NATIONAL LABOR RELATIONS BOARD, PETITIONER V. SCOOBA MANUFACTURING COMPANY No. 82-1909 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the National Labor Relations Board, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Fifth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-5a) is reported at 694 F.2d 82. The decision and order of the National Labor Relations Board (App. C, infra, 7a-27a) are reported at 258 N.L.R.B. 147. JURISDICTION The judgment of the court of appeals was entered on December 20, 1982. A petition for rehearing was denied on January 26, 1983 (App. B, infra, 6a). On April 14, 1983, Justice White extended the time for filing a petition for a writ of certiorari to and including May 26, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED Section 7 of the National Labor Relations Act, 29 U.S.C. 157, provides in pertinent part: 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 * * *. Section 8(a) of the National Labor Relations Act, 29 U.S.C. 158(a), provides in pertinent part: It shall be an unfair labor practice for an employer -- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section (7) of this title; * * * * (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * * *. QUESTION PRESENTED Whether the Board properly concluded that an employer violates Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(3) and (1), by discharging an employee expressly because the employee said that she would like to have a union at the plant. STATEMENT 1. Respondent is a manufacturer of industrial work gloves with its office and plants in Shuqualak, Mississippi (App. C, infra, 10a). Lucille Willie was employed as a sewer at one of respondent's plants (id. at 11a). On May 22, 1980, Willie's son, also an employee at the plant, informed her that he had been discharged (ibid.). Willie then developed a headache and went to get some aspirin from the office of respondent's Vice President George Welch, who was in charge of operations at the plant (ibid.). While Willie was in the office, Welch initiated a discussion about Willie's son's discharge (App. C, infra, 11a). The conversation became heated and turned to Willie's employment record, specifically her production output and absenteeism. Welch obtained Willie's records and confronted her with them (id. at 18a). Willie then started to leave Welch's office, but before she did, she turned back to Welch and said (id. at 12a): "It would be nice if it was a union here. A whole lot of things going on wouldn't be going on." Willie then went to the restroom to take her aspirin. Welch sent someone after Willie to get her to come back to his office. When she returned, Welch told her (App. C, infra, 12a): "You just fired your damn self. Don't nobody threaten me with no damn union because this is my plant, and I run it any damn way I want." Willie then retrieved her personal belongings, was given a final paycheck and left the plant permanently. /1/ 2. On May 29, 1980, Willie filed an unfair labor practice charge with the National Labor Relations Board (App. C, infra, 9a). Upholding the decision of the administrative law judge ("ALJ"), the Board concluded that respondent had violated Section 8(a)(3) and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(3) and (1), by discharging Willie because of her prounion remark and separately violated Section 8(a)(1) of the Act by stating expressly that her prounion comment was the reason for her discharge (App. C, infra, 7a-8a, 21a). The ALJ found that Willie was discharged because respondent "viewed her remarks as a threat to initiate union organizational efforts" (id. at 21a). The ALJ rejected respondent's claim that the reason for the dismissal was her employment record; he found that the nature of Welch's remark and the timing of the decision to fire -- immediately after Willie's union remark -- were pursuasive evidence that the prounion statement was the reason for respondent's action (id. at 19a-20a). The ALJ found that the discharge violated the Act because "(s)uch action obviously discouraged Willie or any other employee from seeking union membership or otherwise engaging in activity in support of any labor organization, actions protected under the Act" (id. at 21a). In addition, the ALJ found that Vice President "Welch's statement to Willie that she had fired herself because of the threatened resort to a union independently violated Section 8(a)(1) (of the Act,)" because it "constitute(d) an unquestionable threat to all other employees that any inclination toward union activity on their part would result in similar discrimination against them" (App. C, infra, 21a-22a). Accordingly, the Board ordered respondent to cease and desist threatening or discharging employees for union activities and ordered Willie reinstated with back pay (App. C, infra, 23a-24a). 3. The court of appeals denied enforcement of the Board's order (App. A, infra, 1a-5a). The court held that Willie was not engaged in activity protected by Section 7 of the Act, 29 U.S.C. 157, when she expressed support for having a union (App. A, infra, 5a). The court found no indication that by making this comment Willie "was seeking to instigate some form of group action," which the court concluded was necessary to convert single employee speech into "concerted activity" within the meaning of Section 7 (App. A, infra, 3a). Instead, the court concluded that Willie was merely engaged in "a purely personal dispute with Welch" and thus, regardless of respondent's reason for firing her, Willie's discharge was not violative of the Act (id. at 4a). /2/ REASONS FOR GRANTING THE PETITION The decision of the court of appeals, holding that a single employee's prounion statement was not protected activity under Section 7 of the Act, rests on reasoning akin to that adopted by the Sixth Circuit in City Disposal Systems, Inc. v. NLRB, 683 F.2d 1005 (1982), in holding that a single employee's assertion of a contractual right not to drive an unsafe truck was not protected by Section 7. This Court granted the Board's petition for a writ of certiorari in City Disposal Systems, Inc. (No. 82-960) on March 28, 1983, and it is likely that the decision in that case will have a bearing on the validity of the Fifth Circuit's decision here. Accordingly, the court may wish to hold this petition, pending final disposition of City Disposal Systems, Inc. Alternatively, the decision of the court of appeals that an employer may lawfully discharge an employee for expressing prounion sentiments to a member of management constitutes a serious misapplication of established principles for determining what constitutes discrimination proscribed under Section 8(a)(3) and (1) of the National Labor Relations Act, and is inconsistent with a decision of the First Circuit. Thus, as an alternative to holding this petition pending its decision in City Disposal Systems, Inc., the Court should grant the petition in order to consider the additional issues presented in this case. 1. Both the Fifth Circuit in this case and the Sixth Circuit in City Disposal Systems, Inc. v. NLRB, supra, concluded that the crucial element necessary to convert single employee action into "concerted" activity is the intention of the individual employee to be acting on behalf of others or to be preparing others for group activity. Compare App. A, infra, 4a, with City Disposal Systems, Inc. v. NLRB, supra, 683 F.2d at 1007-1008. In both cases, the courts of appeals searched in vain for evidence indicating that the individual involved was acting or expected to act on behalf of others. What both decisions ignore is that the Board, relying on its expertise in these matters, has concluded that certain conduct undertaken by a single individual inherently affects all other employees and thus is within the coverage of Section 7. /3/ Accordingly, the Board argued, inter alia, in its petition in City Disposal Systems, Inc. (82-960 Pet. 11), that an employee who successfully asserts a right in a collective bargaining agreement necessarily benefits all members of the unit subject to that agreement. Hence, regardless of the specific employee's motive or personal interest in the outcome, the action is still concerted activity. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 260 (1975); Anchortank, Inc. v. NLRB, 618 F.2d 1153, 1161 (5th Cir. 1980). Similarly, any prounion statement made in the course of an employee-management discussion of alleged arbitrary employment practices sufficiently anticipates possible future union activity to be protected by Section 7. /4/ If the Board's position in City Disposal Systems, Inc. is sustained by this Court, the Fifth Circuit's requirement of specific evidence of "concertedness" in the present case would necessarily be undermined. Accordingly, the Court may wish to hold this petition pending its decision in City Disposal Systems, Inc. 2. The Board submits alternatively that the court of appeals' interpretation of Section 8(a)(3) is independently worthy of review by this Court. Section 8(a)(3) of the Act prohibits discrimination in employment to encourage or discourage union membership, activity or support. Associated Press v. NLRB, 301 U.S. 103, 129 (1937); Radio Officers' Union v. NLRB, 347 U.S. 17, 39-40 (1954). Respondent's discharge of Willie for "threaten(ing respondent) with (a) damn union" (App. C, infra, 12a) constitutes unlawfully motivated, antiunion discrimination in its most elemental and obvious form. Willie lost her employment solely because she expressed a desire for a union at her plant, and, what is worse, the obvious purpose of the discrimination against her was to discourage such union activity from ever starting. It is difficult to imagine a more pernicious employment practice than to discharge any employee who expresses the slightest interest in a union. /5/ Indeed, the other courts of appeals that have dealt with the precise question of whether a discharge for making prounion statements violated Section 8(a)(3) have held that it clearly does. In Randolph Division, Ethan Allen, Inc. v. NLRB, 513 F.2d 706 (1st Cir. 1975), an employee was discharged for expressing concern about the absence of a union in the plant to a member of management. In upholding the Board's finding of a Section 8(a)(3) and (1) violation, the court stated (513 F.2d at 708): We are aware of no authority supporting the proposition that the Act does not protect employee's expression of prounion sentiments, and we would in any case refuse to adopt a reading so at variance with the statutory language. The section 7 rights protected by 8(a)(1) include the right to "form" as well as "join" a labor organization and 8(a)(3) proscribes discriminatory action to "discourage membership in any labor organization." If an employer were free to fire any employee who showed a specific interest in the unionization of its employees, it could effectively forestall the exercise of section 7 rights by excluding from the work force all who showed any interest in exercising them. If it could so extinguish seeds, it would have no need to uproot sprouts. The policy of the National Labor Relations Act is "to insulate employees' jobs from their organizational rights," Radio Officers' Union, supra, 347 U.S. at 40, * * * and the prohibitions contained in sections 8(a)(1) and (3) are too broadly stated for us to conclude that an employer may, even in the absence of an organizing drive, discharge employees who express prounion attitudes. Similarly, the Ninth Circuit in Signal Oil & Gas Co. v. NLRB, 390 F.2d 338 (1968), upheld the Board's finding that an employer had violated Section 8(a)(3) and (1) of the Act by discharging one unrepresented employee for stating to another unrepresented employee that he hoped the employer's organized employees would strike. The court stated (390 F.2d at 343): "(I)t can hardly be doubted that * * * discharge of an employee because he makes a pro-union or pro-strike statement would tend within the meaning of the Act to 'discourage membership in (a) labor organization * * *.'" The Fifth Circuit reached its conclusion that there was no violation of Section 8(a)(3) by holding implicitly that antiunion discrimination is an unfair labor practice only when it is directed at employees who have engaged in protected, concerted activity under the Act. But, as noted, supra, pages 7-8, Section 8(a)(3) prohibits any discrimination in employment to discourage union membership, activity or support. /6/ Thus, while discrimination on the basis of protected activity may be sufficient for a Section 8(a)(3) violation (see Metropolitan Edison Co. v. NLRB, No. 81-1664 (Apr. 4, 1983), slip op. 9), a discharge for antiunion reasons will discourage union activity even though the person discriminated against has not actually engaged in protected activity. Accordingly, an employer violates Section 8(a)(3) by discriminating against employees because of a mistaken belief that they are union activists or sympathizers, /7/ or by discriminating against a group that includes neutral and antiunion employees where the reason for the discrimination is union activity generally. /8/ The decision of the court of appeals in this case is thus inconsistent with other courts of appeals' decisions interpreting Section 8(a)(3). Moreover, if followed in other cases, the decision below would seriously undermine the protection against discrimination which Section 8(a)(3) and (1) was intended to afford employees who exercise their Section 7 right to form, join, or support a union. An employer could with impunity nip a union campaign in the bud merely by discharging employees, one at a time, as soon as they voiced prounion sentiments. /9/ Clearly such a result is at odds with the fundamental purpose of Section 7 of the National Labor Relations Act. CONCLUSION The petition for a writ of certiorari should be granted or, alternatively, it should be held pending the Court's disposition of NLRB v. City Disposal Systems, Inc., No. 82-960, and then disposed of as appropriate in light of that decision. Respectfully submitted. REX E. LEE Solicitor General CARTER G. PHILLIPS Assistant to the Solicitor General WILLIAM A. LUBBERS General Counsel JOHN E. HIGGINS, JR. Deputy General Counsel ROBERT E. ALLEN Associate General Counsel NORTON J. COME Deputy Associate General Counsel LINDA SHER Assistant General Counsel MARION L. GRIFFIN Attorney National Labor Relations Board MAY 1983 /1/ While they were waiting for the paycheck, Welch told Willie to return the following Monday, with her husband, to talk the situation over. Willie did not, however, return (App. C, infra, 12a). The Board rejected respondent's contention that because of this remark Willie was merely laid off and not discharged (id. at 20a-21a). /2/ Although the issue was briefed by both sides, the court of appeals made no mention of the Board's finding of a separate violation of Section 8(a)(1) based on Welch's antiunion statement made at the time of the firing, which the Board found would tend to deter other employees from initiating Section 7 activities. /3/ Indeed, the need for collective representation to aid individual employees in pursuing their individual concerns was the impetus for enacting the National Labor Relations Act. "(A) single employee was helpless in dealing with an employer; * * * union was essential to give laborers opportunity to deal on an equality with their employer." NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 33 (1937). "To that end the Act is designed to eliminate the 'inequality of bargaining power between employees * * * and employers.'" NLRB v. J. Weingarten, Inc., 420 U.S. 251, 262 (1975), quoting Section 1 of the Act, 29 U.S.C. 151. When individual employees seek to invoke the protections of collective action on behalf of their personal concerns, they act to enforce the rights the statute was designed to secure. /4/ Section 7 gives employees the right, inter alia, "to form, join, or assist labor organizations." The Board's determination that nascent union activity is protected reflects the fact that it is not at all uncommon for organizational efforts to spring up from a single instance of employee dissatisfaction. See Blum, Why Unions Grow? 1968 Labor History 39, 64. /5/ The court attempted to support its holding by characterizing the Board's decision as allowing an employee to convert all discussions with management into "protected activity" by using the word "union" at some point in the conversation. But this grossly mischaracterizes the Board's decision. What the Board's decision proscribes is an employer discharging an employee because he referred to a union. If the employer has an otherwise legitimate reason for discharging an employee, the employee's job is not protected simply because he mentions a union. The ALJ in this case expressly found that respondent failed to show a business justification for the discharge. /6/ It has consistently been held that to threaten an individual employee with discharge for engaging in union or other activity protected by Section 7 of the Act is violative of Section 8(a)(1), even though there is no showing that the employee was actually engaged in such activity. As the court stated in NLRB v. Coca-Cola Co. Foods Division, 670 F.2d 84, 86 (7th Cir. 1982), in finding that the employer violated Section 8(a)(1) by threatening to retaliate against an employee if he discussed his grievance with other employees: It would be absurd to conclude that if long before there were any sitrrings of union activity at a plant the management threatened to shoot anyone who joined a union, section 8(a)(1) would not be violated because no one could prove that concerted activity protected by section 7 would ever have taken place in the absence of the threat. A right can be denied before its exercise is attempted or even contemplated. If a threat to discharge an employee for engaging in Section 7 activity is thus violative of the Act without a showing that such activity is occurring, a fortiori, it should be violative of the Act to discharge an employee for expressing a desire to engage in such activity. /7/ See, e.g., NLRB v. Link-Belt Co., 311 U.S. 584, 589-590 (1941); Henning & Cheadle, Inc. v. NLRB, 522 F.2d 1050, 1052 (7th Cir. 1975); NLRB v. Clinton Packing Co., 468 F.2d 953, 955 (8th Cir. 1972). /8/ See, e.g., NLRB v. Rich's Precision Foundry, Inc., 667 F.2d 613, 628 (7th Cir. 1981); M.S.P. Industries, Inc. v. NLRB, 568 F.2d 166, 176 (10th Cir. 1977); NLRB v. Tesoro Petroleum Corp., 431 F.2d 95, 97 (9th Cir. 1970). /9/ The difficulty created by the court of appeals' requirement that the General Counsel must supply proof that "collective worker action is contemplated" (App. A, infra, 5a) by the individual employee is that the employer by discharging the employee may eliminate and certainly will diminish the incentive or ability of the dismissed employee to pursue further organizational activities with that employer. Thus, the employer by his own misdeed may be able to eliminate the only evidence that would satisfy the court of appeals. Appendix Omitted