East Chicago Rehabilitation Center, Inc. v. National Labor Relations Board , 710 F.2d 397 ( 1983 )

POSNER, Circuit Judge.

This petition to set aside the Labor Board’s order finding that a nursing home committed an unfair labor practice in firing striking employees requires us to consider the rights of health-care employees to engage in concerted activity for mutual aid or protection in light of sections 7, 8(g), and 9(a) of the National Labor Relations Act, 29 U.S.C. §§ 157, 158(g), 159(a).

The East Chicago Rehabilitation Center provides round-the-clock intensive nursing care to some 116 patients. In December 1978, after a representation election, a local of the retail clerks union was certified as the collective bargaining representative of the Center’s service and maintenance employees. In February 1979 it began negotiating with the Center for a collective bargaining agreement. During the negotiating session on June 11, Henderson, a part-owner of the Center and one of its negotiators, happened to mention that the Center permitted its employees to leave the premises during their paid lunch break. A consultant to the Center who was participating in the negotiation interjected that the Center would be liable under workmen’s compensation law for any injury an employee sustained off the premises during a paid break, whereupon Henderson stated that the Center would have to stop letting its employees leave the premises for lunch. The union negotiators objected to such a change, especially when the parties were close to agreement on a contract. But Henderson was adamant, and a few days later, without notice to the union, the Center circulated a memorandum to its employees informing them that effective June 18 all employees would have to remain on the premises during lunch and that failure to comply with this directive would result in immediate termination.

The employees on the first shift (7:00 a.m. to 3:00 p.m.) received the memorandum at the start of the shift on June 15. They immediately gathered in small groups in the halls, discussing the change. Management got wind that they were upset and held two meetings with them that morning to explain the reason for the change of policy. After the second meeting ended, 17 of the employees decided to walk out in protest against the change. The union found out about the walkout, and its representatives immediately got in touch with the striking workers (who were either still in the Center or just outside), told them they should not have walked out and that the union would not sanction their strike, and asked them whether they were willing to go back to work. They said they were and the union immediately conveyed this message to the Center’s management. But the Center refused to reinstate them, even temporarily, and instead suspended them till such time as its board of directors could meet to decide whether to fire them; and they went home. Although the exact chronology of the morning is unclear, it appears that two hours elapsed between the walkout by the 17 employees and the decision to suspend them.

The negotiations for a collective bargaining contract concluded successfully on June 18. The contract converted the lunch hour into unpaid time, so that the employees could leave the premises without exposing the Center to liability. In lieu of the paid lunch break they received two paid coffee breaks (described by the administrative law judge as two 20-minute lunch breaks, but he must have meant coffee breaks).

On June 20 the Center fired the 17 employees who had walked out on June 15. The Board then brought unfair labor practice proceedings against the Center, and after a hearing concluded that the Center had violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), by firing the 17 workers — their strike being, in the Board’s view, activity protected by section 7. The Board therefore ordered the workers reinstated with back pay.

A strike to protest a change in working conditions is within section 7’s broad definition of protected activity. But the Center argues that the strike in this case was taken out of section 7 by other provisions of the Act, notably sections 9(a) and 8(g), and by the judge-made rule that denies the protections of section 7 to abnormally destructive strikes.

Section 9(a) makes the “representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes ... the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment .... ” Thus, if the 17 workers had been striking to enforce a demand that the company bargain with them, rather than with the union, over where they could eat lunch, the strike would not have been protected by the provision in section 7 that “employees shall have the right ... to bargain collectively through representatives of their own choosing ... . ” But that is not what the workers were doing. Their spontaneous, unorganized walkout in protest against the company’s unilateral change in the conditions of their employment was not an effort to butt their way into the bargaining process but an instance of what section 7 protects under the rubric of “other concerted activities for the purpose of ... mutual aid or protection.”

Thus this case is not like Emporium Capwell Co. v. Western Addition Community Organization, 420 U.S. 50, 95 S.Ct. 977, 43 L.Ed.2d 12 (1975), where a group of employees, dissatisfied with the union’s representation, expressed “their desire to deal directly with ‘the top management’ of the Company over minority employment conditions, announced their intention to picket and institute a boycott of the store” to enforce this demand, and “were discharged for attempting to bargain with the Company....” Id. at 55, 60, 95 S.Ct. at 981, 983-84. It is not like Harnischfeger Corp. v. NLRB, 207 F.2d 575, 578 (7th Cir.1953), where “a comparatively small number of discontented employees undertook by a work stoppage or strike movement to take charge of and direct the actions of their chosen bargaining representative in negotiation with their employer as to the terms of employment.” The Center’s workers expressed no dissatisfaction with the union and no desire to take negotiations into their own hands. They merely wanted to show how angered they were by the unilateral change in the lunch rules. It is not like Food Fair Stores, Inc. v. NLRB, 491 F.2d 388, 394 (3d Cir.1974), where the strike “was carried out against the wishes of the Union,” violated the collective bargaining agreement, and “was in part to protest against certain substantive portions of the agreement concerning seniority to which the union had assented.” The union here did not assent to — it protested — the change in the lunch rules; the strikers were not even aware that the change was under discussion in the collective bargaining sessions between the union and the employer; and when told by the union to return to work the strikers immediately agreed. By demonstrating to the union the passions that had been aroused by the new lunch rule, the strike led the union to demand that the employer rescind the rule, and in effect he did, by converting the paid lunch hour to unpaid leave (with compensating concessions so that the workers were not worse off); and there is no evidence that in demanding rescission the union was merely yielding to pressure from a vocal minority and giving up alternative demands more important to the bargaining unit as a whole.

The fact that the union told the workers to go back to work does not prove that the strike undermined the union’s performance of its collective bargaining function. The union had to repudiate the strike. Otherwise it might have been held to have ratified it, which would have made the strike an unprotected activity and thereby cost the strikers their jobs. Section 8(g) of the Act provides that “a labor organization before engaging in any strike ... at any health care institution, shall, not less than ten days prior to such action, notify the institution in writing .. .,” which was not done here; and a strike unlawful under section 8(g) is not protected by section 7. See section 8(d), 29 U.S.C. § 158(d).

To hold as the petitioner would have us hold that all wildcat strikes (i.e., strikes not authorized by the strikers’ collective bargaining representative) are unprotected, regardless of circumstances, might be an advance in the theory and practice of industrial relations — though one that can be attained at the level of the individual bargaining unit by writing a no-strike clause into the collective bargaining agreement. But it would not be good law. Although it has been said that “wildcat concerted activities are unprotected and render the participants susceptible to discharge,” Gorman, Basic Text on Labor Law 311 (1976), the facts of the cases Professor Gorman relies on show that his generalization cannot be sustained. Most are cases where, as in Harnischfeger and Food Fair Stores, the wildcat strikers were trying to take over the collective bargaining function from the union. NLRB v. Draper Corp., 145 F.2d 199 (4th Cir.1944), the original anti-wildcat case, was such a case. The day before the union was to meet with the company to negotiate a collective bargaining agreement, the company’s representative got sick, and the meeting was cancelled by mutual agreement. A group of employees “thought that his illness was feigned as an excuse for delay and became angry and resentful,” and they went out on strike because “they considered that the company was ‘stalling’ and ... they wanted ‘action’ and would get it.” Id. at 201. They were striking as much against the union as against the employer. Thus, as we said in NLRB v. Kearney & Trecker Corp., 237 F.2d 416, 420 (7th Cir.1956), Draper and Harnischfeger stand for the proposition that “when the minority group attempts to control the actions of the majority, its action is not protected,” and that is not this case. NLRB v. Sunbeam Lighting Co., 318 F.2d 661, 662 (7th Cir.1963), and Lee A. Consaul Co. v. NLRB, 469 F.2d 84, 85 (9th Cir.1972) (per curiam) (“a five day wildcat strike, viewed as such by both the employers and the union”), are distinguishable on the same basis, while NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216 (9th Cir.1969), another in the Draper line, is like Emporium Capwell. The best case for the petitioner is NLRB v. Shop Rite Foods, Inc., 430 F.2d 786 (5th Cir.1970), but the court in Shop Rite stated, “We do not hold that there cannot be circumstances in which an employee or a minority group of employees may engage, without reference of the matter to union processes, in action which is protected under Section 7 though there is an agreement in force or in the process of negotiation.” Id. at 791. The strike was planned, and lasted at least 18 days. The brief spontaneous walkout in this case is within the area of wildcat activity the lawfulness of which was left open in Shop Rite.

The controlling cases here are none that we have discussed. They are, rather, NLRB v. A. Lasaponara & Sons, Inc., 541 F.2d 992, 998-99 (2d Cir.1976), where “there [was] no evidence that the Palm Sunday strikers were at odds with or attempting to by-pass their union,” though the court also noted that the strike may actually have been authorized by the union, id. at 999; and our own circuit’s decision in Jones & McKnight, Inc. v. NLRB, 445 F.2d 97, 105 (7th Cir.1971), which points out that “the fact that none of the strike activity was sanctioned by the Union is of no import .... By authorizing a bargaining agent to represent them, the employees cannot be said to have waived all rights to protect themselves against an employer’s unlawful actions, since their individual action in such circumstances is not an attempt to undermine their representative’s position, but to protest the employer’s circumvention of the policies of the [National Labor Relations] Act.” The company’s action in this case in unilaterally — one might even say, provocatively — changing the conditions of employment while the union was bargaining collectively — indeed, only three days before the contract was signed — may likewise have been a “circumvention of the policies of the Act,” although no section 8(a)(5) charge was filed. Western Contracting Corp. v. NLRB, 322 F.2d 893, 899 (10th Cir.1963) (alternative holding), is like Jones & McKnight, while another decision of this circuit, Dreis & Krump Mfg. Co. v. NLRB, 544 F.2d 320, 326-27 (7th Cir.1976), holds, consistently with all the precedents, that not all wildcat concerted activity is outside the protection of section 7.

Section 7 is broadly worded — deliberately so. See, e.g., Eastex, Inc. v. NLRB, 437 U.S. 556, 565-68, 98 S.Ct. 2505, 2512-14, 57 L.Ed.2d 428 (1978); NLRB v. Browning-Ferris Industries, 700 F.2d 385, 386-88 (7th Cir.1983). Although section 9(a) qualifies section 7, it qualifies the part of section 7 that gives workers the right to bargain collectively. It does not — not explicitly anyway — qualify their section 7 right to engage in other concerted activities for mutual aid or protection. Unless, therefore, a wildcat strike is called for the purpose of asserting a right to bargain collectively in the union’s place or is likely, regardless of its purpose, to impair the union’s performance as exclusive bargaining representative, section 9(a) does not put the strikers beyond the pale of section 7. That is the natural reading of sections 7 and 9(a), the reading most consistent with section 13, 29 U.S.C. § 163, which provides that “nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike ...,” the reading by the Board, and the reading that makes the most sense out of the case law.

Still, there may be enough play in the joints to allow new law to be made in this area. If the Board were to hold that wildcat strikes are per se in derogation of the union’s role as exclusive bargaining representative — pointing out, as it could, that any concerted activity is an implicit demand for company action and is therefore inherently inconsistent with the union’s exclusive role — we would give its views respectful attention. But the Board rather than the courts should be the innovator. It can reconcile the policies of section 7 with those of section 9(a), can harmonize the Act’s discordant themes of the rights of employees as individuals and the rights of unions as collectivities, better than we — who maybe cannot do it at all. We have no guides to judgment in this area. Although the concept of administrative agency expertise has a large fictive component, there is no denying that the Board knows more than we do about the impact of wildcat strikes on unions and employers; and we are not much worried that the Board’s all too frequent bias toward unions will prejudice it in this area against employers, since a wildcat strike will often (the petitioner would say always) hurt the union as well as the employer. Therefore, if the Board chooses to distinguish between wildcat strikes that undermine the union’s position as exclusive collective bargaining representative and ones that do not, as it did in this case and has done in others, see, e.g., Sunbeam Lighting Co., 136 N.L.R.B. 1248, 1253-55 (1962), enforcement denied, 318 F.2d 661 (7th Cir.1963); R.C. Can Co., 140 N.L.R.B. 588, 595-96 (1963), enforced, 328 F.2d 974 (5th Cir.1964), we must let it.

Of course, even if section 9(a) does not exclude the striking workers from the protection of section 7, section 8(g) — the 10-day notice provision mentioned earlier — may. But that section applies only to strikes by “labor organization[s].” The petitioner argues that the purpose of the 10-day notice requirement would be defeated if workers could get around it simply by striking without their union’s authorization. The argument has merit but is addressed to the wrong body. Even a judge who was not a literalist in statutory interpretation, and who disregarded section 13 of the Act, and the pointed warning by Senator Harrison Williams, a sponsor of the 1974 Health Care Amendments, that “this legislation is the product of compromise, . . . and the Labor Board should use extreme caution not to read into this Act by implication — or general logical reasoning — something that is not contained in the bill, its report and the explanation thereof,” 120 Cong.Rec. 22575 (1974), and the explicit and as we shall see restrictive definition of labor organization in section 2(5), 29 U.S.C. § 152(5), would be hard-pressed to interpret section 8(g) as if the words “labor organization” did not appear. True, one of the sponsors of the bill that added this section to the Act, Senator Robert Taft, Jr., stated on the floor that “it would not be protected activity for employees acting without a labor organization to engage in a work stoppage ... without giving the required notice,” 120 Cong.Rec. 12945 (1974); but there is no indication that any other member of Congress agreed with his statement.

The statute is not irrational when read, as it is written (“a labor organization before engaging in any strike .. . shall .. . ”), to limit the notice requirement to strikes called by organizations — which will usually mean, by unions. Such strikes, at least if called without notice, generally are more costly than wildcat strikes. A union-authorized strike is apt to last longer, involve more workers, and command more support from other unions than a wildcat strike (though wildcat strikes, especially if protected by section 7, may be more frequent). This strike involved only one-third of the workers on only one of the employer’s three shifts, lasted only two hours, and so far as appears was not part of a pattern of wildcat activity at the Center.

Every other decision has read section 8(g) to mean what it says: the notice requirement is applicable only if the strike is by a labor organization. See Montefiore Hospital & Medical Center v. NLRB, 621 F.2d 510, 514-15 (2d Cir.1980); NLRB v. Long Beach Youth Center, Inc., 591 F.2d 1276, 1278 (9th Cir.1979); NLRB v. Rock Hill Convalescent Center, 585 F.2d 700, 701 (4th Cir.1978). We consider these decisions authoritative in this case even though they involved strikes at nonunion facilities, and when a facility is unionized (as the Center is) it is difficult to distinguish between a truly unauthorized strike and “a wink and a nod” strike encouraged by the union to evade the requirement of advance notice. That is an issue in this case, as we shall see. But to rewrite section 8(g) so that it reads, “if a health-care facility is unionized any strike, whether or not called by a labor organization, must be preceded by 10 days’ written notice,” would exceed the permissible limits of judicial creativity, when nothing in the background of the statute indicates that we are licensed to take it other than at face value.

This assumes, it is true, that wildcat strikes were not considered per se unlawful in 1974, when section 8(g) was enacted; for if they had been, there would have been no occasion to require advance notice for wildcat strikes. But if we have interpreted the case law correctly, in 1974 as today wildcat strikes were not per se unprotected. And while the important thing is not what we think today but what Congress thought in 1974, the legislative history of the Health Care Amendments contains no suggestion that Congress thought that wildcat strikes were per se unprotected and only for that reason failed to extend the 10-day notice requirement to them expressly.

The petitioner makes two other arguments under section 8(g), and though the first is inconsistent with its section 9(a) argument that does not make it wrong, now that we have rejected that argument. The first argument is that the strike, far from being in derogation of the union’s role as the exclusive collective bargaining representative, was authorized by the union and was therefore a walkout by a labor organization to which the 10-day notice requirement of section 8(g) applied by its terms. The principal evidence of union authorization is that one of the leaders of the walkout was a union steward. The Board could and did find this evidence overborne by a mass of direct evidence that the union did not authorize the strike and tried to stop it as soon as it found out about it.

The second argument is that the 17 striking workers comprised an informal labor organization. Section 2(5) of the Act, 29 U.S.C. § 152(5), defines “labor organization” as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” There is no requirement of formality — no requirement that the “labor organization” be recognizable as a union — but there must be an organization, such as the employee committee in Pacemaker Corp. v. NLRB, 260 F.2d 880, 883 (7th Cir.1958), and one of its purposes must be bargaining with an employer. In Long Beach Youth Center, Inc., supra, 591 F.2d at 1278, there was purpose but no organization, and that was held not to be enough. In this case the 17 spontaneously striking workers had neither the organization nor the purpose, and they were therefore not a labor organization. If any concerted activity by workers — however spontaneous, ad hoc, and unstructured — were the activity of a “labor organization,” section 8(g) would require advance notice of any walkout by two or more workers acting in concert, and the limitation that Congress appears to have intended when it required advance notice only of a strike by a labor organization would be undone.

The petitioner’s final argument is that the walkout was unprotected because it endangered the health of the nursing home’s patients. Section 7 has been interpreted not to protect concerted activity, whether incident to a strike or otherwise, to destroy property or endanger life or limb. See, e.g., NLRB v. Marshall Car Wheel & Foundry Co., 218 F.2d 409, 413 (5th Cir. 1955). But more must be shown than that the activity caused inconvenience. The whole purpose of a strike is to impose costs on the employer, in the hope of making him come to terms; and an effective strike, by preventing the employer from serving his customers, necessarily imposes costs on them as well: it forces them either to turn to other suppliers of the goods or services sold by the employer (thus denying them their first choice) or, as in this case, to do without for a time.

Thus the Board in this case had to decide whether the strike merely caused inconvenience to the Center’s patients or whether it endangered them. See, e.g., Montefiore Hospital & Medical Center, supra, 621 F.2d at 516. The administrative law judge found that the strike had “created] serious patient care problems,” but did not find any actual danger to health and concluded that the strike was protected activity. The Board found that “although some patient care schedules were not completely adhered to, there is no showing that the strike jeopardized any patient’s safety or health,” noting that “once the strikers offered to return to work they could not be held responsible for any subsequent interruption in normal patient servicing.” Our job is to decide whether these findings are supported by substantial evidence on the record as a whole. The strongest evidence is that when management learned that the workers were willing to resume work immediately it refused to take them back. Unless the Center wanted to be prosecuted for criminal neglect it would not have done this if there were danger to its patients. It did not have to suspend the strikers on the spot even to preserve its claim to have a right to fire them for engaging in unprotected activity, for without any prejudice to its being able to fire them later it could have reinstated them temporarily till it lined up replacements, provided only that it made its intentions clear when it reinstated them.

It must be, therefore, that the Center could operate safely for several days without the 17 striking workers (that, or its management was behaving recklessly); if so, then it could operate safely for a few hours without them. No doctors or nurses walked off — only nurse’s aides, orderlies, and maintenance workers, and not all of the employees in these categories, either. Although there was delay in serving patients breakfast, giving them their medications, and changing their sheets — a hardship, obviously, to incontinent patients, and there were some — and although the sudden disappearance of the customary staff caused anxiety to some patients, no one was put in danger or subjected to acute distress, nor were such consequences likely from so short and incomplete a walkout of nonprofessional workers. The fact that the strike caused a delay in removing the body of a patient who had died (there is of course no suggestion that this death was caused or hastened by the strike) adds to the unpleasantness of the episode, but the very emphasis the petitioner places on this fact highlights the difference between a nasty strike and a dangerous strike.

The judge-made exception to section 7 for intolerably destructive concerted activity is illustrated by NLRB v. Reynolds & Manley Lumber Co., 212 F.2d 155, 158 (5th Cir.1954), where a worker walked off the job and left boilers unattended, which “undoubtedly created a very dangerous situation and was a violation of positive instructions that it should never be done. He must have known, since he had worked for the company many years at different times, that in 1945 a fire had broken out under similar conditions, resulting in a loss of some $200,000, and at that time the plant had to be shut down for some six months while the sawmill was rebuilt.” The medical equivalent would be a nurse’s walking out of an operating room in the middle of an operation. This would not be protected activity, nor would be the many less extreme examples that could be put involving danger to life or health, but even they would be remote from this case. Nurse’s aides are not professionals and are not entrusted with critical responsibilities, and the walkout was of short duration. Although at some point the cumulative distress to helpless patients caused by a walkout of nurse’s aides might cross the line that separates inconvenience from inhumanity, the evidence did not require the Board to find that it had been crossed in this case. Nevertheless this is a close case, and the Board might well have gone the other way.

A finding that concerted activity is protected by section 7 does not condemn the employer to inaction. Protected does not mean privileged. As pointed out in NLRB v. Browning-Ferris Industries, supra, 700 F.2d at 388-89, the employer may take all necessary steps to keep his business running smoothly — may hire permanent replacements and so on. But he cannot operate with a completely free hand as he tried to do here. It might be better for society if he could but we think Congress has decided otherwise, and we are bound however reluctantly by its decision.

The Board’s order will be

Enforced.