Hendricks County Rural Elec. Membership Corp. v. N.L.R.B., 78-2127

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before CUMMINGS, SPRECHER, Circuit Judges, and BONSAL; SPRECHER; BONSAL
• Citation: 603 F.2d 25
• Parties: 101 L.R.R.M. (BNA) 3027, 86 Lab.Cas. P 11,454 HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Docket Number: No. 78-2127,78-2127
• Decision Date: 26 July 1979

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603 F.2d 25 101 L.R.R.M. (BNA) 3027, 86 Lab.Cas. P 11,454 HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION, Petitioner,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent. No. 78-2127. United States Court of Appeals,
Seventh Circuit. Argued April 13, 1979.
Decided July 26, 1979.

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Warren D. Krebs, Lebanon, for petitioner.

Richard Michael Fischl, NLRB, Washington, D. C., for respondent.

Before CUMMINGS, SPRECHER, Circuit Judges, and BONSAL, Senior District Judge. ^*

SPRECHER, Circuit Judge.

The employer, Hendricks County Rural Electric Membership Corporation (REMC), appeals from a decision of the National Labor Relations Board finding that REMC engaged in unfair labor practices in violation of section 8(a)(1) of the National Labor Relations Act. 29 U.S.C. § 158(a)(1). The principal issue presented by this appeal is whether the personal secretary to the general manager of REMC was an "employee" under section 2(3) of the Act. 29 U.S.C. § 152(3). We hold that the Board did not apply the appropriate legal standard for resolving this issue and remand for a factual application of the proper standard.

I

On May 9, 1977, the general manager of REMC, Wallace Dillon, discharged his personal

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secretary, Mary Weatherman. The General Counsel charged that Weatherman was discharged for engaging in concerted activities protected by section 7 of the National Labor Relations Act. The administrative law judge conducted a hearing and determined that Weatherman was an "employee" within the coverage of the Act, that she had engaged in protected concerted activity and that Dillon discharged her for that activity. The judge ordered REMC to reinstate Weatherman with back pay.

The facts surrounding Weatherman's discharge were carefully established by the administrative law judge. Lloyd Hadley, a close friend of Weatherman, was injured in the course of employment in February 1976, resulting in the loss of an arm. In March 1977, Hadley sought reinstatement with REMC. The Board of Directors notified Hadley in April that he would not be reinstated.

The first week in May, a petition requesting reconsideration of the decision not to reinstate Hadley was mailed to members of the Board. The petition was signed by 26 employees. Mary Weatherman signed the petition; she was the sixth employee to do so. On Saturday, May 7, one of the directors called Dillon at home to advise him of the petition. Dillon drove to the director's home that day in order to see the petition.

At 10:00 a. m. on Monday, May 9, Dillon discharged Weatherman. At the hearing, Dillon testified that he discharged Weatherman for conduct unrelated to the Hadley petition. The administrative law judge conducted an extensive and careful evaluation of the evidence and concluded that Dillon's explanation of the discharge was "ludicrous."

We conclude, contrary to the argument of the employer, that the judge's decision that Mary Weatherman was discharged for signing the Hadley petition is fully supported by the evidence. ¹ REMC argues additionally that the circulation of the Hadley petition was not conduct protected by the Act and that Mary Weatherman was not an employee protected by the Act. Although we conclude that the judge correctly characterized Mary Weatherman's conduct as "protected," we find it necessary to remand the decision for a new determination of her "employee" status.

II

REMC was guilty of an unfair labor practice in this case only if Mary Weatherman was discharged for engaging in "concerted activities for the purpose of . . . mutual aid or protection." Section 7, 29 U.S.C. § 157. The circulation of the petition among the employees was undoubtedly "concerted," but REMC disputes that it was circulated for the "purpose of mutual aid or protection."

The Board has only recently reiterated that circulation of a petition on behalf of a discharged employee is protected activity under section 7. Youngstown Osteopathic Hospital Association, 224 N.L.R.B. 574 (1976). Such activity is protected even if the discharge of the employee was lawful. See, e. g., NLRB v. Pepsi-Cola Bottling Co., 449 F.2d 824, 830 n.5 (5th Cir. 1971).

Employee conduct should similarly be protected when the petition criticizes the employer's refusal to reinstate an injured employee. The administrative law judge specifically found the petition was motivated in part by the employees' desire to promote their own future well being should they be faced with a similar misfortune. Refusal to reinstate a former company employee seriously injured on the job is an issue about which the REMC employees "had a legitimate interest . . . in making known their views to management without being discharged for that interest." NLRB v. Phoenix Mutual Life Ins. Co.,167 F.2d 983, 988 (7th Cir. 1948). ²

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III

Although the ALJ properly concluded that the circulation of the petition was protected activity, that protection can only extend to an individual who is an "employee" under the Act. Despite the breadth of the definition of "employee," ³ the Supreme Court has established that certain categories of employees are impliedly excluded from that definition. NLRB v. Bell Aerospace Co., 416 U.S. 267, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974). REMC argues that individuals working in personnel departments or as confidential secretaries are impliedly excluded and that Weatherman fits in both categories.

In determining whether Mary Weatherman was a statutory "employee," the ALJ applied a well-established Board standard. The judge ruled that Mary Weatherman was only excluded from the Act if she "assist(ed) and act(ed) in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations." 236 N.L.R.B. No. 212 Appendix at 7, Quoting B. F. Goodrich Co., 115 N.L.R.B. 722, 724 (1956). Examining the evidence carefully, the judge determined that Weatherman "did not act 'in a confidential capacity' to Dillon in any meaningful sense with respect to (employer's) labor relations policies. . . ." Id. The ALJ also found that Weatherman was not working in a position equivalent to a personnel department employee, a finding which we do not consider clearly erroneous. The judge therefore concluded that Weatherman was a statutory "employee."

We do not believe that the judge erred factually by finding that Weatherman did not assist in a confidential capacity with...