N.L.R.B. v. Empire Gas, Inc.

• Decision Date: 05 December 1977
• Docket Number: No. 76-2060,76-2060
• Parties: 96 L.R.R.M. (BNA) 3322, 82 Lab.Cas. P 10,228 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EMPIRE GAS, INC., Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 681

566 F.2d 681

96 L.R.R.M. (BNA) 3322, 82 Lab.Cas. P 10,228

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EMPIRE GAS, INC., Respondent.

No. 76-2060.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Sept. 28, 1977.

Decided Dec. 5, 1977.

James Y. Callear, N. L. R. B., Washington, D. C. (Jay E. Shanklin, N. L. R. B., Washington, D. C., on the brief), for petitioner.

John Edward Price, Del Norte, Colo., for respondent.

Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This is a labor relations case in which the NLRB seeks enforcement of an order which had issued on June 10, 1976. The fundamental issue in the case is whether the activities of one Cooper, an employee, in advocating a partial cessation of work were protected under § 7 of the Act, 29 U.S.C. § 157 (1970). Cooper wrote and sent a letter to his fellow employees which urged them to refrain from pumping gas on a particular day. It also urged that if this did not bring about a change, not to pump gas on two days. ¹ The activities which were solicited in the letter quoted below did not come about because the company fired Cooper very soon after the letter was written.

Gregory T. Cooper was a driver-salesman for Empire Gas, Inc., Nederland, Colorado operation, from February 1975 until his discharge September 18, 1975. His compensation consisted of a monthly salary of $550 plus .1 of a cent per gallon delivered by him. This basis of compensation was unilaterally modified by Empire on August 15, at which time it announced that it had a new bonus program to replace the .1 of a cent per gallon commission. It was then that Cooper prepared the above-quoted letter. He mailed it on September 13 to 112 of Empire's drivers in different parts of the country. In it he advocated collective action to protest the new bonus program. The particular proposed action was refusal of the drivers to pump gas on October 1 and if the demanded change was not made, to refuse to pump gas on October 17 and 18. The letter expressed opposition to the proposed bonus program and the taking of the suggested action to manifest the protest.

The Division Manager, one Cliff Goodwin, came to Nederland on September 18, 1975, and discharged Cooper. He did not, however, assign the letter writing as the reason. He instead stated as his reason that Cooper had driven a company truck home and had been 15 minutes late to work that morning.

There was evidence in the record that the company took a dim view of Cooper's letter. On September 15, the local manager, Johnson, called Cooper into his office and asked him if he knew anything about the letter sent out to the drivers. Cooper admitted that he was the author. Johnson said that the home office was upset about it and that manager Goodwin would be coming to fire him. The very next day the company hired a new driver-salesman.

On September 17, the day before Goodwin came to Nederland, there was a conversation between Johnson and the former manager, MacDougall, in which Johnson stated to MacDougall that Goodwin "was coming up to let him (Cooper) go over letters he had written to drivers."

The evidence showed also that Cooper had customarily driven home a company truck throughout the period of his employment if he was closer to home than to the Nederland office at the end of the day. He had not been criticized by the managers for doing this. Goodwin saw the letter on the 18th when he fired Cooper, but he maintained that the letter was not the reason for the discharge. However, the Board found that the letter was the cause of the firing, and Empire does not contest this finding.

The Board found that the activity of Cooper was protected by § 7 of the Act and that the company had violated § 8(a)(1) of the Act by threatening Cooper with discharge and thereafter discharging him since he was engaged in concerted activity which was protected by § 7 of the Act. The Board ordered the company to cease and desist from the unfair labor practices found and also to cease and desist from infringing upon the rights guaranteed to employees by § 7 of the Act. The company was also ordered to offer Cooper immediate and full reinstatement to his former position, to make him whole for any loss of earnings and other benefits because of his unlawful discharge, and to post the usual notices.

I.

WHETHER THE LETTER WAS WITHIN THE PROTECTION OF THE ACT AND,

PARTICULARLY, WHETHER IT FELL WITHIN THE PART OF THE ACT

WHICH PROTECTS AGAINST EMPLOYER INTERFERENCE OR DISCIPLINARY

ACTION "OTHER CONCERTED ACTIVITY FOR THE PURPOSE OF

COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION."

Section 7, supra, provides that "employees shall have the right to self-organization, 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 collective bargaining or other mutual aid or protection." The section also provides that employees "have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158(a)(3) of this title."

Section 8(a)(1), 29 U.S.C. § 158(a)(1), declares that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in § 7 of the Act, 29 U.S.C. § 157.

What are "other concerted activities for the purpose of collective bargaining or other mutual aid or protection" ? The Third Circuit in Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964), has defined such activities in broad terms, saying in that opinion that a conversation may constitute a concerted activity, although it involves only a speaker and a listener provided that it appears that the conversation had 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. The court also said that fruition was not necessary because such a requirement would severely limit the right, but that mere talk was not activity; that it had to be talk looking to group action. The Third Circuit in the cited case found that the employee's practice of talking did not constitute concerted activity; that this constituted mere griping or complaining.

In a later case, that of Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3d Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1970), the Third Circuit held that complaints by two employees as to the company's failure to contribute to their profit sharing plan did constitute concerted activity. The activities of these two employees reflected general dissatisfaction and had some relation to group action. Id. at 1355. Accord, Carbet Corp., 191 NLRB No. 145 (1971), enforced, 68 Lab.Cas. P 12,845 (6th Cir. 1972).

The result was different in NLRB v. Northern Metal Co., 440 F.2d 881 (3d Cir. 1971), where the employee was probationary and not a member of the union. It was there held that this was not talk looking toward group action within the Mushroom doctrine because the activity in question was individual seeking a special benefit.

Individual action soliciting group activity has been held to be concerted in other cases. See Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969). Other circuits have endorsed this viewpoint. Dreis & Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 327-28 (7th Cir. 1976); Randolph Division, Ethan Allen, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir. 1975).

In our case the evidence shows an effort to solicit group support of a collective refusal to work on certain days. The Board's reason for holding this to be within the protection of § 7 was that collective activities would surely be hampered if such individual efforts looking to group action were not protected.

Furthermore, no loss of § 7 protection resulted because of the failure of the employee to present his grievance to the employer prior to attempting to organize a work stoppage. The Supreme Court has considered and has rejected such an argument in NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). ²

II.

IS THE PROTECTION LOST IF THE WORK STOPPAGE (HAD IT BEEN

CARRIED OUT) WOULD HAVE BEEN UNLAWFUL?

Respondent argues that it is lost on this account. The case of UAW Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949), applying Wisconsin law, so ruled. However, this so-called Briggs-Stratton case was overruled by the Supreme Court in Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). In Lodge 76 the union and its members refused to work overtime. The NLRB Regional Office dismissed a charge filed by the employer claiming a violation of the NLRA on the ground that refusal to work overtime was not a violation of the Act. A complaint was then filed before the state commission. That body found a violation of a state statute, which finding was affirmed by the Wisconsin courts. The United States Supreme Court reversed, holding that states may not regulate partial strike activity. The Court further said that even if the refusal to work overtime was not protected under § 7, which issue the Court refused to decide, it might be "an activity that Congress intended to be 'unrestricted by any governmental power to regulate' because it was among the permissible 'economic weapons held in reserve . . . actual exercise (of which) on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.' " Citing NLRB v. Insurance Agents, 361 U.S. 477, at 488-489, 80 S.Ct. 419, at 426, 4 L.Ed.2d 454. The reason assigned for rejecting the state statute was...