is true that section 7 protects “other concerted activities for . . . mutual aid or protection.” This has been held to include activities not directed at the immediate employer but in sympathy with a legitimate labor dispute involving some other group of employees. E.g., NLRB v. J. G. Boswell Co., 136 F.2d 585 (9th Cir. 1943). I do not believe the “mutual aid or protection” rationale of such cases should be extended to cover activities directed, not at fellow workers’ employers, but at public agencies.
Moreover, even if the Society’s political lobbying would otherwise be protected, there is a well-recognized exception for acts disloyal to the employer’s commercial interest. NLRB v. IBEW Local 1229, 346 U.S. 464 , 74 S.Ct. 172 , 98 L.Ed. 195 (1953), cited in NLRB v. Washington Aluminum Co., 370 U.S. 9, 17 , 82 S.Ct. 1099 , 8 L.Ed.2d 298 (1962); NLRB v. Red Top, Inc., 455 F.2d 721, 727 (8th Cir 1972). The Society used letterhead stationery identifying itself with Kaiser Engineers and bearing the company’s corporate address. The position taken in the letters was contrary to a policy the company deemed critical to its operations in foreign countries. I would not hold that the company is powerless to discourage its own employees from undertaking such detrimental activities.
For these reasons, I would deny enforcement of the Board’s order.