755 F.2d 941 (D.C. Cir. 1985), 84-1064, Prill v. N.L.R.B.

Docket Nº:84-1064.
Citation:755 F.2d 941
Party Name:1984-1985 O.S.H.D. ( 27,195 Kenneth P. PRILL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Case Date:February 26, 1985
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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755 F.2d 941 (D.C. Cir. 1985)

1984-1985 O.S.H.D. ( 27,195

Kenneth P. PRILL, Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 84-1064.

United States Court of Appeals, District of Columbia Circuit

February 26, 1985

        Argued Nov. 19, 1984.

        As Amended .

        Petition for Review of an Order of the National Labor Relations board.

        Ellis Boal, Detroit, Mich., for petitioner.

        David Fleischer, Atty. N.L.R.B., Washington, D.C., with whom Wilford W. Johansen, Acting General Counsel and Elliott Moore, Deputy Associate General Counsel, N.L.R.B., Washington, D.C., were on brief, for respondent.

        Ira Jay Katz, Philadelphia, Pa., was on brief for Workers' Rights Law Project, et al., amicus curiae, urging reversal.

        Before WALD, EDWARDS, and BORK, Circuit Judges.

        Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

        Dissenting opinion filed by Circuit Judge BORK.

        HARRY T. EDWARDS, Circuit Judge:

       I. PROLOGUE

        On this petition for review, we consider a case in which the petitioner, Kenneth Prill,

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was discharged from his job at Meyers Industries, Inc. ("Meyers"), because he complained about the unsafe condition of a company truck and trailer, including a complaint to state authorities following an accident, and because he refused, for safety reasons, to continue driving the truck and trailer following the accident. An investigation by state officials determined that the company vehicle was in fact unsafe due to faulty brakes and a damaged hitch, and a citation was issued against Meyers. Notwithstanding the concededly unsafe condition of the vehicle, Prill was fired because company officials decided that they could not have him "calling the cops all the time."

        In protest against his discharge, Prill filed an unfair labor practice charge with the National Labor Relations Board ("NLRB" or "Board"), and a complaint was issued against Meyers. An Administrative Law Judge ("ALJ"), following existing Board precedent, found that Prill's conduct constituted "concerted activit[y] for ... mutual aid or protection" under section 7 of the National Labor Relations Act ("NLRA" or "Act"), 1 and recommended his full reinstatement. However, the Board, over the dissent of one member, reversed the decision of the ALJ, overruled its earlier decisions, and dismissed the complaint against Meyers. 2 In rejecting Prill's charge, the Board adopted a new definition of "concerted activities;" under the enunciated test, an employee's conduct is not "concerted" unless it is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." 3 Finding that Prill had acted alone and "solely on his own behalf," 4 the Board held his conduct unprotected by section 7.

        It is not the responsibility of the courts to second-guess the lawful judgments of the NLRB. The Board has been granted broad authority to construe the NLRA in light of its expertise. In appropriate circumstances, the Board even may elect to abandon or modify established precedent. However, judicial deference is not accorded a decision of the NLRB when the Board acts pursuant to an erroneous view of law and, as a consequence, fails to exercise the discretion delegated to it by Congress.

        In the instant case, we find that the Board erred when it decided that its new definition of "concerted activities" was mandated by the NLRA. Because the Board misconstrued the bounds of the law, its opinion stands on a faulty legal premise and without adequate rationale. Accordingly, we remand this case under the principles of SEC v. Chenery Corp., 5 so that the Board may reconsider the scope of "concerted activities" under section 7. We express no opinion as to the correct test of "concerted activities;" we require only that the Board exercise the full measure of administrative discretion granted to it by Congress and reconsider this matter free from its erroneous conception of the bounds of the law.

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       II. BACKGROUND

  1. Facts

            The facts were found by the Administrative Law Judge 6 and accepted by the Board, 7 and are largely undisputed on review. Kenneth Prill was hired as a skilled driver on April 24, 1979, by Meyers Industries, a Michigan company engaged in the manufacture, sale and distribution of aluminum boats and related products. Prill had driven trucks for several years before going to work for Meyers, and he had received two years of training as a mechanic. Throughout the period that he was employed by Meyers, he had a good work record.

            Prill was assigned to drive a red Ford truck and its accompanying trailer to haul boats from Meyers' main facility in Tecumseh, Michigan, to dealers throughout the country. Prill soon began to experience problems with his equipment, especially with the steering and the trailer's brakes. 8 In addition to discussing these problems with other drivers, 9 Prill made numerous complaints to his supervisor, Dave Faling, to the company president, Alan Beatty, and to the mechanic, Buck Maynard, after returning from trips on which the brakes malfunctioned.

            On one trip, for example, while he was driving through Chicago, Illinois, Prill narrowly escaped an accident when his brakes failed during a sudden stop in heavy traffic. On his return Prill asked Faling and Maynard to have the brakes repaired, but Maynard's efforts were unsuccessful. He told Prill that the axles were so old that it was impossible to secure replacement parts; Prill insisted that new parts be purchased. After his next trip, during which the brakes remained inoperative, Prill again asked Faling when the brakes would be repaired, but was simply referred to Maynard or Beatty.

            On a subsequent trip to Xenia, Ohio, Prill stopped at a roadside inspection conducted by the Ohio State Highway Patrol. As a result of that inspection, the truck was issued a citation for a number of defects, including the brakes. When Prill returned to Michigan, he showed the citation to Faling and submitted it together with his post-trip paperwork.

            During the first two weeks in June, 1979, another driver, Ben Gove, drove Prill's equipment on a trip to Sudberry, Ontario. Gove testified before the ALJ that he experienced a steering problem which made it difficult to hold the road and "caused [the truck] to swerve back and forth like Ken Prill described," nearly causing an accident. 10 When Gove went to Faling's office to submit his post-trip report, Prill was there at the same time to receive paperwork for the next trip. Gove described the steering and brake problems to Faling, and stated, in Prill's presence, that he would not drive the truck again until it was repaired. 11 Faling promised to make the needed repairs.

            In early July, Prill was driving through Athens, Tennessee, when he had an accident which the Board found was caused by the malfunctioning brakes. 12 A pickup

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    truck struck the left rear of Prill's trailer, causing the truck to jack-knife and sending both vehicles into a ditch. 13 After giving a statement to the state highway patrol at the scene of the accident, Prill unsuccessfully sought to have the truck and trailer inspected by the state public service commission. 14

            Following the accident, Prill called Meyers' president Alan Beatty at home to advise him of the incident and of the extensive damage to the unit. Beatty asked Prill to chain the tractor and trailer together and tow the trailer back to Tecumseh for repairs. Prill responded that "it would be possible to do that, but it would still be a hazard on the highway" because the hitch area was cracked and might give way and cause an accident. 15 Beatty repeated that Prill should chain and tow the trailer home, but told him that if he insisted he could have a mechanic in Tennessee look at it.

            The following morning, Prill called Beatty at work and spoke to him and to Wayne Seagraves, the company's vice president for production. Both were upset that Prill was still in Tennessee, and demanded to know why he had not yet left. Prill stated that the vehicle was unsafe because the hitch was damaged and the trailer lacked brakes. Seagraves responded that the company had been running its trucks like that for 20 years. 16 At the end of the conversation, Beatty and Seagraves decided to send Maynard down to check the equipment.

            After this conversation, Prill decided to contact the Tennessee Public Service Commission to arrange for an official inspection of the vehicle. The inspection resulted in a citation putting the unit out of service because of bad brakes and damage to the hitch area. The citation was based on several Department of Transportation regulations, including 49 C.F.R. Sec. 396.4, which prohibited the operation of an unsafe vehicle. 17 Prill was instructed to notify the police or Public Service Commission immediately if anyone attempted to move the vehicle before required repairs were made. When Maynard arrived in Tennessee later the same day, Prill showed him the citation. Maynard and Beatty then decided that the trailer was not worth repairing and should be sold for scrap after removing the tires.

            Two days later Prill reported for work and was summoned to Wayne Seagraves' office, where he was questioned about the accident and damage to the truck. Both Seagraves and Beatty asked Prill why he had not towed the trailer back as requested; Prill responded that this would have been both unsafe and unlawful. 18 At the

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    end of the conversation, Seagraves told Prill that he was discharged because "we can't have you calling the cops like this all the time." 19

  2. The Decisions of the ALJ and the Board

            On...

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