N.L.R.B. v. Browning-Ferris Industries, Chemical Services, Inc.

• Decision Date: 17 February 1983
• Docket Number: BROWNING-FERRIS,No. 81-3069,81-3069
• Citation: 700 F.2d 385
• Parties: 112 L.R.R.M. (BNA) 2882, 96 Lab.Cas. P 14,055 NATIONAL LABOR RELATIONS BOARD, Petitioner, v.INDUSTRIES, CHEMICAL SERVICES, INC., Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 385

700 F.2d 385

112 L.R.R.M. (BNA) 2882, 96 Lab.Cas. P 14,055

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BROWNING-FERRIS INDUSTRIES, CHEMICAL SERVICES, INC., Respondent.

No. 81-3069.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 17, 1982.

Decided Feb. 17, 1983.

Linda Dreeben, N.L.R.B., Washington, D.C., for petitioner.

A. Martin Wickliff, Jr., Fulbright & Jaworski, Houston, Tex., for respondent.

Before POSNER and COFFEY, Circuit Judges, and CAMPBELL, Senior District Judge. ^*

POSNER, Circuit Judge.

The Board asks us to enforce its order finding that the respondent, BFI, committed an unfair labor practice by terminating two workers who refused to cross a picket line at a customer's premises. BFI is in the business of hauling chemical wastes. It employs six truck drivers, driving six trucks, to pick up the wastes from storage tanks on its customers' premises and haul them to disposal sites. One of its major customers is an International Harvester plant, whose employees were lawfully on strike, and picketing the plant, between November 1979 and April 1980. On February 19, 1980, International Harvester placed an order that would have required all six of BFI's trucks to fill. Two of the drivers said they would not cross the picket line, and BFI told them they would be permanently replaced. The next day, before permanent replacements had actually been hired, International Harvester reduced its order to two truckloads, but BFI went ahead and hired permanent replacements.

The first question we consider, one of first impression in this circuit, is whether a refusal to cross a picket line at the premises of an employer's customer rather than of the employer himself is protected activity under section 7 of the National Labor Relations Act, 29 U.S.C. Sec. 157, which gives workers the right "to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of their mutual aid or protection ...." If it is not protected activity then BFI, which is accused only of violating section 8(a)(1) of the Act, 29 U.S.C. Sec. 158(a)(1) (interference with protected activity), cannot be guilty of an unfair labor practice in getting rid of the balking drivers.

The Board does not suggest that the refusal to cross the picket line was concerted action between the two drivers or part of a campaign to organize BFI (though there was some organizing activity afoot at BFI), or was otherwise directly related to the drivers' wages or working conditions. It was a gesture of solidarity with the striking workers at the International Harvester plant. Nor, on the other hand, is it suggested that the drivers were trying to disrupt BFI's business, as a way of inducing BFI to bring pressure on International Harvester to settle with the strikers or even of inducing BFI to stop doing business with International Harvester. There is in short no suggestion that the drivers were fomenting a secondary boycott--concerted, but disfavored activity under the federal labor laws.

But it does not strain the language of section 7 to regard the two drivers as having engaged in a concerted activity that consisted of picketing on the part of some workers and refusing to cross the picket line on the part of others, and that was, at least in part, for the drivers' own aid or protection and therefore satisfied the mutuality requirement. Only the second proposition--that the drivers themselves benefited--requires elaboration. The drivers may have felt that strengthening the union movement by honoring a union's picket line would promote their own economic interests as workers. "[T]he solidarity so established [by aiding another employee's grievance against his employer] is 'mutual aid' in the most literal sense." NLRB v. Peter Cailler Kohler Chocolates Co., 130 F.2d 503, 505-06 (2d Cir.1942) (L. Hand, J.). Judge Hand's statement is not just "ideological polemics ... suggestive of a tract on class welfare," as charged in Haggard, Picket Line Observance as Protected Concerted Activity, 53 N.C.L.Rev. 43, 98 n. 230 (1974), even in a case such as this where the workers in question are not members of a union. They may have hoped to become members--hoped that a union victory at the International Harvester plant would encourage a successful organizing effort at their own plant. Or they may have believed that the union movement improves the working conditions of nonunion workers--that employers treat such workers better in order to ward off unionization. There is a third possibility. We do not know which workers were on strike at the International Harvester plant, but if they do the same type of work that BFI's drivers do an increase in their wages or benefits through a successful strike might put competitive pressure on BFI to offer better terms to its drivers.

Under any of these hypotheses, the relationship between the challenged conduct and the workers' practical, nonideological self-interest as workers would be as close as it was in Eastex Inc. v. NLRB, 437 U.S. 556, 569-70, 98 S.Ct. 2505, 2514, 57 L.Ed.2d 428 (1978), where the Supreme Court held that the distribution on the employer's property of a newsletter criticizing the President's veto of an increase in the minimum wage was protected activity even though the employees were being paid more than the vetoed minimum wage; and in many other cases as well, such as Kaiser Engineers v. NLRB, 538 F.2d 1379, 1384-85 (9th Cir.1976), which held that lobbying in opposition to proposed changes in the immigration laws was protected activity.

A natural reading of section 7 leads to the conclusion that refusing to cross a picket line at the premises of an employer's customer is protected activity, and when we consider, in addition, the pro-union ambience of the Wagner Act, and the Supreme Court's frequent rejection, as in Eastex Inc., supra, 437 U.S. at 565-67, 98 S.Ct. at 2512-13, of a narrow reading of section 7, we conclude that the natural reading is also the legally correct one.

We are not alone in so concluding. For the last twenty years the Board has held that refusing to cross a picket line at the premises of an employer's customer is protected activity, see, e.g., Redwing Carriers, Inc., 137 N.L.R.B. 1545 (1962), enforced sub nom. Teamsters, Etc., Local Union 79 v. NLRB, 325 F.2d 1011 (D.C.Cir.1963); Overnite Transport Co., 212 N.L.R.B. 515 (1974), and its view, so steadily maintained through several changes of Administration, is entitled to consideration. Most circuits that have considered the issue have agreed with the Board, see NLRB v. Southern California Edison Co., 646 F.2d 1352, 1363-64 (9th Cir.1981); NLRB v. Gould, Inc., 638 F.2d 159, 163 (10th Cir.1980); NLRB v. Alamo Express, Inc., 430 F.2d 1032, 1036 (5th Cir.1970); Teamsters, Etc., Local Union 657 v. NLRB, 429 F.2d 204, 205 (D.C.Cir.1970) (per curiam), though the Tenth Circuit (Gould ) only in dictum. Although the Second Circuit is usually grouped with these circuits, on the strength of NLRB v. Rockaway News Supp. Co., 197 F.2d 111, 113 (2d Cir.1952), aff'd on other grounds, 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953), this classification is mistaken; the Rockaway opinion states that honoring a picket line on the customer's premises is protected activity only if done by the employee after work or otherwise on his own time rather than his employer's. 197 F.2d at 113. NLRB v. L.G. Everist, Inc., 334 F.2d 312, 316-18 (8th Cir.1964), is like Rockaway; but a later Eighth Circuit case, Montana-Dakota Util. Co. v. NLRB, 455 F.2d 1088, 1091 (8th Cir.1972), seems to treat the question as open. The First Circuit avoided deciding the question in NLRB v. William S. Carroll, Inc., 578 F.2d 1, 3 (1st Cir.1978), though its opinion seems skeptical of the Board's position. See also NLRB v. C.K. Smith & Co., 569 F.2d 162, 165 n. 1 (1st Cir.1977).

BFI presses on us cases holding that employers may prohibit union solicitation during working hours, see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803 n. 10, 65 S.Ct. 982, 988 n. 10, 89 L.Ed. 1372 (1945) ("working time is for work"), and may prohibit slowdowns, see Elk Lumber, 91 N.L.R.B. 333, 336-38 (1950), and other work interruptions, see Excavation-Construction, Inc. v. NLRB, 660 F.2d 1015, 1020-21 (4th Cir.1981). But these cases involve greater potential for disruption of the employer's business than does a refusal to cross a picket line at a single customer's premises, since in the latter case the employees remain available to serve their employer's other customers. Closer are the cases, notably NLRB v. Union Carbide Corp., 440 F.2d 54, 55-56 (4th Cir.1971), and, in the circuit, Gary Hobart Water Corp. v. NLRB, 511 F.2d 284, 287, 289 (7th Cir.1975), which hold that honoring a picketing line thrown up by workers in a different bargaining unit at the same plant is protected activity. (Hobart overruled, though perhaps inadvertently because it did not cite, NLRB v. Illinois Bell Tel. Co., 189 F.2d 124 (7th Cir.1951).) It would make no difference if it was another plant of the same employer. If it is a plant of another employer the link to the employee's interest is more attenuated but not so much so as to be outside the Board's reach in interpreting what appears to be the deliberately broad language of section 7.

There is another reason to treat such conduct as protected. Such treatment allows a more flexible comparison of the benefit to the workers and the burden to the employer. To hold such conduct unprotected would allow the employer to suppress it even if its cost to him was trivial. Holding that it is protected does not make it sacrosanct but does require the employer to demonstrate good cause for suppression--and to the issue of good cause we now turn.

The drivers' refusal to cross the International Harvester picket line was not provoked by BFI and was therefore like an "ec...