Record and brief — Thermofil Inc. v. National Labor Relations Board

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“uongad

Office - Supreme Court, U.S,

FILED

IN THE —

SUPREME COURT ‘|

OF THE UNITED STATES

OCTOBER TERM, 1981

ALEXANO"> '. STEVAS,

eee,

THERMOFIL INCORPORATED,

Petitioner,

-VS-

Nationa Lasor Reiations Boarp,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dykema, Gossett, Spencer,

Goopnow & TRIGG

James D. Tracy

35th Floor

400 Renaissance Center

Detroit, Michigan 48243

(313) 568-6860

Attorney for Petitioner

Of Counsel:

Ronald J. Santo James C. Bruno

Robert L. Duty 2580 City National Bank Bldg.

Robert C. Ludolph Detroit, Michigan 48226

35th Floor (313) 964-0800

400 Renaissance Center

Detroit, Michigan 48243

(313) 568-6860

AMERICAN PRINTING COMPANY

1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310

QUESTIONS PRESENTED FOR REVIEW

(1) Is an employee, who acts individually by walking off

his job, engaged in concerted activity within the meaning of

Section 7 of the National Labor Relations Act, 29 USC 151

et. seq., when no other employee joins, encourages or

endorses his actions nor does he seek to engage any others

in such activity?

(2) Can an employer be found to have violated Section

8(a)(1) of the Act even though the employer does not have

knowledge that the individual employee's activity is con-

certed?

(3) Is an employer required to determine whether indi-

vidual activity is disavowed by other employees in order to

protect itself from a violation of Section 8(a)(1)?

TABLE OF CONTENTS

Page

py Ge ge yy ty) |) er rr iv

i cceers oul cececstedsassucssaces 1

is cotta iia 6 6666ndee beeeeeeeeee ee ar l

ED PEED cc cccccccccedsetescevceee 2

STATEREENT OF THE CASE ....ccccccccccccccce 2

REASONS FOR GRANTING THE WRIT.......... 5

I. THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS IS IN CONFLICT WITH

ALL APPLICABLE DECISIONS OF OTHER

CIRCUIT COURTS ON THE ISSUE OF CON-

SE ET icc cccccctevsencccaveeden 5

Il. THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS IS IN CONFLICT WITH

PRIOR DECISIONS OF THIS COURT AND

THE OTHER CIRCUIT COURTS SINCE THE

DECISION ENFORCES A DETERMINATION

THAT AN EMPLOYER CAN VIOLATE §8(a)(1)

OF THE ACT EVEN THOUGH THE

EMPLOYER HAS NO KNOWLEDGE OF

SLD MEE OEE D cc cc esevecdhecepecces 16

Ill. THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS IS CONTRARY TO THE

STATUTE AND INCONSISTENT WITH PRIOR

DECISIONS OF THIS COURT ............... 19

IV. THE DECISION OF THE SIXTH CIRCUIT

COURT OF APPEALS RAISES IMPORTANT

QUESTIONS OF THE UNIFORM INTERPRE-

TATION AND ADMINISTRATION OF FED-

EE BED asc cecccccccciesdeusacsse 22

SEE wet benbdinnsosceventcededhudenantas 25

iii

TABLE OF CONTENTS—(Cont’d)

Page

APPENDIX A—Order and Dissenting Opinion of the

United States Court of Appeals for the Sixth Circuit la

APPENDIX B—Decision and Order of the National

I a os is os gueu eee ebaceber 3a

APPENDIX C—Decision of Administrative Law Judge 7a

APPENDIX D—Order of the United States Court of

Appeals for the Sixth Circuit denying Petition for

at cri dadin tanh <cndkud 6ecdébesseneds 20a

APPENDIX E—Order of the United States Court of

Appeals staying the issuance of the mandate...... 22a

APPENDIX F—Order of the United States Court of

Appeals for the Sixth Circuit further staying the

I er Ge IO Sind cc cnc ccccccswsedeesacs 24a

TABLE OF AUTHORITIES

Cases: Page

Air Surrey Corp., 229 N.L.R.B. 1064 (1977), enforce-

ment denied, 601 F.2d 256 (6th Cir. 1979) ..... 7,8, 9

Akron General Medical Center, 232 N.L.R.B. 920

Pt ch titeede eis kad vaddngemenebesesemeenee 6, 8

Alleluia Cushion Co., 221 N.L.R.B. 999

A eee 6, 7, 8, 13, 14, 21, 23, 24

Anchortank, Inc. v. NLRB, 618 F.2d 1153 (Sth Cir.

Dc tiGedd Cath eedGh eee couse bebepechesetensices 23

ARO, Inc., 227 NLRB 243 (1976) enforce-

ment denied 596 F.2d 713 (6th Cir. 1979)......... 7

ARO, Inc. v. NLRB, 596 F.2d 713 (6th Cir. 1979) ..

DET debniidicecieaagudestekcetes 6, 8, 9, 10, 14, 21

Blaw-Knox Foundry & Mill Machinery, Inc. v. NLRB,

ee eee SE EE Ele, GOED seco ccccesescesececes 9

Dawson Cabinet Co., 228 N.L.R.B. 290 (1977), en-

forcement denied, 566 F.2d 1079 (8th Cir. 1977) ..7, 8

Eastex, Inc. v. NLRB, 437 U.S. 556, 57 L. Ed. 2d 428,

Ss Ss SE nae vceccecvecdesévccecaes 20, 21

Hotel & Restaurant Employees & Bartenders Union,

Local 28, 252 N.L.R.B. No. 158 (1980) ........ 7, 24

Indiana Gear Works v. NLRB, 371 F.2d 273 (7th Cir.

DP Cited bedeh o ddness6oekeseneeedeseessedes 6, 18

Jim Causley Pontiac v. NLRB, 620 F.2d 122 (6th Cir.

Pe bddéwensebasdsdbarersedsceescccwossanece 14, 18

Kohls v. NLRB, 629 F.2d 173 (D. C. Cir. 1980), cert.

denied, 450 U.S. 931, 67 L. Ed 2d 363, 101 S. Ct.

FEPD CUED bo vwecwtecvencecccscosceccenteps 13, 14, 24

Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304

SI CEE Ma dedueheks ce peccccccevenes cesses 11, 12

Mushroom Transportation Co. v. NLRB, 330 F.2d 683

Se Gt EE Sn ch cewadpescncceccecsessecss 6, 11, 19

NLRB vy. Ben Pekin Corp., 452 F.2d 205 (7th Cir. 1971) 9

NLRB vy. Bighorn Beverage, 614 F.2d 1238 (9th Cir.

DCUMMANU Ed dn buheaeges'sc6secss ve cndnekuenched 13

TABLE OF AUTHORITIES—(Cont’d.)

Cases: Page

NLRB vy. Buddies Supermarkets, Inc., 481 F.2d 714

Sy eh AUN 0 668 Co wcedeceicceccsust¥ees 6, 12, 17

NLRB vy. Burnup & Sims, Inc., 379 U.S. 21, 13

L268 8, BS SB. Ce. FFE CISD. .ccccccsses 16, 21, 22

NLRB v. Dawson Cabinet Co., 566 F.2d 1079 (8th Cir.

PePatcnuctasededeobentweesecduseduciecent 6, 12, 13

NLRB vy Guernsey-Muskingum Electric Coop., Inc.,

rp eA FS fe ee PP ee 6, 10

NLRB vy. Interboro Contractors, Inc., 388 F.2d 495

ee A. « dows oe ndecee povwiawe 9, 11, 13, 14, 23

NLRB vy John Langenbacher Co., 398 F.2d 459 (2nd

Cir. 1968), cert. denied, 393 U.S. 1049, 22 L. Ed.2d

as Gr as Ges IE ein doe coabecehecenennees 9

NLRB vy. Lloyd A. Fry, Roofing Company of Dela-

ware, 651 F.2d 442 (6th Cir. 1981)........... 23, 24

NLRB vy Northern Metal Co., 440 F.2d 881 (3rd Cir.

SEED chivantnaddnddcakecuel enone das encore 6, 9, 19

NLRB vy Weingarten, Inc., 420 U.S. 251, 43 L.Ed.2d

oe § Boe fF ee rr, 23

NLRB vy. Westinghouse Electric Co., 179 F.2d 507 (6th

SI EE nnbetbelsb vcncbacetic csveceasinndaeeand 18

Ontario Knife Co. v. NLRB, 637 F.2d 840 (2nd Cir.

Ss EDU S phdn.cid es 5bb6008s cvccvavisedheaeeeenl Il

Pelton Casteel, Inc. v NLRB, 627 F.2d 23 (7th Cir.

PM bigest ye ladée baeedeesousuesses teense 12

Pink Moody, Inc., 237 N.L.R.B. 39 (1978).......... 6, 8

Socony Mobile Oil Co. v. NLRB, 357 F.2d 662 (2nd

AE a soxtevesndecsbewvececdcecs coaceennes 6, 23

Southwest Latex Corp. v. NLRB, 426 F.2d 50 (Sth Cir.

ie. antl pcan Teese oedeges bued Cinereeenns 17

St. Joseph's High School, 236 N.L.R.B. No. 1623

(1978), vacated, 248 N.L.R.B. 901 (1980) ......... 6, 8

TABLE OF AUTHORITIES—(Cont’d.)

Cases: Page

Tri-State Truck Service, Inc. v. NLRB, 616 F.2d 65

i tee awed wi esd deabeonodeuenens 17

United Parcel Service v. NLRB, 654 F.2d 12 (6th Cir.

i seltvedelncalling 6écaseehccssbuudcovests 23

Walls Mfg. Co. v. NLRB, 321 F.2d 753 (D.C. Cir.

1963), cert. denied, 375 U.S. 923, 11 L. Ed. 166, 84

ccc nerecscescecsaeedenesoes 6

Reports:

House of Representatives Report No. 1147, 47th Con-

Ss Ge ED BP CUNUUD c cccccccccccccesceeses 20

Senate Report No. 163, 72nd Congress, Ist Session 9

FEE EEE CRN ee ee Zi

Senate Report No. 573, 74th Congress, Ist Session 19

Mi eee ne cecetesh osvuckbeqeumeus 20

Statutes:

Labor Management Reporting and Disclosure Act of

a es MED vccccccecépeccecesoceeses 21

National Industrial Recovery Act of 1933, 48 Stat. 198,

EE ES ee 21, 22

National Management Relations Act 1947 29 U.S.C.

§151 et. seq........... >LAGBaABsA & @

BD FEF ceccccccccees 2, 5, 12, 15, 19, 20, 21, 23, 24

Section 15Bfa)i ....scccccecs 2, 5, 15, 16, 17, 18, 21, 23

a Mee teeehGhantceeveissdschucndeetées 5

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1981

THERMOFIL INCORPORATED,*

Petitioner,

vs.

Nationa Lasor Retations Boarp,

Repondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OPINIONS BELOW

The Order and Dissenting Opinion of the Court of

Appeals (App. A, infra, pp. la-2a) is reported at 650 F.2d

858 (6th Cir. 1981); the Decision and Order of the National

Labor Relations Board 224 NLRB No. 171 appears in

App. B, infra, pp. 3a-6a and is reported at 108 LRRM 1271.

The Decision of the Administrative Law Judge appears in

Appendix C, infra, pp. 7a-19a. The Order of the Sixth

Circuit Court of Appeals, the Order Staying Mandate and

the Order Further Staying Mandate are attached as Appen-

dices D, E, and F respectively.

JURISDICTION

The judgment of the Court of Appeals was decided and

filed on June 11, 1981. The Petitioner's Petition for Rehear-

ing and Suggestion for Rehearing En Banc was denied on

September 14, 1981. This Petition for Certiorari was timely

filed within ninety (90) days of that date. The Order Staying

the Issuance of Mandate for thirty days was filed on Oc-

tober 21, 1981. The Order Further Staying the Issuance of

* Subsidiary of Thermofil National Corp.

the Mandate until December 23, 1981 was filed on De-

cember 4, 1981. Jurisdiction of this Court is invoked pur-

suant to 28 U.S.C. 1254(1).

STATUTES INVOLVED

The relevant provisions of the National Labor Relations

Act (‘Act’), as amended, 29 USC 151, et. seq., are as

follows:

Section 157: Employees shall have the right to self-

organization, to form, join or assist labor organizations,

to bargain collectively through representatives of their

own choosing, and to engage in other concerted ac-

tivities for the purpose of collective bargaining or other

mutual aid or protection, and shall also have the right to

refrain from any or all of such activities except to the

extent that such right may be affected by an agreement

requiring membership in a labor organization as a condi-

tion of employment as authorized in section 158(a)(3) of

this title.

Section 158(a): It shall be an unfair labor practice for an

employer...

(1) To interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section 157 of

this title; ...

STATEMENT OF THE CASE

Petitioner, Thermofil Incorporated, is a Michigan corpo-

ration, located in Brighton, Michigan, engaged in the man-

ufacture, sale and distribution of plastics and related pro-

ducts. Thomas Singer is an individual who worked for

Petitioner as an extruder machine operator from April 22,

1977 until March 1, 1978.

As an extruder operator, Singer was responsible for

preparing his assigned machine and operating it to produce

plastic pellets. These pellets are produced from various

melted mixes and sold to customers who trat.siorm them

into other products. Machine preparation, which is gener-

ally referred to as “‘changeover’’, requires the operator

to clean the extruder of all traces of a particular plastic

mixture so that a new mixture may be run. This is done by

allowing the old mixture to run onto the floor where it

forms plastic masses referred to as “‘goobers.”’

The operator's job during changeover is to keep the

goobers a reasonable size and pull them to the side of

the machine for cooling. Once they have cooled, the

operator places them in boxes. These boxes are stored,

occasionally, in the area of the extruder machines.

Upon reporting for his regular shift on March 1, 1978,

Singer began to changeover his machine from black to clear

plastic. Singer was unable to perform the procedure prop-

erly, however, and hot strands of plastic became wrapped

around a conveyor belt clogging his machine.

Singer shut the machine off and went alone to speak to

his supervisor, Bryce Johnson. The Administrative Law

Judge found that at this juncture:

. . . [Singer] told [Johnson] the place was f_ _ — — — up

and he could not work; that Johnson had seen the boxes

stacked out there leaning and so close to the machines

there was no room to work; that the material was too

hot and the pelletizer was plugged up.'

Johnson offered to help Singer, but Singer refused to work

stating that he was going home and that they should call

him when the place was cleaned up. Johnson proceeded to

Singer's workplace, cleared the area and machine of the

' Singer's statement to Johnson is subject to dispute. Johnson did

not recall Singer saying that the stacked boxes were unsafe or that Singer

did not have enough room to work.

plastic strands, adjusted the machine, and operated it until

the end of the shift.

Although at the time Singer walked off his job another

employee was working within several feet of him, and

other employees were working in the plant, Singer did not,

in any way, involve or consult with these employees con-

cerning his action. It is undisputed that no other employee

complained about the boxes on the night that Singer walked

off his job and refused to return to work. No evidence was

presented that other employees supported, encouraged or

endorsed Singer's walkout on March Ist. Although other

employees had complained about the stacked boxes in the

area of the extruders long before Singer's action, there is no

evidence that Singer was concerned with the working condi-

tions of other employees or that other employees were

concerned on March Ist about the condition of Singer's

work area.

The next day, March 2, 1978, Robert Darga, Petitioner's

Vice President, determined that due to Singer's refusal to

accept his supervisor's offer of help and Singer's refusal to

return to work, Singer had voluntarily terminated his

employment. Therefore, Darga refused to reinstate Singer

when he later inquired about his job.

On March 20, 1978, Singer filed a charge with the

National Labor Relations Board (‘*Board"’), alleging that

Petitioner violated Section 8(a)(1) of the National Labor

Relations Act by discharging him because of his protests

about job safety and working conditions. After a complaint

was filed by the Board, a hearing was held before an

Administrative Law Judge on October 30 and 31, 1978. On

May 14, 1979, the Administrative Law Judge issued her

opinion, concluding that Petitioner violated Section 8(a)(1).

After timely objections to the Administrative Law

Judge's decision were filed, the Board issued a decision on

September 14, 1979 adopting without opinion the rulings,

findings and conclusions of the Law Judge. Petitioner,

thereafter, filed a timely Petition to Review and Set Aside

the Decision and Order of the Board with the United States

Court of Appeals for the Sixth Circuit pursuant to Section

10(f) of the National Labor Relations Act, 29 U.S.C.

15S%f). The Board cross-petitioned for enforcement of its

Order. On June 11, 1981, the Sixth Circuit, with Judge

Engel dissenting, entered an Order enforcing the Board's

Order.

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE SIXTH CIRCUIT COURT

OF APPEALS IS IN CONFLICT WITH ALL APPLIC-

ABLE DECISIONS OF OTHER CIRCUIT COURTS

ON THE ISSUE OF CONCERTED ACTIVITY.

This case presents an important issue in the develop-

ment of a uniform federal labor law under the National

Labor Relations Act: whether an employee engages in con-

certed activity within the meaning of Section 7 of thy Act

when his unilateral actions are merely related to a subject

of employment theoretically of concern to other employees?

Section 7 of the Act provides that ‘‘employees shall

have the right . . . to engage in. . . concerted activities for

the purpose of collective bargaining or other mutual aid or

protection ...’’ (Emphasis added). Section 8(a)(1) of the

Act makes it an unfair labor practice for an employer ‘‘to

interfere with, restrain, or coerce employees’’ who engage in

such concerted activities. A critical issue presented in this

case is whether Singer's action, which was purely unilateral

and was not joined, encouraged, or endorsed by other

employees, nor done in preparation for joint action, consti-

tuted ‘‘concerted activity’’ under these sections.

Clearly, Section 7 of the Act protects only those ac-

tivities which are ‘‘concerted’’ and does not protect indi-

vidual activity in response to a subject which theoretically

concerns other employees. Statutorily, it is the activity

which must be concerted and not merely the alleged objec-

tive of the activity. Until the Sixth Circuit's decision in this

case, every Circuit which has addressed this issue has

recognized that only when the individual acts as a represen-

tative of, or on behalf of other employees, or acts with the

object of inducing or preparing for group action will indi-

vidual action be considered ‘‘concerted.’’ See Socony Mobil

Oil v. NLRB, 357 F.2d 662 (2nd Cir. 1966); NLRB v.

Northern Metal Co, 440 F.2d 881 (3rd Cir. 1971); Mush-

room Transportation Co, v NLRB, 330 F.2d 683 (3rd Cir.

1964); NLRB v. Buddies Supermarkets, Inc.. 481 F.2d 714

(Sth Cir. 1973); ARO, Inc v NLRB, 596 F.2d 713 (6th Cir.

1979); NLRB v. Guernsey-Muskingum Electric Coop Inc.,

285 F.2d 8 (6th Cir. 1960); Indiana Gear Works v. NLRB,

371 F.2d 273 (7th Cir. 1967); NLRB v. Dawson Cabinet

Co., 566 F.2d 1079 (8th Cir. 1977); Walls Mfg. Co., v.

NLRB, 321 F.2d 753 (D.C. Cir. 1963) cert. denied 375 U.S.

923 11 L. Ed 2d 166, 84 S. Ct. 265 (1963).

Despite being continually rebuffed by the Courts of

Appeal, the Board obstinately follows the theory enunciated

in Alleluia Cushion Co., 221 NLRB 999 (1975), that con-

certed activity can be implied if the activity at issue is in

some way related to conditions of employment.

The decision of the Sixth Circuit pane! which granted

enforcement in this case was rendered without benefit of a

majority opinion. However, this fact does not detract from

the significance of this case and its importance in the

development of a uniform labor policy, since the Sixth

Circuit's decision, with Judge Engel dissenting, has the

result of adopting the ‘‘implied concerted activity’’ theory

of Alleluia Cushion Co, relied on by the Administrative

Law Judge in her decision.”

? The Board affirmed its Administrative Law Judge's Decision with-

out opinion. In that decision, the Law Judge relied on Alleluia Cushion

and the following cases in which the Board applied the implied concerted

activity theory: Pink Moody, Inc., 237 N.L.R.B. 39 (1978); St. Joseph's

High School, 236 N.L.R.B. 1623 (1978), vacated, 248 N.L.R.B. 91

(1980); Akron General Medical Center, 232 N.L.R.B. 920 (1977); Air

(Continued on page 7)

In this case, Singer individually decided .o abandon his

work station because of difficulties he encountered operat-

ing his machine. There is no evidence that he was con-

cerned with the working conditions of any other employee,

that other employees were interested in his complaints on

the night he walked off the job. or that any other employee

supported his action. In fact, no employee joined in his

walkout, nor did Singer seek to induce any other employee

to do so.

Despite these undisputed facts the Administrative Law

Judge concluded. and the Sixth Circuit has now enforced

this conclusion, that Singer was discharged for his ‘‘con-

certed activity’’ (walking off the job) because the subject of

Singer's complaints concerned conditions of employment

affecting other employees:

Singer's protest was therefore a protest about conditions

of employment which were of concern to all employees

subjected to those conditions. Jf was accordingly pro-

tected concerted activity even absent a showing that

other employees joined in his walkout where, as here,

there is no evidence that fellow employees disavowed

the substance of his complaint. (App. C at 15a) (Em-

phasis added).

In reaching her conclusion the Administrative Law

Judge specifically relied upon several Board cases,> the

(Continued from page 6)

Surrey Corp, 229 N.L.R.B. 1064 (1977), enforcement denied, 601 F.2d

256 (6th Cir. 1979); Dawson Cabinet Co., 228 N.L.R.B. 290 (1977),

enforcement denied, 566 F.2d 1079 (8th Cir. 1977); ARO, Inc., 227

N.L.R.B. 243 (1976), enforcement denied 596 F.2d 713 (6th Cir. 1979).

3 See cases cited above in note 2. Significantly, the Administra-

tive Law Judge had no alternative except to reiy on Alleluia Cushion,

supra, in light of the Board's declaration that it will adhere to this

theory, despite rejection by Courts of Appeals, “‘until such time as the

Supreme Court may determine the issue."’ Hotel & Restaurant

Employees and Bartenders Union, Local 28, 252 N.L.R.B. No. 158, slip

op. at 2 (1980).

most prominent of which is Alleluia Cushion Co., supra

in which, an employee was terminated after filing a com-

plaint with the California Occupational Safety and Health

Administration. Despite the finding that the employee acted

alone, the Board found that the employer violated Section

8(a)(1) of the Act:

(Wjhere an employee speaks up and seeks to enforce

statutory provisions relating to occupational safety de-

signed for the benefit of all employees in the absence of

any evidence that fellow employees disavow such rep-

resentation, we will find an implied consent thereto and

deem such activity to be concerted. 221 N.L.R.B. at

1000.

Since adopting this fictional construction of Section 7,

the Board has forged ahead to expand the implied concert

theory of Alleluia Cushion to non-safety fact situations.‘

The evolution of the implied concert theory, absent the

situation where a collective bargaining agreement is in exis-

tence’, is best described by the Board in Air Surrey Corp.,

* In St. Joseph's High School, 236 N.L.R.B. 1623 (1978) vacated 248

N.L.R.B. 1623 (1980), the Board found concerted activity where an

employee complained about salary and other working conditions. In

Akron General Medical Center, 232 N.L.R.B. 920 (1977), the Board

found concerted activity where an individual complained about the

existence of dust in the work area. Further, in Dawson Cabinet Co.,

228 N.L.R.B. 290, enforcement denied, 566 F.2d 1079 (8th Cir. 1977), the

Board extended the implied concert theory to encompass an individual

employee's refusal to perform a particular job unless she received pay

equal to a male employee performing the same job. In Pink Moody, Inc.,

237 N.L.R.B. 39 (1978), the Board ruled that an employee was engaged

in concerted activity when he voiced a personal complaint about the

conditions of his employer's vehicles and refused to drive a truck. In Air

Surrey Corp., 229 N.L.R.B. 1064 No. 155 (1977), enforcement denied,

601 F.2d 256 (6th Cir. 1979), the Board found concerted activity by an

employee who inquired at a Bank about his employer's solvency.

5’ The instant case is distinguishable from those cases where the Board

and the courts have applied an implied concert theory when an individual

(Continued on page 9)

229 NLRB 1064, enforcement denied, Air Surrey Corp v

NLRB, 601 F.2d 256 (6th Cir. 1979):

[Alleluia Cushion] rests not only on the statutorily ex-

pressed concern of the Federal and state government

with respect to safety conditions and a corresponding

accomodation of the principles of our own Act, but also

on the premise that an individual's actions may be

considered to be concerted in nature if they relate to

conditions of employment that are matters of mutual

concern to all the affected employees. 229 N.L.R.B. at

1064 (Emphasis added).

Simply put, the Board has created a fiction of implied

concerted activity based upon the underlying subject matter

an individual's actions and not upon a finding that an

individual’s actions are in fact concerted. By its decision in

(Continued from page 8)

acts to enforce the previsions of a collective bargaining agreement. The

leading case in this line is NLRB v. Interboro Contractors, Inc., 388 F.2d

495 (2nd Cir. 1967). The premise of the /nterboro doctine is that the

individual activity is merely an extension of the original concerted activ-

ity which culminated in the collective bargaining agreement. See NLRB

v. Ben Pekin Corp., 452 F.2d 205 (7th Cir. 1971), and NLRB v. John

Langenbacher Co., 398 F.2d 459 (2nd Cir. 1968), cert. denied, 393 U.S.

1049, 22 L. Ed 2d 132, 89 S. Ct. 988 (1968).

Significantly, this theory of implied concert of action has itself

engendered a conflict among the circuits. Blaw-Knox Foundry & Mill

Machinery, Inc. v. NLRB, 646 F.2d 113, 116 (4th Cir. 1981) (the

employee's altercation with a foreman was personal and ‘‘such personal

missions are not deemed concerted activity under any test’’); ARO, Inc.,

v. NLRB, 596 F.2d 713, 717 (6th Cir. 1979) (*“We think this expansive

reading of the concerted activity clause of Section 7 goes too far. Indeed,

the position of the Board in the present case extends the reach of the

Interboro doctrine’’.); and, NLRB v. Northern Metal Co., 440 F.2d 881,

884 (3rd Cir. 1971) (‘‘Interboro Contractors appears to create a legal

fiction, constructive concerted activity ... We are unable to adopt such

a fiction’).

Further, this Court will note that even those Circuits that accepted

Interboro refuse to enforce decisions based on the theory of implied

concert of action of Alleluia Cushion. Obviously, any Court that rejects

the Interboro theory cannot accept the theory in Alleluia Cushion since

Alleluia Cushion applies to those instances where there is no collective

bargaining agreement.

this case, the Sixth Circuit panel adopts that fiction, aban-

dons its own precedence, and places itself in clear conflict

with the other Circuits.

As Judge Engel stated in his well-reasoned dissent:

1 would deny enforcement because there is, in my

opinion, no substantial evidence to support the finding

that the action of employee Thomas Singer was con-

certed. Rather than showing that he was acting on

behalf of or as a representative of the other employees,

the evidence shows at best that his complaints were

shared by others but that his individual conduct was

entirely spontaneous. This case, therefore, falls squarely

within the holding of our circuit in NLRB v Guernsey-

Muskingum Electric Coop., Inc., 285 F.2d 8 (6th Cir.

1960). See Aro, lnc. v NLRB, 596 F.2d 713 (6th Cir.

1979)® 650 F. 2d at 859

The chasm that the Sixth Circuit has created between itself

and the other Circuits is best understood by looking at each

Circuit which has considered the issue.

*In NLRB v Guernsey-Muskingum Electric Coop, Inc., 285 F.2d 8

(6th Cir. 1960), the Court held that when three employees jointly decided

to engage in a protest for their common good, their protest was concerted

activity.

It is sufficient to constitute concert of action if, from all of the facts

and circumstances in the case, a reasonable inference can be drawn

that the men involved considered that they had a grievance and

decided, among themselves, that they would take it up with man-

agement. Id. at 12 (Emphasis added).

Thus, the evidence supported a finding of actual concerted activity.

In ARO, Inc. v NLRB, 59% F.2d 713 (6th Cir. 1979), a temporary

employee was laid off due to lack of work and was subsequently refused

reinstatement. The Board found concerted activity, although the

employee enjoyed no rights under the collective bargaining agreement.

The Sixth Circuit denied enforcement of the Board's decision stating:

For an individual claim or complaint to amount to concerted action

under the Act it must not have been made solely on behalf of an

individual employee, but it must be made on behalf of other

Gans ae ie as te tentn eth Go Glen Of tates or

preparing for group action and have some arguable basis in the

collective bargaining agreement. 596 F.2d at 718.

The Second Circuit: In Ontario Knife Co. v NLRB, 637

F.2d 840 (1980), an employee walked off her job after a

dispute with her supervisor concerning her workload. In

rejecting the theory of implied concert of action, the Court

held:

We think that, except in the context of agreements

between an employer and his employees which are

themselves the product,of concerted activities, as in

Interboro §7, for reasons indicated above, should be

read according to its terms. Not only must the ultimate

objective be ‘‘mutual’’ but the activity must be ‘‘con-

certed’’ or, if taken by an individual . . . must be look-

ing toward group action. 637 F.2d at 845.

The Third Circuit: In Mushroom Transportation Com-

pany v. NLRB, 330 F.2d 683 (1964), an employee who

conversed with other employees in an effort to advance his

personal interests was found not to be engaged in concerted

activity:

It is not questioned that a conversation may consti-

tute a concerted activity although it involves only a

speaker and a listener, but to qualify as such, it must

appear at the very least that it was engaged in with the

object of initiating or inducing or preparing for group

action or that it had some relation to group action in the

interest of the employees. 330 F.2d at 685.

The Fourth Circuit: In Krispy Kreme Doughnut Corp. v

NLRB, 635 F.2d 304 (1980), an employee refused to forego

a worker's compensation claim and was subsequently dis-

charged. The Court rejected the implied concerted activity

theory because there was no evidence that the employee's

action was designed to induee group action or that the

employee was acting on behalf of or as a representative of

other employees:

“Concerted activity’’ is an essential predicate, in effect

a jurisdictional requirement, for Board action under the

Act in a case such as this. The burden of establishing by

proof such essential predicate to quasi-jurisdiction rests

on the Board. 635 F.2d at 310.

The Fifth Circuit: In NLRB vy. Buddies Supermarket,

Inc., 481 F.2d 714 (1973), an employee claimed that he was

discharged for concerted activity in complaining about the

method of employee compensation. The Court rejected the

implied concerted activities theory stating:

{[T]here must be substantial evidence in the record

showing that the employee was engaged in concerted

activity for the purpose of mutual aid and protection and

that the employer had some knowledge of this at the

time of the discharge. The basic question here is

whether Smith's efforts to gain more favorable contract

terms for himself constitued protected concerted activity

within the meaning of §7 of the National Labor Rela-

tions Act. The answer to this question lies in the distinc-

tion between concerted and non-concerted activity. If

Smith's actions can properly be classified as individual

griping or complaining, then it is clear that under the

applicable authority the Board's decision must be re-

versed. Such conduct has never been considered pro-

tected. 481 F.2d at 717.

The Seventh Circuit: In Pelton Casteel, Inc. v NLRB,

627 F.2d 23 (1980), an employee’s complaints about job

rates and overtime were found not to constitute concerted

activity. Although acknowledging that the complaints con-

cerned working conditions affecting all employees, the

Court stated: “It is also necessary, however, that the

employee's actions themselves at least contemplate some

group activity."’ 627 F.2d at 28.

The Eighth Circuit: In NLRB v Dawson Cabinet Co.,

566 F.2d 1079 (1977), an employee refused to work on a job

unless she was paid a salary equal to male employees on

the job. Refusing to enforce the Board's Order, the Court

stated:

Thus, in order for employee activity to be protected

under the Act, the activity must not only have a lawful

objective and be carried out by lawful and proper

means, but it must also be ‘‘concerted.’’ 566 F.2d at

1082.

The Ninth Circuit: In NLRB vy Bighorn Beverage, 614

F.2d 1238 (1980), an employee was allegedly fired for filing

a safety complaint on his own, and for engaging with other

employces in union organizing activity. Although substantial

evidence supported the Board’s finding that the employee

was discharged for union organizing activity, the Court

rejected the Board's finding of concerted activity with re-

spect to his independent action:

[Tjhe implied concerted action theory is a legal fiction

presenting an unwarranted expansion of the definition of

concerted action unsupported by a statutory basis. 614

F.2d at 1242.

District of Columbia: In Kohls v. NLRB, 629 F.2d 173

(1980) cert. denied, 450 U.S. 981, 67 L. Ed 2d 363, 101 S.

Ct. 1390 (1981), an employee was fired for refusing to drive

a truck he believed unsafe. In refusing to enforce the

Board’s Order, the District of Columbia Circuit indicated

disfavor toward the Interboro’ concept on which the Board

initially premised its implied concerted activity doctrine and

rejected the Alleluia Cushion theory:

Given the rather clear language of sections 7 and

8(a)(1) of the NLRA, we have serious doubts about the

validity of the Interboro doctrine. . . .

Three facts lead us to the conclusion that, unlike the

discharged employee in Interboro, Kohls was not en-

7 388 F.2d 495 (2nd Cir. 1967). See note 5 supra.

gaged in protected concerted activity when he refused to

perform his assigned work on November 12. First,

Kohls did not assert an interest on behalf of anyone

other than himself; indeed, there is no evidence to

indicate that Kohls even attempted to warn other

employees not to drive the truck that he believed to be

unsafe. He simply asserted that the truck was not safe

enough for him. In Interboro the discharged employee

was found to have been speaking on behalf of other

workers.

Nevertheless, the main point here is that, whether or

not he could have prevailed on this contract claim,

Kohls was never engaged in ‘“‘concerted activity’’ and,

therefore UPS did not violate Section 8(a)(1) when it

discharged Kohls for his refusal to perform assigned

work. 629 F.2d at 177-178. (Emphasis added)

The decision in this case is so statutorily unwarranted

that it is even at variance with other Sixth Circuit decisions.

In Jim Causley Pontiac vy NLRB, 620 F.2d 122 (6th Cir.

1980), an employee filed a complaint with the State Occupa-

tional Safety and Health Agency concerning paint fumes in

the plant. The Court remanded the case for a determination

as to whether the employer knew that the employee's

activity was concerted in nature, adding:

Such a remand would be unnecessary if we adopted the

holding in Alleluia Cushion Co., 221 NLRB 999, 91

L.R.R.M. 1131 (No. 162, 1965)...

We are precluded, however, from adopting the holding

in Alleluia Cushion Co., supra, by this court’s recent

decision in ARO Inc. v NLRB, 596 F.2d 713, (6th Cir.

1979), which rejected the theory of implied concert cf

action. 620 F.2d at 126.

Significantly, in light of the findings of fact and conclusions

of law adopted in this case, the Sixth Circuit has now

embraced the Alleluia Cushion doctrine and rejected its

own decision in Jim Causley.

Until the instant case, the National Labor Relations

Board's theory of implied concert of action has been consis-

tently rejected by the Courts of Appeal.* The present case

represents a clear example of the continuing effort by the

Board to emasculate the concerted activity clause of Sec-

tion 7 by making any activity related to any subject of

working conditions, ‘‘concerted activity’’ regardless of the

concerted nature of the employee's conduct. If approved,

the decision would destroy Congress’ intent that only **con-

certed’’ activity be protected by the Act. Moreover,

employers would be subject to Section 8(a)(1) charges any-

time they disciplined an employee who, acting alone, makes

a protest about any work related condition potentially af-

fecting other employees. This is wholly inconsistent with

the irtent of Congress, the judicial interpretation of the Act,

and tne wording of the Statute. Section 7 clearly states

that the ‘‘activity’’ has to be ‘‘concerted’’ and not merely

that the ‘“‘activity’’ has to be for ‘‘mutual aid or protec-

tion.”’

The resolution of this conflict among the Circuits is

essential for the establishment of the uniform application of

the federal labor laws.

* In addition to resolving the conflict between the Sixth Circuit and

all other Circuits which have considered the issue, this case also affords

the opportunity to resolve the conflict between the National Labor

Relations Board and the Courts of Appeal. In order to vindicate their

rights under the National Labor Relations Act, employers are continually

Il. THE DECISION OF THE SIXTH CIRCUIT COURT

OF APPEALS IS IN CONFLICT WITH PRIOR DECI-

SIONS OF THIS COURT AND THE CIRCUIT

COURTS SINCE THE DECISION ENFORCES A DE-

TERMINATION THAT AN EMPLOYER CAN VIO-

LATE §8(a)(1) OF THE ACT EVEN THOUGH THE

EMPLOYER HAS NO KNOWLEDGE OF CON-

CERTED ACTIVITY.

The decision of the Administrative Law Judge, adopted

by the Sixth Circuit, contains no finding of knowledge by

the Petitioner that Singer was engaged in concerted pro-

tected activity.? The conclusion that Petitioner violated Sec-

tion 8(a)(1) of the Act, despite the absence of knowledge, is

inconsistent with prior decisions of this Court as well as the

Circuit Courts of Appeal.

In NLRB v Burnup & Sims Inc., 379 U.S. 21, 13

L.Ed.2d 1, 85 S. Ct. 171 (1964), this Court specifically set

forth the test to be applied in determining Section 8(a)(1)

violations:

In sum, 8(a)(1) is violated if it is shown that the dis-

charged employee was at the time engaged in protected

activity, that the employer knew it was such, that the

basis of the discharge was an alleged act of misconduct

in the course of that activity, and that the employee was

not, in fact, guilty of that misconduct. 399 U.S. at 23

(Emphasis added.)

The Sixth Circuit's enforcement of the Board's finding

of a Section 8(a)(1) violation, absent knowledge on the part of

* Clearly this Court must recognize that without knowledge that the

activity is concerted, an employer is placed in an untenable position since

he cannot know whether his action violates the statute. Yet the Sixth

Circuit in this case discards this vital element. Although the Administra-

tive Law Judge found that Petitioner was aware of the work conditions

which were a factor in Singer's walkout, there is no discussion or finding

in the Administrative Law Judge's decision that Petitioner had any

knowledge that Singer's “‘activity’—his walkout on March Ist—was

concerted.

Petitioner, is also in conflict with the decisions of other

circuit courts.

The Third Circuit: In Tri-State Truck Service, Inc. v.

NLRB, 616 F.2d 65 (1980), the Third Circuit declined to

hold that the employer violated Section 8(a)(1) of the Act

by discharging the employees engaged in concerted activity,

absent knowledge by the employer of the concerted activi-

ty. The Court stated:

But section 8(a)(1) does not taint every employer act

which may impact upon employees’ protected activities.

Such a broad reading would effectively erase the word

‘unfair’ from the statute. Thus, both the Supreme

Court and this court have recognized that the question

of whether an employer's act violates section 8(a)(1)

depends on the employer’s motive. (citations omitted)

For an employer to have the requisite illicit motive, he

must, of course, know of the employee's concerted

activities; only then can the employer's actions be said

to have been directed at restraining employee rights.

616 F.2d at 69. (Emphasis added).

The Fifth Circuit: In NLRB vy Buddies Supermarket,

Inc., 481 F.2d 714 (1973), the Fifth Circuit declined to find

that an employer violated Section 8(a)(i) of the Act for

discharging an employee who complained about the method

of employee compensation. The Court, finding knowledge

an indispensible element, stated:

To support the Board’s finding that Smith's discharge

was unlawful, it is the black letter rule in this circuit and

others that there must be substantial evidence in the

record showing that the employee was engaged in

concerted activity for the purpose of mutual aid and

protection and that the employer had some knowledge

of this at the time of the discharge.’ 481 F.2d at 717.

(Emphasis added).

' See also Southwest Latex Corp. v NLRB, 426 F2d SO (Sth Cir.

1970).

The Seventh Circuit: In Indiana Gear Works v NLRB,

371 F.2d 273 (1967), the Seventh Circuit held that there was

no violation of Section 8(a)(1) where an employer dis-

charged an employee for ridiculing the company’s presi-

dent, since the employer had no knowledge that the activity

was concerted:

To support the Board's findings, there must be substan-

tial evidence in the record that Packard was engaged in

a concerted activity for the purpose of mutual aid or

protection, and that the employer had knowledge of the

concerted nature of the activity at the time it discharged

the employee. 371 F.2d at 276.

In addition, the Sixth Circuit panel's decision in this

case is inconsistent with prior Sixth Circuit decisions on the

issue of employer knowledge. In Jim Causley, supra, the

Sixth Circuit decided a case in which it was found that an

employee was laid off because of his protected concerted

activities. Although the Court concluded that the employee

was in fact engaged in concerted activity, it remanded the

case for a determination by the Board as to whether the

employer had knowledge that the employee's activity was

concerted:

A more difficult issue is whether Causley Pontiac knew

that the activity in question was concerted in nature and

not an individual action on the part of a single

employee. The Board made no specific finding that

Causley Pontiac was aware that the activity in question

was concerted, as opposed to individual. This Circuit

has recently ruled that such knowledge is essential to

the finding of a Section 8(a)(1) unfair labor practice. Air

Surrey Corp. v NLRB 601 F.2d 256 (6th Cir. 1979)."!

620 F2d at 125.

''In Air Surrey, supra, the Court stated:

It hes long been the law in our circuit that an employer cannot be

held in violation of section 8(a)(1) of the Act when it discharges an

employee for activity which may in fact be protected under the Act

but the employer lacks knowledge of its protected character. NLRB

v Westinghouse Electric Corp., 179 F.2d 507 (6th Cir. 1949). It is the

employer's knowledge of an > protected — and his

subsequent di of the or engaging in activity

which <» Kinpoy Sy 601 F.2d at 257. (Emphasis added.)

Simply put, even if the Administrative Law Judge's

conclusion was legally correct that Singer was engaged in

actual concerted activity when he walked off his job,

Petitioner could still not have been found to have violated

the Act since there was, in fact, no finding that Petitioner

had any knowledge that Singer's walkout was concerted.

Therefore, the decision of the Administrative Law Judge

and the Sixth Circuit is inconsistent with prior decisions of

this Court, the Sixth Circuit's own precedent and the pre-

cedent of other Circuit Courts of Appeals.

Ill. THE DECISION OF THE SIXTH CIRCUIT COURT

OF APPEALS IN THIS CASE IS CONTRARY TO THE

STATUTE AND INCONSISTENT WITH PRIOR DE-

CISIONS OF THIS COURT.

Section 7 of the National Labor Relations Act, states in

relevant part:

Employees shall have the right to self-organization, to

form, join, or assist labor organizations, to bargain col-

lectively through representatives of their own choosing,

and to engage in other concerted activities for the pur-

pose of collective bargaining or other mutual aid or

protection, . . . (Emphasis added.)

It is well established that the term ‘‘concerted activity”

refers to joint action or agreement among employees, not

to spontaneous acts of an individual.’ The legislative

'2 In rejecting the implied concert theory, the Third Circuit stated in

NLRB vy Northern Metal Co., 440 F.2d 881, 884 (1971):

Webster's New International Dictionary (2 ed. 1947) defines *‘con-

cert’’ as “agreement in a design or plan; union formed by mutual

communication of opinions and views; accordance in a scheme;

harmony; simultaneous action" and * ‘concerted”’ as ‘‘mutually cont-

rived or planned; agreed upon."' We do not believe the purpose of

the Act would be served by expanding the limits of Mushroom to

include activity which could be considered ‘‘concerted’’ only in a

fictional sense. (Emphasis added.)

In Mushroom Transportation Co. v NLRB, 330 F.2d 683, 685 (3d Cir.

1964), the Court concluded that the term, concerted action, encompas-

sed activity “looking toward group action."’ Significantly, in the instant

case there was no evidence that Singer was looking toward group action

or that he was ever concerned about other employees in the plant.

policy of the National Labor Relations Act is to promote

collective activity among employees, due to the perceived

inequality of bargaining power between employers and

employees, by protecting workers’ freedom of association,

self-organization, and representation. '?

This Court has recognized that the purpose of the Act is

to promote collective, joint action among employees.'* The

'3 Section | of the Act, 29 U.S.C. 151, states, in relevant part:

The inequality of bargaining power between employees who do not

possess full freedom of association or actual liberty of contract, and

employers who are organized in the corporate or other forms of

pr association substantially burdens and affects the flow of

It is declared to be the policy of the United States to eliminate the

causes of certain substantial obstructions to the free flow of com-

merce and to mitigate and eliminate these obstructions when they

have occurred by encouraging the practice and procedure of collec-

tive bargaining and by protecting the exercise by workers of full

freedom of association, self-organization, and designation of rep-

resentatives of their own choosing, for the purpose of negotiating the

terms and conditions of their employment or other mutual aid or

protection.

It is clear from the policy of the Act that Congress was not concerned

with protecting the spontaneous actions of an individual acting outside

the context of collective bargaining.

'4 Eastex, Inc. vy NLRB, 437 U.S. 556, 57 L.E.2d 428, 98 S. Ct. 2505

(1978), involved the right of employees to distribute a union newsletter in

non-working areas of their employer's property during non-working time.

Examining the legislative history of the Act, this Court noted:

Congress modeled the language of §7 after that found in §2 of the

Norris-LaGuardia Act, 47 Stat 70, 29 USC §102 [102 USC §102)

which declares that it is the public policy of the United States that

workers ‘‘shall be free from the interference, restraint, or coercion of

employers of labor, or their agents, in the designation of . . . rep-

resentatives or in self-organization or in other concerted activites for

Se TD ES Ce ae eee

tion. . ."" See S Rep No. 573, 74th Cong., Ist Sess., 9 (1935); H.R.

Rep. No. 1147, 47th Cong., Ist Sess., 15 (1935). This section of the

Norris-LaGuardia Act expresses Congress’ recognition of the ‘right

(Continued on page 21)

~ >

Alleluia Cushion implied concert theory was created by the

Board without any legislative support whatsoever, and in

fact in contravention of Congress. In ARO, Inc. v NLRB,

596 F.2d 713 (1970), the Sixth Circuit recognized that there

was no legislative support for the Board’s creation of the

implied concert theory when an employee has no rights

under a collective bargaining agreement:

The Board's decision and order creates, in effect, grie-

vance rights for temporary/probationary employees, by

the filing of an unfair labor practice, which do not exist

under the collective bargaining agreement. Nothing in

the language of the Act, nor its legislative history,

evidences an intent on the part of Congress so to

intrude into the day-to-day operation of an employer's

business. 596 F.2d at 718.

Simply put, there is no support anywhere in the Act for

the expansive interpretation of Section 7 of the Act set

forth in the Board's Alleluia Cushion doctrine.

In Burnup & Sims, supra, this Court outlined the essen-

tial elements which must be established by the Board before

an employer may be found to have violated Section 8(a)(1).

The two most important elements are that the employer be

engaged in protected activity and that the employer know

that the employee is engaged in such activity. Except for

the decision in this case, this standard has been applied by

all Circuit Courts of Appeal.'*

(Continued from page 20)

of wage earners to organize and to act jointly in questions affecting

wages, conditions of labor, and the welfare of labor generally .. .”

S. Rep. No. 163, 72d Cong., Ist Sess., 9 (1932) (emphasis supplied).

Similar language is found in §7(a)(1) of the National Industrial

Recovery Act of 1933, 48 Stat. 198; §1 of the National Labor

Relations Act, 49 Stat. 449-450, 29 U.S.C. §151 [29 U.S.C. §151}

(declaration of policy); and §2(a) of the Labor Management Report-

ing and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. §401(a)

(findings, purposes, and policy). 437 U.S. at 566, n.14.

'S See discussion, Part Il, supra, where the element of employer

knowledge of protected activity is discussed in greater detail.

In contrast, the test applied by the Board and adopted

by the Sixth Circuit panel in this case is:

1. The employee has engaged in some activity relating

to a subject theoretically of some concern to other

employees; and

2. Feilow employees have not disavowed such activity.

This test completely abandons this Court's test as outlined

in Burnup & Sims, supra. The principle applied in the

instant case does not require any finding by the Board that

the employee is engaged in concerted protected activity nor

does it require any finding by the Board that the employer

have knowledge of the employee's concerted protected ac-

tivity. Significantly, in addition to these ‘‘standards*’, the

Board has also imposed an affirmative obligation upon an

employer to prove that his other employees have disavowed

the spontaneous independent actions of one employee.'®

This affirmative obligation obviously represents an unwar-

ranted intrusion by the Board into the day-to-day operations

of American business and a burden not permissible under

the Act.

IV. THE DECISION OF THE SIXTH CIRCUIT RAISES

IMPORTANT QUESTIONS OF THE UNIFORM IN-

TERPRETATION AND ADMINISTRATION OF FED-

ERAL LABOR LAWS.

The controversy engendered by the theory of implied

concerted activity creates continuing confusion concerning

the essential element of the Act, “‘concerted activity.”

'6 By virtue of this doctrine, an employer is now unable to take any

action with respect to he spontaneous acts of an individual employee,

until he polls each and every one of his other employees to determine if

the individual acts of the employee have been disavowed. To show the

absurdity of the Board's position, if only one employee in the workplace

does not disavow the activity, the Board would apparently find that the

employee's action is concerted. Clearly, such an imposition by the Board

has no support in the language of the statute. This obligation on

employers burdens and obstructs commerce in contravention to the

policy of the National Labor Relations Act.

Any determination of Section 7 rights by the Board or

Courts depends upon the definition of concerted activity.'’

Thus, the issue before this Court is not merely whether to

review an aberrant decision of a Court of Appeals but

whether to resolve a continuing controversy which has a

daily impact on all employers and employees.'*®

'? This controversy over implied concerted activity has now raised

questions about the application of NLRB v Weingarten, Inc., 420 U.S.

251, 43 L.Ed.2d 171, 95 S Ct 959 (1975). In Weingarten, an employer was

held to have violated Section 8(a)(1) by refusing an employee's request to

have a union representative present during a disciplinary interview with

her employer. This Court held that such action by an employee falls

within the literal terms of the Act.

The Fifth Circuit in Anchortank, Inc. v NLRB, 618 F.2d 1153 (1980)

has inferred from Weingarten that the Interboro doctrine (discussed in

Note 6 supra) had been adopted by this Court:

In Weingarten, supra, the Supreme Court has seemingly adopted

the Interboro approach. In concluding that an employee engages in

concerted activity when he seeks union representation at an inter-

view which he reasonably fears may lead to discipline, the Court

focused entirely on the effects such representation on the bargaining

unit. 618 F.2d at 1161.

The Petitioner submits that Weingarten stands only for the proposition

that an employer cannot block efforts by an employee seeking to act in

concert with his union representative. This erroneous interpretation of

the import of Weingarten further evidences the need for this Court to

to grant a writ of certiorari.

'® The continuing confusion over the theory of implied concerted

action is evidenced by recent decisions of the Sixth Circuit. In United

Parcel Service v NLRB, 654 F.2d 12 (6th Cir. 1981), the Court did not

find substantial evidence to support the Board's determination that an

employee acting on his own was exercising a contractual right in refusing

to perform an arguably dangerous duty. The Court found that his actions

were motivated by a personal conflict between himself and his super-

visor. Although the Court apparently refused to apply an implied concert

of action theory to the facts of that case, there is no discussion of

Alleluia Cushion or Interboro in the court's opinion.

Further support for the Petitioner's contention that the Sixth Circuit

has now adopted the theory of implied concerted activity, absent a

collective bargaining agreement, may be found in NLRB v Lloyd A. Fry

Roofing Company of Delaware, 651 F.2d 442 (6th Cir. 1981). There the

Sixth Circuit cited Alleluia Cushion with approval stating:

The Board has continued to extend the parameters of its

Alleluia Cushion theory to encompass any activity which

theoretically concerns a condition of employment. De-

spite the hostile reception this theory has received from the

Courts of Appeals, the Board remains intransigent:

[W]e adhere to our position as set forth in Alleluic

Cushion Co., Inc., 221 NLRB 999 (1975) and we re-

spectfully decline to adopt the Ninth Circuit's rejection

of that principle until such time as the Supreme Court

may determine the issue. Hotel and Restaurant

Empioyees and Bartenders Union, 252 N.L.R.B. No.

158, slip op. at 2.

Until the instant case, this Court has not had the need nor

responsibility to act since the Courts of Appeals have uni-

formly rejected this statutorily unwarranted theory.'? The

cost of this continuing controversy between the Board and

the Courts, however, has been borne by the employers. The

persisting confusion over interpretation of concerted activ-

Additionally, an employee's presentation of job related grievances

aimed at achieving employer compliance with governmental regula-

tions affecting working conditions is for the mutual aid and protec-

tion of employees. Socony Mobile Oil Co. vy NLRB, 375 F.2d 662

(2nd Cir. 1966). Alleluia Cushion Co., 221 NLRB No. 999 (1975).

Applying these principles, we hold that Varney was engaged in

concerted activity protected by Section 7 of the Act. 651 F.2d at 445.

It should be recognized that in Fry Roofing, unlike the instant case, there

was evidence that the employee had articulated his concerns at a meeting

between fellow employees and management. Although the Court cited

Alleluia Cushion, the Court did not need to rely upon the implied concert

theory since there was evidence of actual concerted protected activity.

Significantly, in Kohls v NLRB, 629 F.2d 173 (D.C. Cir. 1980),

cert. denied, 450 U.S. 931, 67 L. Ed.2d 363, 101 S. Ct. 1390 (1981), this

Court refused to grant certiorari, thereby implicitly accepting the deci-

sion of the District of Columbia Circuit which rejected the implied

concert of action theory. However, now that the Board's position has

received some judicial support, it is necessary for this Court to resolve

the issue and foreclose the Board from bringing a parade of cases in the

hopes of getting another favorable determination to buttress its be-

leaguered Alleluia Cushion doctrine.

ity which affects the daily actions of all employers and

employees must be ended.

The divergence of authority created by the Sixth Cir-

cuit’s decision in this case cannot be permitted to exist in

federal labor law.

CONCLUSION

For the foregoing reasons, Petitioner respectfully sub-

mits that a writ of certiorari should be granted.

By: James D. Tracy

Attorney for Petitioner

Business Address:

35th Floor - 400 Renaissance Center

Detroit, Michigan 48243

Telephone: (313) 568-6860

OF COUNSEL

Ronald J. Santo

Robert L. Duty

Robert C. Ludolph

Dykema, Gossett, Spencer,

Goopnow & TRIGG

Business Address:

35th Floor - 400 Renaissance Center

Detroit, Michigan 48243

Telephone: (313) 568-6860

James C. Bruno

Business Address:

2580 City National Bank Building

Detroit, Michigan 48226

Telephone: (313) 964-0800

-xppuady

Appendix A

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-1594

THERMOFIL INCORPORATED

Petitioner

vs.

Nationat Lasor Recarions Boarp

Respondent

ORDER AND DISSENTING OPINION

FILED JUNE !1, 1981

BEFORE WEICK, ENGEL AND JONES,

CIRCUIT JUDGES

Appendix A

Upon consideration of the briefs, record and arguments

of counsel, we are of the opinion that substantial evidence

supports the order of the Board entered on September 14,

1979, reported at 244 NLRB No. 171, finding that petitioner

Thermofil Inc. violated Section 8(a)(1) of the Act by ter-

minating employee Thomas Singer and ordering his

reinstatement with back pay, and said order will be en-

forced.

Enforcement of the Board's order is therefore granted.

Judge Engel dissents.

ENTERED BY ORDER OF THE COURT

(s) JOHN D. HEHMAN

Clerk

ENGEL, Circuit Judge, dissenting. | would deny en-

forcement because there is, in my opinion, no substantial

evidence to support the finding that the action of employee

Thomas Singer was concerted. Rather than showing that he

was acting on behalf of or as a representative of the other

employees, the evidence shows at best that his complaints

were shared by others but that his individual conduct was

ex.tirely spontaneous. This case, therefore, falls squarely

within the holding of our circuit in N.L.R.B. v Guernsey-

Muskingum Electric Coop, Inc., 285 F.2d 8 (6th Cir. 1960).

See Aro, Inc. v. N.L.R.B., 596 F.2d 713 (6th Cir. 1979).

Appendix B

APPENDIX B

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

No. 7-CA-14973

224 NLRB No. 171

THERMOFIL INCORPORATED

and

Tuomas D. Sincer, an individual

DECISION AND ORDER

September 19, 1979

Appendix B

On May 14, 1979, Administrative Law Judge Almira

Abbot Stevenson issued the attached Decision in this pro-

ceeding. Thereafter, Respondent filed exceptions and a

supporting brief, and the General Counsel filed cross-

exceptions and a supporting and answering brief. Respon-

dent thereupon filed a reply brief.'

Pursuant to the provisions of Section 3(b) of the Na-

tional Labor Relations Act, as amended, the National Labor

Relations Board has delegated its authority in this proceed-

ing to a three-member panel.

The Board has considered the record and the attached

Decision in light of the exceptions and briefs and has

decided to affirm the rulings, findings,? and conclusions of

the Administrative Law Judge and to adopt her recom-

mended Order, as modified herein.’

' The General Counsel filed a motion to strike certain portions of

Respondent's reply brief. Respondent filed a response to the General

Counsel's motion and requested special leave to submit the contested

material as a reply to the General Counsel's answering brief. We hereby

grant the General Counsel's motion to strike pp. 7-24 of Respondent's

reply briefs as not limited to the questions raised in the cross-exceptions.

See Sec. 102.46(f)(1) of the National Labor Relations Board Rules and

Regulations, Series 8, as amended. Respondent's motion for special leave

is hereby denied.

2 Respondent has excepted to certain credibility findings made by the

Administrative Law Judge. It is the Board's established policy not to

overrule an administrative law judge's resolutions with respect to credi-

bility unless the clear preponderance of all of the relevant evidence

convinces us that the resolutions are incorrect. Standard Dry Wall

Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We have carefully examined the record and find no basis for reversing

her findings.

3 In light of Hickmott Foods, Inc., 242 NLRB No. 177 (1979), we

find that the narrow cease-and-desist language, “in any like or related

manner,"’ is adequate to remedy the violation here. Accordingly, we shall

modify the recommended Order and notice.

Appendix B

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations Board

adopts as its Order the recommended Order of the Adminis-

trative Law Judge, as modified below, and hereby orders

that the Respondent, Thermofil, Inc., Ypsilanti, Michigan,

its officers, agents, successors, and assigns, shall take the

action set forth in the said recommended Order, as so

modified:

1. Substitute the following for paragraph 1(b):

“(b) In any like or related manner interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the Act.’

2. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington D.C. September 14, 1979

John H. Fanning, Chairman

(SEAL) Howard Jenkins, Jr., Member

John C. Truesdale, Member

NATIONAL LABOR RELATIONS BOARD

Appendix B

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

WE WILL NOT terminate or otherwise interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed them by Section 7 of the National Labor Rela-

tions Act, as amended.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce employees in the exercise of the

rights guaranteed them by Section 7 of the Act.

WE WILL offer Thomas D. Singer immediate and full

reinstatement to his former job or, if that job, no longer

exists, to a substantially equivalent job, without prejudice

to his seniority or other rights and privileges.

WE WILL make Thomas D. Singer whole for any loss

of pay he may have suffered as the result of his termination

on March 2, 1978, plus interest.

THERMOFIL, INC.

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or compliance with its provisions may be di-

rected to the Board's Office, Patrick V. McNamara Federal

Building, Room 300, 477 Michigan Avenue, Detroit, Michi-

gan 48226, Telephone 313-226-3244.

Appendix C

APPENDIX C

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

No. 7-CA-14973

THERMOFIL INCORPORATED

and

Tuomas D. Sincer, an individual

DECISION

May 14, 1979

Appendix C

Statement of the Case

ALMIRA ABBOT STEVENSON, Administrative Law

Judge: This case was heard in Detroit, Michigan, on

October 30 and 31, 1978. A copy of the charge, filed on

March 20, 1978, was served on the Respondent March 22,

1978. The complaint was issued May 25, 1978 and amended

at the hearing. The Respondent duly filed an answer, which

was also amended at the hearing.

The issue is whether or not the Respondent violated

Section 8(a)(1) of the National Labor Relations Act by

discharging Thomas Singer because of his concerted

protected protests about job safety and working conditions.

For the reasons fully set forth below, I conclude that the

Respondent violated the Act as alleged.

Upon the entire record,' including my observation of

the demeanor of the witnesses, and after due consideration

of the briefs filed by the Respondent and the General

Counsel, I make the following:

Findings of Fact

and

Conclusions of Law

I. Jurisdiction

The Respondent, a Michigan corporation, maintains its

principal office and place of business at 815 North Second

Street, Brighton, Michigan. The Respondent maintains

other plants located at 103 South River Street, Ypsilanti,

Michigan, and 884 Railroad Street, Ypsilanti, Michigan,

here involved. The Respondent is engaged in the

manufacture, sale, and distribution of fiberglass reinforced

' The General Counsel's motion to correct official record is granted

in the absence of objection. No reliance is placed on an otherwise

unidentified copy of a shift-production report dated March 1, 1978

submitted by the Respondent after the close of the hearing.

Appendix C

plastics and related products. During the year ending

December 31, 1977, the Respondent purchased goods and

materials valued in excess of $50,000 which were

transported and delivered to its Railroad Street plant

directly from points outside Michigan. The Respondent

stipulates, and I find, that it is an employer engaged in

commerce within the meaning of Section 2(2), (6) and (7) of

the Act.

Il. Unfair Labor Practices?

A. Facts

Thomas Singer, the Charging Party, was employed as an

extruder-machine operator at the Respondent's Railroad

Street fiberglass and plastics manufacturing plant in

Ypsilanti, Michigan from April 27, 1977 until March 1, 1978.

The plant employs a complement of approximately 55

production employees. The Respondent admits and I find

that the following individuals were its supervisors and

agents during material times:

Robert Darga—Vice President

John LeClair—Manufacturing Manager

Leonard Federer—General Foreman

Richard Vukmirovich—General Foreman

Stan Johnson—Foreman

Bryce Johnson—Foreman

The extruder machines, to one of which Singer was

assigned, produce small solid fiberglass and plastic pellets

from melted mixes. They also produce a considerable

amount of scrap which does not meet specifications and

must be trucked to another building for grinding and

eventual re-mixing and melting. The scrap is stored in old

cardboard boxes of approximately 3% or 4 feet cubed in size

and 100-800 pounds in weight. The Respondent has periodic

2 Except where credibility issues are specifically discussed, the facts

are substantially undisputed.

10a

Appendix C

problems storing the scrap boxes and stacks them 2, 3, and

sometimes 4 boxes high in the area where the

extruder-machine operators work. When this has occurred,

there have been many employee complaints to management

about being crowded by the boxes and not having enough

room to work. The cramped conditions caused by stacked

scrap boxes was discussed by employees and management

at a quality-control meeting as far back as the fall of 1977.

When Singer reported for work on the 2-8 p.m. shift

March 1, 1978, the situation was worse than it had ever

been, because the grinder machine was broken down and

more scrap boxes than usual were being held in the

extruder building until the grinder could be repaired.

Alongside extruder No. 4, to which Singer was assigned, as

well as elsewhere in the building, the scrap boxes were

stacked out of alignment in a sloppy manner, some were

broken and leaking contents, and some were overpacked

causing those on top of them to rock and lean. Although I

do not credit Singer that any of the boxes had actually

fallen up to this time,’ they clearly constituted a hazard to

the safety of the employees, as well as adversely affecting

the working conditions of Singer and other employees, as

subsequent events proved.*

’ Singer testified that two boxes fell from a stack on the afternoon of

March |, and that boxes had fallen into aisles on previous occasions. He

said that on March | the boxes fell 10 feet in front of James Herndon

who was operating extruder machines No. 5 and 6 alongside No. 4, and

that other named employees had witnessed the previous falls. However,

neither Herndon, who testified, nor the other named employees was

asked to corroborate Singer in this respect. In the absence of such

corroboration, as Singer was upon occasion inconsistent and self-

contradictory, and in view of the absence of evidence that any falls were

witnessed by or reported to management, I do not credit Singer in this

respect.

*In view of the substantially undisputed evidence as to the size,

weight, and condition of the scrap boxes and the height and manner of

their stacking, as well as subsequent events, I do not credit the testimony

of general foremen Vukmirovich and Federer that the stacked boxes did

not constitute a danger to the employees. Vice President Darga in effect

conceded, substantially as employee James Herndon and Michigan Safety

Officer Robert Tavernier testified, that the stacks would not withstand a

jolt.

lla

Appendix C

At the start of his shift on March 1, 1978, Singer was

assigned to effect a changeover on extruder No. 4 to a mix

which was a clear natural color different in content from the

black mix which had been running through the machine

before then. The changeover required Singer to clear the

machine of the molten black plastic by letting it run on the

floor where it gradually cooled into piles 2 to 2% feet in

diameter and 4 to 6 inches thick. These cooling piles, or

goobers, the empty boxes provided to store them in after

they had hardened, and the old scrap boxes stacked along

side the extruder hampered Singer's ability to move about

his machine to make the adjustments necessary to run the

new material, and he was unable to get the extruder into

proper operation again. The new material became too hot,

the water-cooling system failed to correct the temperature,

and hot strands of plastic became wrapped around the

conveyor belt and the pelletizer became clogged with the

hot strands. Singer shut the machine off and sought out

Foreman Bryce Johnson, and told him the place was fucked

up and he could not work; that Johnson had seen the boxes

stacked oui there leaning and so close to the machine there

was no room to work; that the material was too hot and the

pelletizer was plugged up. Johnson offered to help Singer,

but Singer said no, the place was a mess, he was going

home, and to have them call him when the place was

cleaned up. With that, Singer left the plant at about 4:30

p.m.

* The facts as to this conversation are based on the most likely

aspects of the testimony of Singer, Johnson, and employee Douglas

Fraley with whom Johnson subsequently discussed it. The Respondent's

counsel claimed to have seen Johnson's entry in the foreman’s log book

regarding this conversation before the page on which it was written

disappeared. Although he thus may have been in a position to

corroborate to some extent Johnson's testimony that Singer did not

mention the stacked boxes, counsel declined the General Counsel's

invitation to take the stand, and refused my instructions that he do so

under a subpoena served on him by the General Counsel. In these

(Continued on page 12a)

12a

Appendix C

Johnson proceeded to Singer's work place, cleared away

the goobers, cleared the pelletizer, adjusted the machine,

and operated it until the end of the shift at 8 p.m.

The next day Assistant General Foreman Leonard

Federer pulled Singer's timecard when he failed to punch in

at 2 p.m. Vice President Robert Darga testified that he

received information from Foreman Johnson and

Manufacturing Manager John LeClair that Singer had left

the plant because of frustration over difficulties he

encountered running his machine, and because of what

Singer called the mess in his work area, part of which

Singer had made himself with the goobers in the aisle and,

Darga continued, part of which ‘I assumed he was referring

to some of the cluttered conditions”’ created by the stacked

scrap boxes. Based on Singer's refusal of Foreman

Johnson's offer to help him clean up, his walk out, and a

recent deterioration in his work performance, Darga

testified, he instructed LeClair to terminate Singer.

Sometime after 2 p.m., Singer, having received no call,

went to the plant and asked LeClair whether he still had a

job. LeClair responded that Singer had quit; Singer denied

it, saying he would be glad to return to work if the place

was cleaned up.

In his claim for unemployment compensation, filed that

day, Singer alleged “the work area was cluttered to the

(Continued from page Ila)

circumstances and as Vice President Darga acknowledged awareness that

Singer had mentioned the “cluttered conditions’’ caused by the stacked

boxes at the time of his walk out, Johnson's testimony to the contrary is

not credited. The Respondent's contention that Singer raised the safety

issue only after March 5 when he heard that a box had fallen on

employee Strosier the night after Singer walked out is without merit. As

found below, Singer's unemployment-compensation claim, filed on March

2 before the accident to Strosier, reaffirmed his claim of hazardous

working conditions. As Singer was not sure he told Johnson about the

boxes having fallen and as I have found that they have not, I do not

credit Singer in his respect.

13a

Appendix C

point he could not set up materials and operate his

machine’’ and that ‘‘safety precautions and use of safety

equipment are not enforced.’’ Darga responded to this claim

on March 14, 1978 to the following effect:

Thomas stated he would not work because of the

cluttered working conditions. The conditions were

temporarily congested but were not to the point that the

machines could not be operated. There was no reason

for Thomas to walk off the job. In light of this and

previous attitude problems, it was decided that Thomas

be terminated effective the da'e he walked off the job.

We do take all necessary safety precautions and use

safety equipment, as substantiated by MIOSHA

inspection in January of this year.

That night at approximately midnight, a scrap box fell

from the top of a stack on employee Terry Strosier while he

was operating a hi-low near extruder machine No. 4,

injuring him and requiring medical attention. Douglas Fraley

and Mitchell Watts immediately turned off their machines

and informed their foreman Stanley Johnson, they ‘‘weren’t

going to work anymore with that mess the way it was.”

Stanley Johnson sent for General Foreman Richard

Vukmirovich. Fraley testified without dispute that he told

Vukmirovich, ‘“Tom [Singer] had just left because he was

afraid of these boxes and this mess, and afraid of one falling

on him and now that one fell on Terry, one could fall on

me. And there was no way we were going to work like

that.’’ Fraley and Watts left the plant. The following day,

March 3, Vice President Darga got in touch with them

because, he testified, they made a complaint regarding

safety which he believed was made in good faith after the

accident to Strosier. Darga explained the reason for the

stacking of scrap boxes and promised to clear the building.

The two employees accepted his promise and returned to

work.

l4a

Appendix C

The following week Singer visited Vice President

Darga’s office and asked Darga if he had been fired. Darga

told him no, he had left voluntarily and based on his

departure he had been terminated. Singer told Darga the

plant was unsafe.

Pursuant to a telephoned complaint, the Michigan

Bureau of Safety and Regulation (MIOSHA) inspected the

Railroad Street plant March 16, when conditions in the

extruder building were substantially as they were on March

1 and March 2, and cited the Company for among other

things failing to ‘‘Maintain stacking of material in a manner

which does not create a hazard. (Boxes of scrap material in

aisleway near #4).”

B. Conclusions

There is no merit in the Respondent's accusations that

Singer quit. He denied it, and repeatedly expressed his

willingness to return to work when the place was cleaned

up. It is clear that Singer walked off his job in part as a

protest against the stacked boxes which were leaning in a

hazardous manner and created crowded working conditions.

It is also clear that these were determinative factors

triggering Vice President Darga’s decision to terminate him.

Thus, although Singer's work performance had apparently

been deteriorating for some time, and he had even left his

machine in frustration over its operation before, he was not

terminated or even disciplined for those transgressions.

Moreover, Respondent was well aware that the stacked

boxes created crowded and hazardous conditions as other

employees had complained about the crowding and the

danger was evident. The Respondent was also aware that

these conditions were a factor in Singer's walkout because

he made this plain to Foreman Johnson at the time and

Vice President Darga acknowledged that the boxes were

part of the mess to which Singer referred. It was obvious

also, as Singer testifiec, that there was no way Foreman

1Sa

Appendix C

Johnson's offer to help him clean up the mess could have

solved the problem of the stacked boxes as it would have

been impossible for the two of them to accomplish that feat.

Nor does it signify that the Respondent did not terminate

employees Fraley and Watts when they walked out in

protest over the same hazard. Unlike Singer, they did not

refuse to return until the place was cleaned up but returned

under the conditions laid down by Darga of a promise to do

so in the future. In any event, it has long been recognized

that an employer's failure to discharge all similarly situated

employees does not negative unlawful motivation for the

discharges shown.®

The stacking of heavy boxes close to work stations to a

formidable height in an unstable manner affected the

efficiency and safety of all employees who worked in the

extruder building. Singer's protest was therefore a protest

about conditions of employment which were of concern to

all employees subjected to those conditions. It was

accordingly protected concerted activity even absent a

showing that other employees joined in his walkout where,

as here, there is no evidence that fellow employees

disavowed the substance of his complaint.

I conclude that the Respondent's termination of Thomas

Singer on March 2, 1978 in part because of his protected

concerted activity in engaging in a walk out in protest over

hazardous and crowded working conditions interfered with,

restrained, and coerced employees in the exercise of the

rights guaranteed them by Section 7, and it thereby violated

Section 8(a)(1) of the Act, as alleged in the complaint.’

* See Hyster Company, 198 NLRB 192, 202.

’ Pink Moody, Inc., 237 NLRB No. 7; St. Joseph's High School, 236

NLRB No. 213; Akron General Medical Center, 232 NLRB No. 140; Air

Surrey Corporation, 229 NLRB 1064; Dawson Cabinet Company, Inc.,

228 NLRB 290; Alleluia Cushion Co., Inc., 221 NLRB 999. Accord,

ARO, Inc., 227 NLRB 243. Tabernacle Community Hospital & Health

Center, 233 NLRB No. 208 and Standard Brands Incorporated, 1%

NLRB 1006, relied on by the Respondent, are distinguishable on their

(Continued on page 16a)

l6a

Appendix C

Ill. Remedy

In order to effectuate the policies of the Act, I

recommend that the Respondent be ordered to cease and

desist from the unfair labor practices found and, in view of

the nature thereof, to cease and desist from infringing in

any manner on its employees’ rights guaranteed by the Act.

N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).

Having found that the Respondent interfered with,

coerced, and restrained its employees by discharging

Thomas Singer on March 2, 1978, in order to effectuate the

policies of the Act I recommend that the Respondent be

ordered to take certain affirmative action including that it

offer him immeidate and full reinstatement to his former

job, or if that job no longer exists, to a substantially

equivalent job, without prejudice to his seniority or other

rights and privileges, and to make him whole for any loss of

earning suffered by reason of the Respondent's unlawful

conduct against him, in accord with the Board's Decision

and Order in Abilities and Goodwill, Inc., 241 NLRB No. 5.

Backpay shall be computed as provided in F. W.

Woolworth Company, 90 NLRB 289. Interest shall be paid

on all backpay due. Florida Steel Corporation, 231 NLRB

651; Isis Plumbing & Heating Co., 138 NLRB 716.

Upon the foregoing findings of fact and conclusions of

law and the entire record, and pursuant to Section 10(c) of

the Act, I hereby issue the following recommended:*

(Continued from page 15a)

facts. To the extent that my decision herein is inconsistent with Ameri-

can Art Clay Company, Inc. v. N.L.R.B., 328 F. 2d 89 (C.A. 7), Dobbs

Houses, Inc. v. N.L.R.B., 325 F. 2d 531 (C.A. 5), N.L.R.B. v. James-

town Veneer and Plywood Corporation, 194 F. 2d 192 (C.A. 2) and other

cases in which the Board was reversed on somewhat similar issues, | am

required to follow the Board. Jowa Beef Packers, Inc., 144 NLRB 615.

* In the event no exceptions are filed as provided by Section 102.46

of the Rules and Regulations of the National Labor Relations Board, the

findings, conclusions, and recommmended Order herein shall, as pro-

vided in Section 102.48 of the Rules and Regulations, be adopted by the

Board and become its findings, conclusions, and Order, and all objections

thereto shall be deemed waived for all purposes.

17a

Appendix C

ORDER

The Respondent, Thermofil, Inc., Ypsilanti, Michigan,

its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Terminating or otherwise interfering with,

restraining, or coercing employees in the exercise of the

rights guaranteed them by Section 7 of the National Labor

Relations Act.

(b) In any other manner interfering with, restraining, or

coercing employees in the exercise of their rights

guaranteed by Section 7 of the Act.

2. Take the following affirmative action, which is

necessary to effectuate the policies of the Act:

(a) Offer Thomas D. Singer immediate and full

reinstatement to his former job, or if that job no longer

exists, to a substantially equivalent job, without prejudice

to his seniority or other rights and privileges, and make him

whole for any loss of earnings in the manner set forth in the

section of this Decision entitled Remedy.

(b) Preserve and, upon request, make available to the

Board or its agents, for examination and copying, all payroll

records, social security payment records, timecards,

personnel records and reports, and all other documents

necessary to analyze and compute the amount of backpay

due under this recommended Order.

facility copies of the attached notice.? Copies of said notice

* in the event that the Board's Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD" shall be changed to read “POSTED PURSUANT TO A

JUDGMENT OF THE UNITED STATES COURT OF APPEALS EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELATIONS

18a

Appendix C

on forms provided by the Regional Director for Region 7,

after being duly signed by the Respondent's authorized

representative, shall be posted by it immediately upon

receipt thereof and maintained by it for 60 consecutive days

thereafter, in conspicuous places, including all places where

notices to employees are customarily posted. Reasonable

steps shall be taken to insure that said notices are not

altered, defaced, or covered by any other material.

(d) Notify the Regional Director for Region 7, in writing,

within 20 days from the date of this recommended Order,

what steps have been taken to comply herewith.

Dated, Washington, D. C. May 14, 1979

(s) ALMIRA A. STEVENSON

Administrative Law Judge

19a

Appendix C

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE

UNITED STATES GOVERNMENT

WE WILL NOT terminate or otherwise interfere with,

restrain, or coerce employees in the exercise of the rights

guaranteed to them by Section 7 of the National Labor

Relations Act. -

WE WILL NOT in any other manner interfere with,

restrain, or coerce employees in the exercise of their rights

guaranteed by Section 7 of the Act.

WE WILL offer to Thomas D. Singer immediate and

full reinstatement to his former job or, if that job no longer

exists, to a substantially equivalent job, without prejudice

to his seniority or other rights and privileges.

WE WILL make whole Thomas D. Singer for any loss

of pay he may have suffered as the result of his termination

on March 2, 1978, plus interest.

THERMOFIL, INC.

(Employer)

Dated By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST NOT BE

DEFACED BY ANYONE

This notice must remain posted for 60 consecutive days

from the date of posting and must not be altered, defaced,

or covered by any other material. Any questions concerning

this notice or compliance with its provisions may be

directed to the Board's Office, Patrick V. McNamara

Federal Building, 477 Michigan Avenue - Room 300,

Detroit, Michigan 48226 (Tel. No. (313) 226-3244).

20a

Appendix D

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-1594

THERMOFIL INCORPORATED

Petitioner

vs.

NationaL Lasor Re_aTions Boarp

Respondent

ORDER DENYING PETITION FOR REHEARING

filed September 14, 1981

Before Weick, Engel and Jones, Circuit Judges

2la

Appendix D

The majority of the active judges of this court not

having voted in favor of en banc consideration of the

petition for rehearing, said petition for rehearing was

referred to the panel for determination.

Upon consideration, it is ORDERED that said petition

for rehearing be and it is hereby denied.

Judge Engel dissents.

ENTERED BY ORDER OF THE COURT

(s) JOHN P. HEHMAN

Clerk

22a

Appendix E

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-1594

THERMOFIL INCORPORATED

Petitioner

vs.

Namtionat Lasor RetaTions Boarp

Respondent

ORDER STAYING MANDATE

filed October 21, 1981

23a

Appendix E

ORDERED, That motion to stay mandate herein

pending application to the Supreme Court for writ of

certiorari is hereby granted and the mandate is stayed for

thirty days from this date; provided that, if within such

thirty days, the applicant shall file with the Clerk of this

Court the certificate of the Clerk of the Supreme Court that

the certiorari petition, record, and brief have been filed, the

stay shall continue until the final disposition of the case by

the Supreme Court. Unless this condition is complied with

within such thirty days or any extension thereof made by

the Court or any judge thereof, or if the condition is

complied with, then upon the filing of copy of an order

denying the writ applied for, the mandate shall issue.

ENTERED BY ORDER OF THE COURT.

(s) JOHN P. HEHMAN

Clerk

24a

Appendix F

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 79-1594

THERMOFIL INCORPORATED

Petitioner

VS.

Nationa Lasor Retations Boarp

Respondent

ORDER FURTHER STAYING MANDATE

(Filed: December 4, 1981)

25a

Appendix F

Upon consideration of the petitioner’s motion for further

stay of the mandate pending application for certiorari,

It is ORDERED that the motion be and it hereby is

granted and the mandate is stayed until December 23, 1981.

ENTERED BY ORDER OF THE COURT.

(s) JOHN P. HEHMAN

Clerk

‘uonisoddg

Office - Supreme Court, US

FILED

No. 81-1103 FEB 20 1982

—

ER L. STEVAg

Iu the Supreme Court of the United Stetes

OCTOBER TERM, 1981

THERMOFIL, INCORPORATED, PETITIONER

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

Rex E. LEE

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

Norton J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

Davi S. FISHBACK

Attorney

National Labor Relations Board

Washington, D.C. 20570

QUESTION PRESENTED

Whether substantial evidence supports the Board’s

finding that petitioner violated Section 8(a)(1) of

the National Labor Relations Act, 29 U.S.C. 158(a)

(1), by terminating an employee for leaving the

workplace due to a hazardous condition that pre-

viously had been the subject of numerous employee

complaints to management.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Akron General Medical Center, 232 N.L.R.B 920.... 7

Alleluia Cushion, Inc., 221 N.L.R.B. 999 ................ 6, 7, 8,9

ARO, Inc. v. NLRB, 596 F.2d 713 ...... iaeiideiamainibaiate 7

Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345,

cert. denied, 8397 U.S. 986 .................--..--ccce-esseeees- 9

Jim Causley Pontiac v. NLRB, 620 F.2d 122 .......... 7

Kohls v. NLRB, 629 F.2d 173, cert. denied, 450

TS TE cccnenenecneennemnedinmnemenieiennnaen 10

Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d

TEE: cesssessesnssshdieiliianmemnemendainsienicaieineai 7

Morrison-Knudsen Co. v. NLRB, 358 F.2d 411 ...... 9

NLRB Vv. Bighorn Beverage, 614 F.2d 1238 ............ 7

NLRB v. Buddies Supermarkets, Inc., 481 F.2d

TUTTE - cenvceinnastisstetaientnheamiesieeesansiacsenmaaeniasieneenae 7

NLRB v. Dawson Cabinet Co., 566 F.2d 1079 ........ 7

NLRB v. Guernsey-Muskingum Electric Co-Op.,

ig SE PUI ED ccnenciocesscsssiseeahisatessemesnsaleeianes 9

NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442... 7,10

NLRB v. Washington Aluminum Co., 370 U.S. 9.... 6

Ontario Knife Co. v. NLRB, 637 F.2d 840 .............. 10

Pacific Electricord Co. v. NLRB, 361 F.2d 310 ........ i)

Pelton Casteel, Inc. v. NLRB, 627 F.2d 23 .............. 10

Pink Moody, Inc., 237 N.L.R.B. 39 ............-...0......... 7-8

St. Joseph’s High School, 236 N.L.R.B. 1623 .......... 8

(IT)

Statute:

National Labor Relations Act, 29 U.S.C. 151 et

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Section 8(a) (1), 29 U.S.C. 158(a) (1)

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Iu the Supreme Court of the United States

OCTOBER TERM, 1981

No. 81-1103

THERMOFIL, INCORPORATED, PETITIONER

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE

NATIONAL LABOR RELATIONS BOARD

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1la-

2a) is reported at 650 F.2d 858. The decision and

order of the National Labor Relations Board (Pet.

App. 3a-19a) are reported at 244 N.L.R.B. 1056.

JURISDICTION

The judgment of the court of appeals was entered

on June 11, 1981, and a timely petition for rehearing

was denied on September 14, 1981 (Pet. App. 20a-

21a). The petition for a writ of certiorari was filed

on December 12, 1981. The jurisdiction of this court

is invoked under 28 U.S.C. 1254(1).

(1)

STATUTE INVOLVED

The relevant provisions of the National Labor

Relations Act (29 U.S.C. 151 et seg.) are set forth

in the petition (Pet. 2).

STATEMENT

1. Petitioner is engaged in the manufacture of

fiberglass, reinforced plastics, and related products

(Pet. App. 8a-9a; A. 5, 8). A number of employees,

including Thomas Singer, operated “extruder ma-

chines,” which produce small, solid fiberglass and

plastic pellets from melted mixes. Those machines

also produce a considerable amount of scrap plastic

that does not meet specifications (Pet. App. 9a; A. 14-

15, 23-24, 197-200). The scrap was stored in old

cardboard boxes weighing 100 to 800 pounds until

it was eventually transported to another plant for

grinding and re-mixing (Pet. App. 9a; A. 25-27).

Petitioner made a practice of stacking these boxes,

sometimes as many as four boxes high, in the area

in which operators of the extruder machines worked

(Pet. App. 9a-10a; A. 26-27, 137).

Many employees complained to management that

they were crowded by the stacked boxes and did not

have enough room to work safely. Management and

the employees discussed this issue at a meeting in

the autumn of 1977 (Pet. App. 10a; A. 49, 41). In

February 1978, Singer and other employees, including

Douglas Fraley and Mitchell Watts, discussed the

problem among themselves and complained to man-

agement that stacks of scrap boxes next to the ex-

truder machines were creating dangerous working

conditions (Pet. App. 10a; A. 45-48, 143-145, 226,

274, 276). Singer complained to his foreman, Bryce

1“A.” refers to the appendix in the court of appeals.

Johnson, to foreman Leonard Federer, to general

foreman Richard Vukmirovich, and to manufacturing

manager John Le Clair about the lack of working

space caused by the scrap boxes stacked next to ex-

truder machine No. 4, which he operated (A. 45-48,

294). In mid-February, employee Douglas Fraley,

who operated that same machine on the shift follow-

ing Singer’s, began complaining daily about the same

problem to his foreman, Stan Johnson, and to

Vukmirovich (A. 143-145, 294). Employee Mitchell

Watts joined with Fraley in lodging these complaints

(A. 144-145). Fraley recalled that every time he

complained about the boxes his supervisors would

reply, “[WJell, quit. We’ll get somebody new. It

really doesn’t matter” (A. 145). Foreman Bryce

Johnson admitted that in February the crowded work-

ing conditions caused by the poorly stacked scrap

boxes became “a lot worse” and were the subject of

numerous employee complaints (A. 274-276). Com-

pany Vice President Darga admitted that he had

received such complaints from a number of em-

ployees (A. 226).

On March 1, 1978, conditions were worse than

ever before. Petitioner’s grinding machine had

broken down, scrap was ~*umulating, and therefore

an especially large number of boxes were stacked

in the work areas (Pet. App. 10a; A. 28, 30, 58, 137-

138, 146, 234). Near the No. 4 extruder machine,

where Singer worked, and elsewhere in the plant,

the boxes were stacked out of alignment; some were

broken, and leaking; some were overpacked; and the

boxes at the tops of the stacks were rocking and

leaning (Pet. App. 10a; A. 26-28, 137-138, 251-252,

272-276). At the start of his 2 p.m. to 8 p.m. shift,

Singer was instructed to effect a changeover on his

machine from the black mix that had been run earlier

to a clear natural color (Pet. App. lla; A. 29-30,

248). This procedure required Singer to clear the

machine of the molten black plastic by letting the

plastic run on the floor, where it formed cooling piles

or “goobers” 2 to 2% feet in diameter and 4 to 6

inches thick (Pet. App. lla; A. 31, 249). Singer

began the operation but found that the stacked scrap

boxes, along with the cooling piles and the empty

boxes provided for storing the “goobers” after harden-

ing, interfered with his ability to move about the

machine to make the necessary adjustments. As a

result, the new material fed into the machine be-

came overheated, the water-cooling system failed to

correct the temperature, hot strands of plastic be-

came wrapped around the conveyor belt, and the

“nelletizer” became clogged with the hot plastic

strands (Pet. App. lla; A. 28, 30-32, 35-36, 105).

Singer shut down the machine and sought out his

foreman, Bryce Johnson. He explained the situation

and the hazard, and told Johnson that he was not

going to work until the hazard was removed. Singer

then left the plant at 4:30 p.m. (Pet. App. 1la;

A. 36-37, 91-92, 134-136, 160.)

The next day Singer appeared at the plant at the

start of his shift but was informed that he had been

terminated on the ground that he had “quit.” Singer

denied that he had quit and stated that he would

return if the place was “cleaned up.” (Pet. App.

12a; A. 38-42, 93.)

Later that day, on the shift following Singer’s, a

scrap box near the No. 4 machine fell on employee

Terry Strosier, injuring him and requiring medical

attention at a hospital (Pet. App. 18a; A. 113, 140-

143). Employees Fraley and Watts immediately shut

down their machines and told their foreman that

they were not going to work near the hazardously

stacked boxes. General Foreman Vukmirovich ar-

rived on the scene, and Fraley informed him that

“there was no way we were going to work like

that.” (Pet. App. 13a; A. 142-143.) Fraley and Watts

then walked out. They returned to work the next

day after petitioner promised to remove the hazard.

(Pet. App. 18a; A. 152, 167, 154-155, 237.) How-

ever, petitioner continued to refuse to reinstate Singer

(Pet. App. 14a; A. 222).

About two weeks later, the plant was inspected

by the Michigan Bureau of Safety and Regulation.

The conditions near the extruder machines were sub-

stantially as they had been on March 1 and 2, and

the Bureau cited petitioner for maintaining a hazard-

ous condition by its stacking of the scrap boxes. (Pet.

App. 14a; A. 115-116, 121-122, 128, 234.)

2. Adopting the decision of the administrative law

judge, the National Labor Relations Board found

that petitioner had violated Section 8(a)(1) of the

Act (29 U.S.C. 158(a)(1)) by terminating Singer

“because of his protected concerted activity in engag-

ing in a walk out in protest over hazardous and

crowded working conditions” (Pet. App. 15a). The

Board ordered petitioner, inter alia, to reinstate

Singer with back pay (Pet. App. 16a).

3. The court of appeals, by per curiam order,

enforced the Board’s order, concluding that “sub-

stantial evidence” supported the Board’s findings

(Pet. App. 2a).?

2 Judge Engel dissented, stating (Pet. App. 2a) that en-

forcement was unwarranted because there was “no substan-

tial evidence” that Singer’s action was concerted. He added

(ibid.): “[T]he evidence shows at best that [Singer’s] com-

plaints were shared by others but that his individual conduct

was entirely spontaneous.”

ARGUMENT

The decision of the court of appeals is correct and

conflicts with no decision of this Court or of any

other court of appeals. Accordingly, further review

is not warranted.

1. In NLRB vy. Washington Aluminum Co., 370

U.S. 9, 14-17 (1962), this Court made clear that

concerted employee activity concerning safety condi-

tions and working environment are protected by

Section 7 of the National Labor Relations Act, 29

U.S.C. 157.’ Petitioner contends (Pet. 5-15, 19-25),

however, that Singer’s complaint was not concerted

and, therefore, that the court of appeals’ decision en-

forcing the Board’s order amounts to acceptance of

the constructive concerted activity doctrine enunciated

in Allelwia Cushion, Inc., 221 N.L.R.B. 999, 1000

(1975). Accordingly, petitioner contends (Pet. 5-15)

that the decision below conflicts with those of other

circuits rejecting that doctrine. Petitioner’s conten-

tion lacks merit.

In Alleluia Cushion, supra, the Board held that

concerted activity will be deemed to exist whenever

“an employee speaks up and seeks to enforce statu-

tory provisions relating to occupational safety de-

signed for the benefit of all employees, in the ab-

sence of any evidence that fellow employees disavow

such representation” (221 N.L.R.B. at 1000).*

8In Washington Aluminum Co., employees walked off the

job at the beginning of their shift after several had made

“more or less spontaneous individual pleas” (370 U.S. at 15)

concerning the lack of heat in their workplace. The Court held

that their conduct was concerted activity protected by Sec-

tion 7 of the Act. Petitioner does not claim that Singer’s

activity in this case would be unprotected if concerted.

* Alleluia Cushion involved complaints to a state agency

about safety conditions allegedly violating the law. However,

Several courts of appeals,° including the Sixth Cir-

cuit,° have rejected the Alleluia Cushion doctrine,

holding that concerted activity may not be found

unless there is some evidence that other employees

supported or shared the concerns of the employee who

took action.

In the present case, there is nothing to suggest

that the court of appeals’ decision rests upon the

Alleluia Cushion doctrine.’ First, there is no mention

the Board has held that complaints to an employer about

safety conditions enjoy the same protection as complaints to a

governmental agency. Akron General Medical Center, 232

N.L.R.B. 920, 927 (1977).

5 See, e.g., Krispy Kreme Doughnut Corp. v. NLRB, 635

F.2d 304, 309-310 (4th Cir. 1980) (no showing that other

employees supported individual’s filing of workmen’s compen-

sation claims) ; NLRB v. Bighorn Beverage, 614 F.2d 1238,

1242 (9th Cir. 1980) (Board found that individual acted

alone in filing a safety complaint) ; NLRB v. Dawson Cabinet

Co., 566 F.2d 1079, 1083-1084 (8th Cir. 1977) (no showing

that other employees shared individual’s concern about un-

equal pay for women) ; NLRB v. Buddies Supermarkets, Inc.,

481 F.2d 714, 717, 720 (5th Cir. 1973) (no showing that other

employees shared individual’s concern about rate paid).

® See Jim Causley Pontiac v. NLRB, 620 F.2d 122, 126 n.7

(6th Cir. 1980) ; ARO, Inc. v. NLRB, 596 F.2d 713 (6th Cir.

1979). However, the Sixth Circuit has cited Alleluia Cushion

with apparent approval in another case, like this one, in

which there was actual evidence of other employee concern.

See NLRB vy. Lloyd A. Fry Roofing Co., 651 F.2d 442, 445

(6th Cir, 1981).

7 It is true that the administrative law judge cited Alleluia

Cushion in a footnote in her opinion (Pet. App. 15a n.7).

However, the first two cases cited in that footnote—Pink

of that doctrine in the per curiam order enforcing the

Board’s decision or in the dissenting opinion. Second,

the statement in the court’s order that the Board’s

action was supported by “substantial evidence” (Pet.

App. 2a) strongly suggests that the court’s decision

was based upon actual evidence of concerted action

rather than the constructive concerted action rule.

Similarly, the dissent argued simply (ibid.) that there

was “no substantial evidence” to support the Board’s

order. Third, as noted, the Sixth Circuit had previ-

ously rejected the Alleluia Cushion doctrine, and it

therefore seems highly unlikely that the court of ap-

peals majority would silently overrule or ignore gov-

erning circuit precedent or that the dissent would

fail to comment upon such a step.

It is therefore apparent that the decision below was

not based upon the Alleluia Cushion doctrine, as peti-

tioner claims, but upon the court’s conclusion that

there was “substantial evidence” (Pet. App. 2a) of

actual concerted action. That fac.ual determination

does not warrant review by this Court. Moreover,

the evidence clearly showed that Singer’s action grew

out of an issue about which other employees, acting

individually and collectively, had earlier expressed

concern to each other and to management. It con-

sequently established that Singer’s conduct was ac-

tually, and not “theoretically” (Pet. 5), part of a

Moody, Inc., 237 N.L.R.B. 39 (1978), and St. Joseph’s High

School, 236 N.L.R.B. 1623 (1978)—involved situations in

which individual action grew out of expressed collective con-

cerns. In any event, there is nothing to suggest that the court

of appeals .elied upon the Alleluia Cushion doctrine in enforc-

ing the Board’s order.

course of continuing employee complaints, and that

those complaints were fully known to management.*

Under such circumstances, the courts of appeals

have uniformly found the activity at issue to be “con-

certed” within the meaning of Section 7 of the Act.

For example, in Hugh H. Wilson Corp. v. NLRB,

414 F.2d 1345, 1354 (3d Cir. 1969), cert. denied, 397

U.S. 935 (1970), the court found that employee pro-

tests were concerted where they “reflected a general

dissatisfaction which manifested itself, however inart-

fully, in the desire to do something about the dis-

appointing [condition of employment].” And in Pa-

cific Electricord Co. v. NLRB, 361 F.2d 310 (9th Cir.

1966), and Morrison-Knudsen Co. v. NLRB, 358 F.2d

411, 413 (9th Cir. 1966), it was held that where an

individual complains about issues of expressed com-

mon concern, the individual is engaging in protected,

concerted activity.

Earlier Sixth Circuit cases followed the same pat-

tern without relying upon the Alleluia Cushion doc-

trine. In NLRB v. Guernsey-Muskingum Electric

Co-Op., Inc., 285 F.2d 8, 11-12 (6th Cir. 1960), an

8 Petitioner contends (Pet. 16-19) that, assuming Singer’s

complaint was concerted, the Company had no knowledge of

that fact. However, the Board found (Pet. App. 14a) that

the Company was well aware that the stacked boxes created

crowded and hazardous conditions, since other employees had

complained about the crowding and since the danger was

evident. The Company was also aware that these conditions

were a factor in Singer’s walkout because he made that plain

to Foreman Johnson before leaving. Vice President Darga

acknowledged that the boxes were part of the “‘mess” to which

Singer had referred. See Hugh H. Wilson Corp. v. NLRB,

414 F.2d 1345, 1355 (3d Cir. 1969), cert. denied, 397 U.S.

935 (1970).

employee was discharged after he complained indi-

vidually to an official of the employer about a super-

visory appointment. The court found that the em-

ployee had been engaged in concerted action because

he had previously discussed and complained about the

supervisory appointment with other employees and

because two other employees had gone individually

to the same company official to complain about the

appointment. Similarly, in NLRB v. Lloyd A. Fry

Roofing Co., 651 F.2d 442, 445 (6th Cir. 1981), the

court found an individual employee’s action to be con-

certed where it grew out of his and other employees’

complaints about the safety of a particular truck.°

® The other cases relied on by petitioner (Pet. 11-13) are

factually distinguishable. In Pelton Casteel, Inc. v. NLRB,

627 F.2d 23, 28-30 (7th Cir. 1980), the court, in rejecting the

Board’s finding that an individual’s complaint was concerted,

found that the individual and other employees who voiced

similar complaints were expressing purely personal complaints

and were not “airing a grievance of common concern” (id. at

29). In Ontario Knife Co. v. NLRB, 637 F.2d 840, 842 (2d Cir.

1980), the court, while conceding that the protest over work-

ing conditions was concerted, found that the employee walked

off the job, not because of the expressed concern about work-

ing conditions, but because of her supervisor’s insulting lan-

guage. In Kohls v. NLRB, 629 F.2d 173, 177 (D.C. Cir. 1980),

cert. denied, 450 U.S. 931 (1981), the court found no con-

certed action because there was no evidence that other em-

ployees shared the discharged employee’s concern over the

safety of his truck.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

Rex E. LEE

Solicitor General

WILLIAM A. LUBBERS

General Counsel

JOHN E. HIGGINS, JR.

Deputy General Counsel

ROBERT E. ALLEN

Acting Associate General Counsel

NORTON J. COME

Deputy Associate General Counsel

LINDA SHER

Assistant General Counsel

Davin S. FISHBACK

Attorney

National Labor Relations Board

FEBRUARY 1982

W ov. &. GOVERNMENT PRINTING OFFice; 1962 367218 ei

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