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De Nemours v. National Labor Relations Board

May 14, 1984


Adams, Garth, Circuit Judges and Ackerman, District Judge.*fn* Ackerman, District Judge, dissenting.

Author: Per Curiam


On December 29, 1983, this Court filed a majority opinion enforcing the order of the National Labor Relations Board, which order required the reinstatement of Intervenor Walter Slaughter by Petitioner Du Pont. NLRB v. Du Pont de Nemours & Co., 724 F.2d 1061 (3d Cir. 1983). The NLRB had found that Du Pont committed an unfair labor practice when it discharged Slaughter, a non-union employee, for insisting that a coworker witness accompany him to any interview with management which might lead to disciplinary action.

Du Pont subsequently filed a motion for panel rehearing and rehearing en banc on February 1, 1984. Before ruling upon those motions, this Court, on February 7, 1984, ordered that an Answer be submitted by the NLRB by February 17, 1984. In particular, the Court asked that the Board address the question of whether Meyers Industries, Inc., 268 N.L.R.B. No. 73, 115 L.R.R.M. 1025 (1984), decided subsequent to this Court's opinion of December 29, 1983, required any different result.

In lieu of an Answer, the NLRB moved, on February 17, 1984, that the Court's filed opinion be vacated and the matter remanded to the Board for further consideration. The NLRB stated that it had pending another case presenting similar issues, and that it was giving additional thought to the questions involved. This Court held the Board's motion to vacate and remand in abeyance, and again ordered an Answer on the petition for rehearing from the NLRB. That Answer was filed on March 19, 1984. Although the NLRB argued in its Answer that Meyers did not affect the analysis of the present case, it renewed its request for a remand for further consideration.

It was at this stage that Slaughter, the discharged employee, sought to intervene and to file an Answer to Du Pont's petition for rehearing. On March 30, 1984, intervention was granted, and an extension of time to file a response to the rehearing petition was granted. We have now received and considered all responses, including the Answer of Intervenor Slaughter. For the reasons stated below, we grant the NLRB's motion for remand.

The NLRB does not have the automatic right to withdraw its petition for enforcement at will, and "permission to withdraw must rest in the sound discretion of the court, to be exercised in light of the circumstances of the particular case." Ford Motor Co. v. NLRB, 305 U.S. 364, 370, 83 L. Ed. 221, 59 S. Ct. 301 (1939).Nor is it the responsibility of the courts of appeals to ensure academic consistency in the Board's decisions, NLRB v. Deaton, Inc., 502 F.2d 1221, 1228 (5th Cir. 1974) (denying motion for remand made by employer). In the present case, however, the Board's decision resulted in substantial development in the construction of ยง 7 of the Act. It is in this context that we view the Board's contention that:

the public interest and the interests of the parties would be better served by its considering . . . this case together with the other case posing related questions, to issue decisions comprehensively addressing the questions raised in this area, thereby allowing for more effective judicial review.

Motion of the NLRB, February 16, 1984, at 1-2. Mindful of the deference owed the Board's special expertise in interpreting the Act,*fn1 we believe that our discretion is best exercised by postponing further judicial involvement until we have been informed of a comprehensive adjudication by the NLRB.*fn2 Thus, we grant panel rehearing: the NLRB's motion to remand this case is granted. Accordingly, our previous opinion, reported at, 724 F.2d 1061, will be vacated.

ACKERMAN, District Judge, dissenting.

I am somewhat dismayed by the decision of the other members of this panel to remand this matter to the Board for further proceedings. In a highly unusual if not unprecedented action, the National Labor Relations Board (Board) has sought to reconsider one of its own decisions after enforcement had been granted by a Coaurt of Appeals -- not because justice requires that some defect in the record be corrected, and not because of a change in Supreme Court of Board precedent, but instead simply because the Board has pending before it an unnamed case "which has caused the Board to give further consideration to the questions presented in the instant case." The Board suggests that somehow "the public interest and the interests of the parties would be better served by the Board's further reconsideration of the issues presented in this case" together with the other case assertedly "posing related questions." I am unable to determine how anyone's legitimate interests could be served by such a remand, and I therefore dissent.

The per curiam opinion's recitation of the procedural history of this case since the filing of the panel's opinions omits one key fact. It initially appeared that the Board's option to remand was based upon its recent opinion in Meyers Industries, Inc., 268 N.L.R.B. No. 73 (1984). In Meyers, the Board reversed its previous opinion in Alleluia Cushion Co., 221 N.L.R.B. 999 (1975), and held that the lone activity of a non-union employee in refusing to drive an unsafe vehicle for his employer and in reporting the safety violation to governmental authorities was not "concerted activity" protected under section 7, despite its benefit to other workers. When ordered by this panel to address the question of "why the decision in [ Meyers ] does not require a result different from that in the panel decision," the Board clarified its position by responding unequivocally that, in its view, the change of position reflected by Meyers would have no effect on the outcome of this case. Specifically, the Board stated that

the panel in this case recognized that under Weingarten "the proper focus in evaluating the requirement of concertedness in this context should be on the literal nature of the activity that would take place if the employee's request was granted" (sl. op. p. 11). If the request in the instant case had been granted, Slaughter and a fellow employee would have together confronted the company as it considered whether to discipline Slaughter. The conduct would involve two employees and would clearly be concerted.

Thus, contrary to the Company's repeated assertions the concertedness found here is not "fictional" or "constructive." A request for the assistance of another employee is protected because, as this Court recognized in Hugh H. Wilson Corp. v. NLRB, 414 F.2d 1345, 1347 (1969), cert. denied, 397 U.S. 935, 25 L. Ed. 2d 115, 90 S. Ct. 943, quoting Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir. 1964): "To protect concerted activities in full bloom, protection must necessarily be extended to intended, contemplated or even referred to' group ...

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