Prill v. National Labor Relations Board (755 F.2d 941, 1985)

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge B0RK-

HARRY T. EDWARDS, Circuit Judge:

!• Prologue

On this petition for review, we consider a case in which the petitioner, Kenneth Prill, was discharged from his job at Meyers Industries, Inc. (“Meyers”), because he complained about the unsafe condition of a company truck and trailer, including a complaint to state authorities following an accident, and because he refused, for safety reasons, to continue driving the truck and trailer following the accident. An investigation by state officials determined that the company vehicle was in fact unsafe due to faulty brakes and a damaged hitch, and a citation was issued against Meyers. Notwithstanding the concededly unsafe condition of the vehicle, Prill was fired because company officials decided that they could not have him “calling the cops all the time.”

In protest against his discharge, Prill filed an unfair labor practice charge with the National Labor Relations Board (“NLRB” or “Board”), and a complaint was issued against Meyers. An Administrative Law Judge (“ALJ”), following existing Board precedent, found that Prill’s conduct constituted “concerted activity] for ... mutual aid or protection” under section 7 of the National Labor Relations Act (“NLRA” or “Act”), and recommended his full reinstatement. However, the Board, over the dissent of one member, reversed the decision of the AU, overruled its earlier decisions, and dismissed the complaint against Meyers. In rejecting Prill’s charge, the Board adopted a new definition of “concerted activities;” under the enunciated test, an employee’s conduct is not “concerted” unless it is “engaged in with or on the authority of other employees, and not solely bv and on behalf of the employee himself.” Finding that Prill had acted alone and “solely on his own behalf,” the Board held his conduct unprotected by section 7.

It is not the responsibility of the courts to second-guess the lawful judgments of the NLRB. The Board has been granted broad authority to construe the NLRA in light of its expertise. In appropriate circumstances, the Board even may elect to abandon or modify established precedent. However, judicial deference is not accorded a decision of the NLRB when the Board acts pursuant to an erroneous view, of law and, as a consequence, fails to exercise the discretion delegated to it by Congress.

In the instant case, we find that the Board erred when it decided that its new definition of “concerted activities” was mandated by the NLRA. Because the Board misconstrued the bounds of the law, its opinion stands on a faulty legal premise and without adequate rationale. Accordingly, we remand this case under the principles of SEC v. Chenery Corp., so that the Board may reconsider the scope of “concerted activities” under section 7. We express no opinion as to the correct test of “concerted activities;” we require only that the Board exercise the full measure of administrative discretion granted to it by Congress and reconsider this matter free from its erroneous conception of the bounds of the law.

II. Background

A. Facts

The facts were found by the Administrative Law Judge and accepted by the Board, and are largely undisputed on review. Kenneth Prill was hired as a skilled driver on April 24, 1979, by Meyers Industries, a Michigan company engaged in the manufacture, sale and distribution of aluminum boats and. related products. Prill had driven trucks for several years before going to work for Meyers, and he had received two years of training as a mechanic. Throughout the period that he was employed by Meyers, he had a good work record.

Prill was assigned to drive a red Ford truck and its accompanying trailer to haul boats from Meyers’ main facility in Tecumseh, Michigan, to dealers throughout the country. Prill soon began to experience problems with his equipment, especially with the steering and the trailer’s brakes. In addition to discussing these problems with other drivers, Prill made numerous complaints to his supervisor, Dave Faling, to the company president, Alan Beatty, and to the mechanic, Buck Maynard, after returning from trips on which the brakes malfunctioned.

On one trip, for example, while he was driving through Chicago, Illinois, Prill narrowly escaped an accident when his brakes failed during a sudden stop in heavy traffic. On his return Prill asked Faling and Maynard to have the brakes repaired, but Maynard’s efforts were unsuccessful. He told Prill that the axles were so old that it was impossible to secure replacement parts; Prill insisted that new parts be purchased. After his next trip, during which the brakes remained inoperative, Prill again asked Faling when the brakes would be repaired, but was simply referred to Maynard or Beatty.

On a subsequent trip to Xenia, Ohio, Prill stopped at a roadside inspection conducted by the Ohio State Highway Patrol. As a result of that inspection, the truck was issued a citation for a number of defects, including the brakes. When Prill returned to Michigan, he showed the citation to Fal-ing and submitted it together with his post-trip paperwork.

During the first two weeks in June, 1979, another driver, Ben Gove, drove Prill’s equipment on a trip to Sudberry, Ontario. Gove testified before the ALJ that he experienced a steering problem which made it difficult to hold the road and “caused [the truck] to swerve back and forth like Ken Prill described,” nearly causing an accident. When Gove went to Faling’s office to submit his post-trip report, Prill was there at the same time to receive paperwork for the next trip. Gove described the steering and brake problems to Faling, and stated, in Prill’s presence, that he would not drive the truck again until it was repaired. Faling promised to make the needed repairs.

In early July, Prill was driving through Athens, Tennessee, when he had an accident which the Board found was caused by the malfunctioning brakes. A pickup truck struck the left rear of Prill’s trailer, causing the truck to jack-knife and sending both vehicles into a ditch. After giving a statement to the state highway patrol at the scene of the accident, Prill unsuccess- „ „ , , , , ,, ’ , , , .. fully sought to have the truck and trailer i j , , , U1. , • mspeeted by the state public' service commission

Following the accident, Prill called Meyers president Alan Beatty at home to advise him of the incident and of the extensive amage o e um • ^ as ® Pnll to chain the tractor and trailer togeth- , , , . , , , ™ ? „ er and tow the trailer back to lecumseh for repairs. Prill responded that “it would be possible to do that, but it would still be a hazard on the highway” because the hitch area was cracked and might give way and cause an accident. Beatty repeated that Prill should chain and tow the trailer home, but told him that if he insisted he could have a mechanic in Tennessee look at it.

... . n -n „ , „ , The following morning, Prill called Beat- , , , j , , L- , , nT ty at work and spoke to him and to Wayne Seagraves, the company’s vice president for production. Both were upset that Prill was still in Tennessee, and demanded to know why he had not yet left. Prill stated that the vehicle was unsafe because the hitch was damaged and the trailer lacked brakes. Seagraves responded that the company had been running its trucks like that for 20 years. At the end of the conversation, Beatty and Seagraves decided to send Maynard down to check the equipment.

.. „ ... , ., , , After this conversation, Prill decided to „ . .. „ . „ contact the Tennessee Public Service Com- ... „ ...... mission to arrange for an official inspection of the vehicle. The inspection resulted in a citation putting the unit out of service becauge of bad brakeg and d e tQ the wtch area. The dtation wag baged on gev. eral Department of Transportation regula- ,. . . „ K OA„ . , tions, including 49 C.F.R. § 396.4, which ,.’ ,. „ ’ ,. e operatfn °f “ unsaf« ^ cle. Pn” was instructed to notify the Pohe® °r Public Service Commission immelately if anyone attempted to move the vehicle before required repairs were made. When Maynard arrived in Tennessee later the same day, Prill showed him the citation, Maynard and Beatty then decided that the trailer was not worth repairing and should , ... r ,, .. be sold for scrap after removing the tires, 1 b

Two days later Prill reported for work and was summoned to Wayne Seagraves’ office, where he was questioned about the accident and damage to the truck. Both Seagraves and Beatty asked Prill why he had not towed the trailer back as requested; Prill responded that this would have been both unsafe and unlawful. At the end of the conversation, Seagraves told Prill that he was discharged because “we can’t have you calling the cops like this all the time.”

B. The Decisions of the ALJ and the Board

On the basis of these facts, the ALJ found that Prill was discharged because of his safety complaints and his refusal to drive an unsafe vehicle in accordance with Department of Transportation regulations. Relying on the rationale of Alleluia Cushion Co., the ALJ held that Prill’s actions were “concerted activities for ... mutual aid or protection” under section 7 of the NLRA, and thus protected, because they inured to the benefit of all employees. In order to understand this conclusion, it is necessary briefly to review the development of the Board’s doctrine of “constructive concerted activity.”

During the past 25 years, the Board has gradually extended the concept of “concerted activities” under section 7 to include certain types of actions taken by individual employees. For example, under the so-called Interboro doctrine, the Board has long held that the assertion by a single employee of rights derived from a collective bargaining agreement is protected under section 7, on the reasoning that such an act is an extension of the concerted action that produced the agreement and that it affects the rights of all employees covered by the agreement. In addition, in a series of cases since 1959, the Board developed the position that section 7 protects corn-plaints made by an individual, even absent authorization by other employees, “if the matter at issue is of moment to the group of employees complaining and if that matter is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speaking for the benefit of the interested group.”

In Alleluia Cushion Co., the Board extended the doctrine of constructive concerted activity to include an individual employee’s efforts to invoke state and federal laws regulating occupational safety. In Alleluia an employee was discharged for notifying the California Occupational Safety and Health Administration (OSHA) of unsafe conditions at his plant. Observing that “[s]afe working conditions are matters of great and continuing concern for all within the workforce,” and that filing the OSHA complaint “was an action taken in furtherance of guaranteeing Respondent’s employees their rights under the California Occupational Safety and Health Act,” the Board held that

[i]t would be incongruous with the public policy enunciated in such occupational safety legislation ... to presume that, absent an outward manifestation of support, Henley’s fellow employees did not agree with his efforts to secure compliance with the statutory obligations imposed on Respondent for their benefit. Rather, since minimum safe and healthful employment conditions for the protection and well-being of employees has been legislatively declared to be in the overall public interest, the consent and concert of action emanates from the mere assertion of such statutory rights. Accordingly, where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such representation, we will find an implied consent thereto and deem such activity to be concerted.

The rationale of Alleluia thus was composed of two stands: (1) the Board’s familiar view that an individual’s activity should be protected if it relates to a matter of “mutual concern” to employees, and (2) a more specific rationale that concert may be presumed when an individual asserts rights under a statute enacted for the benefit of employees.

Applying the principles of Alleluia and its progeny, the ALT in the instant case held Prill’s conduct protected under section 7. He reasoned that Prill’s refusal to drive the vehicle was mandated by Department of Transportation regulations that reflected a concern for the safety of particular drivers as well as for that of the general public, and that “[a]n employee who complains about the safety of a particular truck speaks for the safety of any employee who may drive that truck.” The ALJ also held that Prill’s complaints prior to the accident “were clearly concerted because they were joined by driver Gove,” who had made similar complaints to supervisor Dave Faling in Prill’s presence. Therefore, the AU ruled that Prill’s discharge violated section 8(a)(1).

The Board disagreed and dismissed the complaint. Overruling Alleluia and its progeny, the Board argued that activity could be “concerted” only if it in fact involved “some kind of group action,” and criticized Alleluia as inconsistent with the statute because it allowed group support to be presumed rather than proven. Claiming to return to “the standard on which the Board and courts relied before Alleluia,” the Board announced the following test for protected concerted activity:

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 or on behalf of the employee himself. Once the activity is found to be concerted, an 8(a)(1) violation will be found if, in addition, the employer knew of the protected nature of the employee’s activity, the concerted activity was protected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee’s protected concerted activity.

Applying this standard, the Board held that Prill had acted alone and “solely on his own behalf” when he refused to drive the truck and contacted the Tennessee Public Service Commission. As to whether Prill’s complaints prior to the accident were joined by Gove, the Board found that the record was clear that “Prill merely overheard Gove’s complaint while in the office on another matter.” Stating that “the most that can be inferred from this scenario is that another employee was individually concerned ... about the truck’s condition,” the Board ruled that “[tjaken by itself, ... individual employee concern, even if openly manifested by several employees on an individual basis, is not sufficient evidence to prove concert of action.” Although the Board admitted to being “[ojutraged ... by a respondent who — at the expense of its driver and others traveling on the nation’s highways— was clearly attempting to squeeze the last drop of life out of a trailer that had just as clearly given up the ghost,” it nevertheless concluded that it did not believe “that section 7, framed as it was to legitimize and

protect group action engaged in by employees for their mutual aid and protection, was intended to encompass the case of individual activity presented here.” Therefore, the Board held that Prill’s discharge did not violate his rights under section 7.

III. Analysis

A. Standard of Review

Because the Board is entrusted with the “responsibility to adapt the Act to changing patterns of industrial life,” a reasonable construction of the Act by the Board is entitled to considerable deference. An agency decision cannot be sustained, however, where it is based not on the agency’s own judgment but on an erroneous view of the law. For it is a fundamental principle of law that “an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.” As the Supreme Court stated in its landmark decision in SEC v. Chenery Corp.:

[I]f [agency] action is based upon a determination of law as to which the reviewing authority of the courts does come into play, an order may not stand if the agency has misconceived the law____ [T]he orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained.

These principles were concisely stated by Judge Bork in his separate opinion in Planned Parenthood Federation of America, Inc. v. Heckler:

Under SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), we must judge the validity of an administrative regulation solely on “the grounds upon which the [agency] itself based its action.” Id. at 88, 63 S.Ct. at 459. In particular, an agency regulation must be declared invalid, even though the agency might be able to adopt the regulation in the exercise of its discretion, if it was not based on the [agency s] own judgment but rather on the unjustified assumption that it was Congress judgment that such [a regulation is] desirable.” FCC v. RCA Communications, Inc., 346 U.S. 86, 96, 73 S.Ct. 998, 1005, 97 L.Ed. 1470 (1953). If a regulation is based on an incorrect view of applicable law, the regulation cannot stand as promulgated, unless the mistake of the administrative body is one that clearly had no bearing , ,, . , on the procedure used or the substance „ , . . , , „ ,, , ., of decision reached. Massachusetts Trustees v. United States, 377 U.S. 235, 248, 84 S.Ct. 1236, 1245, 12 L.Ed.2d 268 (1964)

, ,. „ We think that the teachings of Chenery are plainly implicated in this case. The Board’s opinion clearly reveals that it considered its adoption of a narrow test for “concerted activities” both to be mandated by the NLRA itself and to be merely a return to “the standard on which the Board and courts relied before Alleluia.” We believe that the Board misinterpreted the law in two respects. First, we think, espe-dally on the basis of recent Supreme Court decisions, that the Board erred in assuming that the NLRA mandates its present interpretation of “concerted activities.” In other words, the Board’s opinion is wrong insofar as it holds that the agency is without discretion to construe “concerted activities” except as indicated in the Meyers test. Second, contrary to the view expressed by the Board, we find that the Meyers test does not represent a return to the standard relied on by the courts and by the Board before Alleluia, but instead constitutes a new and more restrictive stan-¿ard. We therefore conclude that, because the Board’s decision stands on a faulty legal premise and without adequate ration- ^ we must remand the case for reconsid. erat¡on

B. The Meyers Test

The Board announced in this case that> «[i]n general, to find an employee’s activit to be