City Disposal Systems, Inc. v. N.L.R.B., 81-1406

Citation683 F.2d 1005
Decision Date22 July 1982
Docket NumberNo. 81-1406,81-1406
Parties110 L.R.R.M. (BNA) 3225, 94 Lab.Cas. P 13,686 CITY DISPOSAL SYSTEMS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Theodore R. Opperwall, Dickinson, Wright, McKean, Cudlip & Moon, Detroit, Mich., for petitioner.

Elliott Moore, Deputy Associate Gen. Counsel, Howard E. Perlstein, N. L. R. B., Washington, D. C., Harris Berman, Compliance Officer N. L. R. B., Region 7, Detroit, Mich., for respondent.

Before LIVELY and JONES, Circuit Judges, and CECIL, Senior Circuit Judge.


Petitioner seeks review and the National Labor Relations Board seeks enforcement of an order holding that City Disposal Systems, Inc. (the Company) violated Section 8(a)(1) of the National Labor Relations Act by discharging its former employee, James Brown, in disregard of his Section 7 rights. 1

The Board's order relied upon the Interboro doctrine, 2 although it noted that this Circuit has rejected the doctrine. City Disposal Systems, Inc., 256 N.L.R.B. No. 73 (June 9, 1981). We grant the petition for review and deny enforcement.

City Disposal Systems hauls garbage for the City of Detroit from a drop-off point to a land fill some 37 miles away. The garbage is hauled by tractor-trailers. Normally a driver is assigned to a certain tractor-trailer; however, when this vehicle is in for repairs, the driver may be reassigned to another vehicle.

James Brown was a driver for the Company. He normally drove truck number 245. On May 12, 1979, Brown had a near accident with truck number 244 driven by Frank Hamilton when the brakes on 244 would not stop the truck at the land fill. Hamilton took 244 back to the drop-off point. With Brown present, mechanics told Hamilton that the truck would be fixed over the weekend or the first thing Monday morning. Brown's truck, 245, also had a problem with its fifth wheel which was to be fixed by Sunday.

Brown returned to work at 4:00 a. m. Monday, May 14. He took his truck out to the land fill and found that the fifth wheel continued to cause problems. Brown returned to the drop-off point, talked to the mechanics, and learned that his truck could not be fixed that day. He then spoke to a supervisor, Jasmund, who told him to punch out and go home after confirming that his truck would not be fixed. Brown punched out but remained in the driver's room. Jasmund returned and requested Brown to drive number 244. Brown said he would not do so since 244 had a brake problem. Jasmund instructed Brown to go home and the two had words. Another supervisor, Bob Madary, came on the scene. When Brown repeated that 244 had problems, Madary pointed out that all the trucks had problems and if the Company dealt with them all it would be unable to move the garbage. Brown testified that he replied, "Bob, what you going to do, put the garbage ahead of the safety of the men?" Madary was unmoved. Brown left work. Later he was notified that the Company had listed his as a voluntary quit.

Subsequently Brown, a member of Local 247, International Brotherhood of Teamsters, Changers, Warehousemen and Helpers (the Union), filed a grievance seeking reinstatement and citing provisions in the collective bargaining agreement giving employees the right to refuse to operate unsafe equipment. The Union found little merit in his grievance and refused to process the grievance beyond the early stages of the contractual grievance procedure.

The Interboro doctrine, as we understand it, holds that an individual enforcing rights under the labor contract is engaged in concerted activity protected by Section 7 even though he is acting solely for his own purposes since the labor contract itself is the product of concerted activity and the action of the employee is an extension of that process. Aro, Inc. v. NLRB, 596 F.2d 713, 716 (6th Cir. 1979); See NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (8th Cir. 1970); Interboro Contractors, Inc., 157 N.L.R.B. 1295 (1966), enf'd, 388 F.2d 495 (2d Cir. 1967).

Courts have recognized tension between the Interboro doctrine and the plain language of Section 7. See, e.g., Kohls v. NLRB, 629 F.2d 173, 177 (D.C.Cir.1980), cert. denied, 450 S.Ct. 931, 101 S.Ct. 1390, 67 L.Ed.2d 363 (1981); NLRB v. Northern Metals Co., 440 F.2d 881, 884 (3rd, Cir. 1971). Section 7 requires that the employee engage in "concerted activities." An individual does not act in concert with himself. To test whether an action is concerted, we adhere to the criteria set forth by Judge Phillips in Aro, Inc.:

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 employees or at least be made with the object of inducing or preparing for group action and have some arguable basis in the collective bargaining agreement.

596 F.2d at 718; see NLRB v. Lloyd A. Fry Roofing Co., 651 F.2d 442, 445 (6th Cir. 1981).

There is no evidence in the record that Brown acted or asserted an interest on behalf of anyone other than himself. Brown did not attempt to warn other employees not to drive the truck he believed to be unsafe, even though the evidence established that there was a bulletin board on which employees informed their...

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