NLRB v. Buddies Supermarkets, Inc.

• Decision Date: 25 June 1973
• Docket Number: No. 72-3023.,72-3023.
• Citation: 481 F.2d 714
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUDDIES SUPERMARKETS, INC., Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

481 F.2d 714 (1973)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BUDDIES SUPERMARKETS, INC., Respondent.

No. 72-3023.

United States Court of Appeals, Fifth Circuit.

June 25, 1973.

COPYRIGHT MATERIAL OMITTED

G. Mallet Prevost, Asst. Gen. Counsel, N.L.R.B., Elliott Moore, Acting Asst. Gen. Counsel, Washington, D. C., Elmer P. Davis, Director, Region 16, N.L.R.B., Fort Worth, Tex., Charles P. Donnelly, N.L.R.B., Washington, D. C., for petitioner.

Edward L. Kemble, Fort Worth, Tex., for respondent.

Before WISDOM, GEWIN and CLARK, Circuit Judges.

GEWIN, Circuit Judge:

The National Labor Relations Board seeks enforcement of its order holding that Buddies Supermarkets, Inc. (Company) violated § 8(a) (1) of the National Labor Relations Act¹ by discharging Charles Ray Smith for his participation in certain protected concerted activity; and § 8(a)(1) and (3)² by discharging Nona B. Greever for her support of the union.³ Having carefully examined the record in light of the applicable legal principles, we hold that enforcement of the Board's order must be denied in all respects.

I. The Discharge of Charles Ray Smith

Charles Ray Smith was hired by the Company in 1961 and for the greater part of his tenure there, he drove a truck hauling milk to the Company's various stores. Prior to 1969, he and the other milk drivers were paid by the hour. But in December of that year, the company decided to change the method of compensation and called a meeting of the drivers to announce the new plan. The drivers were told that thereafter they would be paid on a commission basis. The understanding was reached, however, that the new compensation plan was being tried on an experimental basis and the drivers were given the option of returning to the former pay arrangement at the end of the quarterly period if they desired.

During the ensuing weeks, the advantages of returning to an hourly rate of pay were discussed on several occasions. The drivers finally decided against a change at that time. But from that point on, their attitudes towards the Company's pay plan steadily began to sour. This was brought about mainly because of the Company's decision to change from a Fort Worth to a Dallas milk supplier. As a result, the drivers were faced with the prospect of driving greater distances each day and working considerably longer hours, all without a proportionate increment in pay.

Quite predictably, they were concerned by this development and more meetings were held among themselves to assess the situation. Though they all indicated a desire to return to an hourly rate of pay, no group spokesman was appointed nor was any specific group action discussed. The most that can be said of Smith's role to this point was that one of his fellow drivers believed that he would bring the matter to the Company's attention.

Finally, at a meeting called by the Company on April 21, 1970, Smith did just that and was met with a sharp rebuff from Vice President Berman. Berman explained that it would be of no avail to the drivers to abandon the commission system of compensation since he would merely hire additional drivers and limit their hours so that their incomes would not exceed present levels. He further indictated that if they were adamant on this question, he would "have four new drivers there in the morning." Thus faced with this alternative, the drivers decided to renew their contracts on substantially the same terms as before.

A period of relative calm followed. It lasted until early December 1970 when the contracts were again up for renewal and the Company wanted to reduce the commissions for drivers in the highest bracket of milk sales. This provision had a direct effect on Smith and Weaver, the two top salesmen, and consequently they refused to sign the proposed new contracts. Neither desired to receive less compensation than they had received during the previous quarter. The Company representative agreed that some adjustment in terms was in order and in early January of 1971 superseding contracts were offered to all four of the drivers. Apparently, only Smith refused to sign.

He continued to be dissatisfied with the proposed terms, particularly his commission rate, and asked for still further reconsideration of his contract by the Company. There is no evidence that he was seeking modifications in the commission rate or any other provisions of the contract for the benefit of anyone but himself. On January 19, when it became clear that no additional concessions were going to be granted, Smith finally signed a contract. He was told that, "Mr. Berman wasn't going to make a special program" just to suit him.

Almost two months later, on March 10, 1971, Smith was fired. The reasons given for this action were that he was a chronic complainer who caused dissension among the workers by telling them about his problems with the Company's commission plan. He accused the Company of unfair conduct and treatment. The Trial Examiner held that Smith was discharged for engaging in § 7 protected concerted activity. The Board affirmed in all respects. For reasons stated in the remainder of this opinion, we cannot agree.

To support the Board's finding that Smith's discharge was unlawful, it is the black letter rule in this circuit⁴ and others⁵ that there must be substantial evidence in the record showing that the employee was engaged in concerted activity for the purpose of mutual aid and protection and that the employer had some knowledge of this at the time of the discharge. The basic question here is whether Smith's efforts to gain more favorable contract terms for himself constituted protected concerted activity within the meaning of § 7 of the National Labor Relations Act. The answer to this question lies in the distinction between concerted and nonconcerted activity. If Smith's actions can properly be classified as individual griping or complaining, then it is clear that under the applicable authority⁶ the Board's decision must be reversed. Such conduct has never been considered protected. On the other hand, if in Smith's efforts to gain more favorable contract terms for himself, there is some element of collective activity or contemplation thereof, then it is likewise clear that the Board's order must be enforced.⁷

One of the leading cases on this issue is Mushroom Transportation Co. v. NLRB.⁸ In that case, the court made a penetrating analysis of the nature of concerted activity as a prelude to its holding that the discharge of an employee was not unlawful under § 8 (a) (1) even though the employee was engaged in advising his fellow workers about their rights under an existing collective bargaining agreement. The court observed:

It is not questioned that a conversation may constitute a concerted activity although it involves only a speaker and 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 interests of the employees.

This is not to say that preliminary discussions are disqualified as concerted activities merely because they have not resulted in organized action or in positive steps towards presenting demands. We recognize the validity of the argument that . . . it would come very near to nullifying the rights of organization and collective bargaining guaranteed by Section 7 of the Act if such communications are denied protection because of lack of fruition. However, that argument loses much of its force when it appears from the conversations themselves that no group action of any kind is intended, contemplated or even referred to.

Activity which consists of mere talk must, in order to be protected, be talk looking toward group action. If its only purpose is to advise an individual as to what he could or should do without involving fellow workers or union representation to protect his own status or working position, it is an individual, not a concerted, activity, and, if it looks forward to no action at all, it is more than likely to be mere "griping". (Emphasis added)⁹

The Mushroom Transportation decision has been expressly followed in a number of subsequent employee discharge cases,¹⁰ but a cursory review of our court's decisions on this point will show that none are direct descendants of Mushroom Transportation. Nevertheless, in resolving the question now presented, we are strongly persuaded to place primary reliance on that line of authority.¹¹ In doing so we are guided principally by Southwest Latex Corp. v. NLRB.¹² In that case this court indicated its awareness of the Mushroom Transportation standard and cited two important post-Mushroom Transportation decisions as authority for the proposition that individual griping and complaining are not protected concerted activity.¹³

Applying these principles to the case at hand, this court is unable to uphold the Board's finding of an § 8 (a) (1) violation by the Company. The unusual thing about this case is that, unlike many of the Board decisions we review, the outcome turns more on a question of law than fact. Indeed, the central factual determinations of the Board for the most part appear to be uncontroverted and, to state our view of the case in brief, these facts as a matter of law simply cannot be equated with concerted activity.

The Board undertook to bring this case within the decision in NLRB v. Interboro Contractors, Inc.¹⁴ The gist of that opinion is that any activity involving attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes notwithstanding the absence of any overt interest on the part of fellow employees. In line with this rationale, the Board placed special emphasis on the fact that Smith was the most vocal and assertive of the four drivers in presenting his views to Company officials. It then reasoned that since he was speaking on matters of...