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Ewing v. National Labor Relations Board

July 19, 1985


No. 1051 - August Term, 1984.

Author: Cardamone

Before: KAUFMAN, OAKES and CARDAMONE, Circuit Judges.

Petition for review from an order of the National Labor Relations Board by an employee who was not recalled from lay off because he was mistakenly thought to have filed a safety complaint. The Board held that petitioner was not engaged in protected "concerted" activity within the meaning of § 7 of the National Labor Relations Act, 29 U.S.C. § 157.

Reversed and remanded.

CARDAMONE, Circuit Judge :

This case is before us for the second time. Robert Ewing was not recalled from a lay off because his employer mistakenly believed that he had filed a safety complaint with the Occupational Safety & Health Administration (OSHA). On the first appeal, we concluded that the determination that the employer had not unlawfully discriminated against Ewing made by the National Labor Relations Board (Board) was not supported by substantial evidence. We remanded the case for the Board to determine whether to apply retroactively its recent decision in Meyers Industries, 268 N.L.R.B. 493 (1984) (Meyers), in which it adopted a literal definition of "concerted activities" under § 7 of the National Labor Relations Act (Act), 29 U.S.C. § 157 (1982). Ewing v. NLRB, 732 F.2d 1117, 1122 (2d Cir. 1984). On the instant appeal the Board and the employer urge that we apply the Meyers rule. But recently the District of Columbia Circuit reversed Meyers on the grounds that it rested on an erroneous view of the law and was unsupported by any policy of the Act. Prill v. NLRB, 244 U.S. App. D.C. 42, 755 F.2d 941 (D.C. Cir. 1985). More importantly, the Supreme Court in NLRB v. City Disposal Systems, 465 U.S. 822, 104 S. Ct. 1505, 79 L. Ed. 2d 839 (1984), recently stated that the Board is not required to read the phrase "concerted activities" according to its dictionary definition. As a result of that holding, and guided by Justice Frankfurter's observation that statutes "are not abstract propositions [but] are expressions of policy arising out of specific situations and addressed to the attainment of particular ends." Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947), we decline the invitation to apply Meyers.


A. The Procedural History

As the facts of this case are fully discussed in our previous decision, they will be summarized only briefly. In October 1980 Ewing was employed as a pile driver operator by Herbert F. Darling, Inc. (Darling) on a rapid transit construction project near Buffalo, New York. During the fall of 1980 OSHA conducted a routine inspection at the job site. The inspection was not prompted by a complaint. A month later Ewing was laid off. An Administrative Law Judge (ALJ) found that except for brief periods the employer later refused to recall Ewing because company officials mistakenly believed that it was Ewing who had filed an OSHA complaint. The ALJ found that Darling's vice-president had told Ewing "that [the Company] had narrowed it down to three men who they believed reported the Company to OSHA, one of them was Ewing, and it did not want Ewing working for them." Herbert F. Darling, Inc., 267 N.L.R.B. 476, 480 (1982). The ALJ concluded that the employer had violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) by failing to recall an employee for filing a complaint with OSHA.

On appeal, the Board rejected by a two-to-one vote the ALJ's credibility resolutions and held that the employer had not violated section 8(a)(1) of the Act. Herbert F. Darling, Inc., 267 N.L.R.B. 476, 478 (1983). Ewing appealed the Board's decision. A panel of this court reversed because it concluded that the Board's decision was not supported by substantial evidence. Ewing, 732 F.2d at 1122. Nonetheless, we remanded because while Ewing was on appeal, the Board in Meyers rejected the legal theory relied upon by the ALJ. Meyers, 268 N.L.R.B. at 496-97. The Meyers Board held that an individual's invocation of an employment-related statutory right would no longer be deemed to be concerted activity within the meaning of § 7 of the Act and concluded that an employer therefore did not violate the Act when it discharged an employee for filing a safety complaint. In light of this new rule we directed the Board to determine whether its new test should be applied retroactively and, if not, to reinstate the ALJ's decision and order. On remand, the Board dismissed Ewing's complaint. It decided that since under its usual policy the new rule applied to all "pending" cases, it should be applied to Ewing. Herbert F. Darling, Inc., 273 NLRB No. 52 (1984). This decision prompted the instant appeal.

B. The Board's Ruling in Meyers

Section 8(a)(1) of the Act make it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [§ 7 of the Act]." 29 U.S.C. § 158(a)(1). Section 7 provides, in relevant part, that employees shall have the right "to engage in . . . concerted activities for . . . mutual aid or protection." 29 U.S.C. § 157.*fn1 It is not disputed that the reference to "mutual air or protection" protects employees who "seek to improve working conditions through resort to administrative and judicial forums." Eastex, Inc. v. NLRB, 437 U.S. 556, 566, 57 L. Ed. 2d 428, 98 S. Ct. 2505 (1978). The question to be decided is what is meant by "concerted activities." Can one employee who seeks to improve working conditions by invoking a statutory right be engaged in such activities, or does it take more than one employee for the action to be concerted?

Relying on Alleluia Cushion Co., 221 N.L.R.B. 999 (1975) (Alleluia), the ALJ below held that an individual employee who files a safety complaint is engaged in protected concerted activity, provided that there is no evidence that fellow employees disavow his action. Herbert F. Darling, Inc., 267 N.L.R.B. at 481. He explained that in Alleluia the Board found that an employer that disciplines or discharges an employee who files a complaint "would indicate to the other employees the danger of seeking assistance from Federal or state agencies in order to obtain their statutorily guaranteed working conditions, and would thus frustrate the purposes of such protective legislation." Id. (quoting Alleluia, 221 N.L.R.B. at 1000).

When Meyers came before the Board, it overruled Alleluia and announced a new "objective" test to be used in determining whether activity is protected concerted activity. 268 N.L.R.B. at 496. Meyers involved a truck driver who, after having an accident because of inadequate brakes, made a safety complaint, for which action his employer fired him. The Board held that the language of the statute and its legislative history required that the term "concerted" be read literally and that "concerted Activities: would be protected within the meaning of the NLRB only if involved two or more employees. The Board stated: "In general, to find an employee's activity to be 'concerted,' we shall require that it be engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Id. at 497. Its rationale for overruling Alleluia was largely that the opinion had received judicial criticism. Id. at 496. This Court among others has reversed the Board in cases in which it relied on Alleluia's rationale. See. e.g., ...

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