NLRB v. Northern Metal Company

• Decision Date: 06 April 1971
• Docket Number: No. 18775.,18775.
• Citation: 440 F.2d 881
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTHERN METAL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

440 F.2d 881 (1971)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NORTHERN METAL COMPANY, Respondent.

No. 18775.

United States Court of Appeals, Third Circuit.

Argued November 3, 1970.

Decided April 6, 1971.

John M. Flynn, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Eugene B. Granof, Atty., N. L. R. B., Washington, D. C., on the brief), for petitioner.

Peter M. Stern, Blank, Rome, Klaus & Comisky, Philadelphia, Pa. (Marvin Comisky, Howard I. Hatoff, Philadelphia, Pa., on the brief), for respondent.

Before BIGGS, VAN DUSEN and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

This case comes to us on application of the National Labor Relations Board 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 issued against respondent on May 8, 1969 following proceedings under Section 10(c) of the Act. The Board determined that respondent had violated Section 8(a) (1) of the Act¹ by discharging an employee, Ernest L. Davis, for engaging in concerted activity protected by Section 7 of the Act.² Respondent was ordered to cease and desist from the unfair labor practice found, and to reinstate Davis with pay for any wages lost in the interim. The Board's Decision and Order are reported in 175 NLRB No. 145.

The following recital of facts is based upon the trial examiner's findings of fact. Davis was hired by the Company as a laborer, and under the terms of the collective bargaining agreement between the company and the union, was to have been a probationary employee for the first 30 days of his employment. On a regular Friday payday about three weeks after having been employed, he received his pay check covering the previous week's work, which week included the Labor Day holiday, and noticed that it did not include the holiday pay. Upon returning to inquire about the deficiency, Davis met Max Rose, the company's chief executive officer and sole stockholder, and Maurice Chorney, the chief yard superintendent. When he inquired about the holiday pay, the two asked him how long he had been employed by the company and whether he was a member of the union. Davis replied that this was his third week (i. e., that his probationary period had not expired) and that he was not a member of the union. Rose, thereupon, informed Davis that he was not entitled to holiday pay.³

Later in the same day, Davis inquired of the union shop steward about the holiday pay and was informed that since he was not a union member the union could do nothing for him. At the suggestion of the steward, however, Davis saw the union local's financial secretary. He made a similar reply.

Shortly thereafter, Davis again encountered the financial secretary while he was cashing his pay check at a nearby bank and once more inquired whether he was entitled to holiday pay. Again, the reply was substantially the same, although he added "Nobody said that you're not entitled to the holiday pay."

On the following Monday, Davis, during his lunch hour, visited the financial secretary at the latter's work station and secured a copy of the collective bargaining agreement. Upon reading the relevant section dealing with holiday pay, Davis offered his opinion, to Winbush, the financial secretary, that there was nothing in the language that excluded non-union or probationary employees from its provisions; and that he felt he fulfilled the requirements for holiday pay. Winbush advised Davis the union could do nothing for him, since he was not a member⁴ (it should be noted, however, that Davis had not requested the union to represent him) and suggested that he again see Rose, the chief executive officer. "If he doesn't do anything, then come back to me and I'll see what I can do."

Later that same day, shortly after he had clocked out, Davis went to Rose's office. He renewed his request for holiday pay for Labor Day, referring to the agreement and pointing out that, as he read the contract, he was entitled to it because he had worked the days immediately before and after Labor Day. Rose first asked Davis where he got the agreement and Davis, remembering his earlier promise to Winbush not to divulge his source, refused to tell him. Rose then said: "You haven't even been here a month — and you're trying to tell me how to run my business." Davis denied this charge and repeated his claim for holiday pay. Thereupon, Rose informed Davis he should have been a lawyer; the latter responded that one did not have to be a lawyer to read the contract. Rose again replied that Davis was not entitled to holiday pay.

Shortly after the conversation, Rose called in the company's comptroller and instructed him to prepare Davis' final pay check; he was being discharged as an "undesirable employee." There was no further elaboration. The next day, upon finding his time card removed, Davis sought out Rose for an explanation. Rose greeted Davis by holding out an envelope containing his pay check and telling him that the company could not use him any more. Upon inquiring whether he was fired, Rose replied that he could not use a man who tried to tell him how to run his business. Davis denied that he was trying to do any such thing and refused to take the pay check since there was no union representative to witness the firing. He then left the property and promptly proceeded to the Regional Office of the National Labor Relations Board and filed the charges⁵ which give rise to this proceeding.

This case raises three questions: (1) whether Davis was engaging in concerted activities for the purpose of mutual aid and protection within the meaning of Section 7 of the National Labor Relations Act, (2) whether this was the reason for his discharge, and (3) whether enforcement of the Board's order is consistent with our responsibility for the reasonableness and fairness of Labor Board decisions "when viewed, on the record as a whole." See Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951).

I. The Concerted Activities Issue

Section 7 of the National Labor Relations Act provides that "employees shall have the right * * * to engage in * * * concerted activities for the purpose of collective bargaining or other mutual aid and protection * * *." Section 8(a) (1) makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of" their Section 7 rights. The primary question presented by this case is whether a single employee acting alone is engaged in protected concerted activity when he presses demands for holiday pay, to which he deems himself entitled under the provisions of a collective bargaining agreement.

The trial examiner found that Davis was discharged because he pressed his claim for holiday pay with the employer. The Act protects only "concerted activities."

The Board would have us hold that Davis' efforts "to enforce" the provisions of the collective bargaining agreement constituted concerted activity. The Board asks us to supply the necessary element of concert from the facts that Davis was presenting a grievance "within the framework" of the collective bargaining agreement and that such grievance "affects the rights of all⁶ employees in the unit." The Second Circuit has followed such an approach, creating a kind of "constructive" concerted activity, in NLRB v. Interboro Contractors, Inc., 388 F.2d 495 (2d Cir. 1967), where the court stated that "activities involving attempts to enforce the provisions of a collective bargaining agreement may be deemed to be for concerted purposes even in the absence of * * * interest (on the part of) fellow employees." That case represents a clear expansion of the Act's coverage, in the face of unambiguous words in the statute. The Act surely does not mention "concerted purposes." (Emphasis added.) This is clear from the language of the Act, and was emphatically recognized by this court in Mushroom Transportation Co. v. NLRB, 330 F.2d 638 (3d Cir. 1964). Interboro Contractors appears to create a legal fiction, constructive concerted activity, in an effort to support a judicial conception of a sound interpretation of the Act. We are unwilling to adopt such a fiction.

The Seventh Circuit has held that, in order to prove concerted activity under Section 7, "it is necessary to demonstrate at least that the activity was for the purpose of inducing or preparing for group action to correct a grievance or a complaint." Indiana Gear Works v. NLRB, 371 F.2d 273, 276 (7th Cir. 1967). The court cited our circuit's decision in Mushroom, supra, which contains the most expansive view of "concerted activity" in this circuit. The court in Mushroom included within the meaning of the term not only group action, but also "talk looking toward group action." Even this definition of concerted activity stretches somewhat the normal meaning of the term in order to facilitate the policies of the Act. Webster's New International Dictionary (2d ed. 1947) defines "concert" as "agreement in a design or plan; union formed by mutual communication of opinions and views; accordance in a scheme; harmony; simultaneous action" and "concerted" as "mutually contrived or planned; agreed on." We do not believe the purpose of the Act would be served by expanding the limits of Mushroom to include activity which could be considered "concerted" only in a fictional sense.

We therefore hold that Davis was not engaged in concerted activities within the protection of Section 7 of the Act.

Even if we were to adopt Interboro as the rule of this circuit, however, we would still be unable to enforce the Board's Order on the record as it now stands. Since its decision in Interboro, the Second Circuit has had an opportunity to expand upon that case's rationale in NLRB v. John Langenbacher Co., 398 F.2d 459, 463 (...