Krispy Kreme Doughnut Corp. v. N.L.R.B.

• Decision Date: 08 December 1980
• Docket Number: No. 79-1645,CL,AFL-CI,I,79-1645
• Citation: 635 F.2d 304
• Parties: 105 L.R.R.M. (BNA) 3407, 90 Lab.Cas. P 12,424 KRISPY KREME DOUGHNUT CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Bakery, Confectionery and Tobacco Workers International Union,ntervenor.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 304

635 F.2d 304

105 L.R.R.M. (BNA) 3407, 90 Lab.Cas. P 12,424

KRISPY KREME DOUGHNUT CORP., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent Bakery, Confectionery and Tobacco Workers International Union, AFL-CIO, CLC, Intervenor.

No. 79-1645.

United States Court of Appeals Fourth Circuit.

Argued Aug. 21, 1980.

Decided Dec. 8, 1980.

H. Lane Dennard, Jr., Greenville, N.C. (Jonathan P. Pearson, Ogletree, Deakins, Smoak, Stewart & Edwards, Greenville, N.C., on brief), for petitioner.

Lafe E. Solomon, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Acting Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Kenneth B. Hipp, Deputy Asst. Gen. Counsel, Washington, D.C., on brief), for respondent.

Judith E. Kincaid, Raleigh, N.C. (Shelley Blum, North Carolina Labor Law Center, Raleigh, N.C., on brief), for intervenor.

Before RUSSELL, WIDENER and PHILLIPS, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The petitioner-employer seeks review of a Board order finding the discharge of the employee Terry Boggs by the petitioner violative of Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 151, et seq., and requiring reinstatement and back pay. ¹ We deny enforcement of the order.

Terry Boggs was initially employed by the petitioner on August 10, 1976 and was discharged on July 31, 1978, almost two years later. During that period he had filed four workmen's compensation claims and one lawsuit against his employer. In addition, he had been unable to work for almost four months during this period. It is the petitioner's position that all the claims were "of dubious validity." One of his claims alleged injuries to his shoulder sustained when he entangled his arm in a stair rail at work, and another claim was for neck and back injuries, which occurred when he fell over backwards in a swivel chair. His final claim on July 27, 1978 related to chest pains allegedly experienced by him at work, which he claimed were due to conditions in his working environment. At this point, the personnel director or the petitioner investigated Boggs' latest complaint and his accident and claims record, as well as his working conditions. Following this, Boggs was discharged. The reason assigned by the petitioner for the discharge was that Boggs, by his record as an employee, had shown a careless attitude towards safety and "a preoccupation with filing claims for compensation."

A complaint under the Act was then issued by the National Labor Relations Board, and, after a hearing, the Administrative Law Judge concluded that "(petitioner herein) violated Section 8(a)(1) of the Act on July 31, 1978, by discharging Terry Boggs because of his expressed intention to file a workmen's compensation claim" ² on account of his complaints on July 27, 1978, and "that Boggs' refusal to forebear from filing a claim for workmen's compensation falls within the protected ambit of Section 7 and * * * for that reason violated Section 8(a)(1) of the Act." Those conclusions of the Administrative Law Judge were accepted by the Board, which, on that basis, entered the order challenged by the petitioner.

The issue posed by petitioner's challenge to the Board's order is whether, as a matter of law under the Act, discharge of an individual employee for refusing to forego a workmen's compensation claim constitutes protected "concerted activity" authorizing the issuance of a cease-and-desist order under Section 7 of the Act. (29 U.S.C. § 157). For purposes of this appeal only it may be considered as undisputed that Boggs' discharge was as found by the Board. There is thus no factual issue, only a legal issue requiring a judicial construction of the term "concerted activity" in the Board's authorization statute. If such a discharge for the reason assigned is not "concerted activity," enforcement should be denied. Conversely, if it is, enforcement should be ordered. On that basis we proceed to a construction of the term "concerted activity" under Section 7 of the Act.

So far as this proceeding is concerned, Section 7 protects an employee from retaliation by his employer only on account of employee action which may be found to be "concerted activities for the purpose of collective bargaining or other mutual aid or protection." "Concerted activity," under the statute, read literally, would appear to require more than a single participant. And some authorities have held just that. N. L. R. B. v. C & I Air Conditioning, Inc., 486 F.2d 977, 978, (9th Cir. 1973); N. L. R. B. v. Northern Metal Company, 440 F.2d 881, 884 (3d Cir. 1971); see, Note, Constructive Concerted Activity and Individual Rights: The Northern Metal-Interboro Split, 121 U.Pa.L.Rev. 152, 153 (1972). ³

There are, however, other cases, supported by scholarly comments, which find too narrow and artificial this construction of the term "concerted activity," a term which they characterize as more "a term of art rather than a factual description." Anchortank, Inc. v. N. L. R. B., 618 F.2d 1153, 1160 (5th Cir. 1980); cf., Note The Requirement of "Concerted" Action under the NLRA, 53 Colum.L.Rev. 514, 517 (1953). These decisions point to the words in the statute which qualify, or make clear the scope of, the term "concerted activities" ("for the purpose of * * * mutual aid or protection") and, taking the two phrases together ("concerted activities" and its qualifying phrase "for the purpose of * * * mutual aid or protection"), conclude that it is the sense and intent of the statute that an action by a single employee may be treated as "concerted activity," even though participated in by a single employee, provided, but only provided, the action looks to group rather than mere individual action, and includes "some element of collective activity or contemplation thereof," ⁴ or it is shown "that the individual in fact was acting on behalf of, or as a representative of, other employees rather than acting for the benefit of other employees only in a theoretical sense." ⁵

It will not satisfy this condition for Board action under Section 7 that an employee's complaint may be directed at working conditions which affect all employees; "(i)t is ... necessary ... that the employee's actions themselves at least contemplate such group activity (in order to support Board jurisdiction). As was explained in Indiana Gear Works v. NLRB, 371 F.2d 273, 276 (7th Cir. 1967), "in order to prove a concerted activity under Section 7 of the Act, it is necessary to demonstrate that the activity was for the purpose of inducing or preparing for group action to correct a grievance or a complaint." Pelton Casteel, Inc. v. N. L. R. B., 627 F.2d 23, 28 (7th Cir. 1980). This construction of the statutory language determinative of when the action of a single employee will be deemed "concerted activity" within Section 7, is illustrated by Mushroom Transportation Company v. N. L. R. B., 330 F.2d 683, 685 (3d Cir. 1964):

It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with the object of initiating or inducing or preparing for group action or that it had some relation to group action in the interest of the employees. ⁶

This definition of "concerted activity," as applied to the action of a single employee was recently reaffirmed in Pelton Casteel, Inc. v. N. L. R. B., 627 F.2d at 28, in which the finding of the Board that the conduct of an employee complaining of working conditions in that case constituted "concerted activity" within the meaning of Section 7.

We appear to have adopted this same construction of the statutory language. Thus, in Owens-Corning Fiberglas Corporation v. N. L. R. B., 407 F.2d 1357 (4th Cir. 1969), we enforced an order of the Board finding "concerted activity" in the action of two employees in preparing and seeking from fellow employees signatures on a petition complaining of working conditions. In doing so, however, we said:

Their activity (i. e., that of the two employees) both prior and subsequent to the actual signing of the petition was plainly intended to enlist the support and assistance of other employees for the purpose of correcting what the workers thought to be an inadequacy in working conditions. The activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much "concerted activity" as is ordinary group activity. The one seldom exists without the other. ⁷ Id. at 1365 (Italics added).

This distinction under Section 7 between individual action "intended to enlist the support and assistance of other employees" and action "for the benefit of other employees only in a theoretical sense" is illustrated by the different results in our cases of Joanna Cotton Mills Co. v. National Labor Relations Bd., 176 F.2d 749 (4th Cir. 1949) and Owens-Corning Fiberglas Corp. v. N. L. R. B., supra. In Joanna Mills, it was said that it is "the 'purpose' of the activity" of the employee that determines whether the complaint of the employee is within Section 7 and that such "purpose" "must be the mutual aid or protection of the employees." 176 F.2d at 153. Because it concluded that the complaint of the employee, though involving working conditions, represented a personal grievance asserted as such and was not "for the purpose of inducing or preparing for group action to correct a grievance or a complaint," ⁸ the Court in that case found that there was not "concerted activity" within Section 7. In Owens-Corning Fiberglas, on the other hand, the action of the employees was "plainly intended to enlist the support and assistance of other employees for the purpose of correcting ... an inadequacy in working conditions." 407 F.2d at 1365. Under those circumstances, the Court did find "concerted...