Prill v. N.L.R.B.

• Decision Date: 31 December 1987
• Docket Number: No. 86-1675,86-1675
• Citation: 835 F.2d 1481
• Parties: 127 L.R.R.M. (BNA) 2415, 266 U.S.App.D.C. 385, 56 USLW 2430, 107 Lab.Cas. P 10,226 Kenneth P. PRILL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1481

835 F.2d 1481

127 L.R.R.M. (BNA) 2415, 266 U.S.App.D.C.

385, 56 USLW 2430,

107 Lab.Cas. P 10,226

Kenneth P. PRILL, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 86-1675.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 9, 1987.

Decided Dec. 31, 1987.

Ellis Boal, Detroit, Mich., for petitioner.

Howard E. Perlstein, N.L.R.B., with whom Robert E. Allen, Associate General Counsel, Aileen A. Armstrong, Deputy Associate General Counsel, and Elaine Patrick, N.L.R.B., Washington, D.C., were on the brief, for respondent.

Jordan Rossen, Detroit, Mich., was on the brief, for amicus curiae, Intern. Union, United Automobile Workers, urging reversal.

Before ROBINSON, GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Petitioner Kenneth Prill seeks review of a supplemental decision by the National Labor Relations Board ("NLRB" or "Board") finding that Prill's employer, Meyers Industries, Inc. ("Meyers"), did not commit an unfair labor practice when it fired Prill from his job as a truck driver. Meyers Indus., Inc., 281 N.L.R.B. No. 118 (Sept. 30, 1986) ("Meyers II "). Prill comes to this court for the second time, having previously petitioned for review after the Board dismissed his identical complaint three years ago in Meyers Industries, Inc., 268 N.L.R.B. 493 (1984) ("Meyers I "). Meyers I held that Prill's individual actions arising out of his own complaints about the safety of his truck were not "concerted" for the purposes of section 7 of the National Labor Relations Act ("NLRA" or "Act"), which protects the right of employees to "engage in ... concerted activities for [their] ... mutual aid or protection." 29 U.S.C. Sec. 157 (1982). On petition for review of that order, in Prill v. NLRB, 755 F.2d 941 (D.C.Cir.1985) ("Prill I "), we remanded to the Board for further consideration. Now before us is the Board's second decision, Meyers II, in which the Board has adhered to its initial determination in Meyers I but modified its reasoning in light of our opinion. Since we conclude that this time the Board's position constitutes a reasonable interpretation of the NLRA to which we must defer, we affirm the Board's decision in Meyers II.

I.

The facts of this case are not in controversy, and they are fully presented in Prill I, 755 F.2d at 943-45. Briefly, they are as follows: Kenneth Prill was, beginning in April 1979, a truck driver for Meyers, a Michigan-based aluminum boat manufacturer. Having had difficulties with the brakes on his company-issued truck, Prill made several complaints to Meyers personnel--to his supervisor, David Faling, to the mechanic and to the company president, Alan Beatty.

In June 1979, another truck driver, Ben Gove, drove Prill's truck on a long trip. After his return, Gove reported having had brake and steering problems with Prill's truck. While Prill was present in the office, Gove told Faling that he would not drive the truck until the brakes were repaired, and Faling promised to do so.

Later, in early July 1979, Prill was driving his truck through Tennessee and had an accident due in part to the faulty brakes. After unsuccessfully trying to have the state public service commission inspect the damaged tractor and trailer, Prill contacted Beatty, who asked that Prill have the truck towed home to Michigan despite Prill's protestation that it was not safe to move. Beatty requested that Prill chain the tractor and trailer together for moving; Prill refused, asserting that cracks in the areas where the truck and trailer were hitched together would make such an operation unsafe. Instead, Prill had the Tennessee Public Service Commission arrange for an official inspection, which led to a report finding the brakes unsafe and the hitch area damaged. The Tennessee authorities then issued a citation prohibiting the moving of the truck. Two days later, Prill was fired because, in the words of a Meyers officer, "we can't have you calling the cops like this all the time." Prill I, 755 F.2d at 945 (footnote omitted).

In Prill I, we held that the Board's new, more narrow interpretation of concerted activity in section 7 was not, contrary to the Board's suggestion in Meyers I, compelled by the NLRA. 755 F.2d at 942. The Board's misreading of the law led us to remand the case for a supplemental decision by the NLRB; we directed the Board to rely on its own expertise in labor relations rather than on a simplistic reading of the NLRA. Because we remanded on this basis, we did not reach in Prill I two issues now before us: Is the new Meyers standard a reasonable interpretation of the NLRA; and if so, was it properly applied to the petitioner in this particular case?

II.

In Meyers II, the NLRB adheres to its legal position in Meyers I, in which it held that an employee's action may be concerted for the purposes of the NLRA only if the action is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Meyers I, 268 N.L.R.B. at 497 (footnote omitted). Section 7 of the NLRA provides that "[e]mployees shall have the right to self-organization ... to bargain collectively ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 29 U.S.C. Sec. 157 (1982) (emphasis added). At the heart of this dispute is whether the safety complaints of a single employee acting on his own can constitute concerted activity protected under the Act. Previously, under Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), and its progeny, the efforts of a single worker to invoke state and federal laws regulating occupational safety were held protected activity under section 7. See Prill I, 755 F.2d at 945. The Board had determined that such complaints were "concerted" on the theory that the action of one individual bringing statutory safety concerns to light is presumed to assert the rights of all employees interested in safety. Alleluia, 221 N.L.R.B. at 1000. Put simply, the Board now rejects the theory animating Alleluia and its progeny. A worker no longer takes "concerted" action by himself unless he acts on the authority of his fellow workers. Unlike the Board's reasoning in Alleluia, the Board's new position is that the "concerted activity" prong and the "mutual benefit or protection" prong of section 7 are two distinct factual inquiries that are to be analyzed separately. Concerted action cannot be imputed from the object of the action. In other words, if a worker takes action by himself without contacting his fellow employees, even though he has a desire to help all workers, not just himself, he will not have satisfied the concerted action requirement. As under the old standard, however, a worker is still deemed to have taken concerted action when he acts with the actual participation or on the authority of his co-workers. Meyers II, 281 N.L.R.B. No. 118 at 12-16.

Before we reach the question left open in Prill I and reasserted by the petitioner--whether the Meyers standard is inconsistent with the NLRA--we ask whether the Board has cured those defects identified in Prill I. As we noted, the Board in Meyers I suggested that its new position was actually mandated by the NLRA, and this we concluded was a misreading of the law. Prill I, 755 F.2d at 950. In contrast to its previous position, the NLRB in Meyers II made a determination that the Meyers I interpretation of what is concerted is not actually required by the NLRA but rather is "most responsive to the central purposes for which the Act was created." Meyers II, at 4. The Board further contends that its new position, though not required, "proceeds logically" from its analysis of the legislative history. Id. at 7. Although now recognizing that the statute could be read to support either the Alleluia or Meyers interpretation of concerted activity, the Board concludes that Meyers is the better interpretation, drawing both upon its reading of the statute and its expertise in administering the statute.

The Board also explained why it does not believe that there would be a chilling effect on other workers if Prill were not reinstated. In NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984), the Supreme Court reasoned that there could be a violation of section 8(a)(1) ¹ of the NLRA, which protects an employee from interference with his rights under section 7, where a company fired an employee whose actions were so related to other employees' concerted activities that the firing would interfere with or restrain those other concerted activities. City Disposal, 465 U.S. at 833 n. 10, 104 S.Ct. at 1512 n. 10. The Board found no such relationship between Prill's discharge and his fellow employees' concerted activities, and the record does not indicate otherwise.

Finally, the Board responds to our concerns expressed in Prill I regarding the scope of individual activity that would qualify as concerted. Compare Prill I, 755 F.2d at 953-56 with Meyers II, at 11-16. The Board has clarified how its new standard comports with previous decisions in the courts of appeals and prior Board decisions. For example, the Board answers our question whether Meyers II is consistent with cases like Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir.1964). In that case, the court reasoned that mere talk is sufficient to put a worker in concert with his fellow employees as long as the conversation is taken before the worker acts and contemplates group action. Id. at 685. The Board harmonizes its new standard with the Third Circuit's decision in Mushroom Transportation by emphasizing its intent to protect "individual employees [who] seek to initiate or to induce or to prepare for group action" and "individual employees bringing...