PRILL v. N.L.R.B.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge BORK.

HARRY T. EDWARDS, Circuit Judge:

I. PROLOGUE

On this petition for review, we consider a case in which the petitioner, Kenneth Prill, was discharged from his job at Meyers Industries, Inc. ("Meyers"), because he complained about the unsafe condition of a company truck and trailer, including a complaint to state authorities following an accident, and because he refused, for safety reasons, to continue driving the truck and trailer following the accident. An investigation by state officials determined that the company vehicle was in fact unsafe due to faulty brakes and a damaged hitch, and a citation was issued against Meyers. Notwithstanding the concededly unsafe condition of the vehicle, Prill was fired because company officials decided that they could not have him "calling the cops all the time."

In protest against his discharge, Prill filed an unfair labor practice charge with the National Labor Relations Board ("NLRB" or "Board"), and a complaint was issued against Meyers. An Administrative Law Judge ("ALJ"), following existing Board precedent, found that Prill's conduct constituted "concerted activit[y] for ... mutual aid or protection" under section 7 of the National Labor Relations Act ("NLRA" or "Act"),1 and recommended his full reinstatement. However, the Board, over the dissent of one member, reversed the decision of the ALJ, overruled its earlier decisions, and dismissed the complaint against Meyers.2 In rejecting Prill's charge, the Board adopted a new definition of "concerted activities;" under the enunciated test, an employee's conduct is not "concerted" unless it is "engaged in with or on the authority of other employees, and not solely bv and on behalf of the employee himself."3 Finding that Prill had acted alone and "solely on his own behalf,"4 the Board held his conduct unprotected by section 7.

It is not the responsibility of the courts to second-guess the lawful judgments of the NLRB. The Board has been granted broad authority to construe the NLRA in light of its expertise. In appropriate circumstances, the Board even may elect to abandon or modify established precedent. However, judicial deference is not accorded a decision of the NLRB when the Board acts pursuant to an erroneous view of law and, as a consequence, fails to exercise the discretion delegated to it by Congress.

In the instant case, we find that the Board erred when it decided that its new definition of "concerted activities" was mandated by the NLRA. Because the Board misconstrued the bounds of the law, its opinion stands on a faulty legal premise and without adequate rationale. Accordingly, we remand this case under the principles of SEC v. Chenery Corp.,5 so that the Board may reconsider the scope of "concerted activities" under section 7. We express no opinion as to the correct test of "concerted activities;" we require only that the Board exercise the full measure of administrative discretion granted to it by Congress and reconsider this matter free from its erroneous conception of the bounds of the law.

II. BACKGROUND

A. Facts

The facts were found by the Administrative Law Judge6 and accepted by the Board,7 and are largely undisputed on review. Kenneth Prill was hired as a skilled driver on April 24, 1979, by Meyers Industries, a Michigan company engaged in the manufacture, sale and distribution of aluminum boats and related products. Prill had driven trucks for several years before going to work for Meyers, and he had received two years of training as a mechanic. Throughout the period that he was employed by Meyers, he had a good work record.

Prill was assigned to drive a red Ford truck and its accompanying trailer to haul boats from Meyers' main facility in Tecumseh, Michigan, to dealers throughout the country. Prill soon began to experience problems with his equipment, especially with the steering and the trailer's brakes.8 In addition to discussing these problems with other drivers,9 Prill made numerous complaints to his supervisor, Dave Faling, to the company president, Alan Beatty, and to the mechanic, Buck Maynard, after returning from trips on which the brakes malfunctioned.

On one trip, for example, while he was driving through Chicago, Illinois, Prill narrowly escaped an accident when his brakes failed during a sudden stop in heavy traffic. On his return Prill asked Faling and Maynard to have the brakes repaired, but Maynard's efforts were unsuccessful. He told Prill that the axles were so old that it was impossible to secure replacement parts; Prill insisted that new parts be purchased. After his next trip, during which the brakes remained inoperative, Prill again asked Faling when the brakes would be repaired, but was simply referred to Maynard or Beatty.

On a subsequent trip to Xenia, Ohio, Prill stopped at a roadside inspection conducted by the Ohio State Highway Patrol. As a result of that inspection, the truck was issued a citation for a number of defects, including the brakes. When Prill returned to Michigan, he showed the citation to Faling and submitted it together with his post-trip paperwork.

During the first two weeks in June, 1979, another driver, Ben Gove, drove Prill's equipment on a trip to Sudberry, Ontario. Gove testified before the ALJ that he experienced a steering problem which made it difficult to hold the road and "caused [the truck] to swerve back and forth like Ken Prill described," nearly causing an accident.10 When Gove went to Faling's office to submit his post-trip report, Prill was there at the same time to receive paperwork for the next trip. Gove described the steering and brake problems to Faling, and stated, in Prill's presence, that he would not drive the truck again until it was repaired.11 Faling promised to make the needed repairs.

In early July, Prill was driving through Athens, Tennessee, when he had an accident which the Board found was caused by the malfunctioning brakes.12 A pickup truck struck the left rear of Prill's trailer, causing the truck to jack-knife and sending both vehicles into a ditch.13 After giving a statement to the state highway patrol at the scene of the accident, Prill unsuccessfully sought to have the truck and trailer inspected by the state public service commission.14

Following the accident, Prill called Meyers' president Alan Beatty at home to advise him of the incident and of the extensive damage to the unit. Beatty asked Prill to chain the tractor and trailer together and tow the trailer back to Tecumseh for repairs. Prill responded that "it would be possible to do that, but it would still be a hazard on the highway" because the hitch area was cracked and might give way and cause an accident.15 Beatty repeated that Prill should chain and tow the trailer home, but told him that if he insisted he could have a mechanic in Tennessee look at it.

The following morning, Prill called Beatty at work and spoke to him and to Wayne Seagraves, the company's vice president for production. Both were upset that Prill was still in Tennessee, and demanded to know why he had not yet left. Prill stated that the vehicle was unsafe because the hitch was damaged and the trailer lacked brakes. Seagraves responded that the company had been running its trucks like that for 20 years.16 At the end of the conversation, Beatty and Seagraves decided to send Maynard down to check the equipment.

After this conversation, Prill decided to contact the Tennessee Public Service Commission to arrange for an official inspection of the vehicle. The inspection resulted in a citation putting the unit out of service because of bad brakes and damage to the hitch area. The citation was based on several Department of Transportation regulations, including 49 C.F.R. § 396.4, which prohibited the operation of an unsafe vehicle.17 Prill was instructed to notify the police or Public Service Commission immediately if anyone attempted to move the vehicle before required repairs were made. When Maynard arrived in Tennessee later the same day, Prill showed him the citation. Maynard and Beatty then decided that the trailer was not worth repairing and should be sold for scrap after removing the tires.

Two days later Prill reported for work and was summoned to Wayne Seagraves' office, where he was questioned about the accident and damage to the truck. Both Seagraves and Beatty asked Prill why he had not towed the trailer back as requested; Prill responded that this would have been both unsafe and unlawful.18 At the end of the conversation, Seagraves told Prill that he was discharged because "we can't have you calling the cops like this all the time."19

B. The Decisions of the ALJ and the Board

On the basis of these facts, the ALJ found that Prill was discharged because of his safety complaints and his refusal to drive an unsafe vehicle in accordance with Department of Transportation regulations.20 Relying on the rationale of Alleluia Cushion Co.,21 the ALJ held that Prill's actions were "concerted activities for ... mutual aid or protection" under section 7 of the NLRA, and thus protected, because they inured to the benefit of all employees.22 In order to understand this conclusion, it is necessary briefly to review the development of the Board's doctrine of "constructive concerted activity."

During the past 25 years, the Board has gradually extended the concept of "concerted activities" under section 7 to include certain types of actions taken by individual employees. For example, under the so-called Interboro doctrine, the Board has long held that the assertion by a single employee of rights derived from a collective bargaining agreement is protected under section 7, on the reasoning that such an act is an extension of the concerted action that produced the agreement and that it affects the rights of all employees covered by the agreement.23 In addition, in a series of cases since 1959, the Board developed the position that section 7 protects complaints made by an individual, even absent authorization by other employees, "if the matter at issue is of moment to the group of employees complaining and if that matter is brought to the attention of management by a spokesman, voluntary or appointed for that purpose, so long as such person is speaking for the benefit of the interested group."24

In Alleluia Cushion Co.,25 the Board extended the doctrine of constructive concerted activity to include an individual employee's efforts to invoke state and federal laws regulating occupational safety. In Alleluia an employee was discharged for notifying the California Occupational Safety and Health Administration (OSHA) of unsafe conditions at his plant. Observing that "[s]afe working conditions are matters of great and continuing concern for all within the workforce," and that filing the OSHA complaint "was an action taken in furtherance of guaranteeing Respondent's employees their rights under the California Occupational Safety and Health Act," the Board held that

The rationale of Alleluia thus was composed of two stands: (1) the Board's familiar view that an individual's activity should be protected if it relates to a matter of "mutual concern" to employees, and (2) a more specific rationale that concert may be presumed when an individual asserts rights under a statute enacted for the benefit of employees.27

Applying the principles of Alleluia and its progeny,28 the ALJ in the instant case held Prill's conduct protected under section 7. He reasoned that Prill's refusal to drive the vehicle was mandated by Department of Transportation regulations that reflected a concern for the safety of particular drivers as well as for that of the general public, and that "[a]n employee who complains about the safety of a particular truck speaks for the safety of any employee who may drive that truck."29 The ALJ also held that Prill's complaints prior to the accident "were clearly concerted because they were joined by driver Gove," who had made similar complaints to supervisor Dave Faling in Prill's presence.30 Therefore, the ALJ ruled that Prill's discharge violated section 8(a)(1).

The Board disagreed and dismissed the complaint. Overruling Alleluia and its progeny, the Board argued that activity could be "concerted" only if it in fact involved "some kind of group action," and criticized Alleluia as inconsistent with the statute because it allowed group support to be presumed rather than proven.31 Claiming to return to "the standard on which the Board and courts relied before Alleluia,"32 the Board announced the following test for protected concerted activity:

Applying this standard, the Board held that Prill had acted alone and "solely on his own behalf" when he refused to drive the truck and contacted the Tennessee Public Service Commission.34 As to whether Prill's complaints prior to the accident were joined by Gove, the Board found that the record was clear that "Prill merely overheard Gove's complaint while in the office on another matter."35 Stating that "the most that can be inferred from this scenario is that another employee was individually concerned ... about the truck's condition," the Board ruled that "[t]aken by itself, ... individual employee concern, even if openly manifested by several employees on an individual basis, is not sufficient evidence to prove concert of action."36 Although the Board admitted to being "[o]utraged ... by a respondent who — at the expense of its driver and others traveling on the nation's highways — was clearly attempting to squeeze the last drop of life out of a trailer that had just as clearly given up the ghost," it nevertheless concluded that it did not believe "that section 7, framed as it was to legitimize and protect group action engaged in by employees for their mutual aid and protection, was intended to encompass the case of individual activity presented here."37 Therefore, the Board held that Prill's discharge did not violate his rights under section 7.38

III. ANALYSIS

A. Standard of Review

Because the Board is entrusted with the "responsibility to adapt the Act to changing patterns of industrial life,"39 a reasonable construction of the Act by the Board is entitled to considerable deference.40 An agency decision cannot be sustained, however, where it is based not on the agency's own judgment but on an erroneous view of the law. For it is a fundamental principle of law that "an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained."41 As the Supreme Court stated in its landmark decision in SEC v. Chenery Corp.:

These principles were concisely stated by Judge Bork in his separate opinion in Planned Parenthood Federation of America, Inc. v. Heckler:43

We think that the teachings of Chenery are plainly implicated in this case. The Board's opinion clearly reveals that it considered its adoption of a narrow test for "concerted activities" both to be mandated by the NLRA itself and to be merely a return to "the standard on which the Board and courts relied before Alleluia."45 We believe that the Board misinterpreted the law in two respects. First, we think, especially on the basis of recent Supreme Court decisions, that the Board erred in assuming that the NLRA mandates its present interpretation of "concerted activities." In other words, the Board's opinion is wrong insofar as it holds that the agency is without discretion to construe "concerted activities" except as indicated in the Meyers test.46 Second, contrary to the view expressed by the Board, we find that the Meyers test does not represent a return to the standard relied on by the courts and by the Board before Alleluia, but instead constitutes a new and more restrictive standard. We therefore conclude that, because the Board's decision stands on a faulty legal premise and without adequate rationale, we must remand the case for reconsideration.

B. The Meyers Test

The Board announced in this case that, "[i]n general, to find an employee's activity to be `concerted,' 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."47 As counsel for the Board confirmed at oral argument, this test in effect requires that two or more employees join in or authorize conduct before activity can be "concerted" under section 7.

The Board's decisions since Meyers indicate that the new definition will be strictly construed to include only activity clearly joined in or endorsed by other employees. Thus, to find that a complaint by an individual employee was made "on behalf of" others, the Board in effect will require that the complaint have been specifically authorized by other employees.48 Further, a single employee who files a complaint with a state agency will not be held to have engaged in concerted activities, regardless of how clearly his concern is shared by other employees.49

The Board's opinion reveals that it believed its present construction of "concerted activities" both to be required by the NLRA and to be a return to standards used by the courts as well as by the Board itself before Alleluia. Although it conceded that "the legislative history of Section 7 does not specifically define `concerted activity,'" the Board maintained that "it does reveal that Congress considered the concept in terms of individuals united in pursuit of a common goal."50 The Board argued that a similar interpretation emerged from an analysis of the language of section 7.51 The Board then reviewed its pre-Alleluia decisions to show that, "[c]onsistent with this interpretation," they had required "some sort of group action" to be present in order to find conduct to be concerted under section 7.52 The opinion criticized Alleluia for deviating from this norm, and observed that the Board's post-Alleluia decisions had been rejected by the courts of appeals.53 The Board concluded:

As the foregoing passage makes clear, the Board believed that, in rejecting Alleluia and adopting the Meyers test, it was returning to the standards applied by the courts and by the Board before Alleluia, and that this approach was "mandated by the statute itself."

Contrary to the dissent's view, it is clear from the Board's opinion that it considered not only its rejection of Alleluia but also its adoption of the Meyers standard to be required by the statute. In the passage quoted above, the Board contrasts the "per se" standard of Alleluia with the approach it claims was traditionally taken by "[t]he Board and courts," which required that conduct be actually concerted for protection under section 7. This approach, the Board maintains, "is mandated by the statute itself." The Board states shortly thereafter that it will rely "upon the `objective' standard of concerted activity — the standard on which the Board and courts relied before Alleluia;" it then proceeds to articulate the Meyers standard. We think it could hardly be more clear that the standard the Board adopts is the same approach that it claims was "mandated by the statute itself." Moreover, the Board's adoption of the "`objective' standard" occurs almost in the same breath as its overruling of Alleluia, and was evidently regarded as based on the same rationale, the Board's view of the requirements of section 7. This reading is confirmed by the Board's opinion as a whole, which is devoted primarily to criticizing Alleluia as inconsistent with the Act and contains not a word of justification for its new standard in terms of the policies of the statute. Thus, even if the dissent were correct that the Board did not regard its adoption of that standard as statutorily compelled, it would still be necessary to remand under Chenery because in that event the Board would have given no rationale whatsoever for the standard it adopted.

Because, in our view, the Board justified its new test as required by section 7 and as a return to traditional standards for concerted activity, we consider these grounds to determine whether they are correct interpretations of law.55

C. The Board's Determination That the Meyers Standard is Statutorily Required

Our review of the Supreme Court's decisions interpreting section 7 convinces us that, contrary to the Board's view, the statutory language does not compel it to adopt its present definition of "concerted activities," but rather gives the Board substantial responsibility to determine the scope of that provision in light of its own policy judgment and expertise. The Court has upheld the Board's broad construction of section 7 in a variety of contexts,56 and has emphasized that "the Board has the `special function of applying the general provisions of the Act to the complexities of industrial life.'"57

Last Term, in NLRB v. City Disposal Systems,58 the Supreme Court specifically rejected the view that the Board was without authority to interpret "concerted activities" broadly to effectuate the purposes of section 7. In City Disposal, as in Meyers, a truck driver was discharged when he refused to drive a vehicle that he reasonably believed to be unsafe because of faulty brakes. Unlike Prill, however, the employee in City Disposal, James Brown, was covered by a collective bargaining agreement which permitted him to refuse to drive an unsafe vehicle unless the refusal was unjustified. The Board held Brown's conduct protected under the Interboro doctrine. The Sixth Circuit, following the prevailing view in the courts of appeals, denied enforcement on the ground that Interboro was inconsistent with a literal reading of "concerted activities."59

Reversing the Sixth Circuit, the Supreme Court made clear that section 7 does not compel a narrowly literal interpretation of "concerted activities," but rather is to be construed by the Board in light of its expertise in labor relations. While agreeing with the Meyers Board that the term "concerted activity" "clearly enough embraces the activities of employees who have joined together in order to achieve common goals,"60 the Court emphasized that "[w]hat is not self-evident from the language of the Act ... is the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees in order to permit it to be said that the individual is engaged in concerted activity."61 The Court continued:

Because the Court found that the meaning of "concerted activities" was subject to varying interpretations based on "differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for § 7 to apply," it held that the question was for the Board to resolve in light of its expertise in labor relations, as long as its judgment was reasonable.63 The Court concluded that the Interboro doctrine embodied a reasonable view, agreeing with the Board that "[t]he invocation of a right rooted in a collective bargaining agreement is unquestionably an integral part of the process that gave rise to the agreement," a process that extends from the organization of a union to the enforcement of a collective bargaining agreement achieved through group action.64

The Court also found that the Interboro doctrine was not inconsistent with the congressional intent in enacting section 7.65 Reviewing the history of that provision,66 the Court concluded that Congress, in enacting section 7, had "sought generally to equalize the bargaining power of the employee with that of his employer by allowing employees to band together in confronting an employer regarding the terms and conditions of their employment."67 Most importantly, the Court observed that "[t]here is no indication that Congress intended to limit this protection to situations in which an employee's activity and that of his fellow employees combine with one another in any particular way."68

Thus, City Disposal makes unmistakably clear that, contrary to the Board's view in Meyers, neither the language nor the history of section 7 requires that the term "concerted activities" be interpreted to protect only the most narrowly defined forms of common action by employees, and that the Board has substantial responsibility to determine the scope of protection in order to promote the purposes of the NLRA. The Board's failure in Meyers to recognize the extent of its own interpretative authority has significant consequences. For example, in the past, both the Board and some courts have held that it is necessary under certain circumstances to accord protection to individual conduct in order to protect the development of collective activity.69 Similarly, in City Disposal, the Supreme Court observed that under section 8(a)(1) of the Act "[i]t is possible ... for an employer to commit an unfair labor practice by discharging an employee who is not himself involved in concerted activity but whose actions are related to other employees' concerted activities in such a manner as to render his discharge an interference or restraint on those activities."70 In Meyers, however, the Board failed even to consider whether the discharge of an employee because of his safety complaints would discourage other employees from engaging in collective activity to improve working conditions.

We recognize that the Board did not have the benefit of the Supreme Court's opinion in City Disposal when it decided Meyers, and that this fact may well have contributed to the Board's misconception of the scope of its authority under section 7. Our remand in this case will permit the Board to reconsider Meyers in light of the Supreme Court's intervening decision in City Disposal.

D. Decisions of the Courts and Board Before Alleluia

We also think that the Board was mistaken in its claim that, in adopting the Meyers test, it was simply returning to "the standard on which the Board and courts relied before Alleluia."71 Because the Board relied on a misreading of precedent in selecting the new standard in Meyers, we remand the decision for reconsideration under the principles of Chenery.72

The test adopted by the Board in Meyers derives from the Ninth Circuit's one-sentence per curiam opinion in Pacific Electricord Co. v. NLRB.73 The Pacific Electricord standard, however, has been followed only in the Ninth Circuit, at least as an exclusive definition of concerted activity. Furthermore, the Pacific Electricord test, which had been relied upon by the Ninth Circuit in rejecting the Interboro doctrine, was effectively disapproved by the Supreme Court in City Disposal, at least insofar as it applied to individual action in the context of collective bargaining.74 It is equally noteworthy that no other court has followed Pacific Electricord in defining "concerted activities" under section 7.75

The Board and most courts have historically taken a broader approach to defining the scope of section 7.76 In particular, the Meyers test appears to be narrower in at least two important respects than the standards traditionally applied by the Board and the courts to define concerted activity. First, both the Board and the courts have long held that an individual who brings a group complaint to the attention of management is engaged in concerted activity even though he was not designated or authorized to be a spokesman by the group.77 In applying the Meyers test, however, the Board has essentially required that such a complaint have been specifically authorized by the group in order to be protected under section 7.78

Second, the courts have long followed the Board's view that individual efforts to enlist other employees in support of common goals is protected by section 7.79 The leading case is Mushroom Transportation Co. v. NLRB,80 which holds that conduct is protected if it is "engaged in with the object of initiating or inducing or preparing for group action or ... had some relation to group action in the interest of employees."81 As the Supreme Court indicated in City Disposal, practically all courts follow Mushroom Transportation in holding such conduct protected.82 It is not clear, however, that the Meyers standard would protect an individual's efforts to induce group action.83

The Mushroom Transportation standard has been given varying interpretations by the courts of appeals. Some courts have applied the standard narrowly;84 others have given it a more expansive interpretation, emphasizing the Third Circuit's statement that conduct is protected if it "had some relation to group action in the interest of employees."85 Further, a number of cases have expressed the view that an individual employee engages in concerted activity when the purpose of his acts is to promote the welfare of other workers.86 Finally, in one case, the Sixth Circuit found concerted activity on facts quite close to those in Meyers.87

We do not undertake to decide in this case whether the Board is required to follow any particular approach to concerted activity under section 7. Rather, we review these cases in order to see whether the Board was correct in its view that, in adopting the Meyers test, it was doing no more than conforming to "the standard on which the Board and courts relied before Alleluia." As we have tried to make clear, any fair reading of judicial precedent reveals that the Board's test in Meyers is substantially narrower in important respects than the various standards for concerted activity that have been followed by past Boards and most of the courts of appeals. We therefore conclude that, in adopting the Meyers test, the Board relied on a misinterpretation of judicial decisions and its own prior cases.

Our conclusion highlights the lack of any meaningful support for the Board's opinion in this case. Not only is the Board's decision grounded on a faulty legal premise (as shown in part III.C. supra), it is also flawed by a lack of rationale. We are therefore constrained, under the authority of Chenery, to remand this case for reconsideration by the Board.

CONCLUSION

We hold that, in adopting the Meyers test of "concerted activities," the Board failed to rely on its own judgment and expertise, and instead based its decision on an erroneous view of the law. The Supreme Court's decision in City Disposal makes clear that the Board is not required to give a narrowly literal interpretation to "concerted activities," but has substantial authority to "defin[e] the scope of § 7 `... in the first instance as it considers the wide variety of cases that come before it.'"88 Moreover, we find that, contrary to the Board's view, its Meyers standard does not constitute a mere return to the standards traditionally applied by the Board and the courts to define concerted activity, but instead is substantially more restrictive.

This is not a case in which the "mistake of the administrative body is one that clearly had no bearing on the procedure used or the substance of decision reached."89 As our discussion has shown, the Board and courts of appeals have taken a variety of approaches to defining "concerted activities," some of which might result in relief for the petitioner. Moreover, the result in a given case will often turn not only on the governing standard but also on the manner in which that standard is applied, and this may well be influenced by whether the Board believes the standard to be dictated by the statute itself or rather adopted as a matter of policy in order to effectuate the purposes of the Act. Thus, we cannot say that the Board's error in this case clearly had no bearing on the result reached.

Rather than remand to the Board, the dissent would have this court determine for itself whether, applying the City Disposal analysis, the conduct at issue here is sufficiently related to the actions of other employees that it should be held protected under section 7. We believe, however, that such a determination is for the Board and not for this court to make in the first instance. The dissent's extensive efforts to provide a justification for distinguishing between the assertion of rights within and without a collective bargaining context only underscore the failure of the Board to provide a reasoned basis for such a distinction in its own opinion. Our remand in this case is intended to afford the Board a full opportunity to consider such issues in light of the analysis of section 7 in City Disposal.

The dissent unaccountably characterizes our opinion as holding that the Board had discretion under section 7 to adopt the Alleluia doctrine. However, as we have made clear, we do not find it necessary to consider the validity of Alleluia or any other test of concerted activity in this case, and we express no opinion on this issue. The dissent also urges on various grounds that remand is unnecessary because the Board's error in this case is "harmless." We do not believe that an agency decision can be sustained under any notion of "harmless error" where the agency has failed to exercise its lawful discretion and has provided no rational basis for its determination.

Although we, like the Board, find the facts of this case to be egregious, we stress that this in no way forms the basis of our decision. Nonetheless, we think that the facts of this case highlight the Board's failure to give a considered judgment on the issues involved. In the present case, the Board upheld the discharge of an employee for refusing to drive a vehicle determined to be unsafe by state authorities, despite the fact that both the employee and the company were under a legal obligation not to operate the vehicle.90 Moreover, the Board's decision in Meyers produces the anomaly that a unionized worker who complains about safety or other matters covered by a collective bargaining agreement will be held protected under Interboro and City Disposal, while an unorganized employee will be denied protection for engaging in identical conduct. We agree with the Board that its responsibility is to apply the National Labor Relations Act and not to enforce all state and federal law. This does not mean, however, that with respect to matters within its discretion, the Board should ignore the policy implications of its decisions.

Because we have determined that it was "improper for the [Board] to suppose that the standard it has adopted is to be derived without more from a national policy defined by legislation and by the courts,"91 we remand the case to the Board for reconsideration of the scope of "concerted activities" under section 7.92

So ordered.

BORK, Circuit Judge, dissenting:

Petitioner Prill asks this court to set aside an order of the National Labor Relations Board denying him reinstatement and other relief. The Board determined that Prill's employer, Meyers Industries, Inc., did not commit an unfair labor practice by discharging Prill, because the conduct for which Prill was discharged was not "concerted activit[y]" under section 7 of the National Labor Relations Act ("NLRA" or "Act"), 29 U.S.C. § 157 (1982). Meyers Industries, Inc., 268 N.L.R.B. No. 73, 115 L.R.R.M. 1025 (Jan. 6, 1984) (hereinafter referred to as "Meyers"). In my view, the Board reached a result that seems to me compelled by section 7. If Prill's actions might be called "concerted," almost any actions might be so characterized and the qualifying word that Congress wrote into the statute would effectively be removed from it. But, in any event, the Board's interpretation of the provision is reasonable and should be upheld without hesitation.

I.

The majority does not purport to disturb any of the Board's findings of fact in this case. It is therefore common ground that Prill was discharged for refusing to drive an unsafe vehicle and entering safety complaints about the vehicle to his employer and to state authorities. See Meyers at 15, 115 L.R.R.M. at 1030. It is also common ground that "Prill alone refused to drive the truck and trailer; he alone contacted the Tennessee Public Service Commission after the accident; and, prior to the accident, he alone contacted the Ohio authorities. Prill acted solely on his own behalf." Meyers at 16, 115 L.R.R.M. at 1030. Moreover, it is undisputed that as to a similar complaint made in Prill's presence by another driver, one Gove, about the same vehicle, "the judge correctly made no factual finding that Prill and Gove in any way joined forces to protest the truck's condition." Meyers at 16-17, 115 L.R.R.M. at 1030.

In the course of applying section 7 to this case, the Board overruled its decision in Alleluia Cushion Co., 221 N.L.R.B. 999, 1000 (1975), which had held that "where an employee speaks up and seeks to enforce statutory provisions relating to occupational safety designed for the benefit of all employees, in the absence of any evidence that fellow employees disavow such representation, we will find an implied consent thereto and deem such activity to be concerted." The Board held that "the concept of concerted activity first enunciated in Alleluia does not comport with the principles inherent in Section 7 of the Act," and asserted that it would instead rely "upon the `objective' standard of concerted activity — the standard on which the Board and the courts relied before Alleluia." Meyers at 11, 115 L.R.R.M. at 1028-29. The Board then proceeded to set forth a definition of concerted activity that "is an attempt at a comprehensive one, [but] we caution that it is by no means exhaustive. We acknowledge the myriad of factual situations that have arisen, and will continue to arise, in this area of the law." Id., 115 L.R.R.M. at 1029. The Meyers reformulation is as follows: "[i]n general, to find an employee's activity to be `concerted,' 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." Id. at 12, 115 L.R.R.M. at 1029 (footnote omitted).

The majority does not dispute that, if the Meyers test is valid, Prill's conduct is not concerted activity and therefore cannot be protected under section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1) (1982). The majority also refrains from holding that Prill's conduct was concerted activity under section 7, and claims to "express no view on whether, under § 7, the Board may adopt the Meyers test as an act of discretion." Maj. op. at 948 n. 46. Nonetheless, invoking SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), the majority sets aside the Board's order and remands this case to the Board on the grounds that "the Board misinterpreted the law in two respects." Maj. op. at 948. First, the majority argues that the Supreme Court's decision in City Disposal Systems, Inc., 465 U.S. 822, 104 S.Ct. 1505, 79 L.Ed.2d 839 (1984), "makes unmistakably clear that, contrary to the Board's view in Meyers, neither the language nor the history of section 7 requires that the term `concerted activities' be interpreted to protect only the most narrowly defined forms of common action by employees, and that the Board has substantial responsibility to determine the scope of protection in order to promote the purposes of the NLRA." Maj. op. at 952. Second, the majority states that "contrary to the view expressed by the Board, we find that the Meyers test does not represent a return to the standard relied on by the courts and by the Board before Alleluia, but instead constitutes a new and more restrictive standard." Id. at 948. Because, in the majority's view, the Board in its discretion could have adopted a definition of concerted activity under which petitioner's conduct would be held to be concerted, remand is required. As I shall show, it is the majority rather than the Board that has misinterpreted the law, and in any event the Board's alleged mistakes, if they existed, would be harmless error under the facts of this case.

II.

A.

In this case, the Board has proposed and applied a new test which it regards as consistent with Congress' intent in employing the words "concerted activities" in section 7 of the NLRA. As the majority recognizes, "the task of defining the scope of § 7 is for the Board to perform in the first instance as it considers the wide variety of cases that come before it, and, on an issue that implicates its expertise in labor relations, a reasonable construction by the Board is entitled to considerable deference." NLRB v. City Disposal Systems, Inc., 465 U.S. 822, 104 S.Ct. 1505, 1510, 79 L.Ed.2d 839 (1984) (citations and quotation marks omitted). The question for decision would appear to be straightforward: is the Board's new construction of section 7 reasonable or not? The anomalous character of the majority's analysis is well shown by the fact that the majority never answers this question.

The Board's reading of section 7 is, in my view, altogether reasonable, and neither City Disposal nor any other Supreme Court decision suggests otherwise. In City Disposal, the Supreme Court upheld the Board's Interboro doctrine, under which an employee's assertion of a right created by a collective-bargaining agreement is treated as concerted activity. See Interboro Contractors, Inc., 157 N.L.R.B. 1295, 1298 (1966), enforced, 388 F.2d 495 (2d Cir.1967). The Court noted that the Board in Meyers had distinguished cases involving the Interboro doctrine from the run of section 7 cases because Interboro cases concern conduct that relates back to a collective-bargaining agreement, and concluded that "[t]he Meyers case is thus of no relevance here." 104 S.Ct. at 1510 n. 6.1 That remark alone suggests, rather strongly one would think, that City Disposal does not control this case and certainly does not support the majority's position.

The Court described the question to which its opinion was addressed as "whether the Board's application of § 7 ... is reasonable." 104 S.Ct. at 1510. The Court summarized the dispute over the Interboro doctrine as one that "merely reflects differing views regarding the nature of the relationship that must exist between the action of the individual employee and the actions of the group in order for § 7 to apply." City Disposal, 104 S.Ct. at 1511 (emphasis added). As this language indicates, some real connection between the individual's conduct and group action was presupposed by both contending viewpoints before the Court — and the Court in no way repudiated that threshold requirement. For, as the Court went on to say, the process of which the collective bargaining agreement is a part is "a single, collective activity," which "extend[s] through the enforcement of the agreement." Id. The "relationship" the Court identified between individual assertions of rights derived from a collective-bargaining agreement and group action was, moreover, essentially identical to the one it perceived between group action and the individual acts of "joining and assisting a labor organization, which § 7 explicitly recognizes as concerted," Id. 104 S.Ct. at 1512. In the latter situation, the individual's "actions may be divorced in time, and in location as well, from the actions of fellow employees. Because of the integral relationship among the employees' actions, however, Congress viewed each employee as engaged in concerted activity." Id. (emphasis added). In a footnote the Court added, "[o]f course, at some point an individual employee's actions may become so remotely related to the activities of fellow employees that it cannot reasonably be said that the employee is engaged in concerted activity." Id. 104 S.Ct. at 1512 n. 10. The Court briefly examined the legislative history of section 7, and, finding the Interboro doctrine "fully consistent with congressional intent," id. 104 S.Ct. at 1513, concluded that "the doctrine constitutes a reasonable interpretation of the Act." Id. 104 S.Ct. at 1516.

City Disposal establishes only that the Interboro doctrine, which presupposes a real and not imaginary relationship between individual conduct and group action as a condition precedent to finding concerted activity, is a reasonable interpretation of section 7. If the Board in Meyers had held that the Interboro doctrine is inconsistent with the meaning of section 7, I would agree that City Disposal would require us to reject the Board's reasoning. If the Board had held that some other type of individual conduct that was equally directly related to group action could not be deemed concerted activity consistently with section 7, I would agree that City Disposal would strongly suggest the Board was wrong. But that is not what happened here.

Meyers repudiated the Alleluia doctrine, which deems individual protest grounded in a worker protection statute to be concerted activity whether or not any other employees are involved in the protest. Alleluia's test for concerted activity required less than a "remote" relationship between individual and group activity — it required no relationship at all. City Disposal is therefore completely consistent with the Board's determination that "the concept of concerted activity first enunciated in Alleluia does not comport with the principles inherent in Section 7 of the Act." Meyers at 11, 115 L.R.R.M. at 1028.

Beyond that, I do not think that City Disposal establishes that the Board has discretion to adhere to the Alleluia doctrine.2 Nor is there any basis in the language of section 7 for the majority's suggestion that "the case of an employee who is discharged for conduct required by laws designed for the benefit of all employees may be distinguishable from the judicial decisions that have rejected the theory of implied concerted activity in other contexts." Maj. op. at 953 n. 72. City Disposal makes clear that the words "concerted activities" were intended to reach individual conduct that is linked to group activity in any of several ways, but it reaffirms the longstanding rule that there must be both group activity and a clear nexus between that activity and the individual's conduct. The Alleluia doctrine destroyed the statutory requirements of group action and a nexus between that action and the individual's conduct, thereby reading the word "concerted" out of section 7 altogether. The City Disposal Court's careful effort to ground the Interboro doctrine in the language of section 7 confirms the proposition that "§ 7 ... should be read according to its terms." Ontario Knife Co. v. NLRB, 637 F.2d 840, 845 (2d Cir.1980). There is no reading of section 7 "according to its terms" that would allow a finding of concerted action in this case or in Alleluia-type cases generally.3 Therefore, while I agree with the majority that the Board believed it had no discretion to adhere to the Alleluia doctrine, in my view the Board's belief was entirely correct. Since an individual's appeal to a statute about worker protection involves other workers only in the sense that they "should" be concerned with such protection, it is difficult to see how that case differs from one in which an individual protests about any matter that, in the estimation of the Board or a court, "should" be of concern to other workers. Thus, by sleight of hand, Board or judicial policy replaces congressional policy, individual behavior becomes group action, and the requirement that activity be "concerted" drops from the law.

Thus, in Meyers the Board found that "under the Alleluia analytical framework, the Board questioned whether the purpose of the activity was one it wished to protect and, if so, it then deemed the activity `concerted,' without regard to its form. This is the essence of the per se standard of concerted activity." Meyers at 9, 115 L.R.R.M. at 1027. This per se standard presumes that what "ought to be of group concern," id. at 10, 115 L.R.R.M. at 1028, is for the mutual aid or protection of other employees, and therefore that when an individual employee protests over some such matter he is engaging in concerted activity. Id. at 10, 115 L.R.R.M. at 1028. The Board contrasted this approach with the practice of the Board and the courts before Alleluia, which "generally analyzed the concept of protected concerted activity by first considering whether some kind of group action occurred and, only then, considering whether that action was for the purpose of mutual aid or protection," Meyers at 4-5, 115 L.R.R.M. at 1026, and held that the Alleluia approach was "at odds with the Act." Id. at 10, 115 L.R.R.M. at 1028.

Precisely the same understanding informs City Disposal, where the Court noted at the outset that an employee's assertion of a right derived from a collective-bargaining agreement falls "within the `mutual aid or protection' standard, regardless of whether the employee has his own interests most immediately in mind." City Disposal, 104 S.Ct. at 1510-11 (citation omitted). Had the Court accepted the reading of section 7 that the Board in Meyers identified as underlying the Alleluia doctrine, it could simply have said that because rights contained in a collective-bargaining agreement are secured for the mutual aid or protection of all employees who work under that agreement, an individual's assertion of any such right must be deemed to be concerted activity. In fact, however, the Court drew no inference from the finding that the "mutual aid or protection" standard had been met. Instead, the Court based its decision that the Interboro doctrine is a reasonable interpretation of section 7 on the integral relationship between the process of collective bargaining — which is indisputably concerted activity — and the assertion of rights based on a collective bargaining agreement. City Disposal, then, contains no suggestion that it is within the Board's discretion to adhere to the Alleluia doctrine or to any other theory of "constructive" concerted activity that is not grounded in the language of section 7.

B.

The majority also claims, however, that City Disposal establishes that "the Board's opinion is wrong insofar as it holds that the agency is without discretion to construe `concerted activities' except as indicated in the Meyers test." Maj. op. at 948. This claim is flatly wrong because the Board nowhere held or implied any such thing. The Board did not say that the Act requires the exact formulation it tentatively adopted — it said that the general, pre-Alleluia approach which considers "first, whether the activity is concerted, and only then, whether it is protected," is "mandated by the statute itself." Meyers at 10, 115 L.R.R.M. at 1028. That is simply another way of saying that section 7 does not authorize the Board to find concerted activity merely because one individual's activity concerns matters that affect the well-being of other employees, and so falls within the "mutual aid or protection" standard. This is the only aspect of its legal analysis that the Board claims is "mandated" by the Act,4 and, as I have demonstrated in Part II-B supra, the Board's view that section 7 leaves it without discretion on this point is entirely reasonable and fully consistent with City Disposal.5

C.

Even if I agreed with the majority that the Board's opinion held that section 7 required it to adopt a definition of "concerted activit[y]" no broader than the Meyers test, and even if I were convinced that such a holding was erroneous, I would not remand in this case. On the facts as we must take them, there is in my view no definition the Board could propose that would, consistently with the language of section 7, afford petitioner relief. For there is no finding here that petitioner's conduct was in any way related to group activity. In order to find concerted activity here, the Board would have been forced to hold that concert can be presumed where two employees complain about the same piece of equipment on different occasions, merely because the second employee to complain was aware of the first employee's protest. Obviously, the first employee's protest would not be concerted even under this presumption. Hence the Board would be treating the second protest as concerted not because it was related to group activity but merely because it resembled another employee's individual conduct. The language of section 7 does not admit of such a reading. Since the Administrative Procedure Act requires us to review with due regard for "the rule of prejudicial error," 5 U.S.C. § 706 (1982), I would deny the petition and let the alleged infirmities in the Meyers test await challenge on another occasion.

III.

The second flaw the majority finds in Meyers is "a misreading of precedent in selecting the new standard." Maj. op. at 953. The majority's forced reading of the Meyers test wrongly presupposes that the Board intends that test to be exhaustive and resolves every doubt in favor of construing the Meyers test so that it appears as narrow as possible. The Board, it bears emphasizing, explicitly stated that the Meyers test is not meant to be exhaustive, and may be modified as the Board grapples with the "myriad of factual situations" that can be expected to arise under section 7. Meyers at 11, 115 L.R.R.M. at 1029. It is virtually certain that there is at least one category of cases the Board would treat as exceptions to the Meyers test: cases involving the assertion of rights under a collective-bargaining agreement (for the Board specifically distinguished the Interboro line of cases, see id. at 11, 115 L.R.R.M. at 1028). The Meyers test, as applied to the facts of this case, holds only that, Interboro cases aside, the Board now requires (1) some evidence of intent to actually induce concerted activity, or (2) some evidence of mutual reliance on the conduct or support of other employees, or (3) some evidence of an actual agreement between employees to protest a given situation, as a condition precedent to a finding of concerted action. Nothing more than this can reliably be made out from Meyers, and the majority does not establish that this interpretation of section 7 runs counter to the case law.

The proof of this is that neither of the "two important respects" in which the majority finds the Meyers test "narrower" than "the standards traditionally applied by the Board and the courts to define concerted activity," maj. op. at 954, can be established on the basis of the record and decision in the present case. The majority's initial claim, that "the new definition will be strictly construed to include only activity clearly joined in or endorsed by other employees," id. at 948, see also id. at 954, rests solely on the majority's reading of the Board's subsequent decisions in Mannington Mills, Inc., 272 N.L.R.B. No. 15, 117 L.R.R.M. 1233 (Sept. 21, 1984), and Allied Erecting & Dismantling Co., 270 N.L.R.B. No. 48, 116 L.R.R.M. 1076 (Apr. 30, 1984). See maj. op. at 948-949 & n. 48.6 In Meyers itself, the only indication given as to the Board's standard in "endorsement" cases is the Board's remark that "there is no evidence here ... that either [Prill or Gove] relied in any measure on the other when each refused to drive the truck." Meyers at 17, 115 L.R.R.M. at 1030. That reveals only that no reliance will not constitute authorization — it does not tell us how much reliance will suffice. Similarly, the principal indication in Meyers as to the scope of the words "with ... other employees" in the Meyers test is the Board's finding that "there is no evidence here that there was any concerted plan of action between Gove and Prill." Meyers at 17, 115 L.R.R.M. at 1030.7 From this we can infer that the Board will not find a "concerted plan of action" where two employees complain about the same piece of equipment on different occasions, even though the second employee was aware of the first employee's protest. The Board's use of the words "concerted plan of action" suggests that some kind of agreement between the two must be established, but it remains unclear how express that agreement must be, for the record is barren of any evidence even suggesting agreement.

The majority's willingness to go beyond the confines of the record before us to consider how the Meyers test has been applied by the Board in subsequent cases is highly questionable. We are reviewing an order issued by the Board in this case, not a rule or regulation promulgated after notice-and-comment rulemaking, in which we must necessarily consider how the challenged rule will be applied in whatever cases are likely to arise. If the Meyers test, as applied to petitioner Prill, is a reasonable interpretation of the statute, the order should be sustained. The reasonableness of the Meyers test as applied in subsequent cases can and should be reviewed when the orders in those cases come before a court.

Moreover, even if these subsequent decisions could properly be considered here, there is simply no connection between this criticism of the Meyers test and the result reached in this case. The majority concedes that, even if the Board did misinterpret pre-Alleluia case law, remand would be inappropriate if that mistake clearly had no bearing on the substance of the decision reached as to petitioner Prill. See maj. op. at 956. Since there was no evidence that other employees in any way joined in or endorsed petitioner's conduct, that branch of the majority's critique cannot possibly affect the outcome here.

The majority's second objection is that "it is not clear ... that the Meyers standard would protect an individual's efforts to induce group action." Maj. op. at 955. The majority notes that the Board declined to reach this question in a post-Meyers case, see id. at 955 n. 83, and proceeds to engage in the highly speculative enterprise of deducing, from the Board's choice of citations, that the Board will not hold individual efforts to induce group action to be concerted. Id. The majority gives the impression that the Meyers test, whose wording is borrowed from the Ninth Circuit's language in Pacific Electricord Co. v. NLRB, 361 F.2d 310 (1966) (per curiam), represents a conscious choice on the Board's part to adopt a formulation that no other circuit has followed,8 while rejecting the predominant standard, which, according to the majority, is that set out in Mushroom Transportation Co. v. NLRB, 330 F.2d 683 (3d Cir.1964). The Mushroom Transportation standard differs from the Meyers test principally in that it explicitly states that "a conversation may constitute a concerted activity although it involves only a speaker and a listener, but to qualify as such, it must appear at the very least that it was engaged in with 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." 330 F.2d at 685.

The majority has overlooked the Board's finding that neither Prill's refusal to drive the truck nor driver Gove's earlier refusal, to which Prill was an accidental and silent witness, was "intended to enlist the support of other employees," Meyers at 17, 115 L.R.R.M. at 1031. If the majority were right in thinking that the Meyers test eliminates the "inducement" category of cases from the definition of concerted activity, the Board would have had no need to make this finding.

The majority also slights the Board's discussion of Root-Carlin, Inc., 92 N.L.R.B. 1313 (1951), which the majority cites as one of the leading cases holding that individual attempts to induce concerted activity are themselves concerted. The Board in Meyers relied on Root-Carlin as one of a series of cases it read as "defin[ing] concerted activity in terms of employee interaction in support of a common goal," Meyers at 5, 115 L.R.R.M. at 1026 — cases the Board clearly approved. The Board plainly indicated that, at a minimum, individual efforts to induce group action that "involve[] only a speaker and a listener," id. at 5, 115 L.R.R.M. at 1026 (quoting Root-Carlin, Inc., 92 N.L.R.B. at 1314 (emphasis added by the Board in Meyers)), will be treated as concerted when the speaker, an employee, is addressing the listener, another employee.

Indeed, any fair reading of the Meyers opinion would treat it as incorporating the Mushroom Transportation standard, at least as applied by the court that framed it. It was precisely because the "interaction" among employees present in the conversation in Root-Carlin, Inc. was absent in Mushroom Transportation that the court in the latter case found that the individual employee's conduct was not concerted. It reached that result, despite the fact that the discharged employee "had been in the habit of talking to other employees and advising them as to their rights," 330 F.2d at 684, because there was no evidence that his "talks with his fellow employees involved any effort on his or their part to initiate or promote any concerted action to do anything about the various matters as to which [he] advised the men or to do anything about any complaints and grievances which they may have discussed with him." Id. at 684-85. A finding of no concerted activity in the present case would seem to follow a fortiori from Mushroom Transportation — for in the present case there was not even a conversation between petitioner and another employee about common grievances, let alone one directed towards concerted activity.9

The "inducement" branch of the majority's critique rests, then, on a misreading of the Meyers opinion. Beyond that, the only way in which this alleged error could possibly affect the outcome in this case would be if the Board could have held that where one employee overhears another employee's complaint (as Prill did Gove's), an effort to induce concerted activity on the second employee's part should be inferred without more. Any such inference would be preposterous, and the majority has not pointed to a single case as so holding, let alone established a clear line of authority to that effect.10 Consequently, even if the majority's dubious criticisms of the Board's reading of the case law in Meyers prove well-founded, they are harmless error that cannot support a remand in this case.

IV.

There have been protests in recent years that the "concerted activity" requirement produces such anomalous results that anything resembling a literal reading of section 7 should be abandoned. See, e.g., Gorman & Finkin, The Individual and the Requirement of "Concert" Under the National Labor Relations Act, 130 U.Pa.L.Rev. 286 (1981); see also Illinois Ruan Transport Corp. v. NLRB, 404 F.2d 274, 281 (8th Cir.1968) (Lay, J., dissenting). It is a sufficient response that the choice to require that activity be concerted before it may be protected "is one decided by Congress when it drafted § 7. It is not a choice that can be undone by the courts for policy reasons." E.I. du Pont de Nemours & Co. v. NLRB, 707 F.2d 1076, 1078 n. 2 (9th Cir.1983). Moreover, as the four dissenting Justices in City Disposal pointed out (without controversion by the majority), "[b]y 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.' The fact that two employees acting together 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, 180, 87 S.Ct. 2001, 2006, 18 L.Ed.2d 1123 (1967); Republic Steel Corp. v. Maddox, 379 U.S. 650, 653, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965)." City Disposal, 104 S.Ct. at 1518 (O'Connor, J., dissenting) (additional citations omitted). Because what the Board did here was compelled by that congressional choice, I would uphold its order.11 I therefore respectfully dissent.