Shelly & Anderson Furniture Mfg. Co., Inc. v. NLRB

• Decision Date: 20 May 1974
• Docket Number: No. 72-2859.,72-2859.
• Parties: SHELLY & ANDERSON FURNITURE MANUFACTURING CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

497 F.2d 1200 (1974)

SHELLY & ANDERSON FURNITURE MANUFACTURING CO., INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 72-2859.

United States Court of Appeals, Ninth Circuit.

May 20, 1974.

Don T. Hibner, Jr. (argued), Joseph M. Malinowski, Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., for petitioner.

Alan Longman (argued), NLRB, Elliott H. Moore, Acting Asst. Gen. Counsel, NLRB, Washington, D. C., William M. Pate, Jr., Counsel for the Gen. Counsel, NLRB, Wilford W. Johansen, Director, Region 21, NLRB, Los Angeles, Cal., for respondent.

Paul Crost, Brundage, Neyhart, Miller, Reigh & Pappy, Los Angeles, Cal., for charging party.

Before KOELSCH and WALLACE, Circuit Judges, and TAYLOR,^* District Judge.

OPINION

WALLACE, Circuit Judge:

Shelly & Anderson Furniture Manufacturing Co., Inc. (Company) petitioned this court to set aside an order of the National Labor Relations Board. 199 N.L.R.B. No. 31 (Sept. 22, 1972). The Board cross-petitioned for enforcement of its order. We deny the Company's petition and enforce the order.

I. The Discharge of Belmont and Saldana

On February 12, 1971, the Company announced to its employees a cut of 20 to 40% in all piecework rates effective the following Monday, February 15. On Monday, employees Belmont and Saldana contacted the Upholsterers' International Union of North America, Local 15, AFL-CIO (Union), secured union authorization cards and commenced organizational activities. They handed out the cards and arranged for several Union officials to speak with a group of employees on February 17. On February 18, the Union filed a petition for a representation election with the Board. At a Union preelection meeting held on February 24, both Belmont and Saldana made speeches advocating unionization.

Belmont had worked for the Company for 12 years and Saldana had been employed for over three years. Within three weeks after they began union organizational activities they were both discharged without prior warning. As reasons for the discharge, the Company attributes to Belmont and Saldana low production, too much talking and avoidance of low-rated piecework jobs.

The Company's records demonstrate that during the week they were fired, Saldana's production rate was his highest for the entire year and Belmont's rate of production was above his average for the year. Two witnesses testified that neither Belmont nor Saldana talked more than other employees and that neither avoided the low-rated jobs.

The trial examiner discredited the Company's witnesses and found that "a preponderance of the reliable, probative and substantial evidence in the entire record convinces me . . . that the Company's alleged reasons for discharging Belmont and Saldana were pretexts, and that its real reason was their Union activity . . . ." While the examiner could have found otherwise, his findings are supported by substantial evidence contained in the record considered as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L. Ed. 456 (1951); Marriott Corp. v. NLRB, 491 F.2d 367 (9th Cir. 1974); Famet, Inc. v. NLRB, 490 F.2d 293 (9th Cir. 1973).

II. The Protest Demonstration

The Union won the Board-conducted election and was certified as the employees' bargaining representative on April 30, 1971. Bargaining sessions were conducted on May 25 and June 4 without any progress being made. On June 9, the employees unanimously voted to hold what they referred to as a protest demonstration for 10 or 15 minutes at the beginning of the work day of June 17, the date of the next scheduled bargaining session. The stated purpose of the demonstration was to protest what the employees interpreted as the Company's dilatory bargaining tactics and to demonstrate employee solidarity. A written notice of the meeting was distributed to the employees on June 16 and also came to the attention of Robert Anderson, the Company's president and owner. The notice emphasized that the demonstration was not to be a strike.

On June 17, at 7:30 a. m., instead of punching in on time and going to work, 34 employees attended the demonstration held on a vacant lot a short distance from the plant. In spite of the fact that it was not billed as a strike, the trial examiner concluded that the protest demonstration was a concerted activity that is protected under section 7 of the National Labor Relations Act (Act), 29 U. S.C. § 157. Although the question is a close one, we cannot overturn his conclusion.

In order to be protected under section 7 the concerted activity must satisfy the following elements:

(1) there must be a work-related complaint or grievance; (2) the concerted activity must further some group interest; (3) a specific remedy or result must be sought through such activity; and (4) the activity should not be unlawful or otherwise improper.

18B Business Organizations, Kheel, Labor Law § 10.023, at 10-21 (1973). The protest demonstration clearly satisfies the first three elements. The whole purpose of the demonstration was to protest the Company's alleged stalling in negotiating a contract with the Union. The meeting was designed to benefit all employees rather than any individual employee. The Union representatives made it clear that as a result of the demonstration they hoped the Company would earnestly negotiate the contract.

The fourth element, however, requires a more careful analysis. The courts have consistently held that employees are not entitled to the protection of section 7 when they engage in partial or intermittent work stoppages. See NLRB v. Insurance Agents' Union, 361 U.S. 477, 492-494, 80 S.Ct. 419, 4 L.Ed. 2d 454 (1960); Local 232, UAW v. Wisconsin Employment Relations Bd., 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949). The Company argues that under this line of cases, the demonstration should be unprotected. While it is true that concerted activities that unreasonably interfere with the employer without placing any commensurate economic burden on the employees are not protected, see First National Bank v. NLRB, 413 F.2d 921, 924 (8th Cir. 1969), concerted activities that are reasonable means of aiding the union's objectives at the negotiating table are protected. Unprotected activities closest to the facts in this case have generally involved situations where the employees have reported for work and, while receiving their usual wages, have repeatedly and without warning engaged in work stoppages, slowdowns or sit-ins. Such actions disrupt production schedules and impede the employer from using replacement or temporary employees while the protesting employees continue to draw their wages. Thus, they are unprotected because they make it impractical for the employer to operate his business properly. Generally, in order to be protected the employee must choose either to be on the job and subject to the employer's rules or to be off the job and bear the commensurate economic burden. NLRB v. Kohler Co., 220 F.2d 3, 11 (7th Cir. 1955); C. G. Conn, Ltd. v. NLRB, 108 F.2d 390, 397 (7th Cir. 1939).

The trial examiner found that the protest demonstration held on June 17 was a reasonable action to exert pressure on the Company to negotiate more earnestly with the Union. The demonstration was announced in advance. The employer knew its objective. Although it was held during a time when the employees should have been at work, they did not draw pay during the time because they were piecework employees and they did not disrupt or interfere with the employees who were not participating.

If the protest had been partial, intermittent or recurrent, the activity would not have been protected. See NLRB v. Tonkawa Refining Co., 452 F.2d 900, 902 (10th Cir. 1971). Because the employees were not entitled to pay for the lost time, the activity was not partial. NLRB v. Deaton Truck Line, Inc., 389 F.2d 163, 169 (5th Cir. 1968). The trial examiner found that this was to be a one-time protest. We cannot say that the finding is not supported by the record. Therefore, the employee activity could not be deemed to be intermittent or recurrent. Cf. NLRB v. Buzza-Cardozo, 205 F.2d 889 (9th Cir. 1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954).

Finally, the demonstration lasted only 10 to 15 minutes and would not have had a significant impact upon the operation of the business. By Anderson's own admission, the demonstration did not severely disrupt his production schedule or otherwise necessitate any unusual action on the part of the Company. As the Supreme Court said in NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S. Ct. 1099, 1104, 8 L.Ed.2d 298 (1962):

It is of course true that § 7 does not protect all concerted activities, but that aspect of the section is not involved in this case. The activities engaged in here do not fall within the normal categories of unprotected concerted activities such as those that are unlawful, violent or in breach of contract. Nor can they be brought under this Court\'s more recent pronouncement which denied the protection of § 7 to activities characterized as "indefensible" because they were there found to show a disloyalty to the workers\' employer which this Court deemed unnecessary to carry on the workers\' legitimate concerted activities. The activities of these . . . employees cannot be classified as "indefensible" by any recognized standard of conduct.

(footnotes omitted.)

Based upon the factual findings of the trial examiner, the protest demonstration is more similar to protected concerted activities than it is to unprotected concerted activities. Compare NLRB v. Pepsi-Cola Bottling Co., 449 F.2d 824 (5th Cir. 1971), cert. denied, 407 U.S. 910, 92 S.Ct. 2434, 32 L.Ed.2d 683 (1972), and NLRB v. Local 1229, Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953), with Electromec Design & Development Co., Inc. v. NLRB, 409 F.2d 631 (9th Cir. 1969). We cannot justifiably conclude that...