National Labor Relations Board v. Empire Gas, Inc.

BARRETT, Circuit Judge,

concurring in part and dissenting in part:

I concur in that part of the majority opinion which holds that the mailing by Cooper of his letters to fellow drivers did come within the protection of § 7 of the Act because it did call for collective activities of all of Empire’s drivers at some 112 plants. I dissent from that part of the opinion which holds that under the circumstances of this case Cooper’s attempts to organize unannounced work stoppages without first submitting his grievance to Empire about the proposed new Bonus Growth Plan did not deprive him of § 7 protection in terms of the affirmative relief ordered by the Board, i. e., reinstatement of Cooper to his former position or one equivalent thereto with restoration of all seniority and other rights and all back pay because of his “unlawful discharge.” [R., Yol. Ill, p. 87].

Some facts which I consider important have not been related in the majority opinion. When the proposed “Bonus Growth Plan” objected to by Cooper in his letter was first discussed with him on August 15, 1975, by Empire’s Division Manager Goodwin and local Manager Johnson, Cooper did not voice any objection thereto, although he did threaten to quit work the next day if he did not receive a $50.00 per month raise which he stated had been promised him. The next day Cooper was told the raise was approved. About a week later, Empire’s president submitted a memorandum explaining in detail the new “Bonus Growth Plan.” Instead of complaining to any of the Empire officials about the plan, Cooper proceeded to prepare and submit the subject letter. The majority states that the unannounced work stoppages (insofar as Cooper is concerned) “did not come about because the company fired Cooper very soon after the letter was written.” Nothing in the record supports this conclusion. The record shows that only two of Empire’s drivers responded to Cooper’s letter. One of them favored the new plan while the other generally agreed with Cooper. [R., Vol. II, pp. 70-72.] Before the administrative law judge and the Board, Empire has not contested the proposition that the mailing of Cooper’s letter was a protected activity. The entire thrust of Empire’s challenge has been anchored to the proposition that its refusal to reinstate Cooper is lawfully justified because the action recommended by Cooper in his letters was an unprotected, unlawful activity just as that found in International Union, U.A.W.A., A.F. of L. Local 282, v. Wisconsin Relations Board, 336 U.S. 245 , 69 S.Ct. 516 , 93 L.Ed. 651 (1949) in that the unannounced “pump no gas” solicitations constituted work stoppages without the true existence of a labor dispute simply because no grievance has ever been made to Empire by Cooper or any other Company driver.

The Board, for some unexplained reason, elected to reach only part of the “concerted activity” issue in its findings and conclusions in the case at bar, i. e., that Cooper’s mailing of the letters constitutes a protected “concerted activity” within § 7 of the Act. Empire does not challenge this finding. The Board did not, however, render any findings or conclusions relating to the issue whether Cooper is entitled to affirmative relief based upon Respondent’s contention — premised on International Union, et al. v. Wisconsin Employment Relations Board, et al., supra —that the substance of the letter was Cooper’s inducement and encouragement of fellow employees to engage in an unprotected activity, i. e., unannounced work stoppages. Even so,- the Board has, in its Brief on Appeal, strongly challenged Empire’s contention relating to the work stoppages issue, although neither the administrative law judge nor the Board reached the issue in findings or conclusions.

I.

I concur that the intent of Cooper’s letter — reduced to its intended effect — is the *688 fact that Cooper was communicating with his fellow drivers in the hope of initiating or inducing group action for the benefit of all of Empire’s drivers. This was not, then, a case where Cooper’s sole aim or intent was that of furthering his individual status. If it had been so, it would not constitute protected “concerted activity.” See N.L. R.B. v. Meinholdt Manufacturing, Inc., 451 F.2d 737 (10th Cir. 1971).

It is of no legal consequence that even though the administrative law judge’s decision was rendered on March 16, 1976, and the Board’s Order on June 10,1976 — a period of two and one-half years after Cooper mailed his letters to fellow employees — that none of Cooper’s fellow employees elected to pursue Cooper’s proposed course of action for their “mutual aid and benefit.”

For a more detailed analysis of the rule that “concerted activity” under the Act is met if the purpose is to induce or to prepare for group action to accomplish better working conditions or terms of employment and to correct a grievance or complaint whereby the employees act together for their “mutual aid or protection,” see: 22 A.L.R. Fed. 113 , 120 § 3; 48 Am.Jur.2d, Labor and Labor Relations, § 616; 19 A.L.R.2d 566 .

II.

I dissent from that part of the majority opinion which holds that Cooper is entitled to the affirmative relief ordered by the Board.

In NLRB v. Washington Aluminum Company, 370 U.S. 9 , 82 S.Ct. 1099 , 8 L.Ed.2d 298 (1972), the Court enforced a Board order reinstating with back pay some seven employees who had walked off of their jobs at the plant without permission because of the cold working conditions. The Court of Appeals had refused to enforce the Board’s order because the workers — who were unorganized just as are the employees of Empire in this case — had left their employment. without affording the company an opportunity to avoid the work stoppage by granting a concession to a demand (to provide heat). However, the Supreme Court significantly pointed out that on a number of prior occasions each of the seven employees had individually complained to company officials about the coldness in the machine shop during the winter, without any relief. The work stoppage occurred only after the various efforts by the employees to remedy the specific working condition had failed. It was on this predicate that the Supreme Court held the action óf the employees to be a protected activity involving a labor dispute.

Empire has relied exclusively on International Union of Automobile Workers, Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 , 69 S.Ct. 516 , 93 L.Ed. 651 (1949) in resisting the Board’s order requiring reinstatement of Cooper at back pay without deprivation of his seniority or other privileges and to render him whole by reason of his loss of any other benefits resulting from his alleged wrongful discharge. Empire contends that Cooper’s “secretive plan” in soliciting his fellow employees not to ‘.‘pump gas” on three specified dates if the demands contained in his September 13 letter were not acceded to constituted tactics classified as “unprotected activity” in that they encouraged unannounced work stoppages. In International Union-Wisconsin, supra, the work stoppages were condemned under a Wisconsin statute which declared unfair “any concerted effort to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike." [Emphasis supplied.] The facts of that case reflect that the stratagem, i. e., work stoppages, was agreed upon by the Union leaders and the Union membership. There was no provision in the NLRA then — just as there is none today — which speaks expressly to the subject of “work stoppages.” Under these circumstances, the Supreme Court held that the Wisconsin act applied. The discharge of the seven employees by the employer for violation of the Wisconsin statute was upheld. The pre-emption doctrine articulated in International Union-Wisconsin, supra, has since been overruled by the Supreme Court in Lodge 76, Int. Ass’n of Machinists & Aerospace Workers v. Wisconsin Employ- *689 meat Relations Commission, 427 U.S. 132 , 96 S.Ct. 2548 , 49 L.Ed.2d 396 (1976). Even so, the Supreme Court did not then nor has it since suggested that (a) unannounced work stoppages are lawful under all circumstances or that (b) state law is not to be in anywise considered or that, as the majority states, “state law can have no bearing” on our problem.

Our cursory examination of the Colorado statutes — of which we take judicial notice— was undertaken for guidance in terms of that state’s policy. Colorado has a statute the equivalent of § 7, 29 U.S.C. § 157 . It guarantees employees the right to engage in lawful concerted activities for the purpose of collective bargaining or other mutual aid or protection. C.R.S. (1973) § 8-3-106. Another Colorado statute provides that before any employees exercise the right to strike in any industries or occupations other than those dealing with agriculture, they must first give notice to the state division of labor in the department of labor and employment 20 days in advance thereof; and the division is then directed to immediately notify the ■ employer and to take steps to effect mediation; and, if the mediation fails, the director is to endeavor to induce the parties to arbitrate the controversy. Any strike called during the 20-day period aforesaid is declared an unfair labor practice. C.R.S. (1973) § 8-3-113(2). And C.R.S. (1973) § 8-3-104(c) provides that “No controversy between an employer and his employee shall constitute a labor dispute until after a bargaining unit in accordance with [this article] is created and a dispute arises between the bargaining unit [one created by vote of non-union employees at a plant or industry, etc.] and the employer.” Colorado’s statutory provisions above referred to do correlate with the Wisconsin statute applied in International Union-Wisconsin, supra. They are deserving of careful consideration.

The duty to bargain in good faith is basic to the purposes of the NLRA and the Colorado statutes cited, supra. In H. K. Porter Co., Inc. v. NLRB, 397 U.S. 99 , 90 S.Ct. 821 , 25 L.Ed.2d 146 (1970), the Supreme Court set forth the primary objective of the NLRA:

The object of the Act was ... to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. (Emphasis supplied.)

397 U.S., at p. 103 , 90 S.Ct., at 823 .

Thus, while an employer’s predetermined and inflexible position toward merit increases for employees submitted with intent to reach a bargaining impasse is in bad faith [and, accordingly, an unfair labor practice], the mere tendering by an employer of a proposal [such as the “Bonus Growth Plan” in the instant case] or counterpropo-sal which may be “predictably unacceptable” is not, standing alone, sufficient to justify a finding of bad faith if the proposal does not foreclose future discussions or negotiations. NLRB v. Fitzgerald Mills, 313 F.2d 260 (2nd Cir. 1963), cert. denied, 375 U.S. 834 , 84 S.Ct. 47 , 11 L.Ed.2d 64 (1963). Nothing in this record evidences that Empire foreclosed discussions or negotiations with Cooper and his fellow employee drivers when the “Bonus Growth Plan” was proposed. In fact, the opposite conclusion is indicated. A violation of the Act could have occurred had Empire submitted the “Bonus Growth Plan” with intent to refuse to discuss the terms and conditions thereof with its employees or to negotiate relative thereto. Kroger v. N.L.R.B., 399 F.2d 455 (6th Cir. 1968); N.L.R.B. v. Union Mfg. Co., 179 F.2d 511 (5th Cir. 1950).

I observe that the Board’s justification [Brief of Board, pp. 10,11.] of Cooper’s case for the work stoppages (which the Board elects to refer to as “the strikes”) was (a) conditioned on the Company’s response, (b) dependent on the response of the other drivers, and (c) protected, in any event, under Section 13 of the Act which provides that the right to strike shall not be diminished, impeded or interfered with. From *690 this juncture, the Board proceeds [Brief of Board, pp. 11, 12.] to cite decisions which it contends support its position that Cooper’s call for unannounced work stoppages did not fall into the category of “intermittent” or “recurrent” work stoppages constituting partial strikes in violation of the Act. The Board failed to point out that in the cases it relies upon the “walkouts” or “work stoppages” were not undertaken until after the concerned employees had expressed their grievances about a work condition without having received any remedy or favorable response from the employer. In each instance a “labor dispute” did in fact exist and the grievance had been voiced. Walkouts by employees who have previously voiced their grievances about a condition of employment constituting a “labor dispute” within the meaning of the Act have been held to be protected concerted activities. N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9 , 82 S.Ct. 1099 , 8 L.Ed.2d 298 (1962); N.L.R.B. v. Okla-Inn, 488 F.2d 498 (10th Cir. 1973); N.L.R.B. v. Tonkawa Refining Company, 452 F.2d 900 (10th Cir. 1971); N.L.R.B. v. Leprino Cheese Co., 424 F.2d 184 (10th Cir. 1970), cert. denied, 400 U.S. 915 , 91 S.Ct. 173 , 27 L.Ed.2d 154 (1970); N.L.R.B. v. Serv-Air, Inc., 401 F.2d 363 (10th Cir. 1968); United Merchants & Mfr., Inc. v. N.L.R.B., 554 F.2d 1276 (4th Cir. 1977); N.L.R.B. v. A. Lasaponara & Sons, Inc., 541 F.2d 992 (2nd Cir. 1976); N.L.R.B. v. Elias Brothers Restaurants, Inc., 496 F.2d 1165 (6th Cir. 1974); Shelly & Anderson Furniture Manufacturing Co., Inc. v. N.L.R.B., 497 F.2d 1200 (9th Cir. 1974); N.L.R.B. v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973); Food Fair Stores, Inc. v. N.L.R.B., 491 F.2d 388 (3rd Cir. 1974) (where the discharged employees made every reasonable effort to express their work dispute grievance with company officials without success prior to an 18-hour walkout but the walkout was held to be an unprotected activity because carried out against the wishes of the Union). I reiterate that in each of the above-cited decisions the discharged employees had, in each and every instance, first presented their grievances relative to terms of employment with their employer before undertaking the walkouts. There was nothing secretive about their positions relative to the matters in dispute. To the same effect is this Court’s holding in N.L.R.B. v. Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969). There 12 of 19 unorganized “over-the-road drivers” met and discussed terms of their employment. Four of that group were selected to discuss their grievances with Company’s vice-president. He was not available, but they did voice their grievances to the assistant director of personnel who offered to see if he could arrange a meeting of the group with the vice-president. Such a meeting was never arranged by the company. Soon thereafter the company discharged four of the drivers. We there held that:

It is well settled that even though union activities are not specifically involved, the presentment of grievances by a group of employees to their employer constitutes a [protected] concerted activity . . (Emphasis supplied.)

409 F.2d, at p. 608 .

In N.L.R.B. v. Tonkawa Refining Company, supra, this Court drew the line between a protected § 7 work stoppage (strike) by employees undertaken for the purpose of protesting wages and working conditions as distinguished from work stoppages which are partial, intermittent or recurrent. Our Tonkawa opinion is anchored to this language from Houston Shopping News Co. v. N.L.R.B., 554 F.2d 739 (5th Cir. 1977):

The purpose of the NLRA is to encourage collective bargaining, which by its very nature is a mutual undertaking. To this end, open lines of communication are necessary, and when these lines are cut, whether by oversight, misunderstanding, or intent, it is up to the parties to first attempt to reopen them.

554 F.2d, at p. 745.

In an analogous sense, this Court stated in N.L.R.B. v. Okla-Inn, supra:

It is the Board’s responsibility to strike a balance between the exigencies of business and the invasion of employee rights in the light of the Act and its policies

488 F.2d, at p. 505 .

*691 In accord with Tonkawa, supra, is N.L.R.B. v. Blades Manufacturing Corp., 344 F.2d 998 (8th Cir. 1965). There, the Board found that each of three walkouts was a separate, spontaneous, protected activity. The Court reversed, holding that such finding was contrary to both the law and substantial evidence on the record in its entirety. The Court held that the Company’s discharge of 31 employees following several warnings from the employer that they cease that which the Court held to be unprotected concerted activities in the form of deliberate “slowdown” or “walkouts” of short duration rather than a total strike did not constitute an unfair labor practice on the part of the employer violative of § 8(a)(1) and (3) of the Act, as amended, 29 U.S.C. § 158 (a)(1) and (3). In N.L.R.B. v. Blades, supra, the Court further and significantly noted:

And in NLRB v. Insurance Agents, 361 U.S. 477 , 80 S.Ct. 419 , 4 L.Ed.2d 454 (1960), the Supreme Court, on the basis of its Briggs-Stratton rationale . . . agreed . . . that a total strike is a concerted activity protected from employer interference by §§ 7 and 8(a)(1). But deliberate “slowdowns” and “walkouts” by employees [constitute] unprotected concerted activities and the employer was free to discharge [them] for their unlawful, disloyal tactics. More recently, Mr. Justice Stewart observed in another context in American Shipbuilding Co. v. NLRB, 380 U.S. 300 , 85 S.Ct. 955 , 13 L,Ed.2d 855 (1965):

There is nothing in the statute which would imply that the right to strike ‘carries with it’ the right exclusively to ' determine the timing and duration of all work stoppages. The right to strike as commonly understood is the right to cease work — nothing more.

344 F.2d, at p. 1005 .

Analogous to the holding in N.L.R.B. v. Insurance Agents, supra, the Supreme Court in American Shipbuilding Co. v. N.L.R.B., supra, held that an employer does not commit an unfair labor practice under either § 8(a)(1) or (3) of the Act when, after an impasse in negotiations, he shuts down his plant and lays off his employees for the sole purpose of applying economic pressure in support of his legitimate bargaining position. Of significance here, the Court made this observation relative to pre-strike “walkout” or “work stoppage” acts:

Thus, 29 U.S.C. § 158 (d)(4) . . . prohibits the use of a strike or lockout unless requisite notice procedures have been complied with; 29 U.S.C. § 173 (c) . directs the Federal Mediation and Conciliation Service to seek voluntary resolution of labor disputes without resort to strikes or lockouts (Emphasis supplied.)

380 U.S., at p. 315 , 85 S.Ct., at p. 965 .

Notwithstanding the fact that neither the administrative law judge nor the Board reached the true issue posited by Empire, i, e,, that while the mailing of the letters by Cooper is a protected concerted activity, still the means urged deprived Cooper of any affirmative relief, the majority opinion decides the issue for the first time on review adverse to Empire. I cannot concur therewith.

The issue of reinstatement of Cooper with restoration of his seniority and full back pay — the affirmative relief ordered by the Board — must be judged in relation to the issue whether Cooper’s recommended unannounced work stoppages if the Company had not withdrawn the Bonus Growth Plan prior to three specific dates constituted an unfair labor practice on his part. It is fundamental that if an employee is guilty of misconduct warranting his discharge, the employer is under no duty to reinstate him. N.L.R.B. v. Fansteed Metallurgical Corp., 306 U.S. 240 , 59 S.Ct. 490 , 83 L.Ed. 627 (1939).

The touchstone of the NLRA is that of good faith bargaining. An employer violates 29 U.S.C. § 158 (a)(3) by locking out his employees rather than negotiating with them or their designated bargaining unit. See : 152 A.L.R. 144 . On the other hand, the employer is not guilty of a violation of an unfair labor practice under § 158(a)(1) or *692 (3), supra, when, after a bargaining impasse has Been reached, he temporarily shuts down his plant and lays off his employees for the sole purpose of bringing economic pressure to bear in support of his bargaining position. American Shipbuilding Co. v. N.L.R.B., supra. It logically follows, I believe, that an employee [such as Cooper], although acting in concert, violates 29 U.S. C.A. § 158(b)(3) when, absent any effort or attempt to first initiate contact or negotiations with his employer, he exerts, induces or encourages his fellow employees to pursue unfair labor practices against his employer by means of promoting unannounced walkouts, work stoppages or similar unfair practices. See : 48 Am.Jur.2d, Labor and Labor Relations, § 810 and cases cited.

29 U.S.C.A. § 158 (a)(5) provides that it is an unfair labor practice for an employer to fail to bargain collectively with the representatives of his employees. 29 U.S.C.A. § 158 (d) provides that to bargain collectively is the performance of the mutual obligation of the employer and the employees’ representative to meet in good faith with respect to terms and conditions of employment.

Following the decision of the administrative law judge, Empire filed an exception thereto which 'challenged the decision on the ground that the letters mailed by Cooper constituted “. . . an appeal for fellow employees of the various corporations of Empire Gas to engage in intermittent work stoppages. Thus the letter was unprotected activity under the law . . ” [R., Vol. Ill, p. 90.] The Board’s subsequent Decision and Order did not address or discuss the intermittent work stoppage issue. [R., Vol. Ill, pp. 92, 93.] Even though the work stoppage issue was clearly presented by Empire in its exceptions aforesaid, the Board, in its brief, declares that “accordingly, the sole issue before the Court is whether Cooper’s sending of the letters constituted protected concerted activity.” [Brief of Board, p. 8.] Then, in absolute contradiction to the above contention, the Board’s brief thereafter admits that “Before the Board, the Company’s only contention was that Cooper’s letter was stripped of the Act’s protection by his reference to two strikes as a possible course of concerted activity.” [Brief of Board, p. 10.] From this point in its brief, the Board proceeds in four subsequent pages to justify Cooper’s call for the work stoppages and, in effect, to decide the very issue it elected not to reach in its Decision.

I would deny enforcement of the affirmative relief ordered by the Board in relation to Cooper’s reinstatement with back pay and other benefits.