N.L.R.B. v. Leslie Metal Arts Co., Inc.

• Decision Date: 22 January 1975
• Docket Number: No. 74--1505,74--1505
• Citation: 509 F.2d 811
• Parties: 88 L.R.R.M. (BNA) 2437, 75 Lab.Cas. P 10,613 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LESLIE METAL ARTS COMPANY, INC., Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 811

509 F.2d 811

88 L.R.R.M. (BNA) 2437, 75 Lab.Cas. P 10,613

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LESLIE METAL ARTS COMPANY, INC., Respondent.

No. 74--1505.

United States Court of Appeals Sixth Circuit.

Jan. 22, 1975.

Elliot Moore, Deputy Associate Gen. Counsel, Peter Nash, John S. Irving, Jr., Patrick H. Hardin, Jay E. Shanklin, Morton Namrow, N.L.R.B., Washington, D.C., Bernard Gottfried, Director Region 7, N.L.R.B., Detroit, Mich., for petitioner.

J. Michael Guenther, Miller, Johnson, Snell & Cumminskey, Charles C. Hawk, Grand Rapids, Mich., for respondent.

Before EDWARDS and MILLER, Circuit Judges, and McALLISTER, Senior Circuit Judge.

PER CURIAM.

This is an application pursuant to Section 10(e) of the National Labor Relations Act as amended, 29 U.S.C. § 151 et seq., for enforcement of an order of the National Labor Relations Board requiring Leslie Metal Arts Company, Inc. to cease and desist from preventing employees from exercising their rights under Section 7 of the Act. The Board's order also required back pay awards and reinstatement of certain employees who had been suspended or discharged as the result of a disputed labor incident. The order was based upon a finding that Leslie had violated Section 8(a)(1) of the Act by suspending employees Lenard, Knoll, and Wildfong, discriminating against Knoll when he became an unfair labor practice striker, and by threatening employees with disciplinary action when they engaged in a strike or walkout protected by the Act. The findings of fact made by the Administrative Law Judge and approved by the Board we find supported by substantial evidence. We incorporate them in the appendix hereto.

Upon these findings of fact, the Board concluded: (1) that McDonald, Lenard, Knoll, and Wildfong were engaged in activity protected by Section 7 of the Act when they walked out and that the following suspensions and discharges violated Section 8(a)(1) of the Act; (2) that, by refusing to return to work on March 13, Knoll became an unfair labor striker and that Brown's statement to Knoll that he would be considered as having voluntarily quit if he did not return to work on Thursday was a threat to take The crucial question before us is whether the Board was correct in finding that the employees' complaints concerning the company's failure to correct the conditions resulting from Gallegos' conduct, predominated over any personal complaint they had against Gallegos herself.

disciplinary action if he did not refrain from this protected activity; and (3) that when Debski told McDonald that the employees who had walked out would have to return to work immediately or face strict disciplinary action on the following Monday, he committed an unfair labor practice.

Section 7 of the Act grants employees the right to engage in 'concerted activities for the purpose of collective bargaining or other mutual aid or protection.' An employer commits an unfair labor practice under Section 8(a) (1) when it interferes with, restrains or coerces employees in the exercise of their Section 7 rights. However, all concerted activity is not protected under Section 7. Protected activity must in some fashion involve employees' relations with their employer and thus constitute a manifestation of a 'labor dispute.' Section 2(9) of the Act defines a 'labor dispute' as '. . . any controversy concerning terms, tenure, or conditions of employment . . .' See e.g., N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

When employee activity is directed at circumstances other than conditions of employment, it is outside the protection of Section 7. For example, in Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th Cir. 1949), it was held that the circulation of a petition by an employee for the removal of a foreman against whom the employee held a personal grudge was not protected activity. Similarly, in AHI Machine Tool and Die, Inc. v. N.L.R.B.,432 F.2d 190 (6th Cir. 1970), it was held that a walkout in protest of the discharge of a fellow employee who had 'violently and unlawfully slugged a supervisor' was unprotected. Cleaver-Brooks Manufacturing Corp. v. N.L.R.B.,264 F.2d 637 (7th Cir.), cert. denied 361 U.S. 817, 80 S.Ct. 58, 4 L.Ed.2d 63 (1959), also found unprotected a strike protesting the replacement of a supervisor where the evidence showed the strike to be based on mere personal antipathy toward the new foreman.

On the other hand, not all complaints over the quality of supervison have been held to be unprotected. In N.L.R.B. v. Guernsey-Muskingum Electric Co-op., Inc., 285 F.2d 8 (6th Cir. 1960), it was recognized that protests over the incompetence of a foreman could be the proper subject of protected concerted activity. In reaching this conclusion, the Sixth Circuit relied on the Seventh Circuit case of N.L.R.B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 (7th Cir.), cert. denied 335 U.S. 845, 69 S.Ct. 68, 93 L.Ed. 395 (1948), in which it was held to be protected activity for employees to make known their views concerning the capability of a proposed new cashier.

In G & W Electric Specialty Co. v. N.L.R.B., 360 F.2d 873, 877 (7th Cir. 1966), the Seventh Circuit summarized the scope of Section 7 as follows:

The range of possible employee mutual interests apart from those which bear a reasonably significant impact upon working conditions or some material incident of the employment relationship is in our opinion a much broader field than Section 7 is designed to encompass.

The Ninth Circuit in Shelly & Anderson Furniture Co., Inc. v. N.L.R.B., 497 F.2d 1200 (9th Cir. 1974), recognized four essential elements of concerted activity protected under Section 7, citing 18B Business Organizations, Kheel, Labor Law § 10.02(3), at 10--21 (1973):

(1) there must be a work-related complaint or grievance; (2) the concerted activity must further some group interest; (3) a specific remedy must be sought through such activity; and (4) the activity should not be unlawful or otherwise improper. Id. at 1202--1203.

Upon consideration of the history and terms of the statute as well as case authority on the subject, we conclude that the mere personal animosity found to exist between Gallegos and the other employees at Leslie prior to the March 9 chair-pulling incident would have been an insufficient basis for protected concerted employee activity. Yet the case law clearly supports the view that the personal safety of employees is a working condition that can be a valid basis of a labor dispute. The factual findings regarding the Gallegos chair-pulling incident clearly demonstrate the existence of physical and verbal threats to employee safety resulting from the company's failure to maintain plant discipline, largely because of the conduct of a single employee. It is true that an atmosphere of personal animosity had developed between Gallegos and certain other employees. Nevertheless, employees were entitled to be protected against threats of physical violence and other acts of harassment of a fellow employee creating a difficult condition of employment. Under such circumstances they could legitimately protest by concerted activity the failure of the employer to take appropriate action to correct or alleviate the situation.

Our enforcement of the Board's order on the facts of this case does not enlarge the scope of Section 7 protection by sanctioning walkouts arising from purely personal quarrels unrelated to labor disputes with an employer. Neither does our decision infer that employers should become involved in personal quarrels between employees. We hold only that when an employer's failure to maintain discipline rises to the point of threatening employee safety, concerted activity by employees in protest against the employer's failure is protected activity under the Act. An employer commits an unfair labor practice under Section 8(a)(1) when he interferes with employees' exercise of such right.

The Board's petition for enforcement of its order is hereby granted.

APPENDIX

1. Background and events before March 9

At the time of the events involved herein Betty McDonald, Alice Lenard, Kathy Gallegos and Jane Johnson all worked in the plating department in Respondent's Grand Rapids plant No. 2 on the second shift under the supervision of Paul Vorrheis. ¹ (sic) McDonald had worked in that department as a chrome racker since 1966. From mid-September, 1972 until January 29, 1973, she was on sick leave. At the time she went on sick leave, none of the other three worked as chrome rackers.

During McDonald's absence, Gallegos and Lenard both started to work as chrome rackers and were working in that capacity when McDonald returned to work. In mid-February, Lenard transferred to another department. However, about 2 weeks later an opening was posted for a chrome racker, Lenard requested it, and on March 2 ² Lenard was transferred back to chrome racking. On Monday, March 5 Johnson also was transferred to chrome racking.

There is considerable evidence that relations between Gallegos and Johnson on the one hand and McDonald and Lenard on the other were strained and deteriorating before and after this date. Gallegos had dubbed Lenard 'bitch,' and Gallegos made statements to Johnson and others, which came to McDonald's attention, that she was going to call the wives of second shift platers Adrian Knoll and Mike Wildfong and tell them they were playing around with other women. Knoll was married to McDonald's daughter, and Wildfong was married to McDonald's niece.

A further conflict and complaint arose from the performance of the racking work. The rackers were paid on a piecework basis, but with a maximum on the amount they could earn on one shift. Some parts were considered more desirable to rack because of the prices they bore. McDonald and Lenard believed that Gallegos and Johnson had at times maneuvered to gain the more desirable parts for themselves...