In The

Supreme Court of the United States




Decided March 21, 1984

Justice O’Connor, Dissenting

Topic: Unions*Court vote: 5–4
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Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER Justice POWELL Justice POWELL Justice REHNQUIST Justice REHNQUIST
Citation: 465 U.S. 822 Docket: 82–960Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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Under the Interboro doctrine, an individual employee is deemed to have engaged in "concerted activit[y]," within the meaning of § 7 of the National Labor Relations Act (Act), 29 U.S.C. § 157, if the right he reasonably and in good faith asserts is grounded in his employer's collective bargaining agreement. [ Footnote 2/1 ] On this view, the reasonable, good faith assertion of a right contained in the collective bargaining agreement is said to be an extension of the concerted action that produced the agreement; alternatively, the reasonable, good faith assertion of the contract right is said to affect the rights of all the other employees in the workforce. See ante at 465 U. S. 829. Thus, if the employer "interfere[s] with, restrain[s], or coerce[s]" the employee in response to the latter's assertion of the alleged contract right, the Interboro doctrine enables the employee to file a § 8(a)(1) unfair labor practice charge with the National Labor Relations Board (Board). See 29 U.S.C. § 158(a)(1). Although the concepts of individual action for personal gain and "concerted activity" are intuitively incompatible, [ Footnote 2/2 ] the Court today defers to the Board's judgment that the Interboro doctrine is necessary to safeguard the exercise of rights previously won in the collective bargaining process. Since I consider the Interboro doctrine to be an exercise in undelegated legislative power by the Board, I respectfully dissent.

In my view, the fact that the right the employee asserts ultimately can be grounded in the collective bargaining agreement is not enough to make the individual's self-interested action concerted. If it could, then every contract claim could be the basis for an unfair labor practice complaint. But the law is clear that an employer's alleged violation of a collective agreement cannot, by itself, provide the basis for an unfair labor practice complaint. See NLRB v. C & C Plywood Corp., 385 U. S. 421, 385 U. S. 427 -428 (1967); Charles Dowd Box Co. v. Courtney, 368 U. S. 502, 368 U. S. 509 -513 (1962). Congress once considered a proposal that would have given the Board "general jurisdiction over all alleged violations of collective bargaining agreements." NLRB v. C & C Plywood Corp., 385 U.S. at 385 U. S. 427. But it realized that

[t]o have conferred upon the National Labor Relations Board generalized power to determine the rights of parties under all collective agreements would have been a step toward governmental regulation of the terms of those agreements.

Ibid. Thus, Congress expressly decided that,

[o]nce [the] parties have made a collective bargaining contract[,] the enforcement of that contract should be left to the usual processes of the law and not to the... Board.

H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess., 42 (1947). By basing the determination whether activity is "concerted" on the assertion's ultimate grounding in the collective bargaining agreement, [ Footnote 2/3 ] the Interboro doctrine's extension of the concerted activity proviso transfers the final authority for interpreting all contracts and for resolving all contract disputes back to the Board. This arrogation of power violates Congress' decision to the contrary.

Of course, the Board has considerable discretion to act on contractual matters which are incident to unfair labor practice proceedings. See NLRB v. C & C Plywood, supra. But the fact that the Board can resolve contractual matters incident to unfair labor practice disputes does not give it authority to make unfair labor practice claims out of the contractual disputes themselves. The statutory authority to interpret some contract provisions is not authority to resolve all labor contract disputes. [ Footnote 2/4 ] Congress' decision not to give the Board this broad power indicates that it considered the difference between individual and concerted activity to be a meaningful one. Indeed, when viewed in light of the scheme Congress created for enforcing labor contract rights, the Interboro doctrine turns out to be nothing less than a Trojan horse dressed up in legal form.

This Court has previously recognized that the labor laws were designed to encourage employees to act together. See, e.g., NLRB v. J. Weingarten, Inc., 420 U. S. 251, 420 U. S. 260 -264 (1975). Even a single employee acting in good faith and asserting a right contained in the collective bargaining agreement may be too fearful, inarticulate, or lacking in skill to relate accurately either the event being investigated or the relevant extenuating factors. Other disinterested employees, especially knowledgeable union stewards, can assist the employee and the employer in eliciting the relevant facts and in preventing misunderstandings and hard feelings. The participation of other employees may save production time, reduce administrative expenses, and avoid unnecessary discharges and disciplinary action. By providing an increased degree of statutory coverage to employees participating in that process, the labor laws encourage and preserve the "practice and procedure of collective bargaining." Emporium Capwell Co. v. Western Addition Community Organization, 420 U. S. 50, 420 U. S. 62 (1975). The fact that two employees receive coverage where one acting alone does not is therefore entirely consistent with the labor laws' emphasis on collective action. See NLRB v. Allis-Chalmers Mfg. Co, 388 U. S. 175, 388 U. S. 180 (1967); Republic Steel Corp. v. Maddox, 379 U. S. 650, 379 U. S. 653 (1965).

The Court and the Board insist that, because the group has previously expressed interest in the right now being asserted, the individual's self-interested expression must be treated as "concerted" to ensure that meaning is given to the contract rights. This argument is mistaken. It confuses the employees' substantive contract entitlements with the process by which those entitlements are to be vindicated. When employees act together in expressing a mutual concern, contractual or otherwise, their action is "concerted," and the statute authorizes them to seek vindication through the Board's administrative processes. [ Footnote 2/5 ] In contrast, when an employee acts alone in expressing a personal concern, contractual or otherwise, his action is not "concerted"; in such cases, the statute instructs him to seek vindication through his union, and where necessary, through the courts. See Republic Steel Corp. v. Maddox, supra; Hines v. Anchor Motor Freight, Inc., 424 U. S. 554 (1976). Under either scenario, the integrity of the rights won in the collective bargaining process and the rights of all other employees are preserved. The question is whether these rights will be vindicated by administrative or by private and judicial processes. It is clear that Congress believes

day-to-day adjustments in the contract and other working rules, resolutions of new problems not covered by existing agreements, and the protection of employee rights already secured by contract,

Conley v. Gibson, 355 U. S. 41, 355 U. S. 46 (1957) (emphasis added), are more suitably handled, not by the Board, but by the employees' collective representative and, if necessary, the courts. See supra at 465 U. S. 842 -843. The Interboro doctrine is therefore against Congress' judgment as to how contract rights are best vindicated.

Finally, the Interboro doctrine makes little sense when applied to the facts of this case. There is no evidence that employee James Brown discussed the truck's alleged safety problem with other employees, sought their support in remedying the problem, or requested their or his union's assistance in protesting to his employer. He did not seek to warn others of the problem, or even initially to file a grievance through his union. He simply asserted that the truck was not safe enough for him to drive. James Brown was not engaging in "concerted activity" in any reasonable sense of the term, and therefore his employer could not have violated § 8(a)(1) of the Act when it discharged him. The fact that the right asserted can be found in the collective bargaining agreement may be relevant to whether activity of that type should be "protected," but not to whether it is "concerted." The Interboro doctrine is, in my view, unreasonable in concluding otherwise.

I do not mean to imply by this dissent that conduct should not be considered "concerted" because it is engaged in by only a single employee. The crucial issue is, as the Court notes, the precise nature of the relationship that must exist between the action of an individual employee and the actions of the group. See ante at 465 U. S. 830 -831. An employee certainly engages in "concerted activity" when he acts with or expressly on behalf of one or more of the other employees. And, as several of the Courts of Appeals have concluded, the statutory language can even be stretched to cover an individual who takes action with the proven object of inducing, initiating, or preparing for group action. See, e.g., ARO, Inc. v. NLRB, 596 F.2d 713, 717 (CA6 1979); NLRB v. Northern Metal Co., 440 F.2d 881, 884 (CA3 1971); see also Kohls v. NLRB, 203 U.S.App.D.C. 139, 142-143, 629 F.2d 173, 176-177 (1980). But it stretches the language past its snapping point to cover an employee's action that is taken solely for personal benefit.

Accordingly, I respectfully dissent.


[ Footnote 2/1 ]

See Interboro Contractors, Inc., 167 N.L.R.B. 1295, 1298 (1966), enf'd, 388 F.2d 495 (CA2 1967); see also Bunney Bros. Construction Co., 139 N.L.R.B. 1516, 1519 (1962).

[ Footnote 2/2 ]

The Court and the Board agree that the Act cannot be read to cover, or to give the Board jurisdiction over, purely personal, though work-related, claims of individual employees. See ante at 465 U. S. 833, n. 10; Brief for Petitioner 16, and n. 9. They also agree that the mere fact that an asserted right can be presumed to be of interest to other employees is not a sufficient basis for labeling it "concerted." See ante at 465 U. S. 829, n. 6; Meyers Industries, Inc., 268 N.L.R.B. 493 (1984).

[ Footnote 2/3 ]

The Interboro doctrine is especially disturbing in this respect, since it does not require the individual expressly to refer to the contract provision supporting the claim or even to be aware of the existence of the agreement. See ante at 465 U. S. 839 -841; accord, 256 N.L.R.B. 451, 454 (1981). One would think that a rule defining "concerted activity" would require the employee to have some idea that he is engaging in it.

[ Footnote 2/4 ]

The Court rather glibly suggests that, to the extent factual issues raised in an unfair labor practice proceeding have been, or can be, addressed through the grievance process, the Board will defer to that process. See ante at 465 U. S. 838 -839. Yet the Court does not discuss why the Board did not defer to that process in this case, where the union determined that there was no objective basis to the grievance. Ante at 465 U. S. 827. Moreover, as I have discussed at some length elsewhere, the Board hardly applies its deferral criteria evenhandedly or consistently. See Schaefer v. NLRB, 464 U. S. 945 (1983) (O'CONNOR, J., dissenting). Finally, the question whether deferral will occur or is appropriate is relevant only if the Board has jurisdiction in the first place, and that is precisely the issue the Court must decide today.

[ Footnote 2/5 ]

The Board may, of course, require the employees to first seek satisfaction from contractual arbitration and grievance procedures. See William E. Arnold Co. v. Carpenters, 417 U. S. 12 (1974). But that deferral decision can properly be made only after an unfair labor practice is properly filed, which requires a determination whether "concerted activity" is involved in the first instance.

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