East Chicago Rehabilitation Center, Inc. v. National Labor Relations Board

COFFEY, Circuit Judge,

dissenting.

I am compelled to dissent as I cannot agree with the conclusion of the NLRB and the majority that, in participating in an unauthorized “wildcat” strike at a skilled nursing care facility, the 17 Rehabilitation Center employees were engaging in protect *406 ed concerted activity. The majority’s holding, concentrating solely on the interests of employees to the exclusion of the interests of the employer as well as the public, makes a mockery of Congress’ intent to strike a fair balance between the conflicting interests of employers and employees. The majority’s holding is even more disturbing as it involves a “wildcat” strike in the health care field, where the health, welfare and safety of infirm and dying patients are directly threatened by sudden interruptions in physical and medical assistance. Like police and fire departments, health care facilities, whether they be hospitals, nursing homes or psychiatric care institutions, play a vital role in preserving our society’s health and well-being and, therefore, the rights of patients and the public to receive uninterrupted services becomes critically important in cases dealing with “wildcat” strikes in the medical field. Judge Posner’s cold and detached analysis treats this case as though we were considering a walkout occurring on an assembly line, in a steel mill or in a coal mine, where at most an interruption in production would result. Rather, I dissent as I believe it is important to emphasize that this walkout occurred in the health care field, where human lives are all too frequently hanging in the balance. Moreover, I would hold that the 17 employees who walked off their jobs constituted a “labor organization,” and thus were required to give 10 days notice prior to any work stoppage or strike. Finally, I disagree with the majority’s decision because, in holding that this “wildcat” strike was protected activity, the majority disregards an overwhelming weight of prior case law.

I.

It is axiomatic that Congress’ goal in enacting the National Labor Relations Act was to strike a fair balance between the interests of employers and employees. As the Supreme Court has often stated:

“The ultimate problem is the balancing of the conflicting legitimate interests. The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review.”

NLRB v. Truckdrivers, 353 U.S. 87, 96 , 77 S.Ct. 643, 648 , 1 L.Ed.2d 676 (1957). In this case, the majority had blindly accepted the NLRB’s so-called “balance” by cavalierly stating that the NLRB “can reconcile the policies of section 7 with those of section 9(a), can harmonize the Act’s discordant themes of the rights of employees as individuals and the rights of unions as collectivities, better than we — who maybe cannot do it at all.”

I cannot join with the majority in affording excessive deference to the NLRB in this case since “whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the courts of appeals.” Beth Israel Hospital v. NLRB, 437 U.S. 483, 507 , 98 S.Ct. 2463, 2477 , 57 L.Ed.2d 370 (1978). Rather, we must bear in mind the District of Columbia Circuit’s words in Service Emp. Intern. U. v. NLRB, 600 F.2d 930 , 939 (D.C.Cir.1979) regarding the proper role of the courts of appeals in reviewing the decisions of the NLRB:

“We are not unmindful of the fact that there is only limited judicial review of [NLRB] findings but the Supreme Court in Labor Board v. Brown [ 380 U.S. 278 , 85 S.Ct. 980 , 13 L.Ed.2d 839 (1965)] ... pointedly stated that the phrase ‘limited judicial review’ did not mean that the balance struck by the Board was immune from judicial examination and reversal in proper cases, and ‘where, as here, the review is not a question of fact, but of judgment as to the proper balance to be struck between the conflicting interests, the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia which results in the unauthorized assumption by an agency of major policy decisions properly made by Congress.’ ” (emphasis added).

By falling into judicial inertia, Judge Pos-ner has in his reasoning in this case effec *407 tively rendered the NLRB “immune from judicial review” and has ignored the “undisputed right of employers to maintain discipline in their establishments.” Eastex, Inc. v. NLRB, 437 U.S. 556, 571 , 98 S.Ct. 2505, 2515 , 57 L.Ed.2d 428 (1978). Courts must not abdicate their responsibility and become, in effect, merely rubber stamps for the decisions of the NLRB, particularly where the NLRB decision concerns “judgment as to the proper balance to be struck” in a fact situation involving the very well-being of the sick, weak, infirm and dying in a nursing home or hospital facility.

Furthermore, the excessive deference afforded by the majority to the NLRB is particularly injudicious since this case involves a “wildcat” strike in the health care field which, like police and fire departments, provides vital services, rather than in the usual industrial setting with which the NLRB is more accustomed and has accumulated a certain expertise. As the Supreme Court stated in Beth Israel Hospital, 437 U.S. at 508 , 98 S.Ct. at 2477 , quoting NLRB v. Beth Israel Hospital, 554 F.2d 477, 481 (1st Cir.1977):

“Hospitals carry on a public function of the utmost seriousness and importance. They give rise to unique considerations that do not apply in the industrial settings with which the Board is more familiar. The Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized.”

Similarly, Justice Blackmun, in his concurrence in Beth Israel Hospital, eloquently described the unique characteristics of the health care field:

“Hospitals, after all, are not factories or mines or assembly plants. They are hospitals, where human ailments are treated, where patients and relatives alike often are under emotional strain and worry, where pleasing and comforting patients are principal facets of the day’s activities, and where the patient and his family — irrespective of whether that patient and that family are labor or management oriented — need a restful, uncluttered, relaxing, and helpful atmosphere, rather than one remindful of the tensions of the marketplace in addition to the tensions of the sick bed.”

Id. 437 U.S. at 509, 98 S.Ct. at 2477.

Nevertheless, Judge Posner in this case glosses over the suffering, severe emotional strain and potential danger the patients were subjected to as a result of the wildcat strike. First, the majority summarily concludes that the wildcat strike of the 17 employees “merely caused inconvenience.” However, an examination of the facts in the record discloses that the disruption in patient care was far more serious than “merely inconvenience.” Of the 116 patients at the Rehabilitation Center, more than 58 were unable to care for themselves, being either paraplegics, hemiplegics, blind, incontinent and/or having to be fed with tubes inserted through their noses and throats. The duties of the nurse’s aides who walked off their jobs consisted of feeding the patients, including those who received nutrition through tubes, transferring paralyzed patients, assisting those incontinent patients and in general making them all as comfortable as possible under the most trying circumstances. After the walkout of the 17 employees, the Center’s usual on-duty nursing staff of 19 was reduced to only two nurse’s aides and four nurses to perform these important duties for the 116 patients.

The majority further misconstrues the record by stating “no one was put in danger or subjected to acute distress, nor were such consequences likely from so short and incomplete a walkout of non-professional workers.” Once again, the record paints a vastly different picture. For example, the Center Administrator described the effects of the walkout as follows:

“Q. What major problems, if any, did you observe?

“A. There was one patient that had expired.

“Q. Died?

“A. Yes. The body just laid there. I don’t know when the body finally got out but it was just laying there.

*408 “Q. What would have normally happened had there been a full work force?

“A. The body would have been dressed and prepared and the undertaker notified, the physician and undertaker notified and the body would have been removed.

“Q. Was this dead patient in a room by him or herself or in a room with somebody else?

“A. I don’t know.

“Q. Do you generally have two people to a room?

“A. Yes.”

“There was a big lapse in patient care when the walkout happened and the patients didn’t understand what was going on. The type of patient that we have are skill level and out of the three different types of levels of care residential, intermediary and skills, skills being the most critical of the three patients. Those are the type of patients that we service.

“Many of the patients can’t feed themselves. They can’t get up by themselves. When the employees walked off, we had patients that were not fed and they couldn’t feed themselves. The food was sitting there but they couldn’t feed themselves. The food was cold when they did get it. Patients were laying in urine and feces until we could get the supervisors together to go out there to the floor.”

“A. [The patient’s food] was taken to the floor but I found out later that the problem didn’t just start when [the striking employees] requested the meeting but earlier when they first came to work. The work hadn’t been done from that period on either. There was a very minimal amount of work done that particular day and so the work that should have been done, like patients being showered, patients weren’t even showered and the stench was just all over the facility.

“Q. What difference does that make in terms of patients being showered? What problems were there?

“A. The patients developed bedsores, rashes and all types of problems. A lot of the patients there, because of their physical condition, have a worse body order [sic] than what you would term as the normal person and, of course, you still have the people laying in feces and urine.

“Q. How many people were in that condition?

“A. There were many numbers, at least that I observed personally, maybe about 20, 25. They were just laying there until the supervisors could get to them or whoever could get to them.”

Furthermore, Metta Stone, who as Nursing Supervisor in charge of the nurses aides was responsible for supervising the care of the Center’s patients, testified that the day of the walkout was “the worst day of [her] life.” Not surprisingly, the Administrative Law Judge, after hearing all of the witnesses, found that the “wildcat” strike, and the resulting reduction in on-duty nursing staff caused a “substantial disruption in the normal operations of the facility and create[d] serious patient care problems.” The majority and the NLRB completely disregard this finding of the trier of fact (the ALJ) based on direct, positive testimony, in order that they might selectively analyze the record to reach their desired result. See NLRB v. Cutting Inc., 701 F.2d 659, 665 (7th Cir. 1983). Furthermore, the NLRB violated the Supreme Court’s directive in Beth Israel Hospital, 437 U.S. at 508 , 98 S.Ct. at 2477 that “the Board should stand ready to revise its rulings if future experience demonstrates that the well-being of patients is in fact jeopardized,” as it was in this case.

Despite the ALJ’s finding that the walkout “create[d] serious patient care problems,” and despite the overwhelming testimony that the walkout resulted in severe hardship and potential danger to the Rehabilitation Center’s patients, the NLRB and the majority conclude that the patients experienced only “mere inconvenience.” However, I would hold that the patients were subjected to far more than “mere inconvenience” since the record shows that patients were not fed on time (certainly *409 more than a “mere inconvenience” to patients receiving nutrition through tubes), and patients had to lie in their own excrement until supervisory personnel could attend to them, causing the development of bedsores and rashes. Nevertheless, Judge Posner concludes that the walkout resulted in “mere inconvenience,” stating that “the strongest evidence is that when management learned that the workers were willing to resume work immediately it [the management] refused to take them back.” This reasoning is specious for two reasons. First, because of the emergency created by the walkout, the Center management was forced to transfer supervisory and clerical personnel to patient care duties. When the striking employees finally offered to return to their jobs the fill-in supervisory and clerical employees had brought the situation under control, though the level of care was still well below that normally provided by the Center, since there were only two nurses aides and four nurses then on-duty, a ratio of approximately one nursing employee for every nineteen patients (not including the patient that died on that date). The record clearly demonstrates that the most serious disruptions in patient care occurred entirely during the period of the walkout, before the wildcat strikers offered to return to their jobs at the direction of their union.

More importantly, there is no reason why the Rehabilitation Center management should be required to allow the “wildcat” strikers to return to work. No employer should be required to employ workers who demonstrated such cold and callous disregard for sick and weak human beings entrusted to their care by abandoning seriously ill patients and walking off their job over something as insignificant as being required to eat lunch on the premises. What assurance does the Rehabilitation Center management have that the employees will not again cavalierly walk off the job in the future any time they might disagree with their employer over some matter of trivial importance compared to plight of the sick and helpless patients? In refusing to reinstate the wildcat strikers, the Rehabilitation Center management was acting well within its right and, in fact its duty, to ensure that it had a dependable workforce to provide uninterrupted care for the seriously ill patients; hospitals and nursing homes are entitled to have a sympathetic, dedicated and concerned workforce. The striking workers did not leave an assembly line, a steel mill or a mine unattended — rather, they left sick and helpless human beings desperately in need of care. Each year this nation’s health care facilities spend billions of dollars on sophisticated medical research and technology, which are useless if for any reason the health care personnel decide to stage a “wildcat” walkout and abandon their sick and dying patients. Nonetheless, Judge Posner today allows health care workers to abandon helpless patients without 10-days advance notice, in fact without so much as a moment’s notice, over even the most trifling dispute with their employer.

We must bear in mind that the NLRB and the courts have applied the same legal standards to all health care facilities, without making necessary distinctions between the differing needs of hospitals, psychiatric wards or nursing homes. See, e.g., Montef-iore Hospital & Medical Center v. NLRB, 621 F.2d 510 (2d Cir.1980) (hospital); NLRB v. Long Beach Youth Center, Inc., 591 F.2d. 1276 (9th Cir.1979) (psychiatric facility); NLRB v. Rock Hill Convalescent Center, Inc., 585 F.2d 700 (4th Cir.1978) (nursing home). Thus, the majority’s decision sanctioning a “wildcat” strike in a nursing home creates a dangerous precedent for all health care facilities, including hospitals. Although the majority concedes the obvious— that the Act would not allow a nurse to walk out of an operating room in the middle of an operation — the majority’s decision sanctioning a “wildcat” strike in a nursing home leaves the door open for future wildcat strikes in health care facilities. Under the majority’s holding today, would a nurse be permitted to abandon her duties in an emergency room, or would workers be entitled to walk off the job at a psychiatric institution, leaving mentally ill, and poten *410 tially dangerous patients, without care, supervision, medication or food?

II.

I would hold that the 17 employees violated section 8(g) of the Act ( 29 U.S.C. section 158 (g)) in walking off the job without prior notification and thus the Rehabilitation Center management acted lawfully in discharging the employees. Section 8(g) provides that “a labor organization before engaging in any strike ... at any health care institution shall, not less than ten days prior to such action notify the institution in writing.” It is undisputed that the strikers in this case did not give the Rehabilitation Center ten days notice prior to walking off their jobs; in fact, they gave the Rehabilitation Center no notice whatsoever. Nevertheless, the majority holds that the walkout was protected since section 8(g) applies only to “labor organizations” and, in their view, the 17 employees were not a labor organization. In so holding, the majority has carved out a dangerous loophole for health care personnel including those working in hospitals, permitting them to walk off their jobs at the drop of a hat over minor disputes with their employer, thus leaving helpless patients without desperately needed care.

In the Act, Congress defined “labor organization” in very broad terms, section 2(5) of the Act ( 29 U.S.C. section 152 (5)) states:

“(5) The term ‘labor organization’ means any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”

(emphasis added).

Recognizing that the Act defines “labor organization” very broadly, the court in NLRB v. Sweetwater Hosp. Ass’n, 604 F.2d 454 , 457 n. 5 (6th Cir.1979) construed the term “labor organization” as follows:

“ ‘Labor organization’ is broadly defined in the Act and requires only an ‘organization’ that ‘exists for the purpose, in whole or in part, of dealing with employers’ concerning specified matters. See NLRB v. Cabot Carbon Co., 360 U.S. 203, 210-11 , 79 S.Ct. 1015 [1020-1021], 3 L.Ed.2d 1175 (1959). Indeed, the complete absence of by-laws or a formal structure is irrelevant.”

Similarly, this court in Pacemaker Corp. v. NLRB, 260 F.2d 880, 883 (7th Cir.1958) stated:

“The fact that there was no formal organization, by-laws, officers or dues is immaterial in determining whether it is a labor organization. This Court has held that such loosely formed committees do constitute labor organizations within the meaning of the Act.”

Based on the clear language of section 2(5) and this case law, it is evident that the definition of labor organizations consists of two elements: (1) “any organization of any kind”; and (2) a “purpose, in whole or in part, of dealing with employers concerning ... hours of employment or conditions of work.” The group comprised of the 17 employees who walked off their jobs satisfies both these elements. First, the 17 employees as of the time the walkout occurred, comprised an “organization” since they had already held two meetings, one in the hallways as soon as the lunch period notice was distributed and the other in the Center’s lunch room, before reaching a collective decision to walk off their jobs. The group joined together for the common purpose of protesting the new lunch period policy, collectively decided to walk off the job, gathered as a group outside the facility and later acceded to the common decision to return to work. The fact that the organization of 17 employees was ad-hoc is irrelevant — “The complete absence of by-laws or a formal structure is irrelevant.” Sweet-water Hosp., 604 F.2d at 457 . Furthermore, the second definitional requirement of “labor organization” is satisfied since the 17 employees clearly had “the purpose ... of dealing with employers concerning ... hours of employment, or conditions of work.” The sole reason the employees *411 banded together was to coerce their employer into abandoning its new lunch period policy, certainly a subject pertaining to hours of employment or a- condition of work.

The cases cited by Judge Posner to support the conclusion that the 17 striking employees did not constitute a labor organization are inapposite to the facts of this case. For example, in Montefiore Hospital & Medical Center v. NLRB, 621 F.2d 510 (2d Cir.1980), the court held that two doctors did not constitute a “labor organization.” In support of its holding, the Montefiore court cited, without discussion, the case of Kapiolani Hospital v. NLRB, 581 F.2d 230 (9th Cir.1978), which held that one individual employee did not comprise a “labor organization.” Obviously, a lone employee cannot constitute an “organization” of any kind and it is similarly implausible to say that a group of only two employees constitutes a labor organization. However, the group of 17 employees in this case, who held two meetings prior to coming to a collective decision to walk out, is an entirely different matter. Admittedly, in NLRB v. Long Beach Youth Center, Inc., 591 F.2d 1276 (9th Cir.1979), the court held that a group of 17 employees who engaged in a work stoppage did not constitute a “labor organization” within the meaning of section 8(g). Although I believe the Long Beach Youth Center case was decided in error since it gave an unduly narrow reading to the definition of “labor organization,” the Long Beach Youth Center case is readily distinguishable from the instant case since in Long Beach Youth Center the court specifically noted in its holding that the 17 employees did not hold an “organizational” meeting until after the walkout, while in this case the group held two meetings before collectively deciding to walk off the job.

In giving such an unduly narrow reading to the obviously broad definition of labor organization contained in section 2(5) of the Act, the majority has created a dangerous precedent for the future. Based on the majority’s decision, health care employees may now abandon their jobs in nursing homes, hospitals, emergency rooms, psychiatric institutions or intensive or intermediate care units and leave helpless patients without care, without so much as a moment’s notice, over almost any dispute with their employer. The majority reaches this conclusion despite the fact that in enacting section 8(g) of the Act, Congress recognized that

“[i]t is in the public interest to insure the continuity of health care to the community and the care and well-being of patients by providing for a statutory advance notice of any anticipated strike or picketing. ... The 10-day notice is intended to give health care institutions sufficient advance notice of a strike or picketing to permit them to make arrangements for the continuity of patient care.”

S.Rep. 93-766 (1974), H.R.Rep. 93-1051 (1974), reprinted in 1974 U.S.Code Cong. & Ad.News 3946, 3949. The majority’s decision sanctioning wildcat strikes in the health care field will make it infinitely easier for unions to evade the 10-day advance notice requirement of section 8(g) by conducting so-called “wink and nod strikes” — a union could surreptitiously encourage a substantial number of its members to walk out, and then subsequently disavow any responsibility for the walkout. Under Judge Pos-ner’s view an employer in the health care field will be entirely without recourse in such a situation since both the union and striking employees, under the majority’s reasoning, will be immune from discipline for their actions. More importantly, the majority’s decision eviscerates and casts aside Congress’ goal and specific intent in enacting section 8(g)’s 10-day notice provision — to prevent sudden interruptions in care to seriously ill patients.

III.

The majority’s decision ignores one of the cardinal principles of labor law: once a union has been certified as the collective bargaining representative for a group of employees, those employees are barred from bargaining with their employer independently concerning wages, hours and other *412 conditions of employment. Section 9(a) of the National Labor Relations Act ( 29 U.S.C. section 159 (a)) establishes that a duly certified union enjoys the exclusive right to represent the unionized employees in matters pertaining to collective bargaining:

“(a) Representatives designated or selected for the purpose of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: ....” 1

The importance of the exclusivity principle was recognized by the Supreme Court in Emporium Capwell Go. v. Western Addition Community Org., 420 U.S. 50 , 95 S.Ct. 977 , 43 L.Ed.2d 12 (1975). In Emporium Capwell, a group of unionized employees sought to bargain directly with their employer concerning alleged discrimination against black employees, even though the relevant collective bargaining agreement contained a clause prohibiting racial employment discrimination. Rather than pursuing the union grievance procedure established by the bargaining agreement, this group of employees by-passed the union, holding their own press conference denouncing their employer’s “racist” policies and established a picket line outside the employer’s premises. The employer discharged the participating employees and the National Labor Relations Board found that the employer had not committed an unfair labor practice in so doing. The Supreme Court agreed, citing a “background of long and consistent adherence to the principle of exclusive representation ...,” id. at 65 , 95 S.Ct. at 986 , and stated:

“National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions. The policy therefore extinguishes the individual employee’s power to order his own relations with his employer and creates a power vested in the chosen representative to act in the interests of all employees.”

Id. at 63 , 95 S.Ct. at 985 (emphasis added), quoting NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180 , 87 S.Ct. 2001, 2006 , 18 L.Ed.2d 1123 (1967).

In an earlier case, Harnischfeger Corp. v. NLRB, 207 F.2d 575 (7th Cir.1953), this court applied the exclusivity principle to a fact situation similar to this case. In Har-nischfeger, while the employer and the certified union were in the process of negotiations, a group of employees walked off their jobs “to put a little heat on the [employer] and see what they were going to do.” The Union had not authorized and, in fact, tried to prevent the walkout. The employer discharged some of the employees who had participated in the walkout, and this court upheld the employer’s right to terminate the employees:

“[W]e are of the opinion that the ‘wild cat’ strike in which the employees, were engaged and for which they were dis *413 charged was not such a concerted activity as falls within the protection of section 7 of the National Labor Relations Act, but a strike in violation of the purpose of the act by a minority group of employees in an effort to interfere with the collective bargaining by the duly authorized bargaining agent selected by all the employees. The purpose of the act was not to guarantee to employees the right to do as they please but to guarantee to them the right of collective bargaining for the purpose of preserving industrial peace."

“When the union was selected by the employees and recognized by the company as bargaining agent, it was understood and agreed on all sides that bargaining with respect to wages, hours and conditions of work would be carried on between the union and the company in accordance with [section 7 of the Act], that the employees would acquiesce in action taken by the union and that they would not undertake independent action with respect to the matters they had committed to it as their authorized agency. Not only did the company agree to bargain with the union, but the employees agreed to bargain only through the union. Those who engaged in the ‘wild cat’ strike violated this agreement. * * *

“No surer way could be found to bring collective bargaining into general disrepute than to hold that ‘wild cat’ strikes are protected by the collective bargaining statute."

Id. at 579 (emphasis added), quoting NLRB v. Draper Corp., 145 F.2d 199 (4th Cir.1944).

Despite this clear case law, the majority seeks to justify the Board’s decision in this case by distinguishing the holdings of Emporium Capwell and Harnischfeger. The majority argues that the unauthorized walkout by the 17 employees was protected activity since it was a spontaneous protest in support of union objectives, stating that “if the Board chooses to distinguish between wildcat strikes that undermine the union’s position as exclusive bargaining representative and ones that do not ... Sunbeam Lighting Co., 136 N.L.R.B. 1248 , 1253-55 (1962) enforcement denied, 318 F.2d 661 (7th Cir.1963); R.C. Can Co., 140 N.L.R.B. 588 , 595-96 (1963), enforced, 328 F.2d 974 (5th Cir.1964), we must let it.” I disagree with this excessive deference to the Board and Judge Posner’s reliance on the theory set forth in the R.C. Can case since that theory (distinguishing between strikes which undermine the union’s position and those which do not) has been thoroughly discredited and rejected by courts and legal commentators.

Prior to 1963, courts had universally held that all “wildcat” activity was per se unprotected. NLRB v. Draper Corp., 145 F.2d 199 (4th Cir.1944); NLRB v. Sunset Minerals, Inc., 211 F.2d 224 (9th Cir.1954); Har-nischfeger Corp. v. NLRB, 207 F.2d 575 (7th Cir.1953); Gorman, Basic Text on Labor Law 307 (1976). In 1964, however, the Fifth Circuit in NLRB v. R.C. Can Co., 328 F.2d 974 (5th Cir.1964) departed from the well-settled “wildcat” principle and adopted a theory similar to the majority in this case. In R.C. Can, a small group of unionized employees engaged in an unauthorized “quickie strike” to pressure their employer into expediting ongoing negotiations with the union. Like the majority in this case, the Fifth Circuit distinguished the long line of prior cases finding such activity unprotected, and held that an unauthorized “wildcat” strike is protected “if ... it seeks to generate support for and acceptance of the demands put forth by the union ... so long, of course, as the means used do not involve a disagreement with, repudiation or criticism of, a policy or decision previously taken by the union .... ” 328 F.2d at 979 .

The rationale of the R.C. Can decision and the majority in this case has been repeatedly rejected by the other circuits. For example, in NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir.1969) the Ninth Circuit held that an employer acted lawfully in discharging two employees for engaging in unauthorized picketing in an effort to force their employer to hire more minority employees. In so holding, the court stated:

*414 “We reject the rationale of R.C. Can .... Draper and our own decisions following Draper like NLRB v. Sunset Minerals, Inc., supra, seem more in accord with a concept of orderly bargaining premised upon democratic union processes. * * *

“In sum, we conclude that [the two employees] had an obligation to go to the union with their desire for non-discriminatory hiring. The record does not demonstrate that they approached the union, nor does it indicate that the union gave its sanction to their actions. Thus, while their concerted activity does fall within section 7, the operation of section 9(a) deprives it of the protection to which it would otherwise be entitled.”

Id. at 221. Similarly, the Ninth Circuit in Lee A. Consaul Co., Inc. v. NLRB, 469 F.2d 84 (9th Cir.1972) reaffirmed its adherence to the principle that a “wildcat” strike is unprotected activity, holding that “we decline to follow NLRB v. R.C. Can Co. ... ” Id. at 85 .

More recently, the Third Circuit in Food Fair Stores, Inc. v. NLRB, 491 F.2d 388 (3d Cir.1974) held that a “protest ‘demonstration,’ ” in the form of an unauthorized walkout and picket by a group of employees was unprotected by the Act, and therefore the employer acted lawfully in discharging the participating employees. In so holding, the court stated:

“Nearly all of the circuits that have been confronted with this issue have followed the decision of the Fourth Circuit in NLRB v. Draper Corp., 145 F.2d 199 (4th Cir.1944), and have treated unauthorized strikes as unprotected activity per se. See Plasti-Line, Inc. v. NLRB, 278 F.2d 482 (6th Cir.1960); NLRB v. Sunbeam Lighting Co., 318 F.2d 661 (7th Cir.1963): Harnischfeger Corp. v. NLRB, 207 F.2d 575 (7th Cir.1953); NLRB v. Illinois Bell Telephone Co., 189 F.2d 124 (7th Cir.), cert. denied, 342 U.S. 885 , 72 S.Ct. 173 , 96 L.Ed. 663 (1951); NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir.1969); NLRB v. Sunset Minerals, Inc., 211 F.2d 224 (9th Cir.1954). This approach is supported by recent Supreme Court decisions holding that because of the interest of Section 9(a) of the Act in a union’s status as exclusive bargaining agent, some of the Section 7 rights of the employees may be exercised only in accordance with the majority choice of the union. See Scofield v. NLRB, 394 U.S. 423 [ 89 S.Ct. 1154 , 22 L.Ed.2d 385 ] (1969); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 [ 87 S.Ct. 2001 , 18 L.Ed.2d 1123 ] (1967).”

Id. at 394 (emphasis added).

Even the Fifth Circuit, the court that originally adopted the reasoning followed by Judge Posner in this case, has severely questioned the continued validity of R.C. Can. In NLRB v. Shop-Rite, 430 F.2d 786 (5th Cir.1970), the court held that an employer acted lawfully in discharging a group of employees for participating in an unauthorized “wildcat” strike. In so holding, the court first strictly limited the applicability of the R.C. Can holding:

“R.C. Can concerned a very narrow set of circumstances in which the minority action was directed toward a specific, previously considered and articulated union objective. If union objectives are characterized in general terms — such as wages, job security, conditions of employment and the like — one can assume that in a great majority of instances minority action will be consistent with one or more of those objectives. If R.C. Can is not applied with great care it would allow minority action in a broad range of situations and permit unrestrained undercutting of collective bargaining.”

Id. at 790 (emphasis added). The court went on to state:

“We conclude that R.C. Can is of doubtful viability, and, in any event, its restricted factual framework does not reach the instant case. The challenge [to an employee’s] discharge was not an established' union objective. The union had been given no opportunity even to consider whether it should be an objective and, if an objective but not achieved, whether a strike would be employed as a *415 weapon. To the contrary the minority group, acting outside the channels of union affairs, took action first to protest, then to enlist what support they could for a walk out, and after the event notified the bargaining representative of the walk out and sought approval.”

Id. at 791 (emphasis added).

One leading legal commentator has also concluded, based on this case law, that the legal theory relied upon by the majority is unsound and that “wildcat” strikes are unprotected activity per se:

“When ... employees have selected an exclusive representative to bargain with their employer, concerted activity on the part of a minority of employees, not formally authorized by the union, is commonly held unprotected.”

Gorman, Basic Text on Labor Law 307 (1976). Furthermore, Professor Gorman interpreted the Supreme Court’s Emporium Capwell decision as follows:

“The Court also rejected the argument of the court of appeals — and thereby apparently the premise of the R.C. Can decision as well — that the dissidents could not have been working at cross-purposes with the union ....

“The Court’s emphasis upon the principle of exclusive representation, and upon the need to channel the views of all factions within the unit through the majority union, reinforces the prevailing view since the early 1940’s that wildcat concerted activities are unprotected and render the participants susceptible to discharge.”

Id. at 311.

In addition to being contrary to the overwhelming weight of case law “treat[ing] unauthorized strikes as unprotected activity per se.” Food Fair Stores, 491 F.2d at 394 , the majority’s holding that the Act protects a “spontaneous unorganized walk out and protest” defies common sense, particularly since this case arises in the health care field where sudden interruptions in service can have disastrous consequences. First, Judge Posner fails to even suggest why an unauthorized strike deserves the protection of the Act merely because it is spontaneous rather than planned in advance. On the contrary, the fact that a walkout is spontaneous should render it less deserving of protection since spontaneity is inimical and repugnant to the Act’s goal of encouraging the orderly resolution of employment disputes. If the 17 employees in this case had first presented their views to their duly elected union and allowed the union to discuss the matter with the employer, the whole problem may have been resolved in an orderly fashion, with no interruption in patient care. However, rash spontaneous behavior such as the unauthorized “wildcat” strike in this case prevented the orderly resolution of the employment dispute.

The majority further attempts to justify its holding by stating that the 17 employees merely meant to “protest” the adoption of the new lunch period policy, rather than to compel their employer to deal directly with the 17 employees instead of the union. The fallacy of this argument is obvious since persons certainly do not protest merely for the sake of protesting (or for getting fresh air and exercise). Rather, the very purpose of any protest is to persuade someone to adopt a desired course of action — in this case, the 17 employees sought to coerce their employer into abandoning its new lunch period policy. Thus, it is not surprising that courts have repeatedly held that “wildcat protest” strikes are unprotected activity. See e.g., NLRB v. Shop-Rite Foods, Inc., 430 F.2d 786, 791 (5th Cir.1970); Food Fair Stores, Inc. v. NLRB, 491 F.2d 388 (3d Cir.1974). The “wildcat” strike in this case was unprotected activity since “the minority group, acting outside the channels of union affairs, took action first to protest, then to enlist what support they could for a walk-out, and after the event notified the bargaining representative of the walk-out and sought approval.” NLRB v. Shop-Rite Foods, Inc., 430 F.2d 786, 791 (5th Cir.1970).

In conclusion, I would deny enforcement of the NLRB’s order.

. It is clear that the June 15 unauthorized walkout is not protected by the proviso to section 9(a) allowing employees in a bargaining unit to independently present grievances to the employer. First, the dispute concerning the lunch period policy was not a “grievance,” but rather a collective bargaining term since the lunch period policy “flx[ed] for the future the rules of the employment for everyone in the unit .... ” Hughes Tool Co. v. NLRB, 147 F.2d 69, 72 (5th Cir.1945). Second, the proviso to section 9(a) does not protect a walkout, certainly a form of economic coercion, since that provision cannot “be read to authorize resort to economic coercion.” Emporium Capwell Co. v. Western Addition Community Org., 420 U.S. 50 , 61 n. 12, 95 S.Ct. 977 , 984 n. 12, 43 L.Ed.2d 12 (1975).