National Labor Relations Board v. Robertson Industries

WALLACE, Circuit Judge

(dissenting):

I respectfully dissent. I conclude that the all-day work stoppage in question was not activity protected by section 7 of the National Labor Relations Act and that the company did not engage in an unfair labor practice in violation of section 8(a)(1) of the Act when it discharged employees for their absence on February 1.

In order for the discharge of employees to constitute an unfair labor practice, there must be substantial evidence that the employees were engaged in concerted protected activities. Southwest Latex Corp. v. NLRB, 426 F.2d 50 (5th Cir. 1970); Indian Gear Works v. NLRB, 371 F.2d 273 (7th Cir. 1967); cf. NLRB v. Kaiser Aluminum & Chemical Corp., 217 F.2d 366 (9th Cir. 1954). In Shelly & Anderson Furniture Manufacturing Co. v. NLRB, 497 F.2d 1200 (9th Cir. 1974), we identified the four elements essential to protected status of concerted activity. Two of them were that “a specific remedy or result must be sought through such activity; and . . . the activity should not be unlawful or otherwise improper.” Id. at 1203 .

*400 I. Specific Remedy or Result

On February 1, 33 employees of Robertson Industries failed to report to work. The record shows that at least 26 of those 33 attended a union organizational meeting lasting one hour. The other seven either did not attend or did not sign the attendance sheet. The administrative law judge found that the employees had simply taken the entire day off to go to a union organizational meeting, and that the discharge of those employees was lawful. The Board, reversing the administrative law judge on the lawfulness of the discharges, found the employees’ attendance at the union meeting to constitute a protected work stoppage held to solve work-related problems.

Although it is clear that employees may engage in union organization on their own time, Republic Aviation Corp. v. NLRB, 324 U.S. 793 , 65 S.Ct. 982 , 89 L.Ed. 1372 (1945); NLRB v. Whitfield Pickle Co., 374 F.2d 576, 578-79 (5th Cir. 1967), we have never held that attendance at a union meeting on company time is per se a protected activity. In order for such meetings to be protected, “a specific remedy or result must be sought through such activity.” Shelly & Anderson Furniture Manufacturing Co. v. NLRB, supra, 497 F.2d at 1203 .

I do not read the majority’s opinion to hold that employees may take company time at whim to hold union organizational meetings. I do not believe the Act was intended to afford such protection. However, under the facts of this case, where organization for the employees’ mutual aid and protection was nascent and where the purpose of the meeting was not routine or general but was to protest and seek remedies for specific working conditions, I agree that attendance by the 26 employees at the meeting was concerted protected activity. NLRB v. Good Coal Co., 110 F.2d 501 (6th Cir.), cert. denied, 310 U.S. 630 , 60 S.Ct. 978 , 84 L.Ed. 1400 (1940).

I do not feel, however, that this conclusion disposes of the issues involved here. From a finding that attendance at the union meeting was protected activity does not necessarily follow a conclusion that the entire work stoppage was similarly protected. The union meeting in question lasted from 1 p. m. to 2 p. m. About 14 of the men were not scheduled to begin work until 3 p. m. Presumably, these men could have both attended the meeting and worked. In fact, at least two other men did so. The employees assigned to the day shift could have worked the major portion of the day and then attended the meeting. In order to find that the work stoppage covering the entire two shifts was protected activity, there must be substantial evidence that the employees absented themselves for their entire work day in protest of a term or condition of their employment, not merely that their attendance at the union meeting constituted such protest.

The majority apparently infers from the fact that 14 employees could have both attended the meeting and gone to work that the refusal to work must have been in protest of working conditions. I find no substantial evidence to support such an inference. The record does not show that the men discussed absence from work in protest of working conditions. While they agreed to attend the meeting to resolve specific work problems, there was no evidence of an agreement not to appear at work in protest. The employees informed no one from the company that they intended to go to the union meeting or that they would be absent from work in protest of anything.

In this respect, this case is unlike NLRB v. Good Coal Co., supra, where the employees voted unanimously not to work on Labor Day. A union rally held that day was only incidental to their day-long work stoppage in stated protest of company policy. Distinguishable also is Shelly & Anderson where a work stoppage was for 15 minutes on company time. There the stated purpose of the demonstration was to protest the company’s dilatory bargaining tactics and the company had ample notice of the purpose of the work stoppage. In contrast, here the record makes clear that there was no purpose of the employees to take the entire day off in protest of working conditions.

*401 II. Improper Activity

In addition, in Shelly & Anderson we said that, to be protected, “the activity should not be unlawful or otherwise improper.” 497 F.2d at 1203 . Concerted activity is not protected when it shows unnecessary disloyalty to the employer. NLRB v. Local 1229, I.B.E.W., 346 U.S. 464 , 74 S.Ct. 172 , 98 L.Ed. 195 (1953); cf. Albrecht v. NLRB, 181 F.2d 652 (7th Cir. 1950). In Shelly & Anderson the walkout consisted of a ten-to-fifteen-minute demonstration. The employer had prior notice of the walkout and, by his own admission, the demonstration did not severely disrupt his production schedule. Here, in contrast, the work stoppage was for an entire day, threatened severe damage to equipment and disrupted the company’s business. Because the employer’s La Palma plant is dependent in its production upon proper operation at the Los Alamitos plant where the work stoppage occurred, the adverse impact of the stoppage was felt in two plants. The union did not require an all-day meeting. In fact, the record shows that union leaders were willing to hold the meeting on a non-work day.

In view of the fact that it was possible for employees to accomplish the stated purpose of their absence from work, attendance at the union meeting, without severely disrupting the operations of their employer, I think it was incumbent upon them to do so. Thus their actions were “improper” as we used that term in Shelly & Anderson.

III. Conclusion*

I find insubstantial evidence, viewing the record as a whole, to support the Board’s finding that the employees here were engaged in concerted protected activity during all of the work stoppage period.

Despite our duty to accept the Board’s choice between two fairly competing inferences, e. g., Universal Camera Corp. v. NLRB, [ 340 U.S. 474 , 71 S.Ct. 456 , 95 L.Ed. 456 (1956)], where there is insubstantial support in the record for the Board’s inference . . . , we may accord respect for a contrary inference, particularly where, as here, such contrary inference was drawn by the Trial Examiner.

Southwest Latex Corp. v. NLRB, supra, 426 F.2d at 57 . See also Morrison-Knudsen Co. v. NLRB, 276 F.2d 63 , 70 (9th Cir. 1960), cert. denied, 336 U.S. 910 , 81 S.Ct. 1082 , 6 L.Ed.2d 233 (1961).

The petition to enforce the Board’s order should be denied.