Trompler, Inc. v. N.L.R.B., 01-3606.

• Decision Date: 01 August 2003
• Docket Number: No. 01-3606.,No. 01-3987.,01-3606.,01-3987.
• Citation: 338 F.3d 747
• Parties: TROMPLER, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.
• Court: U.S. Court of Appeals — Seventh Circuit

338 F.3d 747

TROMPLER, INC., Petitioner, Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner.

No. 01-3606.

No. 01-3987.

United States Court of Appeals, Seventh Circuit.

Argued April 4, 2003.

Decided August 1, 2003.

Marna M. Tess-Mattner (argued), Brigden & Petajan, Milwaukee, WI, for Petitioner-Respondent, Trompler Inc.

Christopher W. Young (argued), National Labor Relations Board, Washington, D.C., for Respondent-Petitioner, NLRB.

Before POSNER, EASTERBROOK, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

Trompler is a nonunion machine shop that employs 30 workers in three shifts. The second shift runs from 2 to 10 p.m. and is staffed by eight workers, including a supervisor ("leadman"). One day, six of the eight walked off the job shortly after their shift began, without telling the employer in advance, and as a result production ceased until the workers who work the third shift arrived at 10. The president of the company met with the six workers the next day. There is disagreement over what they told her, but the Board found, not clearly erroneously, that it was that they had three complaints about the second-shift supervisor: that he had failed to prevent sexual harassment of one of the six workers by another (the one who, along with the supervisor himself, did not join the walkout); that he had failed to deal competently with a worker's drug problem; and that he didn't know how to operate the machines used by the workers and so when problems with the operation of the machines arose they had to interrupt their own work to help each other solve them with no help from him and as a result they fell behind in their work. At the end of the meeting the president fired the six employees, precipitating a complaint that resulted in a determination by the Labor Board that the employer had committed an unfair labor practice and an order requiring reinstatement of the six fired employees with backpay.

Section 7 of the National Labor Relations Act, 29 U.S.C. § 157, entitles workers to engage in "concerted activities" for the purpose of improving the terms and conditions of their employment. The term "concerted activities" is not defined, and obviously cannot be read literally, as that would have entitled the six dissatisfied workers in our case to have beaten up the supervisor or burned down the shop—more arresting methods of protest than their walkout. The Supreme Court has said, however, that the only unprotected concerted activities (provided they relate to the terms and conditions of employment, rather than to matters which are not the legitimate concern of employees—an essential qualification to which we'll return) are those that are unlawful, violent, in breach of contract, or otherwise "indefensible" but that the mere fact that they are not "reasonable" does not forfeit the protection of the Act. NLRB v. Washington Aluminum Co., 370 U.S. 9, 16-17, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962); see also NLRB v. Jasper Seating Co., 857 F.2d 419, 421 (7th Cir.1988); Compuware Corp. v. NLRB, 134 F.3d 1285, 1290 (6th Cir.1998).

What then to make of our holding in Bob Evans Farms, Inc. v. NLRB, 163 F.3d 1012, 1021-22 (7th Cir.1998), that a walkout to protest the firing of a supervisor was "unreasonable" and therefore unprotected? In that case, 15 employees of a restaurant walked off the job late Friday afternoon. "That the walkout had a far-reaching effect on the operation of the restaurant is undisputed. Without notice, the restaurant was left virtually unattended at the start of what was characteristically one of its busiest shifts. Some day-shift employees were persuaded to stay on that evening and [the manager] managed to call in extra help from other restaurants. But the die had been cast and the best that Bob Evans could hope for was to limit the damage: service was poor, customers got angry, bills were not paid and business was lost. Repercussions were felt over the next few days with continued customer service problems and further walkouts—this time by two employees fed up with the onerous working conditions imposed in the wake of the initial walkout." 163 F.3d at 1016. The workers' conduct was unreasonable, but was it indefensible? And if not, does this mean that we were defying the Supreme Court? And not only we (and not only in Bob Evans Farms, but also in Henning & Cheadle, Inc. v. NLRB, 522 F.2d 1050, 1054 (7th Cir.1975) (per curiam), and see also NLRB v. Phoenix Mutual Life Ins. Co., 167 F.2d 983, 988 (7th Cir.1948)), but the First and Fifth Circuits as well? See Yesterday's Children, Inc. v. NLRB, 115 F.3d 36, 45 (1st Cir.1997); Puerto Rico Food Products Corp. v. NLRB, 619 F.2d 153, 155-56 (1st Cir.1980); Abilities & Goodwill Inc. v. NLRB, 612 F.2d 6, 8-10 (1st Cir.1979); Dobbs Houses v. NLRB, 325 F.2d 531, 538-39 (5th Cir.1963).

The answer may lie in the fact that in all these cases the complaint that gave rise to the protest concerned a supervisor. The choice of supervisors is a management prerogative, Bob Evans Farms, Inc. v. NLRB, supra, 163 F.3d at 1021; Yesterday's Children, Inc. v. NLRB, supra, 115 F.3d at 45, which is to say a matter that employees do not have a statutory right to bargain over. See Pittsburgh & Lake Erie R.R. v. Railway Labor Executives' Ass'n, 491 U.S. 490, 507-08, 109 S.Ct. 2584, 105 L.Ed.2d 415 (1989); Textile Workers Union of America v. Darlington Mfg. Co., 380 U.S. 263, 269, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965); University of Chicago v. NLRB, 514 F.2d 942, 949 n. 4 (7th Cir.1975). If unions had a general right to veto the decisions of employers with regard to the hiring and firing, the discipline and direction, of supervisors, the line between managers and workers would erode, inconsistently with the rule that denies supervisors the protection of labor law. 29 U.S.C. § 152(3); NLRB v. Health Care & Retirement Corp. of America, 511 U.S. 571, 573, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994); Empress Casino Joliet Corp. v. NLRB, 204 F.3d 719, 722 (7th Cir.2000). A complaint that a supervisor's conduct is impairing the terms or conditions of the employment of the workers whom he supervises is, however, a legitimate subject for concerted activity, as the Bob Evans Farms line of cases in this and the other circuits acknowledges. See, e.g., 163 F.3d at 1021. But without a limitation to reasonable concerted activity in protest against supervisors' misconduct, the employer's prerogative would be undermined. Cf. Cleaver-Brooks Mfg. Corp. v. NLRB, 264 F.2d 637, 640-41 (7th Cir.1959).

So, given employer prerogative, worker protests precipitated by employer action (or inaction) concerning supervisory personnel that are unrelated to the terms and conditions of employment are unprotected regardless of the reasonableness of the means of protest chosen—specifically, whether the means disrupt the employer's business disproportionately to the workers' grievance. But even if the protest, though concerned with employer decisions regarding supervisors, does involve the terms and conditions of employment, as in this case and Bob Evans Farms (where we held that the Board had reasonably found that the workers believed that the dismissal of the supervisor in question—the employer's action that precipitated the walkout—would adversely affect their employment conditions), nevertheless, according to Bob Evans Farms, the protest is unprotected if the means used are unreasonable.

We understand the Board's concern with imposing a general duty of "reasonableness" on workers' choices regarding the timing and nature of concerted activities. The National Labor Relations Act models labor relations as tests of strength between workers and management. Workers withhold or threaten to withhold their labor in order to impose costs on management that will induce management to improve the workers' terms or conditions of employment, and employers if they don't want to knuckle under to the workers' demands can try to impose costs on the workers by locking them out, laying them off, and hiring permanent replacements. See, e.g., American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 308, 310-16, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965). This "combat" model of labor relations does not sort well with a requirement that the combatants act reasonably. Such a requirement would turn war into a war game constrained by rules that would often baffle the combatants, since the rules would merely be applications of a vague standard of reasonableness to the particular circumstances of particular cases, rules moreover that would be articulated and applied after the game had been played.

The Board reminds us, moreover, that its decision to reject the application of the standard of reasonableness to concerted activities concerning the hiring or firing of supervisors is entitled to deference under the Chevron doctrine. Allentown Mack Sales & Service, Inc. v. NLRB, 522 U.S. 359, 364-65, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998); Holly Farms Corp. v. NLRB, 517 U.S. 392, 116 S.Ct. 1396, 134 L.Ed.2d 593 (1996); International Ass'n of Machinists & Aerospace Workers v. NLRB, 133 F.3d 1012, 1015 (7th Cir.1998). Congress has delegated to the Board the authority to make rules filling gaps in the statutes that it administers, e.g., Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 787-88, 116 S.Ct. 1754, 135 L.Ed.2d 64 (1996), and the authority can be exercised either in formal rulemaking proceedings or, as the Board prefers, see Allentown Mack Sales & Service, Inc. v. NLRB, supra, 522 U.S. at 374, 118 S.Ct. 818, by the common law method of rulemaking through adjudication. United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001); American Federation of Government Employees v. Rumsfeld, 262 F.3d 649, 656 (7th Cir.2001); Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir.1996). The lack of definition of protected concerted activities is such a gap, and the Board has filled it. We rejected this...