NATIONAL LABOR RELATIONS BOARD, Petitioner, v. EMPIRE GAS, INC., Respondent, 566 F.2d 681

WILLIAM E. DOYLE, Circuit Judge. This is a labor relations case in which the NLRB seeks enforcement of an order which had issued on June 10, 1976. The fundamental issue in the case is whether the activities of one Cooper, an employee, in advocating a partial cessation of work were protected under § 7 of the Act, 29 U.S.C. § 157 (1970). Cooper wrote and sent a letter to his fellow employees which urged them to refrain from pumping gas on a particular day. It also urged that if this did not bring about a change, not to pump gas on two days.

The activities which were solicited in the letter quoted below did not come about because the company fired Cooper very soon after the letter was written. Gregory T. Cooper was a driver-salesman for Empire Gas, Inc., Nederland, Colorado operation, from February 1975 until his discharge September 18, 1975. His compensation consisted of a monthly salary of $550 plus .1 of a cent per gallon delivered by him. This basis of compensation was unilaterally modified by Empire on August 15, at which time it announced that it had a new bonus program to replace the .1 of a cent per gallon commission.

It was then that Cooper prepared the above-quoted letter. He mailed it on September 13 to 112 of Empire’s drivers in different parts of the country. In it he advocated collective action to protest the new bonus program. The particular proposed action was refusal of the drivers to pump gas on October 1 and if the demanded change was not made, to refuse to pump gas on October 17 and 18. The letter expressed opposition to the proposed bonus program and the taking of the suggested action to manifest the protest. The Division Manager, one Cliff Goodwin, came to Nederland on September 18, 1975, and discharged Cooper.

He did not, however, assign the letter writing as the reason. He instead stated as his reason that Cooper had driven a company truck home and had been 15 minutes late to work that morning. There was evidence in the record that the company took a dim view of Cooper’s letter. On September 15, the local manager, Johnson, called Cooper into his office and asked him if he knew anything about the letter sent out to the drivers. Cooper admitted that he was the author. Johnson said that the home office was upset about it and that manager Goodwin would be coming to fire him.

The very next day the company hired a new driver-salesman. On September 17, the day before Goodwin came to Nederland, there was a conversation between Johnson and the former manager, MacDougall, in which Johnson stated to MacDougall that Goodwin “was coming up to let him (Cooper) go over letters he had written to drivers.” The evidence showed also that Cooper had customarily driven home a company truck throughout the period of his employment if he was closer to home than to the Nederland office at the end of the day. He had not been criticized by the managers for doing this.

Goodwin saw the letter on the 18th when he fired Cooper, but he maintained that the letter was not the reason for the discharge. However, the Board found that the letter was the cause of the firing, and Empire does not contest this finding. The Board found that the activity of Cooper was protected by § 7 of the Act and that the company had violated § 8(a)(1) of the Act by threatening Cooper with discharge and thereafter discharging him since he was engaged in concerted activity which was protected by § 7 of the Act.

The Board ordered the company to cease and desist from the unfair labor practices found and also to cease and desist from infringing upon the rights guaranteed to employees by § 7 of the Act. The company was also ordered to offer Cooper immediate and full reinstatement to his former position, to make him whole for any loss of earnings and other benefits because of his unlawful discharge, and to post the usual notices. ■I.

WHETHER THE LETTER WAS WITHIN THE PROTECTION OF THE ACT AND, PARTICULARLY, WHETHER IT FELL WITHIN THE PART OF THE ACT WHICH PROTECTS AGAINST EMPLOYER INTERFERENCE OR DISCIPLINARY ACTION “OTHER CONCERTED ACTIVITY FOR THE PURPOSE OF COLLECTIVE BARGAINING OR OTHER MUTUAL AID OR PROTECTION.”

Section 7, supra, provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The

section also provides that employees “have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in

section 158(a)(3) of this title.”

Section 8(a)(1), 29 U.S.C. § 158(a)(1), declares that it is 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. § 157. What are “other concerted activities for the purpose of collective bargaining or other mutual aid or protection” ? The Third Circuit in Mushroom Transportation Co. v.

NLRB, 330 F.2d 683, 685 (3d Cir. 1964), has defined such activities in broad terms, saying in that opinion that a conversation may constitute a concerted activity/, although it involves only a speaker and a listener provided that it appears that the conversation had 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. The court also said that fruition was not necessary because such a requirement would severely limit the right, but that mere talk was not activity; that it had to be talk looking to group action.

The Third Circuit in the cited case found that the employee’s practice of talking did not constitute concerted activity; that this constituted mere griping or complaining. In a later case, that of Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345 (3d Cir. 1969), cert. denied, 397 U.S. 935, 90 S.Ct. 943, 25 L.Ed.2d 115 (1970), the Third Circuit held that complaints by two employees as to the company’s failure to contribute to their profit sharing plan did constitute concerted activity. The activities of these two employees reflected general dissatisfaction and had some relation to group action. Id. at 1355.

Accord, Carbet Corp., 191 NLRB No. 145 (1971), enforced, 68 Lab.Cas. ¶ 12,845 (6th Cir. 1972). The result was different in NLRB v. Northern Metal Co., 440 F.2d 881 (3d Cir. 1971), where the employee was probationary and not a member of the union. It was there held that this was not talk looking toward group action within the Mushroom doctrine because the activity in question was individual seeking a special benefit. Individual action soliciting group activity has been held to be concerted in other cases. See Owens-Corning Fiberglas Corp. v. NLRB, 407 F.2d 1357, 1365 (4th Cir. 1969).

Other circuits have endorsed this viewpoint. Dreis & Krump Manufacturing Co. v. NLRB, 544 F.2d 320, 327-28 (7th Cir. 1976); Randolph Division, Ethan Allen, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir. 1975). In our case the evidence shows an effort to solicit group support of a collective refusal to work on certain days. The Board’s reason for holding this to be within the protection of § 7 was that collective activities would surely be hampered if such individual efforts looking to group action were not protected.

Furthermore, no loss of § 7 protection resulted because of the failure of the employee to present his grievance to the employer prior to attempting to organize a work stoppage, The Supreme Court has considered and has rejected such an argument in NLRB v. Washington Aluminum Co., 370 U.S. 9, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962). II. IS THE PROTECTION LOST IF THE WORK STOPPAGE (HAD IT BEEN CARRIED OUT) WOULD HAVE BEEN UNLAWFUL? Respondent argues that it is lost on this account. The case of UAW Local 232 v.

Wisconsin Employment Relations Board, 336 U.S. 245, 69 S.Ct. 516, 93 L.Ed. 651 (1949), applying Wisconsin law, so ruled. However, this so-called Briggs-Stratton case was overruled by the Supreme Court in Lodge 76, International Association of Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548, 49 L.Ed.2d 396 (1976). In Lodge 76 the union and its members refused to work overtime. The NLRB Regional Office dismissed a charge filed by the employer claiming a violation of the NLRA on the ground that refusal to work overtime was not a violation of the Act.

A complaint was then filed before the state commission. That body found a violation of a state statute, which finding was affirmed by the Wisconsin courts. The United States Supreme Court reversed, holding that states may not regulate partial strike activity.

The Court further said that even if the refusal to work overtime was not protected under § 7, which issue the Court refused to decide, it might be “an activity that Congress intended to be ‘unrestricted by any governmental power to regulate’ because it was among the permissible ‘economic weapons held in reserve . . . actual exercise [of which] on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.’ ” Citing NLRB v. Insurance Agents, 361 U.S. 477, at 488-489, 80 S.Ct. 419, at 426, 4 L.Ed.2d 454.

The reason assigned for rejecting the state statute was that to have followed it would have frustrated the federal Act’s processes. In overruling the Briggs-Stratton case the Court held that states may not regulate partial strike activity. There can be no question from the decision in Lodge 76 that state law can have no bearing on our problem; that the issue is governed by federal law. Our conclusion is that the letter which is before us is within the protection of § 7 irrespective of whether the proposed act would be protected. This is not, however, entirely free from doubt.

The Supreme Court has not ruled on the issue whether solicitation of activities which, if acted out, would be illegal is nonetheless protected under the mentioned clause of § 7. For that reason we consider whether the activity, if it were carried out, would be within the protection of the Act. The case of NLRB v. Insurance Agents’ International Union, 361 U.S. 477, 80 S.Ct. 419, 4 L.Ed.2d 454 (1960) took up the slowdown activities which it assumed were unprotected under § 7, and held that they were not unfair labor practices under § 8(b)(3).

It was held in that case that the Board did not have the power to choose the economic weapons to be used by labor or by management. The Court pointed out in Insurance Agents that Congress had been specific with respect to outlawing particular economic weapons on the part of unions and that it had not clearly ruled out the slowdown activities that were found in the Insurance Agents case. Plainly, the activity of Cooper here was not specifically prohibited by § 8 of the Act. Whether, however, they are protected under § 7 is not thereby decided. III.

As noted, the Supreme Court did not in Lodge 76 determine whether partial strike activities are within the protection of § 7 of the Act. The Court did notice the problem in its footnote number 14, 427 U.S. at 152, 96 S.Ct. 2548. It is there suggested that it is within the discretion of the Board to hold on a case to case basis that such activity is protected or is not protected.

It was there said: It may be that case-by-case adjudication by the federal Board will ultimately result in the conclusion that some partial strike activities such as the concerted ban on overtime in the instant case, when unaccompanied by other aspects of conduct such as those present in Insurance Agents or those in Briggs-Stratton (overtones of threats and violence . and a refusal to specify bargaining demands . . .) are “protected” activities within the meaning of § 7 . 427 U.S. at 152 n. 14, 96 S.Ct. at 2559.

The dissenting Justices in the Briggs-Stratton case (which was overruled by Lodge 76) were of the opinion that intermittent strike activity was protected by § 7. See 336 U.S. at 265, 69 S.Ct. 516 (Douglas, J., dissenting); id. at 268, 69 S.Ct. 516 (Murphy, J., dissenting). Footnote 14, discussed and quoted above, mentioned that Insurance Agents, supra, assumed arguendo that the slowdown there was unprotected, but stated that the assumption was based on the similarity of the activities in Insurance Agents to the sit-down strike which was held unprotected in NLRB v.

Fansteel Metallurgical Corp., 306 U.S. 240, 59 S.Ct. 490, 83 L.Ed. 627 (1939), in which there was substantial violence. In the context of partial strikes, violence may well be the dividing line between protected and non-protected activity. The peaceful tactics proposed by Cooper are more similar to the concerted refusal to work overtime in Lodge 76. It is said that all concerted activities are protected unless unlawful, violent, in breach of contract, or indefensible. See NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 8 L.Ed.2d 298 (1962).

As we have said above, the work stoppages proposed by Cooper would not have been illegal nor is there any evidence that they would have been violent or in breach of contract. As to whether they were indefensible, it was said in NLRB v. Local 1229, IBEW, 346 U.S. 464, 477, 74 S.Ct. 172, 98 L.Ed. 195 (1953), that indefensible tactics involved tactics of disloyalty which were compared to physical sabotage. If, then, it amounts only to partial work stoppage such as is here present, it follows that the activity here is protected. It is also to be noted that there are differences in degree among partial work stoppages.

Some pose more serious threats than others. Thus the slowdown in Insurance Agents would be one of the more far-reaching and serious kinds. The proposal in our case was much more limited. We have held that a one-day work stoppage is a protected activity in NLRB v. Leprino Cheese Co., 424 F.2d 184 (10th Cir.), cert. denied, 400 U.S. 915, 91 S.Ct. 173, 27 L.Ed.2d 154 (1970). There are other similar cases. See NLRB v. A.

Lasaponara & Sons, Inc., 541 F.2d 992, 997-98 (2d Cir. 1976), cert. denied, 430 U.S. 914, 97 S.Ct. 1325, 51 L.Ed.2d 592 (1977); Florida Steel Corp., 221 NLRB No. 112 (1975), enforced, 82 Lab.Cas. ¶ 10,147 (4th Cir. July 25, 1977). The only difference between the one-day stoppage which has been approved in the above cases and that at bar is that here there was a proposed two-day stoppage to follow a failure of the one-day stoppage. This, however, does not form any basis for distinguishing the two situations. The case of NLRB v.

Robertson Industries, 79 Lab.Cas. ¶ 11,688 (9th Cir. 1976), is very similar on its facts to the present case in that it involved two one-day work stoppages in three months. The court there said that this did not give rise to a repeated pattern of half-strikes. Also noteworthy is the fact that the present case is not an effort to have a work stoppage and also to receive pay for days of no work. In addition, the Board has urged that these activities be held to be protected. This is persuasive since it is an area in which courts defer to the expertise of the Board. See NLRB v.

Circle Bindery, Inc., 536 F.2d 447, 452-53 (1st Cir. 1976); cf. Hudgens v. NLRB, 424 U.S. 507, 521, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). We conclude that the proposed activity would have been, had it been carried out, within the protection of § 7 of the Act. In sum, Cooper was fired because he sent out letters attempting to organize fellow employees, a protected concerted activity whether considered alone or in conjunction with the proposed acts. It follows, then, that his discharge based on the writing of the letter violated § 8(a)(1) of the Act. The order of the Board is enforced. .

This letter was as follows: Dear Friend, It is imperative that we, the men who drive the trucks and deliver the fuel for the Empire Gas Company, get our act together in the immediate future and put a stop to Mr. Robert Plaster’s “Bonus Growth Program” insofar as this program delineates [sic] the tenth of a cent per gallon commission paid to the company drivers. We cannot accept this unilateral cut of our income nor our unsolicited enrollment in a bogus program handed to us in August intead [sic] of the real income of salary raises.

Simple mathematics show that the drivers of Empire Gas take a cut in last year’s take home pay. A plant with a 500,000 gallonage last year paid $500 in commission to its drivers. If this same plant pumps a half million gallons again this year there will be no commission paid to its drivers. Given an optimistic growth factor of ten percent this plant will pump 550,000 gallons this new year, and the commission paid the driver (three man plant).will be $333 commission under the “Bogus [sic] Growth Program”. The standard Vio of a cent commission would be $550 — an income loss of better than $200.

What is your situation? Are you expecting 10% growth, 5% growth, or marginal growth? In these troubled economic times, Robert Plaster cums [sic] with a growth program that promises to take all of last year’s commission away from you until it grows, and the more it grows, the more of last year’s income will be returned to you. All of us drivers are in this together, and it is only by collective action that we can right the wrong.

We must demand that our wages not be so capriciously dealt with, and that the unilateral severance of commissions paid to the men who drive the trucks and deliver the fuel for this company be reinstated as per se the company policy manual. Unless there is recognition of our problem by the home offices in Lebanon by the end of this month (September), pump no gas on the first of October. This will demonstrate solidarity and commitment to our just cause. If no change is forthcoming, no gas will be pumped on the 17th and 18th of October.

I am only going to reach some one third of the Empire Gas plants, please carry this program on for the good of all of us driving for this company, and write or communicate with at least three or four other plants in your area. In the last three months five managers have left the company in Northern Colorado, but their actions lost much of their effect because the men did not act collectively. The success of our venture will be directly proportional to the unanimity with which we act. All of us should also write to Lebanon attention to Mr. Plaster.

I would also like to hear from you yourself and will keep an account of our strength of our new coalition. Most respectfully yours, Gregory T. Cooper [signed] Gregory T. Cooper P. O. Box 111 Rollinsville, Colorado 80474 . This issue was not raised by the parties. It first came to light in the dissenting opinion.