Kohls v. N.L.R.B.

• Decision Date: 25 August 1980
• Docket Number: 79-1743,Nos. 79-1424,s. 79-1424
• Citation: Kohls v. N.L.R.B., 629 F.2d 173 (D.C. Cir. 1980)
• Parties: 104 L.R.R.M. (BNA) 3049, 203 U.S.App.D.C. 139, 89 Lab.Cas. P 12,205 Leo G. KOHLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Parcel Service, Intervenor. UNITED PARCEL SERVICE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Leo G. Kohls, Intervenor.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 173

629 F.2d 173

104 L.R.R.M. (BNA) 3049, 203 U.S.App.D.C. 139,

89 Lab.Cas. P 12,205

Leo G. KOHLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and United Parcel Service, Intervenor.

UNITED PARCEL SERVICE, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and Leo G. Kohls, Intervenor.

Nos. 79-1424, 79-1743.

United States Court of Appeals District of Columbia Circuit.

Argued June 12, 1980.

Decided July 18, 1980.

Rehearing Denied Aug. 25, 1980.

J. Mack Swigert, Cincinnati, Ohio, with whom Martin Wald, Philadelphia, Pa., and Randolph J. Stayin, Washington, D. C., were on brief, for United Parcel Service, petitioner in No. 79-1743 and intervenor in No. 79-1424.

Arthur L. Fox, II, Washington, D. C., for petitioner in No. 79-1424 and intervenor in No. 79-1743.

Susan L. Dolin, Atty., N. L. R. B., Washington, D. C., with whom Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel and Jay E. Shanklin, Atty., N. L. R. B., Washington, D. C., were on brief, for respondent.

Before McGOWAN and EDWARDS, Circuit Judges, and FRIEDMAN, ^* Chief Judge, Court of Claims.

Opinion for the court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

This case arises from a decision by the National Labor Relations Board (the "Board") that United Parcel Service (UPS) committed an unfair labor practice in violation of section 8(a)(1) of the National Labor Relations Act ¹ (NLRA) when it fired Leo Kohls for refusing to drive a truck that he believed to be unsafe. Under the doctrine announced in Interboro Contractors, Inc., 157 N.L.R.B. 1295 (1966), enf'd, 388 F.2d 495 (2d Cir. 1967), the Board held that since Kohls was attempting to enforce provisions of the collective bargaining agreement between UPS and Local 413, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (IBT), he was engaged in protected concerted activity under the NLRA. The Board issued a supplemental order ² for UPS to reinstate Kohls with full back pay and to cease and desist its unfair labor practices. The Board denied Kohls' motion for attorney's fees.

Kohls filed a petition in this court to review the Board's supplemental order denying him attorney's fees. UPS intervened in that proceeding. UPS filed a petition in the Sixth Circuit to review the part of the Board's supplemental order against UPS, and Kohls intervened in that proceeding. The two cases were consolidated in this court, and the Board subsequently cross-petitioned for enforcement of its supplemental order.

Since we find that, under the facts in this case, Kohls was not engaged in "concerted" activity, we conclude that UPS was not guilty of an unfair labor practice. We therefore decline to enforce the Board's decision and order in this case.

I. BACKGROUND

Leo Kohls, who had been employed by UPS for eight years, refused to drive his assigned truck on November 12, 1975, asserting that "the brakes were not good enough for me." ³ After some attempts to repair the brakes, supervisors for UPS ordered Kohls to drive the truck, but he still refused. Kohls was then reassigned to the car wash for the remainder of the day. On November 26, 1975, Kohls was fired by UPS pursuant to the terms of the collective bargaining agreement. ⁴

On December 1, the union filed a grievance under the collective bargaining agreement on Kohls' behalf, but Kohls withdrew the grievance a week later. ⁵ In the meantime, on December 3, Kohls had filed a charge with the Board claiming that UPS had violated sections 8(a)(1) and 8(a)(3) ⁶ of the NLRA. The Board issued a complaint alleging only an 8(a)(1) violation. ⁷

After a hearing, the Administrative Law Judge (ALJ) found that Kohls had asserted a contractual right when he had refused to drive what he believed to be an unsafe truck. ⁸ The ALJ further found that Kohls' "assertion of such rights is protected concerted activity under the Act if his claimed belief was honestly held and regardless of its correctness." Jt.App. at 23. While the ALJ expressly declined to decide whether the truck brakes were in fact unsafe, he did find that Kohls' refusal was based on "ascertainable objective evidence." Id. at 24. The ALJ recommended that the Board issue a cease and desist order and reinstate Kohls with full back pay. However, the ALJ recommended that the Board should deny Kohls' request for an award of attorney's fees. With only a minor modification, the Board adopted the ALJ's recommendations. UPS has petitioned for review of the Board's order finding an unfair labor practice, and Kohls has petitioned for review of the Board's denial of the request for attorney's fees.

II. THE ALLEGED UNFAIR LABOR PRACTICE

1. Protected "Concerted Activity" and the Interboro Doctrine

At the core of this dispute is whether Kohls' refusal to work was concerted activity for mutual aid and protection as defined by the NLRA. ⁹ UPS contends that Kohls' refusal to work on November 12 was an individual action over a contract dispute and, therefore, unprotected under the Act. ¹⁰ In support of this position, UPS relies on section 10(c) of the NLRA, which states, in part, that "no order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause." ¹¹ UPS further argues that, since Kohls was not asserting a right under section 502 (see note 7, supra ), and since he was engaged in individual and not concerted activity, his sole recourse was to pursue his claims under the arbitration provisions of the collective bargaining agreement between UPS and IBT.

In rejecting UPS' position, Kohls and the Board rely on Interboro Contractors, Inc., 157 N.L.R.B. 1295 (1966), enf'd, 388 F.2d 495 (2d Cir. 1967), to assert that Kohls' refusal to work was concerted activity that was protected under section 8(a)(1) of the NLRA. In Interboro two employees were discharged because they had complained about working conditions. Finding substantial evidence that one of the discharged workers was speaking for both, and was thus engaged in concerted activity, the Second Circuit enforced the Board's finding of an 8(a)(1) violation and ordered the reinstatement of the complaining workers. In an alternative holding, the court also ruled that, even absent an interest by fellow employees, an individual employee's "attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes." 388 F.2d at 500. This alternative holding, on which Kohls and the Board rely, has become known as the Interboro doctrine.

Several circuits have followed the lead of the Second Circuit and embraced the Interboro doctrine. See NLRB v. Selwyn Shoe Mfg. Corp., 428 F.2d 217, 221 (8th Cir. 1970) ("rights secured by (the collective bargaining agreement), though personal to each employee, are protected rights under § 7 of the Act because the collective bargaining agreement is the result of concerted activities by the employees for their mutual aid and protection"); NLRB v. Ben Pekin Corp., 452 F.2d 205, 206 (7th Cir. 1971); and Roadway Express, Inc., 217 N.L.R.B. 278 (1975), enf'd, 532 F.2d 751 (4th Cir. 1976).

However, at least three other circuits have expressly rejected the Interboro doctrine as contrary to the plain language of the National Labor Relations Act. In NLRB v. Northern Metal Co., 440 F.2d 881, 884 (3d Cir. 1971), the court observed that Interboro represented a "clear expansion of the Act's coverage, in the face of unambiguous words in the statute." The court in Northern Metal thus declined to follow the analysis of the Second Circuit in Interboro because "the Act surely does not mention 'concerted purposes.' " ¹² Similarly, in NLRB v. Buddies Supermarkets, Inc., 481 F.2d 714 (5th Cir. 1973), the court declined to follow Interboro in a case where an employee was discharged for seeking better wages in his own behalf. ¹³ In an opinion recently handed down by the Sixth Circuit, ARO, Inc. v. NLRB, 596 F.2d 713, 718 (6th Cir. 1979), the court ruled that:

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.

Given the rather clear language of sections 7 and 8(a)(1) of the NLRA, we have serious doubts about the validity of the Interboro doctrine. As was noted by the Third Circuit in Northern Metal, supra, the rationale supporting the doctrine is suspect; Interboro creates a legal fiction of constructive concerted activity in the face of statutory language that plainly protects workers who "engage in concerted activity" for the mutual aid and protection of other workers. See note 1, supra. Nevertheless, despite our doubts about the correctness of the Interboro doctrine, we need not resolve the issue here. Even if we were to assume that individual action may in some circumstances be viewed as "concerted activity" under the NLRA, we find that the Interboro doctrine cannot be applied to the facts of this case.

2. Applicability of the Interboro Doctrine

Three facts lead us to the conclusion that, unlike the discharged employee in Interboro, Kohls was not engaged in protected concerted activity when he refused to perform his assigned work on November 12. First, Kohls did not assert an interest on behalf of anyone other than himself; indeed, there is no evidence to indicate that Kohls even attempted to warn other employees not to drive the truck that he believed to be unsafe. He simply asserted that the truck was not safe enough for him. In Interboro the discharged employee was found to have been speaking on behalf of other workers.

Second, although a union agent was present...