710 F.2d 397 (7th Cir. 1983), 82-1129, East Chicago Rehabilitation Center, Inc. v. N.L.R.B.

Docket Nº:82-1129.
Citation:710 F.2d 397
Case Date:June 27, 1983
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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710 F.2d 397 (7th Cir. 1983)




No. 82-1129.

United States Court of Appeals, Seventh Circuit

June 27, 1983

Argued Jan. 3, 1983.

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[Copyrighted Material Omitted]

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Paul Jordan Cherner, Friedman & Koven, Chicago, Ill., for petitioner.

Elaine Patrick, N.L.R.B., Washington, D.C., for respondent.

Before POSNER and COFFEY, Circuit Judges, and NEAHER, Senior District Judge. [*]

POSNER, Circuit Judge.

This petition to set aside the Labor Board's order finding that a nursing home committed an unfair labor practice in firing striking employees requires us to consider the rights of health-care employees to engage in concerted activity for mutual aid or protection in light of sections 7, 8(g), and 9(a) of the National Labor Relations Act, 29 U.S.C. Secs. 157, 158(g), 159(a).

The East Chicago Rehabilitation Center provides round-the-clock intensive nursing care to some 116 patients. In December 1978, after a representation election, a local of the retail clerks union was certified as the collective bargaining representative of the Center's service and maintenance employees. In February 1979 it began negotiating with the Center for a collective bargaining agreement. During the negotiating session on June 11, Henderson, a part-owner of the Center and one of its negotiators, happened to mention that the Center permitted its employees to leave the premises during their paid lunch break. A consultant to the Center who was participating in the negotiation interjected that the Center would be liable under workmen's compensation law for any injury an employee sustained off the premises during a paid break, whereupon Henderson stated that the Center would have to stop letting its employees leave the premises for lunch. The union negotiators objected to such a change, especially when the parties were close to agreement on a contract. But Henderson was adamant, and a few days later, without notice to the union, the Center circulated a memorandum to its employees informing them that effective June 18 all employees would have to remain on the premises during lunch and that failure to comply with this directive would result in immediate termination.

The employees on the first shift (7:00 a.m. to 3:00 p.m.) received the memorandum at the start of the shift on June 15. They immediately gathered in small groups in the halls, discussing the change. Management got wind that they were upset and held two meetings with them that morning to explain the reason for the change of policy. After the second meeting ended, 17 of the employees decided to walk out in protest against the change. The union found out about the walkout, and its representatives immediately got in touch with the striking workers (who were either still in the Center or just outside), told them they should not have walked out and that

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the union would not sanction their strike, and asked them whether they were willing to go back to work. They said they were and the union immediately conveyed this message to the Center's management. But the Center refused to reinstate them, even temporarily, and instead suspended them till such time as its board of directors could meet to decide whether to fire them; and they went home. Although the exact chronology of the morning is unclear, it appears that two hours elapsed between the walkout by the 17 employees and the decision to suspend them.

The negotiations for a collective bargaining contract concluded successfully on June 18. The contract converted the lunch hour into unpaid time, so that the employees could leave the premises without exposing the Center to liability. In lieu of the paid lunch break they received two paid coffee breaks (described by the administrative law judge as two 20-minute lunch breaks, but he must have meant coffee breaks).

On June 20 the Center fired the 17 employees who had walked out on June 15. The Board then brought unfair labor practice proceedings against the Center, and after a hearing concluded that the Center had violated section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1), by firing the 17 workers--their strike being, in the Board's view, activity protected by section 7. The Board therefore ordered the workers reinstated with back pay.

A strike to protest a change in working conditions is within section 7's broad definition of protected activity. But the Center argues that the strike in this case was taken out of section 7 by other provisions of the Act, notably sections 9(a) and 8(g), and by the judge-made rule that denies the protections of section 7 to abnormally destructive strikes.

Section 9(a) makes the "representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes ... the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment ...." Thus, if the 17 workers had been striking to enforce a demand that the company bargain with them, rather than with the union, over where they could eat lunch, the strike would not have been protected by the provision in section 7 that "employees shall have the right ... to bargain collectively through representatives of their own choosing ...." But that is not what the workers were doing. Their spontaneous, unorganized walkout in protest against the company's unilateral change in the conditions of their employment was not an effort to butt their way into the bargaining process but an instance of what section 7 protects under the rubric of "other concerted activities for the purpose of ... mutual aid or protection."

Thus this case is not like Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975), where a group of employees, dissatisfied with the union's representation, expressed "their desire to deal directly with 'the top management' of the Company over minority employment conditions, announced their intention to picket and institute a boycott of the store" to enforce this demand, and "were discharged for attempting to bargain with the Company...." Id. at 55, 60, 95 S.Ct. at 981, 983-84. It is not like Harnischfeger Corp. v. NLRB, 207 F.2d 575, 578 (7th Cir.1953), where "a comparatively small number of discontented employees undertook by a work stoppage or strike movement to take charge of and direct the actions of their chosen bargaining representative in negotiation with their employer as to the terms of employment." The Center's workers expressed no dissatisfaction with the union and no desire to take negotiations into their own hands. They merely wanted to show how angered they were by the unilateral change in the lunch rules. It is not like Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 394 (3d Cir.1974), where the strike "was carried out against the wishes of the Union," violated the collective bargaining agreement, and "was in

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part to protest against certain substantive portions of the agreement concerning seniority to which the union had assented." The union here did not assent to--it protested--the change in the lunch rules; the strikers were not even aware that the change was under discussion in the collective bargaining sessions between the union and the employer; and when told by the union to return to work the strikers immediately agreed. By demonstrating to the union the passions that had been aroused by the new lunch rule, the strike led the union to demand that the employer rescind the rule, and in effect he did, by converting the paid lunch hour to unpaid leave (with compensating concessions so that the workers were not worse off); and there is no evidence that in demanding rescission the union was merely yielding to pressure from a vocal minority and giving up alternative demands more important to the bargaining unit as a whole.

The fact that the union told the workers to go back to work does not prove that the strike undermined the union's performance of its collective bargaining function. The union had to repudiate the strike. Otherwise it might have been held to have ratified it, which would have made the strike an unprotected activity and thereby cost the strikers their jobs. Section 8(g) of the Act provides that "a labor organization before engaging in any strike ... at any health care institution, shall, not less than ten days prior to such action, notify the institution in writing ...," which was not done here; and a strike unlawful under section 8(g) is not protected by section 7. See section 8(d), 29 U.S.C. Sec. 158(d).

To hold as the petitioner would have us hold that all wildcat strikes (i.e., strikes not authorized by the strikers' collective bargaining representative) are unprotected, regardless of circumstances, might be an advance in the theory and practice of industrial relations--though one that can be attained at the level of the individual bargaining unit by writing a no-strike clause into the collective bargaining agreement. But it would not be good law. Although it has been said that "wildcat concerted activities are unprotected and render the participants susceptible to discharge," Gorman, Basic Text on Labor Law 311 (1976), the facts of the cases Professor Gorman relies on show that his generalization cannot be sustained. Most are cases where, as in Harnischfeger and Food Fair Stores, the wildcat strikers were trying to take over the collective bargaining function from the union. NLRB v. Draper Corp., 145 F.2d 199 (4th Cir.1944), the original anti-wildcat case, was such a case. The day before the union was to meet with the company to...

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