Meyers Industries, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 882 (N.L.R.B. 1986)

882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meyers Industries , Inc. and Kenneth P . Prill. Case
7-CA-17207
30 September 1986
SUPPLEMENTAL DECISION AND
ORDER'
BY CHAIRMAN DOTSON AND MEMBERS
BABSON AND STEPHENS
On 6 January 1984 the National Labor Relations
Board issued its Decision and Order in this pro-
ceeding (Meyers 1)2 in which it overruled Alleluia
Cushion Co.3 and its progeny; defined the concept
of concerted activity for purposes of Section 7 of
the National Labor Relations Act; and reversed the
judge's finding that the Respondent had violated
Section 8(a)(1) of the Act by discharging employee
Kenneth P. Prill. In finding a violation of Section
8(a)(1), the judge had relied on Alleluia to conclude
that Prill's individual activity in refusing to drive
an unsafe vehicle and in reporting the vehicle to
state authorities constituted concerted activity for
purposes of Section 7. The Board, however, held
that the definition of concerted activity that was
expressed in Alleluia does not comport with Sec-
tion 7. Having rejected the Alleluia standard, the
Board formulated a definition of concerted activity
to comport with Section 7. Then, applying that
standard to the facts surrounding Prill's discharge,
the Board upheld the discharge and dismissed the
complaint.
Thereafter, Prill, the Charging Party, filed a peti-
tion for review of the Board's Decision and Order
with the United States Court of Appeals for the
District of Columbia Circuit.4 On 26 February
1985 the court remanded Meyers I on the grounds
that the Board, first, erroneously assumed that the
Act mandated its Meyers I interpretation of "con-
certed activities" and, second, relied on a misinter-
pretation of prior Board and court precedent, indi-
cating to the court a lack of rationale for the new
definition. 5 As to the first ground, the court did
not express an opinion as to the correct test of con-
certed activity or whether the Meyers I test is a
reasonable interpretation of the Act.6 The court in-
stead determined that the U.S. Supreme Court's
recent decision in NLRB v. City Disposal Systems,
465 U.S. 822 (1984), made clear that the Board was
not required to give a "narrowly literal interpreta-
tion" to the term "concerted activities," but had
i Member Johansen did not participate in this decision.
2 268 NLRB 493 (1984)
8 221 NLRB 999 (1975).
4 Poll V NLRB, 755 F 2d 941 (D C Cir 1985) (2-1 decision), cert
denied 106 S Ct 313, 352 (1985)
Id. at 942, 948
Id. at 948 fn 46
substantial authority to define the scope of Section
7. The court concluded that a remand was appro-
priate "to afford the Board a full opportunity to
consider such issues in light of the analysis of sec-
tion 7 in City Disposal"? and to particularize more
fully its rationale for the adoption of the Meyers I
definition.
On 29 July 1985 the Board notified the parties
that it had accepted the remand from the court of
appeals and invited the parties to submit statements
of position with regard to the remand issues.
Thereafter, all parties filed statements of position.8
The International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), AFL-CIO filed an amicus brief.9
Having accepted the remand, the Board must ob-
serve the court's opinion as the law of the case
and, necessarily, its judgment that the Meyers I def-
inition is not mandated by the Act.10
The Board has reconsidered this case in light of
the court's opinion, the parties' statements of posi-
tion, and the Auto Workers' amicus brief and has
decided to adhere to the Meyers I definition of con-
certed activity as a reasonable construction of Sec-
tion 7 of the Act. Consistent with City Disposal,
supra, we have exercised our discretion and have
chosen the Meyers I definition over other possibly
permissible standards for the reasons set forth
below. 11
7 Id at 957
8 On 27 September 1985 the Respondent filed a motion to stay further
consideration of the case pending the U S Supreme Court's disposition of
a petition for wnt of certiorari filed by the Respondent On 4 November
1985 the Court denied certiorari 106 S Ct 313, 352 (1985). In light of the
Court's action , we deny the Respondent 's motion.
The Charging Party has requested oral argument The request is
denied as the record, exceptions , and briefs adequately present the issues
and the positions of the parties
8 On 1 October 1985 the Auto Workers filed a motion for leave to file
an amicus brief We have granted the motion and have accepted the
amicus brief
10 The court also did not consider whether the Board 's application of
the Meyers I test to Poll's situation was supported by substantial evi-
dence 755 F.2d at 957 fn. 92. Because our understanding of the court's
opinion is that the Board is faced with legal issues on remand, we find it
unnecessary to give a detailed statement of the facts or to reiterate the
Board 's earlier discussion of the application of the Meyers I definition to
those facts Basically, there is no evidence in this case that employee Prill
joined forces with any other employee or by his activities intended to
enlist the support of other employees in a common endeavor As a result,
the Board found that Prill did not engage in concerted activities
We also note that , in her closing argument , the General Counsel did
not contend that Poll's actions constituted concerted activity under "tra-
ditional concepts", rather, she relied on the Board 's "expanded" concept
of "concertedness" in Alleluia and its progeny
i i The court's remand calls for an illumination of our reasons for
adopting the Meyers I definition apart from the concerns raised by the
rejection of the Alleluia standard For this reason , we have refrained from
repeating here why the Alleluia standard was rejected in Meyers I.
281 NLRB No. 118
MEYERS INDUSTRIES 883
A. Meyers I is Faithful to the Central Purposes
of the Act
At the outset, we reaffirm our recognition that
the Board has a wide latitude in interpreting Sec-
tion 7 of the Act, as the Supreme Court has stated
on numerous occasions.12 That latitude is not with-
out limit, however; and even within the conceiva-
ble limits of a general phrase such as "concerted
activities," it is surely appropriate to choose that
construction that is most responsive to the central
purposes for which the Act was created. We be-
lieve that our choice in Meyers I, as elucidated in
this opinion on remand from the court, does fully
reflect those purposes.
The precise phrase in Section 7 that we are con-
struing, as the Supreme Court has recently noted in
City Disposal, can be traced back to the Norris-La-
Guardia Act of 1932.13 In that statute Congress
sought to protect the trade union movement from
the hostility of the courts in their use of "the doc-
trine that concerted activities were conspiracies,
and for that reason illegal." Auto Workers Local 232
v. Wisconsin Employment Relations Board (Briggs &
Stratton), 336 U.S. 245, 257 (1949). Several years
later, in the Wagner Act, in an effort to reduce the
industrial unrest produced by the lack of appropri-
ate channels for the collective efforts of employees
to improve workplace conditions, Congress gave
employees affirmative protections from employer
reprisal for collective activity. The emphasis on
collective, as distinct from purely individual, activi-
ty is made clear in the Act's "Findings and declara-
tion of policy" (29 U.S.C. § 151): they note the
... inequality of bargaining power between
employees who do not possess full freedom of
association or actual liberty of contract, and
employers who are organized in the corporate
or other forms of ownership, association
and they propose to overcome this inequality by
encouraging
... the practice and procedure of collective
bargaining and by protecting the exercise by
workers of full freedom of association, self-or-
ganization, and designation of representatives
of their own choosing, for the purpose of ne-
gotiating'the terms and conditions of their em-
ployment or other mutual aid or protection.14
b
12 It reiterated this principle in City Disposal, the decision of greatest
relevance here. 465 U.S. at 829-830.
13 465 U.S. at '834-835. As the Court also noted (id.), Congress had
similarly sought fo protect peaceful union activities from indiscriminate
use of the antitrust laws through exemptions added to the Clayton Act in
1914. See generally H. Wellington, Labor and the Legal Process 38-43
(1968).
a' These findings echoed views of Francis Biddld (who was chairman
of the first National Labor Relations Board, established under Public
To be sure, as Professors Gorman and Finkin
have pointed out, -the intent of the Wagner Act to
extend protections to group action for the improve-
ment of wages and working conditions is not nec-
essarily incompatible with an intent to protect
purely individual action for the same purpose;15
but the fact remains, as the Supreme'Court has re-
peatedly recognized, that it is protection for joint
employee action that lies at the heart of the Act.' 6
Resolution 44) in a speech that Senator Wagner placed in the Congres-
sional Record not long after he introduced the bill that became the basis
for the Wagner Act. In that speech, which Senator Wagner evidently
saw as setting forth the theoretical underpinnings of his legislation, Fran-
cis Biddle explained
For freedom to work and live decently no longer means the theo-
retical freedom of a man to make a contract with a steel corporation.
There is no freedom of contract where power is all on one side and
the choice is to take what you get or starve Mr. John Lewis, with
half a million miners behind him, can make a contract, because he,
too, can say, "Take it or leave it." The forces,are balanced; the game
is even
There are two theories about the relationship of capital and labor
One is the partnership theory, the other is the class-war theory.
There is, however, one real flaw in the argument'that the rel ation-
ship is one of partnership, which is usually overlooked A partner-
ship is the result of agreement and presupposes equality of bargain-
ing. This condition does not,- as we have already said, apply to an
individual seeking'a job The partnership is created as the result of
an agreement . Thus it becomes fair to describe the relationship as a
partnership only after an agreement'has been entered into by the par-
ties from some equality of bargaining power Such agreements are
collective bargaining agreements, signed by employer and union, and
are real partnerships, which carry With them the joint good will and
spirit of team play of real partnerships.
"Theory of Collective Bargaimng-Address by Francis Biddle," re-
printed in 79 Cong. Rec. 3183 (1935), and in I Leg His. 1314, 1317-1318
(NLRA 1949).
15 Gorman & Finkin, The Individual and the Requirement of "Concert"
Under the National Labor Relations Act, 130 U. Pa. L Rev. 286, 338
(1981). -
To give full meaning to the notion of liberty, of course, both avenues
of recourse-individual action and group activity-are necessary and de-
sirable As de Tocqueville observed, a. century and a half ago-
The most natural privilege of man, next to the right of acting for
himself, is that of combining his exertions with those of-his fellow-
creatures, and of acting in common with them. The right of associa-
tion therefore appears to me almost as inalienable in its nature as the
right of personal hberty
A. de Tocqueville, Democracy in America 98 (R. Heffner ed. 1956). In the
Wagner Act, Congress sought to vindicate the exercise of associational
rights for attaining improved wages and working conditions. See Fried,
Individual and Collective Rights in Work Relations. Reflections on the Cur-
rent State of Labor Law and its Prospects, 51 U. Chi. L. Rev. 1012, 1028-
1029 (1984).
16 See, for example, NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1,
33 (1937) (citing American Steel Foundries v. Tri-City Central Trades
Council, 257 U.S. 184, 2(19 (1921)), in explaining the background of the
Wagner Act ("[A] single employee was helpless in dealing with an em-
ployer. . [U]nion was essential to give laborers opportunity to deal
on an equality with their employer"); Alexander v. Gardner-Denver Co.,
415 U.S. 36, 51 (1974) (contrasting Title VII of the Civil Rights Act, con-
cerned with "an individual's right to equal employment opportunities"
with the "majoritarian processes" of the NLRA); NLRB v Chy Disposal
Systems, 465 U S. 822, 8 15 (1984) (Sec. 7 embodies congressional intent
"to create an equality in bargaining power between the employee and the
employer throughout the entire process of labor organizing, collective
bargaining , and enforcement of collective-bargaining agreements"); Met-
ropolitan Life Ins. Co. v. Massachusetts, 106 S.Ct. 2380, 2396-2398 (1985)
(distinguishing minimum-labor-standard, laws, which apply to all employ-
ees without regard to the collective-bargaining process, from the.NLRA,
with its protections for employee self-organization and collective bargain-
mg)
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Congress' addition, in the Taft-Hartley Act, of a
right to "refrain" from participating in concerted
activities, did not shift the focus of the Act from
collective action to individual action, but merely
made it possible for individual employees to choose
not to participate in the former.) It is therefore en-
tirely appropriate for us to take that focus on joint
employee action as the touchstone for our analysis
of what kinds of activities we must find within the
scope of Section 7 in order to effectuate the pur-
poses of the Act. The definition of concerted activ-
ity that the Board provided in Meyers I proceeds
logically from such an analysis insofar as it requires
some linkage to group action in order for conduct
to be deemed "concerted" within the meaning of
Section 7.
B. Meyers I is Consistent with City Disposal
In Meyers I, the Board indicated that a serious
problem with the analysis in Alleluia and its proge-
ny was that its focus on the purpose or subject
matter of a particular action-whether it was a
subject with which a group was likely to be con-
cerned-reflected the "mutual aid or protection"
clause of Section 7 but had little apparent linkage
to the notion of action taken in "concert."17 The
Board noted that its pre-Alleluia cases had, with
court approval, distinguished between the two
clauses and regarded them as separate tests to be
met in establishing Section 7 coverage; the Board
determined it should return to this approach.1'
This approach is consistent with the groundwork
laid by the Supreme Court in City Disposal.1'
In City Disposal the Supreme Court addressed
the question of whether an individual employee's
invocation of a right contained in a collective-bar-
gaining agreement constituted concerted activity
within the meaning of Section 7. The Court an-
swered this question in the affirmative and found
reasonable the Board's longstanding Interboro doc-
trine20 recognizing as concerted an individual em-
ployee's reasonable and honest invocation of a col-
lective-bargaining right.
The Court noted that the Board had relied on
"two justifications" for its Interboro doctrine:
First, the assertion of a right contained in a
collective-bargaining agreement is an extension
17 268 NLRB at 495-496
18 Id at 494-495, 496
18 465 U.S. at 830-831 It is also consistent with the analytical frame-
work of Eastex, Inc. v. NLRB, 437 U S 556 (1978), where the employees'
distribution of a union newsletter was plainly "concerted activity," but
the Court considered the separate question whether, given the subject
matter of the newsletter , it could be said that the concerted activity was
engaged in for "mutual aid or protection."
20 Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd 388 F 2d
495 (2d Cir 1967).
of the concerted action that produced the
agreement, Bunney Bros. Construction, [139
NLRB 1516,] 1519 [(1962)]; and second, the
assertion of such a right affects the rights of all
employees covered by the collective-bargain-
ing agreement. Interboro Contractors, supra, at
1298.21
In the Court's only subsequent reference to the
second justification, it described the effect that a
single employee's invocation of a contract right
exerts on the rights of other employees as the
... type of generalized effect [that is] suffi-
cient to bring the actions of an individual em-
ployee within the "mutual aid or protection"
standard, regardless of whether the employee
has his own interests most immediately in
mind.22
The Court then proceeded to an analysis of the
"concerted activity" issue that, as we explain
below, relies only on the first justification-that the
individual's action is an extension of the concerted
action that produced the agreement.
It is noteworthy that the second justification-af-
fecting the rights of others-which the Court
linked to the "mutual aid or protection" clause
closely resembles the reasoning that underlay the
Board's decision in Alleluia to deem as "concerted"
activity an individual employee's action to enforce
"statutory provisions relating to occupational
safety designed for the benefit of all employees" in
the absence of employee disavowal of such
action.23 While it would be going too far to say
that the Court in City Disposal held that questions
of who is benefited by an action to go to the
"mutual aid or protection" clause only and not to
the "concerted" activity element of Section 7, it is
surely reasonable to conclude from the Court's
analysis that it deems some linkage to collective
employee action to be at the heart of the "concer-
tedness" inquiry.
Thus, in considering what constitutes "concerted
activities" under Section 7, the Court stated that
the inquiry was one in which it must determine
"the precise manner in which particular actions of
an individual employee must be linked to the ac-
tions of fellow employees."24 The Court approved
the Interboro doctrine because it found an individ-
ual employee's invocation of a collective-bargain-
ing right to be "unquestionably an integral part of
the process that gave rise to the agreement."25 The
21 465 U S at 829
22 Id at 830 (citation omitted)
23 221 NLRB at 1000
24 465 US at 831
25 Ibid
MEYERS INDUSTRIES 885
Court reviewed the stages of the process, including
the organization of the union, the negotiation of
the collective-bargaining agreement, and the asser-
tion of rights under the agreement as "a single, col-
lective activity."26 The Court concluded: "A lone
employee's invocation of a right grounded in his
collective-bargaining agreement is, therefore, a
concerted activity in a very real sense .1127 Further
support was found from the fact that joining and
assisting a labor organization can be engaged in by
an individual employee, whose action, nevertheless,
bears an integral relationship to the actions of other
employees. It was recognized that the- actions of
the individual employee engaged in concerted ac-
tivity might be remote in time and place from
group action28 but, at some point, there would be
an outer limit to concerted activity in order to be
faithful to the collective-action component of Sec-
tion 7.29
Even though the precise issue concerning the
scope of "concerted activities" now before us was
not before the Supreme Court in City Disposal,3o
several guiding principles concerning what might
constitute a permissible definition of "concerted ac-
tivities" emerge. First, a definition of concerted ac-
tivity could include some, but not all, individual
activity. Both the majority and dissenting opinions
in City Disposal approve a definition of concerted
activity encompassing individual employee activity
in which the employee acts as a representative of
at least one other employee, 31 whereas only the
majority opinion endorses the inclusion of the indi-
vidual activity reflected by the Interboro doctrine.
Second, inasmuch as an essential component of
Section 7 is its collective nature, a definition of
concerted activity should reflect this component as
well. Third, like the Board in Meyers I, the Court
in City Disposal separated the concept of "concert-
ed activities" and "mutual aid or protection,"
thereby giving its imprimatur to the reasonableness
of such a separation of the two concepts underly-
ing Section 7.32
26 Id at 831-832.
27 Id. at 832.
26 Id . at 832-833.
29 Id. at 833 fn. 10.
s° Id. at 829 fn 6 In Meyers I we specifically distinguished the issues
presented by the Interboro doctrine from those presented here 268
NLRB at 496 The Court in City Disposal agreed with that distinction,
stating in fn. 6 of its decision, "The Board, however, distinguished that
case from the cases involving the Interboro doctrine, which is based on
the existence of a collective-bargaining agreement . The Meyers case is
thus of no relevance here " The Court did, however, fhvorably cite
Meyers I in its preliminary analysis of Sec. 7
31 Id at 831, 846-847
32 Id . at 830-831. In this regard, the Court concluded first that assert-
ing a collective-bargaining right was for "mutual aid or protection"
before considering whether an individual who does so alone engages in
concerted activity. If the Court did not consider the two concepts under-
Keeping these objectives in mind, we have scru-
tinized the Meyers I definition of "concerted activi-
ties." In our view, the Meyers I definition strikes a
reasonable balance. It is not so broad as to create
redundancy in Section 7, but expansive enough to
include individual activity that is connected to col-
lective activity, which lies at the core of Section 7.
C. "Individual Activity" Under the Meyers I
Standard
In Meyers I, the Board adopted the following
definition of the term "concerted activities": "In
general, to find an employee's activity to be 'con-
certed,' 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 him-
self."33 The Meyers I definition expressly distin-
guishes between an employee's activities engaged
in "with or on the authority of other employees"
(concerted) and all employee's activities engaged in
"solely by and on behalf of the employee himself"
(not concerted). There is nothing in the Meyers I
definition that states that conduct engaged in by a
single employee at one point in time can never con-
stitute concerted activity within the meaning of
Section 7. On the contrary, the Meyers ' I definition,
in part, attempts to define when the act of a single
employee is or is not "concerted."
The court of appeals raised - several questions as
to whether individual activity is indeed covered by
the Meyers I definition. We interpret the court's
opinion as inviting us to respond to the concerns
raised ,by those questions.
1. The court queried whether Meyers I is consist-
ent with NLRB Y. Lloyd A. Fry Roofing Co., 651
F.2d 442 (6th Cir. 1981), a case that the Prill court
stated was "a case quite similar on its facts to
Meyers." 755 F.2d at 953 fn. 72. We' respectfully
point out that Ll®yd A. Fry and the instant case are
factually distinguishable in a critical respect. In
Lloyd A. Fry, where concerted activity was estab-
lished, the record was replete with instances in
which the discharged employee (Varney) acted on
a collective basis with other employees preceding
his discharge. Thus, as found by the Sixth Circuit,
Varney engaged in "numerous discussions" with
his fellow drivers regarding the safety of the em-
ployer's trucks and Varney and a fellow employee
(Wade) collectively met with management repre-
sentatives specifically to discuss solutions to truck
maintenance problems that had engendered numer-
ous complaints by other employees. In the instant
lying Sec. 7 as distinct, then the, Court's remaining analysis pertaining to
the concept of "concerted activities" would have been superfluous
33 268 NLRB at 497.
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case , there is no record evidence whatsoever that
employee Prill at any relevant time or in any
manner joined forces with any other employee, or
by his activities intended to enlist the support of
other employees in a common endeavor. Since
Lloyd A. Fry is not on all fours with the instant
case, a different result is not inconsistent with the
results reached here.
2. The court of appeals also noted that, in previ-
ous Board cases,34 concerted activity was found
where an individual, not a designated spokesman,
brought a group complaint to the attention of man-
agement . The court questioned whether Meyers I is
consistent with those cases. We discern no basis
upon which the Meyers I standard deviates from
those cases in the manner suggested by the court's
question. Indeed, Meyers I recognizes that the ques-
tion of whether an employee has engaged in con-
certed activity is a factual one based on the totality
of the record evidence. When the record evidence
demonstrates group activities, whether "specifically
authorized" in a formal agency sense, or otherwise,
we shall find the conduct to be concerted. In
Board cases subsequent to Meyers I, we have fol-
lowed that principle.35 The Board decisions in
Mannington Mills," and Allied Erecting Co.,37
cited by the court of appeals, are not contrary to
that principle.
In Mannington Mills, supra, the Board majority
found that employee Frie was not acting in concert
with any other employee when he threatened a
work stoppage in protest of certain extra work as-
signments. Former Member Zimmerman , dissenting
on other grounds, did not take issue with the ma-
94 In Charles H. McCauley Associates, Inc, 248 NLRB 346 (1980), enfd
657 F.2d 685 (5th Cu 1981), an employee spoke to his fellow employees
and apprised them of his intention to seek improvements in certain work-
ing conditions . The employee then expressly informed the employer of
his intended group action , i e., to discuss these matters with his cowork-
ers and, possibly , with a union . The employer forbade the employee to
discuss these matters with his coworkers or with a union and terminated
him. In Hugh H. Wilson Corp., 171 NLRB 1040 (1968), enfd 414 F.2d
1345 (3d Cir. 1969), cert denied 397 U.S. 935 (1970), a group of employ-
ees attended an employer-sponsored meeting and vocally took issue with
the employer 's administration of an employee profit-sharing plan. The
employees subsequently held a group discussion about the profit -sharing
plan . In Guernsey-Muskingum Electric Coop., Inc, 124 NLRB 618 (1959),
enfd. 285 F 2d 8 (6th Cir. 1960), three employees made a common deci-
sion, following group discussions among all three, that each would take
their complaint to a high management representative In Carbet Corp.,
191 NLRB 892 (1971), enfd. 80 LRRM 3054 (6th Cur 1972), an employee
complained to management about the employer's inadequate ventilation
system The employee 's complaints had been instrumental in bringing
about a union campaign and the employee previously had spoken to
other employees about the ventilation problem , one of whom had replied,
"We've got to get a union, and maybe they could help us get it [an im-
proved ventilation system] " 191 NLRB at 898
ss See Walter Brucker & Co, 273 NLRB 1306 (1984), Advance Cleaning
Service, 274 NLRB No 141 (Mar 13, 1985); Spencer Trucking Corp., 274
NLRB 942 (Mar 29, 1985), Dayton Typographical Service, 273 NLRB
1205 ( 1984), enfd . in relevant part 778 F.2d 1188 (6th Cir 1985).
36 272 NLRB 176 (1984)
37 270 NLRB 277 (1984)
jority finding that Frie acted alone in making this
threat.38 According to the Board's findings, there
was no evidence to show (1) that any employee
had authorized or instructed Frie to make the
threat;39 (2) that any employee had discussed with
him the possibility of a work stoppage; or (3) that
any employee was aware of and supported Frie's
threat. The Board majority suggested that had any
one of these facts that was missing from the record
been present , Frie's threat may have been found to
be concerted.
In Allied Erecting Co., supra, an employee con-
tacted a representative of an employer (other than
his immediate employer) to inquire whether em-
ployees on the project were covered by a contract.
No evidence was presented that other employees in
any way supported the employee's visit and the
employee himself equivocated as to whether he
even told any other employee about the prospec-
tive visit. The employee was fired because he had
spoken to the other employer about his employer
not paying union scale wages as required by the
project contract. Concerted activity was not found.
In both Mannington and Allied, the circumstances
failed to establish that the individual employee
acted other than solely by and on behalf of himself.
Neither case stands for the proposition that a group
spokesman must be "specifically authorized" by the
group to act in some formal declarative manner.
Rather, there was not even a general awareness on
the part of the group as to the intended action of
the individual employee.
In Walter Brucker & Co., supra, which issued
subsequent to Meyers I, the Board found that an
individual employee acted on the authority of
other employees within the meaning of Meyers I
when that employee discussed with other employ-
ees a common wage complaint. The conduct was
deemed concerted under the circumstances because
a second employee refrained from making his own
wage complaint, relying instead on the first em-
ployee to resolve the matter. Although there was
no "specific authorization" in the formal agency
sense, the record established that the employees
acted as a group even though only the first em-
ployee further pursued the wage complaint, while
the second employee was only generally aware
that the first employee would take whatever action
98 See dissenting opinion of former Member Zimmerman in Manning-
ton, 272 NLRB at 177-178.
39 According to Fne's version , which was not specifically credited,
other employees may have indicated to him their objection to perform
certain work . The Board was unwilling to equate possible declarations of
this kind with authorization , formal or informal , to Fne to pursue the
action that he took
MEYERS INDUSTRIES 887
he deemed necessary to obtain the information con-
cerning their wage dispute.
3. As to the court's question regarding Mushroom
Transportation Co. v. NLRB,40 the court stated that
"[it] is not clear, however, that the Meyers stand-
ard would protect an individual's efforts to induce
group action."41 To clarify, we intend that Meyers
I be read as fully embracing the view of concerted-
ness exemplified by the Mushroom Transportation
line of cases. We reiterate, our definition of con-
certed activity in Meyers I encompasses those cir-
cumstances where individual employees seek to ini-
tiate or to induce or to prepare for group action, as
well as individual employees bringing truly group
complaints to the attention of management.
In' Meyers I we noted with approval Root-Carlin,
Inc., 92 NLRB 1313, 1314 (1951), a decision ante-
dating Meyers I by 33 years, in which the Board
recognized that:
Manifestly, the guarantees of Section 7 of the
Act extend to concerted activity which in its
inception involves only a speaker and a listen-
er, for such activity is an indispensable prelimi-
nary step to employee self-organization.
More recently, in Vought Corp., 273 NLRB 1290,
1294 (1984), enfd. 788 F.2d 1378 (8th Cir. 1986),
the Board noted with approval the Third Circuit's
comments in Mushroom Transportation, supra, that:
It is not questioned that a conversation may
constitute a concerted activity, although it in-
volves only a speaker and a listener, but to
qualify as such, it must appear at the very least
it was engaged in with the object of initiating
or inducing or preparing for group action or
that it had some relation to group action in the
interest of the employees.
Ontario Knife Co. v. NLRB,42 relied on by the
Board in support of the Meyers I test, indicates that
individual activity "looking toward group
action"43 is deemed concerted. Although Meyers I
did not expressly endorse Mushroom Transportation,
it did so' implicitly by its reliance on Ontario Knife
Co., supra. To recall, the Board cautioned in
Meyers I that the definition formulated was by no
means exhaustive and that a myriad of factual situ-
ations would arise calling for careful scrutiny of
record evidence on a case-by-case basis. The
40 330 F.2d 683 (3d Cir 1964).
41 755 F 2d at 955.
42 637 F 2d 840 (2d Cir. 1980) In this case, the Second Circuit found
the action of an individual employee in walking off the job in protest of a
work assignmegtwal not concerted in the absence of evidence that other
employees participated in or approved the walkout or evidence that the
employee looked toward group action in walking off the job.
43 637 F.2d at- 844-845 (quoting Mushroom Transportation Co v.
NLRB, supra, 330 F 2d at 685)
record facts of the case simply did not warrant an
examination of the viability of Mushroom Transpor-
tation, supra.
D. Contract Rights Versus Statutory Rights,
Finally, because the Alleluia Cushion doctrine at
its origin and in its most appealing form concerns a
single employee's invocation of a statute enacted
for the protection of employees generally, we must
consider whether any linkages to concerted activi-
ty may be discerned in such an individual employ-
ee act or whether overall public policy consider-
ations should move us to protect,even purely indi-
vidual activity that is aimed at securing employer
compliance with other statutes that benefit employ-
ees.
As explained in our discussion of City Disposal,
supra, the Supreme Court regarded proof that an
employee action inures to,the benefit of all simply
as proof that the action comes within the "mutual
aid or protection" clause of Section 7. It found
"concerted" activity because the employee's invo-
cation of the contract was an extension of the col-
lective employee activity that produced the con-
tract. We freely acknowledged that efforts to
invoke the protection of statutes benefiting employ-
ees are efforts engaged in for the purpose of
"mutual aid or protection." As the Supreme Court
noted in Eastex, Inc. v. NLRB, 437 U.S. 556, 565,
566 (1978), "labor' s cause often is advanced on
fronts other than collective bargaining and griev-
ance settlement within the immediate employment
context"; and the Court thus observed that employ-
ees' resort to "administrative and judicial forums"
and their "appeals to legislators to protect their in-
terests as employees are' within the scope of [the
`mutual aid or protection'] clause."
But this does not resolve the separate "concerted
activity" issue .44 As the Board noted in Meyers I,
the courts of appeals have rejected the Alleluia
doctrine of constructive concerted activity stem-
ming from an employee's invocation of a statute.
We reiterate the comments of the Fourth Circuit in
Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d
304, 309 (4th Cir. 1980):
The only courts which have considered it [the
theory of presumed "concerted activity"] have
flatly rejected any rule that where the com-
plaint of a single employee relates to an al-
leged violation of federal or state safety laws
44 There was no question whether concerted activity was present in
Eastex, since the'activity_there was employees' request that they be al-
lowed to distribute on the employer's premises a union newsletter that
discussed minimum -wage laws and a pending proposal concerning a state
"right-to-work" law
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and there is no proof of a purpose enlisting
group action in support of the complaint, there
is "constructive concerted action" meeting the
threshold requirement under Section 7.
Can an employee's invocation of a statute be re-
garded as the extension of "concerted activity" in
any realistic sense? Certainly the activity of the
legislators themselves cannot be said to be concert-
ed activity within the contemplation of the Wagner
Act. And while there may be concerted activity in
the lobbying process preceding the passage of such
legislation , the linkage is attenuated; any such ac-
tivity is far removed from the particular work-
place, and the critical link between lobbying and
enforcement of the law is the legislative process
itself, which is not a part of any ongoing employee-
generated process such as the negotiation and ad-
ministration of collective-bargaining agreements. If
it was appropriate for the Supreme Court in Eastex
to consider that "at some point" the relationship
between some kinds of concerted activity and "em-
ployees' interests as employees" may be "so attenu-
ated" that it cannot "fairly be deemed to come
within the `mutual aid or protection' clause," then
it is surely appropriate to conclude that at some
point the relationship between some kinds of indi-
vidual conduct and collective employee action may
be "so attenuated" as not to mandate inclusion of
that conduct in the "concerted activity" clause.
Indeed, the Court in City Disposal made that very
point, noting that
... at some point an individual employee's
actions may become so remotely related to the
activities of fellow employees that it cannot
reasonably be said that the employee is en-
gaged in concerted activity.
465 U.S. at 833 fn. 10. Furthermore, a doctrine that
rested on the presence of concerted employee ac-
tivity prior to passage of a particular law would re-
quire a choice between two unattractive positions:
either we would have to indulge in a presumption
that all statutes that benefit employees are the
product of concerted employee activity or we
would have to make factual inquiries into who had
worked for passage of the law in question.
In short, in construing Section 7 we are not
holding that employee contract rights are more ap-
propriate subjects for joint employee action than
are rights granted by Federal and state legislation
concerning such matters as employee safety. We
merely find that invocation of employee contract
rights is a continuation of an ongoing process of
employee concerted activity, whereas employee in-
vocation of statutory rights is not. We believe that
we best effectuate the policies of the Act when we
focus our resources on the protection of actions
taken pursuant to that process.
With respect to the public policy question, we
must simply note that, although it is our duty to
construe the labor laws so as to accommodate the
purposes of other Federal laws (see, e.g., Sure-Tan,
Inc. v. NLRB, 467 U.S. 883, 892-894 (1984); South-
ern Steamship Co. Y. NLRB, 316 U.S. 31, 47
(1942)), this is quite a different matter from taking
it upon ourselves to assist in the enforcement of
other statutes . The Board was not intended to be a
forum in which to rectify all the injustices of the
workplace. In Meyers I, the Board noted that al-
though we may be outraged by a respondent who
may have imperiled public safety, we are not em-
powered to correct all immorality or illegality aris-
ing under all Federal and state laws (268 NLRB at
499). We note Judge Bork's comments in his dis-
senting opinion in this case that employee Prill may
have a cause of action under state law,45 and that
the policy interests underlying his colleagues' sug-
gestion should be addressed to the legislature or to
the state courts. We further note that section 405 of
the Surface Transportation Assistance Act of 1982,
although enacted after Prill's discharge and not
available to him, expressly prohibits the discharge,
discipline, or imposition of other adverse treatment
because an employee has filed a complaint or insti-
tuted any proceeding relating to motor carrier
safety or because the employee has refused to drive
a vehicle in certain circumstances. That statute
provides for complaint procedures before the
United States Department of Labor.
E. The "Chilling Effect" Question
We do not view Prill's discharge as having a
"chilling effect" on the exercise of Section 7 rights
by other employees . In City Disposal, the Court
noted that the discharge of an employee who is not
himself involved in concerted activity may violate
Section 8(a)(1) if the employee's actions "are relat-
ed to other employees ' concerted activities in such
a manner as to render his discharge an interference
or restraint on those activities." 465 U . S. at 833 fn.
10. Here , employee Prill acted alone and without
an intent to enlist the support of other employees.
The record fails to establish that his purely individ-
ual activities were "related to other employees'
concerted activities" in any demonstrable manner.
Even assuming arguendo that an otherwise lawful
45 Poll filed a complaint with the Michigan Department of Labor al-
leging that his discharge violated the Michigan Occupational Safety and
Health Act On 5 November 1979 the Department dismissed Prill's com-
plaint, finding he failed to satisfy his burden of establishing that his dis-
charge violated the Michigan statute
MEYERS INDUSTRIES 889
discharge may have some remote incidental effect
on other employees , such an incidental effect does
not render the discharge unlawful . See Panaderia
Sucesion Alonso , 87 NLRB 877, 881-882 ( 1949).
Compare Parker-Robb Chevrolet, Inc., 262 NLRB
402, 404 (1982), enfd . sub nom. Automobile Sales-
men Local 1095 v. NLRB, 711 F .2d 383 (D.C. Cir.
1983).
Conclusion
Accordingly, we adhere to the definition of con-
certed activity set forth in Meyers I as a reasonable
construction of the Act. As we find that employee
Prill acted alone and did not engage in concerted
activities within the meaning of Section 7, we shall
dismiss the complaint.
ORDER
The complaint is dismissed.