Herbert F. Darling, Inc.

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Herbert F. Darling, Inc. and Robert T. Ewing. Case 3-CA-10565 , 14 December 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 26 August 1983 the National Labor Relations Board issued a Decision and Order' in this pro- ceeding. By panel majority, the Board reversed the administrative law judge's findings that the Re- spondent violated Section 8(a)(1) of the National Labor Relations Act by initially refusing to recall the Charging Party from his 3 December 1980 layoff and then only employing him intermittently in 1981. The Board majority reversed the judge's credibility resolutions, considering them to be based not specifically on demeanor but on infer- ences drawn from an incorrect factual analysis made by the judge. The Board majority, therefore, found that the General Counsel had not proven by a preponderance of the evidence that the Respond- ent had discriminated against the Charging Party because it believed that he had filed a complaint against the Company with the Occupational Safety and Health Administration (OSHA). Thus, the complaint in this case was dismissed in its entirety.2 Thereafter, the Charging Party filed a petition for review of the Board's Decision and Order with the United States Court of Appeals for the Second Circuit. On 17 April 1984 the court issued an opin- ion 3 in which it refused to affirm the Board's deci- sion and order, which it found to be unsupported by substantial evidence. The court consequently re- manded the case to the Board for a determination of the applicability of the Board's newly adopted principles concerning protected concerted activity recently enunciated in Meyers Industries, 4 which issued while court appeal of this case was pending. According to the court's remand, if Meyers applies, then the Board is to reevaluate the case on the basis of the judge's factual findings; if Meyers does not apply, then the Board is to "reinstate" the deci- sion and order of the judge. On 2 July 1984 the Board advised the parties that it had decided to accept the remand from the court and that they could, if they so wished, ' 267 NLRB 476 2 In such circumstances, the majority found it unnecessary to reach the further legal issue presented in the case, i e, "whether Respondent would have violated the Act had It curtailed [the Charging Party's] work op- portunities because It thought that he had filed a complaint with OSHA 267 NLRB 476 fn 16 °732 F 2d 1117 4 268 NLRB 493 (1984) submit statements of positions with respect to the remanded issues. Thereafter, the Charging Party and the Respondent filed statements of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Having accepted the remand, the Board must ob- serve the court opinion as the law of the case. The Board has considered this case in light of the court's opinion and the parties' statements of position and has decided to apply Meyers Industries to this case and find no violation of Section 8(a)(1) of the Act because, based on the judge's factual findings, the Charging Party's suspected actions in connection with an OSHA complaint do not fall within the Meyers definition of concerted activity. In Meyers Industries, the Board held that "[in general, to find an employees' 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 himself."5 In doing so, the Board overruled Alleluia Cushion Co., 6 the precedent on which the judge principally relied to find the Charging Party's suspected con- tact with OSHA to be concerted activity. Under Alleluia, "[t]tle existence of relevant legislation and its invocation by a solitary employee became suffi- cient to find concerted activity." 7 Thus, in Alleluia, the Board found concerted activity based on a single employee's contact with OSHA, in the ab- sence of any outward manifestation of group em- ployee action. With Meyers, the Board has rejected the per se standard of concerted activity estab- lished by Alleluia and, instead, has returned to the pre-Alleluia "objective" standard of concerted ac- tivity. Since the decision in Meyers issued, the Board has consistently applied the "objective" standard of concerted activity to all pending cases. 8 This retro- active application of Meyers follows the Board's traditional approach to apply the pronouncement of a new rule of law to the case in which it arose and to all pending cases, absent special circum- stances. 3 To date, the Board has already retroac- tively applied Meyers to pending cases in which the events occurred before Meyers was decided, in par- ticular, events occurring during 1980 and 1981, the 5 Id 6 221 NLRB 999 (1975) Meyers Industries, supra at 496 8 See, e g, Schreiber Materials Co, 268 NLRB 457 (1984), Alcan Cable, 269 NLRB 184 (1984), Briley Marine, 269 NLRB 697 (1984) Central Georgia Electric Corp, 269 NLRB 635 (1984), and Goodyear Tire & Rubber Co, 269 NLRB 881 (1984) See, e g, Laidlaw Corp, 171 NLRB 1366 (1968), H F Balch Ca, 188 NLRB 720 (1971), Wright Line, 251 NLRB 1083 (1980), Bruckner Nursing Home, 262 NLRB 955 (1982), Great Southern Construction, 266 NLRB 364 (1983), Hickman Harbor Service, 266 NLRB 476 (1983) 273 NLRB No. 52 HERBERT F DARLING, INC 347 years involved in the instant case." Accordingly, we shall apply the principles of Meyers to this case. Applying the Meyers definition of concerted ac- tivity, we 'observe that the judge's findings .show that the• Respondent's suspicions ran only to a single employee making a complaint against the Re- spondent to OSHA. The judge found that Union Business 'Manager Burke advised Charging Party Ewing that "Respondent didn't want Ewing to ,work for them anymore because he' [Ewing] had written a letter to OSHA complaining about Re- spondent." The judge further found that the Re- spondent's vice president Shafer "confirmed that Respondent did not want Ewing back because they believed he had reported the company to OSHA." In a later conversation with Shafer in the presence of Burke,' Ewing denied that he made a complaint to OSHA. According to the judge's findings, Shafer told Burke and Ewing that "Respondent had narrowed it down to three men who they be- lieved reported the company to OSHA, one of them was Ewing, and they didn't want Ewing working for them." The judge then concluded that "[i]t is clear from this record that Ewing was not recalled from layoff because Respondent believed (albeit inaccurately) that he had complained about it to OSHA." Finally, the judge concluded 'that Ewing's curtailment of employment occurred "be- cause of Respondent's mistaken belief that Ewing 10 See, e g, Schreiber Materials Go, supra, Alcan Cable, supra, Briley Marine, supra, Central Georgia Electric Corp, supra, and Goodyear Tire & Rubber Go, supra " In giving a fuller description of this conversation, the court noted that "Burke told Ewing there were rumors that `you blew the Darling Company into OSHA, and that you won't go back to work for them any more " Ewing v NLRB, 732 F 2d 1117, 1119 (2d Or 1984) had filed a complaint concerning Respondent with OSHA." Thus, a fair reading of the judge's find- ings does not support a finding that the Respondent thought Ewing acted "with or on authority of other employees, and not solely by or on behalf of' himself. We likewise note that the record itself does not support a finding that the activity in which the Respondent thought Ewing engaged and for which Ewing lost job opportunities—individ- ually filing an OSHA complaint—was concerted. Accordingly, we find that Ewing was not en- gaged in concerted activity under Meyers Indus- tries.,We therefore conclude that the Respondent did not violate the Act by failing to recall Ewing or by employing him intermittently- in 1981. Thus, we affirm our prior dismissal of the complaint in its entirety. ORDER The cOmplaint is dismissed. - MEMBER ZIMMERMAN, dissenting. For the reasons stated in my dissenting opinion in Meyers Industries, 268 NLRB 493 (1984), I find, contrary to my colleagues and in agreement with the judge, that the Respondent violated Section 8(a)(1) of the Act by refusing to recall employee Robert Ewing from layoff because it believed, albeit erroneously, that Ewing had filed a com- plaint' against it with the Occupational Safety and Health Administration (OSHA). Whether he had been fired because he filed such a complaint or, as here, because of a belief that he had done so, his discharge was motivated by his conduct, actual or perceived, that impliedly was- concerted and there- fore protected.