Petition by an employer to review an order of the National Labor Relations Board, 247 NLRB No. 168 (1980), holding that the employer had violated § 8(a)(1) of the National Labor Relations Act by discharging and refusing to reinstate an employee and cross-petition by the Board to enforce the order. Petition to review granted; cross-petition for enforcement denied.
Before Waterman, Friendly and Meskill, Circuit Judges.
This petition by Ontario Knife Company (Ontario) to review and cross-petition by the National Labor Relations Board (NLRB or the Board) to enforce an order, 247 NLRB No. 168 (1980), which had found Ontario guilty of violating § 8(a)(1) of the National Labor Relations Act (the Act) by discharging and refusing to reinstate employee Angel Cobado, raises a close question, of first impression in this Circuit, with respect to the application of § 8(a)(1) to the discharge of a single employee of a non-union plant for walking off the job after protesting a condition of employment.
The facts, concerning which there is no dispute save as to inconsequential details, are stated at length in the decision of the ALJ and more summarily in that of the Board. Ontario is a knife manufacturer, employing some 300 persons and operating a day and a night shift. At the time here in question Frank J. Warren was plant manager, Robert E. Hall was personnel manager and Rolla Peterson, Jr. was night foreman. Peterson was assisted by leadman Frank Cornelius. The ALJ found, and counsel for the Board does not dispute, that Warren was responsible for production control and scheduling; that night shift production schedules were "usually determined by day shift foremen in a production continuity sense"; and that Peterson had "no authority to change a production schedule, except for a required exercise of judgment in the case of a machine breakdown or depletion of parts." The plant was non-union.
Angel Cobado was hired in 1976 as a riveter, assigned to the second shift (3:30 P.M. to midnight), where she worked with two other employees, Ethel Briggs and Judy Swift. Their basic work was to rivet wood or plastic handles to knives. Continuing difficulties had been encountered in the riveting of handles to machetes. These difficulties adversely affected additional incentive pay. Also the work was dirtier than on other knives because in the six months preceding the incident here at issue the machete blades had been dipped in oil, apparently to retard rusting.
Cobado testified that she and Swift had been complaining for a long time over what they considered to be an excessive assignment of machete work to the night shift. The ALJ found that she had reported the problem "to Leadman Cornelius, to Foreman Peterson, to Plant Manager Warren, and to whomever would listen to her." She admitted that Warren had been generally accessible to her for these complaints as well as complaints on other matters. She also conceded that Warren had taken some steps to deal with the incentive pay problem and had placed riveting employees on rotation assignment with respect to machete production. By the time of the incident here at issue, June 22, 1978, Cobado's grievance had become limited to a claim that the burden of machete work was unfairly distributed between the day and the night shifts. Although her recollection that day shift operators had not worked on machetes in May or June, 1978, proved to be grossly in error,*fn1 unequal distribution did begin in late May. In particular, no first shift operator had worked on machetes on June 20 when Cobado did, on June 21 when Swift did, or on June 22 when Briggs was to do so. Warren explained this imbalance as arising from the fact that since Ontario was behind schedule in its machete deliveries and blades, handles and special rivets often did not arrive until the afternoon, the night shift was obligated to start the work to get the production out.
On arriving for work on Thursday, June 22, Cobado looked at the day foreman's desk for the night shift instructions and found that machetes were on the list. It was Briggs' turn to do that work that night, with Cobado's to come the next night if machetes should again be scheduled. On the previous day she had complained to Cornelius, although not to Peterson or Warren, about the unequal distribution of the machete work as between day and night shifts. While she and Swift were complaining to each other on the afternoon of June 22,*fn2 Cornelius came through their department and Cobado asked him what he had found out in the office about her complaint of the previous day. Cornelius reported to Peterson that, as said by the ALJ, "Cabado (sic) and Swift were upstairs bitching about the machines and doing the machetes." Peterson came upstairs, took Cobado and Swift into another room and asked Swift what the problem was. When she answered that Cornelius was supposed to find out from someone why they were doing machetes when the day crew had not done any, Peterson replied that Cornelius had no reason to go to the front office since he (Peterson) was the boss and it was his place to go. After more discussion, the two employees said that the next time it was their turn to work on machetes, they were going to refuse. Peterson responded that the employees were bound to do whatever work was described on the day foreman's list, and that if they didn't like the type of work so described, they should get out and the employer would find other people. According to Cobado, Peterson, looking at her, said, "If there is a thing on there (the day foreman's list) that says you have to kiss my ass, that is what you are going to do." Cobado retorted, "I don't need this garbage", walked to her machine, shut it down, packed her belongings, and walked off the job, punching out and crying as she left.*fn3
Peterson and Cornelius then went to the office in order to report the incident to Warren. Not finding him there, Peterson contacted Hall. The evidence as to what passed between them is inconclusive. The next day Cobado telephoned Hall, told him her story and asked if she was to come to work that evening, saying she had been a fool to walk off the job. Hall replied that he didn't know and asked why she had walked off the job; she answered, in somewhat more colorful language, that she was angry and "would have had to start swinging or doing something." Claiming it was her "nerves" that had caused her to become angry, she offered to get a doctor's slip. Hall advised against this and said he would have to discuss the matter with Warren. On Monday, June 26, Hall phoned Cobado to tell her that she was being terminated for walking off the job. Warren took responsibility for the decision. He stated that he relied in part on previous absences by and warnings to Cobado, but the ALJ was justified in concluding that the June 22 incident was the precipitating factor.
The Decisions of the ALJ and of the Board
The complaint alleged that Ontario's discharge and refusal to reinstate Cobado violated § 8(a)(1) which makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." That section, so far as here relevant, gives employees the right "to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection...." The ALJ had little difficulty in concluding that Cobado and Swift in registering their complaints with management over the alleged discrimination against the second shift in the recent assignment of machete work were engaged in a "concerted activity" for the purpose of "mutual aid or protection." Citing, inter alia, NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S. Ct. 1099, 8 L. Ed. 2d 298 (1962), he thought it to be "established beyond peradventure that a concerted walkout of employees to protest job conditions is activity protected by the Act"; that a concerted threat to do so must likewise be; and that if Cobado and Swift had both walked out in protest and been fired for doing so, Ontario should be found to have violated § 8(a)(1). He then addressed himself to what he characterized as "the rub", namely, that only Cobado had walked off. On this he ruled against the General Counsel, concluding "that Cobado's departure was a spur-of-the-moment decision, certainly understandable, but no less evident as being the subjective reaction of (an) individual; in short, a personal action, and thus not a concerted activity."
A three-member panel of the Board took a different view on the latter point. It relied on its decision in Steere Dairy, Inc., 237 NLRB No. 219 (1978), holding that "a single employee's walkout to protest a change in terms and conditions of employment for all employees was protected concerted activity despite the refusal of other employees to join in." Stating that "Cobado and Swift were engaged in group action up to the point when Cobado walked out alone", the Board stated, without explanation, that "(it) follows, a fortiori, that Cobado's individual protest was protected because it involved a group concern the work of all second-shift employees." Accordingly it found that Ontario had violated § 8(a)(1) by discharging Cobado and entered an order which, in addition to usual cease and desist and notice provisions, required Ontario to offer Cobado reinstatement to her former position and back pay.
The courts have not found it easy to apply the provision of § 7 conferring the right "to engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection" to cases such as this. One reason is that, in framing § 7, Congress scarcely had the problem in mind. The term "concerted activities" had a history in labor law considerably antedating enactment of the NLRA. Section 7 stems from § 2 of the Norris-LaGuardia Act, 47 Stat. 70 (1932), which stated in its declaration of public policy that "it is necessary that (the individual unorganized worker) shall be free from the interference, restraint or coercion of employers ... in self-organization or in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...." The chief objective of that Act was to curtail injunctions sought by an employee or by the Government against what everyone would recognize as organized activity, notably picketing in order to promote unionization or union demands. See Frankfurter and Greene, The Labor Injunction (1930). And see generally UAW v. Wisconsin Employment Relations Board, 336 U.S. 245, 257-58, 69 S. Ct. 516, 523-24, 93 L. Ed. 651 (1949), and Note, The Requirement of "Concerted" Action Under the NLRA, 53 Colum.L.Rev. 514, 514-15 (1953). We recount this history not at all with a ...