Bob Evans Farms, Inc. v. N.L.R.B., s. 97-4095

• Decision Date: 17 December 1998
• Docket Number: 98-1119,Nos. 97-4095,s. 97-4095
• Citation: 163 F.3d 1012
• Parties: 160 L.R.R.M. (BNA) 2024, 137 Lab.Cas. P 10,317 BOB EVANS FARMS, INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1012

163 F.3d 1012

160 L.R.R.M. (BNA) 2024, 137 Lab.Cas. P 10,317

BOB EVANS FARMS, INCORPORATED, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.

Nos. 97-4095, 98-1119.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 25, 1998.

Decided Dec. 17, 1998.

Robert A. Harris, Chris J. North (argued), Vorys, Sater, Seymour & Pease, Columbus, OH, for Petitioner in No. 97-4095.

Jill A. Griffin (argued), National Labor Relations Bd., Contempt Litigation Branch, Washington, DC, John D. Burgoyne, National Labor Relations Bd., Appellate Court, Enforcement Litigation, Washington, DC, Glenn A. Zipp, National Labor Relations Bd., Peoria, IL, for Respondent in No. 97-4095.

Daniel V. Yager, McGuiness & Williams, Washington, DC, for Amicus Curiae in Nos. 97-4095 and 98-1119.

Robert J. Englehart, Jill A. Griffin, (argued), National Labor Relations Bd., Contempt Litigation Branch, Washington, DC, John D. Burhoyne, Frederick Havard, National Labor Relations Bd., Appellate Court, Enforcement Litigation, Washington, DC, Glenn A. Zipp, National Labor Relations Bd., Peoria, IL, for Petitioner in No. 98-1119.

Robert A. Harris, Chris J. North (argued), Vorys, Sater, Seymour & Pease, Columbus, OH, for Respondent in No. 98-1119.

Before CUDAHY, COFFEY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

When Diane Gorrell was fired from a Bob Evans restaurant in East Peoria, nearly all of the employees under her supervision walked off the job at the start of a busy Friday evening shift. The employees later sought to return to work but Bob Evans refused to reinstate them. This matter comes before us on cross applications to set aside and enforce an order of the National Labor Relations Board requiring Bob Evans to allow the employees to return to work. The Board adopted the ALJ's decision that Bob Evans had committed an unfair labor practice by interfering with the employees' right to engage in concerted protected activity under the National Labor Relations Act. See 29 U.S.C. § 158(a)(1). The ALJ found that the walkout was protected since the employees believed that Gorrell's dismissal would have a negative impact on their working conditions. However, neither the ALJ nor the Board addressed the further question whether the walkout was a reasonable means of protest. We agree that the employees had a protectable grievance. But because the Board should have considered the means of protest and because we find the walkout an unreasonable means, we deny the Board's application for enforcement of its order.

I.

The background facts are fairly straightforward. As First Assistant Manager at the East Peoria restaurant, Gorrell was one of five statutory supervisors and was second in command to General Manager Andy Dunlap. Gorrell was in charge of the night shift, a responsibility assumed by Second Assistant Manager Mark Weaver on Gorrell's scheduled days off. Gorrell enjoyed a close working relationship with the hourly employees under her supervision. Individual employees frequently turned to her for comfort and counsel over work-related problems and she in turn mediated their grievances with her superiors. These grievances ranged from seemingly trivial disagreements over day-to-day restaurant practices to serious complaints, such as management and supervisor harassment of female and minority employees and an arbitrary termination of employment. Gorrell also socialized with the night-shift employees, many of whom were welcomed as guests at her home.

Ironically, the events that precipitated Gorrell's departure from the ranks of Bob Evans took place on a scheduled day off for Gorrell, Sunday October 15, 1995. Weaver--who was supervising the night shift--was evidently in over his head. A lack of staff and a shortage of food generated intense customer dissatisfaction. Two of the employees telephoned Gorrell who came in, took over the shift and restored order. Weaver was left in no doubt of Gorrell's displeasure and her exasperation at Manager Dunlap's apparent inability to run the restaurant. At about 10:00 p.m., shortly before closing time, Gorrell convened an impromptu pizza party in the restaurant area which degenerated into a raucous food fight. She neither encouraged nor condemned these antics, choosing instead to sit at the counter with other employees drinking alcohol under Weaver's watchful eye. At about 4:00 a.m., the merry troop left the restaurant to continue the festivities at Gorrell's house. Unfortunately just two hours later and still inebriated, Gorrell had to catch a ride to a pre-scheduled management meeting in the company of Bob Evans Area Director, Dave Ward.

Gorrell's next scheduled shift was Friday October 20, 1995. At about 4:00 p.m., Dunlap called Gorrell into his office and, after a heated exchange, informed her that her services were no longer required. Several night-shift employees who were preparing to come on duty had gathered near Dunlap's office and watched events unfold. As Gorrell left she told them that she had been fired and within a matter of minutes fifteen employees had walked off the job. They congregated outside the restaurant entrance for five to ten minutes and conversed with approaching customers, inevitably encouraging some to dine elsewhere. Dunlap called the police and the employees disbanded under threat of arrest. Having re-grouped at Gorrell's house, the employees collectively called Area Director Ward seeking an explanation for Gorrell's termination and inquiring about their own job security. According to Ward--whom the ALJ found to be less than credible--the employees informed him that they had quit and made no offer to return. But Ward later instructed Dunlap not to re-hire those employees that had called the restaurant in the days after the walkout looking to get back on the job. In a letter dated November 7, 1995, all but one of the employees made an unconditional offer to return to work. Citing its published policy of treating hourly employees who walk off the job without permission as "voluntary quits," Bob Evans took the position that the employees had abandoned their posts--leaving the restaurant in dire straits--and refused to reinstate them.

That the walkout had a far-reaching effect on the operation of the restaurant is undisputed. Without notice, the restaurant was left virtually unattended at the start of what was characteristically one of its busiest shifts. Some day-shift employees were persuaded to stay on that evening and Dunlap managed to call in extra help from other restaurants. But the die had been cast and the best that Bob Evans could hope for was to limit the damage: service was poor, customers got angry, bills were not paid and business was lost. Repercussions were felt over the next few days with continued customer service problems and further walkouts--this time by two employees fed up with the onerous working conditions imposed in the wake of the initial walkout.

On November 9, 1995, Gorrell filed an unfair labor practice charge with the Board on behalf of the employees who had walked off the job. The General Counsel filed a complaint and a hearing was conducted before an ALJ on December 4 and 5, 1996. On November 8, 1997, the Board issued an order incorporating the ALJ's findings and adopting his recommendations with minor modifications. The order required Bob Evans to offer the employees full reinstatement to their former or equivalent positions, to make them whole for any losses sustained and to expunge from their personnel files any negative trace of the incident. Bob Evans now petitions this court, seeking to set aside the Board's order of November 8, 1997. The Board cross-petitions seeking enforcement of its order.

II.

First we must clarify a tricky question concerning the appropriate standard of review. Relying on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the Board argues that we must defer to its view that the method of protest--in this instance a walkout--is not of consequence in determining whether employee conduct is protected under the Act. The Board has invoked Chevron as a means of distinguishing certain federal court of appeal precedents that are adverse to its position. According to the Board, the Supreme Court's decision in Chevron has deprived these otherwise authoritative precedents of their authority. But the applicability of Chevron in this context is by no means clear. Thus, under Chevron, when a court reviews an agency's construction of a statute which it administers, it must first ask whether Congress has spoken directly to the precise question at issue for the unambiguously expressed intent of Congress must be controlling. However, "if the statute is silent or ambiguous with respect to the specific issue the question for the court is whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778. The reviewing court may not substitute its own construction for a reasonable interpretation on the part of the agency. See id. at 844, 104 S.Ct. 2778; Holly Farms Corp. v. NLRB, 517 U.S. 392, 398-99, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996) ("When the legislative prescription is not free from ambiguity, the administrator must choose between conflicting reasonable interpretations. Courts, in turn, must respect the judgment of the agency empowered to apply the law 'to varying fact patterns,' even if the issue 'with nearly equal reason [might] be resolved one way rather than another' ") (citations omitted). Citing its authority to make an initial determination whether a matter comes within the protection of the National Labor Relations Act, the Board maintains that its proffered construction--that employees enjoy an unfettered right to engage in peaceful strike activity in protest over changes in supervisory personnel--is reasonable. As indicated, the Board concedes...