Security Walls, LLC v. National Labor Relations Board

[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11339
____________________
SECURITY WALLS, LLC,
Petitioner,
versus
NATIONAL LABOR RELATIONS BOARD,
Respondent.
____________________
Petitions for Review of a Decision of the
National Labor Relations Board
Agency No. 15-CA-255865
____________________
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2 Opinion of the Court 22-11339
Before B RANCH and L UCK , Circuit Judges, and S MITH ,* District
Judge.
B RANCH, Circuit Judge:
The National Labor Relations Board (the “NLRB” or “the
Board”) determined that Security Walls, LLC (“Security Walls”),
unlawfully fired an employee for activity protected under the
National Labor Relations Act (“NLRA”). Security Walls now
petitions this Court for review of the Board’s decision, arguing that
the employee’s activity was not protected because he did not utilize
the union’s grievance process first and because his activity was
inconsistent with the collective bargaining agreement then in
place. The Board filed a cross-petition for enforcement of its order.
After careful review and with the benefit of oral argument, we
conclude that the employee’s activity was protected. Accordingly,
we grant the Board’s application for enforcement and deny
Security Walls’s petition for review.
I. Factual Background
Since 2017, Security Walls has provided security services for
the National Aeronautics and Space Administration (“NASA”) at
the Michoud Assembly Facility (“Michoud”) in New Orleans,
Louisiana. The company employs approximately 40 security
officers, whose responsibilities include controlling entry and access
to Michoud and other on-site buildings and responding to calls for
* The Honorable Rodney Smith, United States District Judge for the Southern
District of Florida, sitting by designation.
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22-11339 Opinion of the Court 3
service and emergencies. The International Union, Security, Police
and Fire Professionals of America (“the union”) represents the
officers at Michoud, and a collective bargaining agreement covered
the employees from October 1, 2017, to September 30, 2020.
In January 2018, Security Walls hired Randall Kelley to work
as a security officer. Before Kelley started work at Michoud, he
attended a mandatory training. During his training, Security Walls
paid Kelley the hourly rate for trainees, which was lower than the
rate for on-duty officers. After the training ended, Kelley noticed
that Security Walls continued to pay him at the trainee rate in his
first paycheck as an on-duty officer—which resulted in
underpayment of almost $700—and failed to reimburse him for
mileage and other out-of-pocket expenses incurred during the
training. After discussing these issues with other coworkers, he
discovered that another newly hired officer, Mandie Lockwood,
had been similarly underpaid and unreimbursed.
With Lockwood’s support, Kelley reported the
underpayment and reimbursement issues to Captain Henry
Conravey and Chief Jules Perrie, Security Walls’s on-site managers.
After several weeks passed without a resolution, Kelley, with
Lockwood’s encouragement, contacted Security Walls’s corporate
human resources department directly. Within hours, Kelley and
Lockwood each received a wire transfer for their missing wages.
But despite continuing to ask for Conravey’s assistance, Kelley did
not receive his missing training reimbursements. Eventually,
Kelley asked Conravey if he should contact human resources
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4 Opinion of the Court 22-11339
directly about the issue. Conravey replied that Kelley would be
“suspended on the spot” if he called “corporate” again without
Conravey’s permission.
The bungled payments were just the beginning of the issues
that Kelley encountered during his employment. Consistent with
the collective bargaining agreement between Security Walls and
the union, Security Walls selected officers for mandatory overtime
in reverse order of seniority, proceeding systematically through the
entire seniority list and only returning to the bottom after every
officer worked an overtime assignment. In April 2018, Lieutenant
Jordan Robinson began supervising the second shift—which is the
shift Kelley worked. Instead of assigning overtime from the spot
on the seniority list where the prior supervisor had left off,
Robinson started at the bottom of the list so that officers with the
lowest seniority had to work overtime twice.
Kelley and other adversely affected officers discussed the
situation, and, with the officers’ support, Kelley spoke to Robinson
about the inequitable assignment of overtime. In response,
Robinson chastised Kelley for talking to others “behind his back.”
The following month, officer Emanual Rahman stopped a
vehicle from entering Michoud because the adult occupants
appeared to be intoxicated and two unrestrained children were in
the backseat. Rahman reported the incident over the radio, and
Robinson, Kelley, and another officer, Thomas Benasco, reported
to the scene. Robinson directed Rahman to escort the vehicle off
the property and not to detain it or contact the occupants. Kelley
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22-11339 Opinion of the Court 5
and Benasco questioned Robinson’s directive. They attempted to
persuade Robinson that they had a duty to prevent the vehicle from
returning to the road. Kelley expressed concern about the adults’
impaired condition and the presence of the unrestrained children.
When Robinson asked, Benasco said that he agreed with Kelley.
Becoming agitated, Robinson punched his fist into his hand
and yelled and cursed at Rahman, Kelley, and Benasco. Then,
before leaving, Robinson said that “nobody better talk shit about
me when I leave here” and “[don’t] let me find out that anyone’s
talking behind my back.” Despite Robinson’s instructions, the
three officers discussed his behavior and agreed that it should be
brought to management’s attention. The next morning, Kelley
reported the incident to Conravey, Robinson’s superior, and
Conravey said that he would take care of it.
The next issue Kelley encountered involved his post.
Officers at Michoud hold either stationary or mobile posts. When
assigned to a stationary post, officers are required to stay within a
designated building or area. When assigned to a mobile post,
officers use company-owned vehicles to patrol larger areas.
Although supervisors create post assignments for each officer daily,
it is common for officers to trade assignments.
It was well known that Kelley disliked stationary posts and
preferred a mobile post. On June 6, 2018, while Kelley was assigned
to a mobile post, he initiated a traffic stop and arrested a FedEx
driver. Shortly afterward, Robinson informed Kelley that NASA
was investigating the incident and that Kelley was restricted to a
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6 Opinion of the Court 22-11339
stationary post until the investigation was complete. After about a
week had passed without NASA reaching out about the incident,
Kelley asked Robinson for more information. Robinson replied
that FedEx, not NASA, was conducting the investigation and that
Kelley could return to mobile patrol on July 1.
Later that day, when Kelley was discussing his post
restriction with a union representative, Robinson approached
Kelley. He accused Kelley of “talk[ing] shit behind his back” and
suggested that they go to a back office and have a conversation.
The men squared off and exchanged words until another officer
intervened and separated them.1
Kelley immediately reported the incident to Chief Perrie.
During their conversation, Chief Perrie explained that Kelley had
never been under investigation and that Robinson simply wanted
to “ground” Kelley for 30 days because Robinson “got tired of
hearing [Kelley’s] name come up.”
The following day, Security Walls suspended Kelley for two
days without pay for purportedly violating the collective
bargaining agreement by initiating a verbal altercation with
Robinson. Security Walls had never previously disciplined any
1 Robinson’s and Kelley’s accounts of this incident differ. According to
Robinson, Kelley performed a “leg sweep” on him, causing him to fall against
the wall. For his part, Kelley denies that any violence or physical altercation
occurred during their confrontation but maintains that Robinson threatened
him with violence.
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22-11339 Opinion of the Court 7
employee for initiating a verbal altercation, fighting, or any other
disruptive behavior, despite instances of such conduct occurring.
Additionally, during the summer of 2018, officers heard
rumors that Security Walls was considering a schedule change in
which officers would move from five-day workweeks with eight-
hour shifts to three-day workweeks with twelve-hour shifts.
Concerned, Kelley created a written analysis that showed how the
potential change would dramatically reduce the income of dayshift
officers compared to nightshift officers. Kelley shared his analysis
with other officers, who also expressed concern over the disparate
impact of the schedule change.
Then on July 9, 2018, Kelley emailed Security Walls’s owner
Juanita Walls and expressed concerns over a workplace
atmosphere of threats, intimidation, and retaliation. He also
complained about the potential shift to twelve-hour workdays.
Walls responded that she would have her newly hired program
manager, Brenda Hunter, look into the issue.
Kelley and Benasco met with Hunter a few weeks later, and
Kelley shared his analysis about the potential schedule change.
Kelley also complained about Chief Perrie and purported
supervisory incompetence at Michoud. Shortly after the meeting,
Robinson issued Kelley a verbal warning for calling off work
without proper documentation.2
2 The collective bargaining agreement requires an employee to provide a
medical certificate if the employee is absent for more than three consecutive
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8 Opinion of the Court 22-11339
On July 20, 2018, Kelley was assigned to “Post 3,” which was
a mobile patrol. At the time, based on the officers’ on-the-job
training, it was typical for officers to perform building checks inside
Building 101. When officers working Post 3 checked Building 101,
they would note that they did so on their daily patrol activity
reports, which they provided to their supervisors.
Around 3:15 p.m., Kelley picked up Benasco and drove to
Building 101. Once there, Kelley and Benasco joined three other
on-duty officers in the building’s lobby, and all of the officers used
their personal cell phones in the lobby. Around 4:00 p.m.,
Robinson approached the officers and directed them to return to
their respective posts.
On July 23, 2018, Security Walls suspended Kelley pending
an investigation into his conduct on July 20. Robinson prepared
the suspension paperwork, which said that Kelley committed
“gross misconduct” in violation of the collective bargaining
agreement when he was observed on closed circuit television
lounging and using his cell phone for approximately 41 minutes in
the lobby of Building 101. On July 30, 2018, Security Walls
discharged Kelley for post abandonment.
The other officers who had lounged in the lobby with Kelley
received lesser discipline. Benasco, who had abandoned his post,
workdays for medical reasons. In the two months before his verbal warning,
Kelley had called off work four non-consecutive days either because he was
sick or had to stay home with a sick child.
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22-11339 Opinion of the Court 9
received only a verbal warning for using his personal cell phone.
Another officer received a verbal warning for eating and not
performing his assigned duties. And the two remaining officers,
who were assigned to Building 101 that day, received no discipline.
After filing unfair labor practice charges with the Board,
Kelley asked another officer to obtain copies of Security Walls’s
post orders—i.e., documents that specify an officer’s duties when
assigned to a specific post. The officer photographed the post
orders and gave them to Kelley, who provided them to the Board
agent investigating the charges.
On February 5, 2020, Security Walls, through counsel, filed
a motion seeking to postpone the then-scheduled hearing, asserting
that Kelley had violated an unspecified federal law by
photographing post orders and that Security Walls had referred
Kelley’s “criminal activity” to the Federal Bureau of Investigation
(“FBI”) and NASA for investigation. But Security Walls eventually
retracted its threat, saying that it had retrained its officers regarding
NASA’s strict photography policy, and it had “no plans to do
more.” Security Walls never initiated a criminal investigation or
referred the matter to NASA or the FBI.
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10 Opinion of the Court 22-11339
II. Procedural History
After review,3 the Board found that Kelley engaged in
protected concerted activity on several occasions4 and that Security
Walls violated § 8(a)(1)5 of the NLRA by (1) threatening Kelley with
suspension if he engaged in protected concerted activity;
(2) restricting Kelley to a stationary post because he engaged in
protected concerted activity; (3) suspending Kelley in June 2018
because he engaged in protected concerted activity; (4) issuing a
verbal warning in July 2018 because he engaged in protected
concerted activity; (5) discharging Kelley because he engaged in
protected concerted activity; and (6) threatening to initiate a
3 On July 7, 2021, an administrative law judge issued a decision in Kelley’s
case. After Kelley and Security Walls filed objections to the decision, a three-
member panel of the Board reviewed Kelley’s case and issued the decision that
we now review.
4 Section 7 of the NLRA gives employees the right to engage in “concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.” 29 U.S.C. § 157. Here, for example, the Board found that Kelley
engaged in protected concerted activity when he discussed “working
conditions”—including “the underpayment of wages and the inequitable
assignment of overtime”—with other employees and then relayed those
complaints to Security Walls.
5 Section 8(a)(1) provides that “[i]t shall be an unfair labor practice for an
employer . . . to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in [section 7] of this title.” 29 U.S.C. § 158(a)(1).
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22-11339 Opinion of the Court 11
criminal investigation because Kelley provided evidence to the
Board.
As to the remedy, the Board ordered Security Walls to cease
and desist from engaging in its unfair labor practices.
Affirmatively, the Board required Security Walls to offer Kelley
reinstatement to his former job or a substantially equivalent
position; make him whole for any loss of earnings or other benefits
suffered as a result of the discrimination against him; compensate
him for any adverse tax consequences with a lump-sum backpay
award; compensate him for his search-for-work and interim
employment expenses; remove from its files any reference to the
discriminatory actions against Kelley; notify Kelley that Security
Walls had undertaken these actions and that the discriminatory
actions will not be used against him in any way; and post a remedial
notice.
Unhappy with the Board’s order, Security Walls petitions
this Court for review, and the Board cross-petitions for
enforcement of its order.
III. Standard of Review
“We review the Board’s legal conclusions de novo,” keeping
in mind that agencies, like the NLRB, often receive deference in
construing the statutes that they are charged with administering.
Ridgewood Health Care Ctr., Inc. v. NLRB, 8 F.4th 1263, 1275 (11th
Cir. 2021); Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837, 844 (1984); Visiting Nurse Health Sys., Inc. v. NLRB, 108 F.3d
1358, 1360 (11th Cir. 1997) (“Traditionally, we accord considerable
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12 Opinion of the Court 22-11339
deference to the Board’s expertise in applying the [NLRA] to the
labor controversies that come before it.”); see NLRB v.
Dynatron/Bondo Corp., 176 F.3d 1310, 1313 (11th Cir. 1999) (“As in
the case of construction of the [NLRA], we defer to the Board’s
application of its rules if the application is reasonable.”). The
Board’s reasonable inferences in applying the law to the facts may
not be displaced even though we might have reached a different
conclusion in the first instance. Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951). Likewise, the Board’s findings of fact are
“conclusive ‘if supported by substantial evidence on the record
considered as a whole.’” Dynatron, 176 F.3d at 1313 (quoting 29
U.S.C. § 160(e), (f)). Substantial evidence “means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.” NLRB v. Contemp. Cars, Inc., 667 F.3d 1364, 1370
(11th Cir. 2012) (quotation omitted). “But this deferential standard
is not merely a rubber[]stamp on agency decisionmaking.”
Ridgewood Health Care Ctr., 8 F.4th at 1275 (quotation omitted).
The Board’s decision must be logical, rational, and based on facts
that are supported by the record. Id. “[W]e will not enforce a
Board decision that fails to engage in reasoned decisionmaking.”
Id.
“Our standard of review does not change when the Board
reaches a conclusion different from that of the administrative law
judge, . . . but the administrative law judge’s conclusions are one
factor to be considered in determining whether [the substantial
evidence] standard has been satisfied.” Id. at 1274. (quoting Allied
Med. Transp., Inc., 805 F.3d 1000, 1005 (11th Cir. 2015)).
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22-11339 Opinion of the Court 13
IV. Discussion
Security Walls raises a single argument on appeal: that
Kelley’s conduct was unprotected because his demands were
inconsistent with the collective bargaining agreement and because
he did not channel his grievances through the union processes. For
support, Security Walls relies almost exclusively on Emporium
Capwell Co. v. Western Addition Community Organization, 420 U.S. 50
(1975). But because Kelley’s activity was not inconsistent with the
collective bargaining agreement and because Kelley did not have
to go through the union in the first place, Emporium Capwell does
not save Security Walls. Thus, we conclude that Kelley’s activities
were protected. And, because substantial evidence supports
Kelley’s activity, we enforce the Board’s order.6
We begin, as we must, with the statute. Section 7 of the
NLRA “affirmatively guarantees employees the most basic rights
of industrial self-determination”: “‘the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’ as well as the right to refrain
from these activities.” Id. at 61–62 (quoting 29 U.S.C. § 157).7
6 Notably, Security Walls does not challenge whether substantial evidence
supports the Board’s findings. Accordingly, without argument to the contrary
and because substantial evidence otherwise supports the Board’s findings, we
enforce the Board’s order.
7 In full, section 7 provides that
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14 Opinion of the Court 22-11339
“These are, for the most part, collective rights, rights to act in
concert with one’s fellow employees; they are protected not for
their own sake but as an instrument of the national labor policy of
minimizing industrial strife ‘by encouraging the practice and
procedure of collective bargaining.’” Id. at 62 (quoting 29 U.S.C.
§ 151).
The next section of the NLRA, section 8, gives the former
teeth by declaring that “[i]t shall be an unfair labor practice for an
employer . . . to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [section 7].” 29 U.S.C.
§ 158(a)(1).
Turning to the next statutory section, section 9(a) addresses
the role that lawfully selected union representatives play,
explaining that they are the exclusive representatives for the
purpose of collective bargaining:
Representatives designated or selected for the
purposes of collective bargaining by the majority of
[e]mployees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also
have the right to refrain from any or all of such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in section 158(a)(3) of this title.
29 U.S.C. § 157.
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22-11339 Opinion of the Court 15
the employees in a unit appropriate for such
purposes, shall be 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.
29 U.S.C. § 159(a). Then, section 9(a) qualifies the rule that union
representatives “shall be the exclusive representatives of all the
employees” with two provisos that focus on the employee’s rights:
Provided, That any individual employee or a group of
employees shall have the right at any time to present
grievances to their employer and to have such
grievances adjusted, without the intervention of the
bargaining representative, as long as the adjustment is
not inconsistent with the terms of a collective-
bargaining contract or agreement then in effect:
Provided further, That the bargaining representative
has been given opportunity to be present at such
adjustment.
Id.8 With these statutory provisions in mind, we turn to how they
work together.
8 The purpose of these provisos “is to permit employees to present grievances
and to authorize the employer to entertain them without opening itself to
liability for dealing directly with employees in derogation of the duty to
bargain only with the exclusive bargaining representative, a violation of
[section 8].” Emporium Capwell, 420 U.S. at 61 n.12; see also Black-Clawson Co.,
Paper Mach. Div. v. Int’l Ass’n of Machinists Lodge 355, Dist. 137, 313 F.2d 179, 185
(2d Cir. 1962) (explaining that “the proviso was designed merely to confer
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16 Opinion of the Court 22-11339
“Section 7 is broadly worded—deliberately so.” E. Chi.
Rehab. Ctr., Inc. v. NLRB, 710 F.2d 397, 402 (7th Cir. 1983); see Eastex,
Inc. v. NLRB, 437 U.S. 556, 565–68 (1978) (discussing the broad
scope of section 7). And “[a]lthough section 9(a) qualifies section
7, it qualifies the part of section 7 that gives workers the right to
bargain collectively.” E. Chi. Rehab., 710 F.2d at 402. Indeed,
section 9(a) makes the union representatives—which are
“designated or selected for the purposes of collective bargaining”—the
“exclusive representatives of all the employees” only “for the
purposes of collective bargaining in respect to rates of pay, wages,
hours of employment, or other conditions of employment.”
29 U.S.C. § 159(a) (emphases added). Thus, the text of section 9(a)
“does not—not explicitly anyway—qualify” or otherwise limit
employees’ “section 7 right to engage in other concerted activities
upon the employee the privilege to approach his employer on personal
grievances when his union reacts with hostility or apathy” because “[p]rior to
the adoption of this proviso in section 9(a), the employer had cause to fear that
his processing of an individual’s grievance without consulting the bargaining
representative would be an unfair labor practice”). Thus, “rather than
conferring an indefeasible right upon the individual employee to compel
compliance with the grievance procedure,” “section 9(a) merely set up a buffer
between the employee and his union, ‘permitting’ the employee to take his
grievances to the employer, and ‘authorizing’ the employer to hear and adjust
them without running afoul of the ‘exclusive bargaining representative’
language of the operative portion of section 9(a).” Black-Clawson Co., 313 F.2d
at 185 (explaining that this interpretation “also best comports with the
structure of the” statute because a proviso rarely creates substantive rights and
obligations and more often “carves exceptions out of what goes before”
(quotation omitted)).
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22-11339 Opinion of the Court 17
for mutual aid or protection.” E. Chi. Rehab., 710 F.2d at 402; see
also id. (explaining that this “natural” reading of sections 7 and 9(a)
also comports with other sections of the statute—like “section 13,
29 U.S.C. § 163, which provides that ‘[n]othing in this subchapter,
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 . . .’”).
We acknowledge, however, that “[t]he exclusive bargaining
authority granted unions by section 9 sometimes creates a tension,
which the NLRA does not clearly resolve, with labor rights granted
employees by section 7.” CC1 Ltd. P’ship v. NLRB, 898 F.3d 26, 34
(D.C. Cir. 2018). The Supreme Court confronted this tension in
Emporium Capwell. In Emporium Capwell, the Supreme Court
addressed whether the NLRA protects concerted activity by a
group of minority employees to bargain with their employer over
issues of employment discrimination. 420 U.S. at 52. There, a
group of company employees presented a list of grievances—
including a claim that the company was discriminating based on
race—to a union representative. Id. at 53. After meeting with the
company and looking into the matter, the union concluded that the
company was discriminating and that the union would process
every grievance through arbitration if necessary. Id. at 54. Some
company employees pushed back, suggesting that the union’s
proposed procedures were inadequate to handle such a systemic
grievance and that the union should begin picketing the store
instead. Id. The union explained that the collective bargaining
agreement bound the union to its processes. Id.
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When the union met to begin its hearing on the issue, a
group of employees refused to participate in the grievance
procedure and walked out of the hearing. Id. at 54–55. Then, the
dissident employees held a press conference at which they
denounced the company’s employment policy as racist, expressed
their desire to deal directly with the company’s “top management,”
and announced their intention to picket and boycott the store. Id.
Shortly afterwards, at least four employees picketed the store
throughout the day and distributed handbills at the entrance that
urged consumers not to patronize the store. Id. The union
representative advised the picketing employees to rely on the
union’s grievance process and warned that they might be fired for
their activities. Id. at 56. Two of the picketing employees received
written warnings that additional picketing or public statements
about the company could lead to their discharge. Id. When they
repeated their picketing and public statements the following week,
they were discharged. Id.
After reviewing the employees’ conduct, “the Board found
that the employees were discharged for attempting to bargain with
the [c]ompany over the terms and conditions of employment as
they affected racial minorities” and that their activity was not
protected under the NLRA. Id. at 57, 60. The Board concluded
that
such an attempt to bargain would undermine the
statutory system of bargaining through an exclusive,
elected representative, impede elected unions’ efforts
at bettering the working conditions of minority
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22-11339 Opinion of the Court 19
employees, and place on the [company] an
unreasonable burden of attempting to placate self-
designated representatives of minority groups while
abiding by the terms of a valid bargaining agreement
and attempting in good faith to meet whatever
demands the bargaining representative put forth
under that agreement.
Id. at 58 (quotation omitted).
The Supreme Court ultimately agreed with the Board and
held that the employees’ attempts to engage in separate bargaining
were not protected by the NLRA. Id. at 52, 61. The Court
explained that while “only the union may contract the employee’s
terms and conditions of employment, and provisions for
processing his grievances,” Congress also did not “authorize a
tyranny of the majority over minority interests.” Id. at 63–64
(quotation omitted). The “employees’ substantive right to be free
of racial discrimination,” the Court reasoned, “[could not] be pursued
at the expense of the orderly collective-bargaining process contemplated by
the NLRA.” Id. at 69; see also id. at 67–69 (noting the potential
conflict between employee groups if a handful of employees bypass
the grievance procedure and an employer is confronted with
bargaining demands from several minority groups).
Although the Supreme Court concluded in Emporium
Capwell that the employees’ concerted activity undercut the union
and was pursued at the expense of the collective bargaining
process, Emporium Capwell does not transform all unauthorized
concerted activity into unprotected activity. See E. Chi. Rehab. Ctr.,
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Inc., 710 F.2d at 400. It is only when employees’ activities
undermine the union’s objectives or the union’s position as the
exclusive bargaining authority that activities lose NLRA
protection. See id. at 401. In other words, an employee’s activities
lose protection only when they were for the purposes of collective
bargaining and were done to bargain with the employer over
matters reserved for the union to negotiate, such as rates of pay,
hours, and conditions of employment.
Our precedent confirms this distinction. “We have
recognized, of course, that certain concerted activities may lose
their protected character when in conflict with a union’s status as
exclusive bargaining representative.” See Richardson Paint Co. v.
NLRB, 574 F.2d 1195, 1206 (5th Cir. 1978).9 But we have also said
that there can “be circumstances in which an employee or a
minority group of employees may engage, without reference of the
matter to the union process, in action which is protected under
[s]ection 7 [of the NLRA] though there is an agreement in force or
in the process of negotiation.” NLRB v. Shop Rite Foods, Inc., 430
F.2d 786, 791 (5th Cir. 1970).
For example, in Richardson Paint Co. v. NLRB, we concluded
that the “[p]eaceful circulation of a petition for presentation to an
employer for redress of employee grievances is a protected
concerted activity.” 574 F.2d at 1206. We reasoned that “nothing
9 All published cases of the former Fifth Circuit decided before the close of
business on September 30, 1981, are precedent in this Circuit. See Bonner v.
City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).
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22-11339 Opinion of the Court 21
in [the employee’s] circulation of the petition would undermine the
[u]nion’s status as the bargaining representative, or be so serious a
threat to stable relations to cause [the employee’s] act to lose its
protected character,” distinguishing the activities of the discharged
employees in Emporium Capwell as being “of a far different
character.” Id. at 1205–06 (quotation omitted). At bottom, because
the employee’s action “was not in derogation of the [u]nion’s status
as exclusive bargaining agent, we agree[d] that [the employee’s]
conduct was protected concerted activity.” Id. at 1207.
Our sister circuits have made the same distinction between
protected concerted activity and activity that undermines the
union’s statutory role as exclusive bargainer.10 See, e.g., NLRB v.
Noah’s Ark Processors, LLC, 31 F.4th 1097, 1104 (8th Cir. 2022)
(explaining that the Board and courts agree that Emporium Capwell
“did not strip the NLRA’s protection from all wildcat strikes” and
that a “case-by-case analysis is needed to determine whether a
particular concerted work stoppage is protected by Section 7”
(quotation omitted))11; CC1 Ltd. P’ship, 898 F.3d at 34 (explaining
10 Security Walls posits that in NLRB v. Tanner Motor Livery, Ltd., 419 F.2d 216
(9th Cir. 1969), “the Court found that concerted activity without union
approval is presumed to be unprotected.” But the Ninth Circuit made no such
holding. Instead, the Court expressly “noted that section 9(a)’s provision for
an exclusive bargaining representative [still] reserves the right of individual
employees or groups of employees to deal with the employer regarding
‘grievances.’” Id. at 218.
11 “Wildcat” activity is activity undertaken by unionized employees without
union authorization, support, or approval.
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22 Opinion of the Court 22-11339
that concerted activity is unprotected only “when employees’
activity undermines the [u]nion’s objectives or position as
bargaining authority”); NLRB v. Bridgeport Ambulance Serv., 966 F.2d
725, 729 (2d Cir. 1992) (holding that a wildcat sit-in and walkout
organized to protest low morale, poor equipment, unfair
treatment, low wages, and favoritism constituted protected
concerted activity when there was substantial evidence that the
walkout was “not called for the purpose of bargaining directly with
the [c]ompany and did not impair the [u]nion’s performance as
exclusive bargaining representative”); E. Chi. Rehab., 710 F.2d at
402 (“Unless . . . 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.”); NLRB v. Owners Maint.
Corp., 581 F.2d 44, 49 (2d Cir. 1978) (distinguishing Emporium
Capwell and holding that a wildcat leafletting campaign constituted
protected concerted activity).
Accordingly, to prove that Kelley’s activity was unprotected,
Security Walls must show that his activities were for the purposes
of collective bargaining and were done to bargain with Security
Walls on union matters, such as rates of pay, wages, and other
conditions of employment. See Richardson Paint Co., 574 F.2d at
1205–06. Security Walls simply has not done so.
Security Walls argues that this case is like Emporium Capwell
because “Kelley wanted to make the negotiated terms of the in-
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22-11339 Opinion of the Court 23
place collective bargaining agreement more to his liking” without
seeking support of the union or inviting the union into his
discussions. Specifically, Security Walls contends that Kelley
attempted to “renegotiate” shift schedules, wages, and assignment
of work—topics that the collective bargaining agreement
addresses. But, as we explain below, none of Kelley’s activities
actually undermined the collective bargaining agreement or the
union’s position as bargainer, making this case distinguishable
from Emporium Capwell.12
The Board found that the facts of this case “contrast sharply
with those in Emporium Capwell” because “Kelley did not resort to
economic coercion to pressure [Security Walls] to bypass the
[u]nion and deal with him directly, and there is no evidence that
Kelley’s demands or statements were inconsistent with the terms
12 Security Walls also points to statements in Kelley’s deposition to show that
Kelley undermined the union. For example, when asked why he did not
approach the union first with his workplace concerns, Kelley responded:
In the experience I had with the [u]nion officers there,
although I paid [the union’s] dues to be a part of the [u]nion,
our representation was of very poor quality. And things did
not—they did not progress in—with any sense of urgency no
matter (audio interference) what it was . . . .
But Kelley’s view about the quality or efficacy of his union representation does
not change the fact that he was not required to go to the union first. Under
the facts of this case, section 7 protected his activities, and although he was not
prohibited from pursuing union channels, the NLRA did not require him to
either.
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24 Opinion of the Court 22-11339
of the collective[]bargaining agreement then in effect or in
derogation of the [u]nion’s bargaining position.” We agree.
Contrary to Security Walls’s argument, Kelley was not
attempting to negotiate new employment terms when he relayed
employees’ concerns about Security Walls’s rumored change from
five eight-hour shifts per week to three twelve-hour shifts per
week. Kelley merely discussed the potential negative ramifications
of the change with Security Walls and, at most, suggested that
Security Walls reconsider its proposed shift modification.13 Section
7 of the NLRA permits employees like Kelley to engage in
concerted activity and present their grievances to their employer,
so long as their activity does not infringe on the union
representative’s role as exclusive negotiator of the collective
bargaining agreement. See 29 U.S.C. § 157; Richardson Paint Co.,
574 F.2d at 1205–06. Here, the facts fail to show that Kelley’s
activities undermined the union or conflicted with the collective
bargaining agreement. Indeed, Security Walls has pointed to no
13 Likewise, contrary to Security Walls’s argument, Kelley’s complaints about
supervisory incompetence during the meeting in which he discussed the shift
changes were not a “request to negotiate working conditions.” Kelley simply
raised employees’ concerns about supervisory conduct. The record does not
support Security Walls’s claim that Kelley then requested to “negotiate” a
resolution without the union.
In any event, to the extent that Security Walls implies that supervisory
mistreatment of employees is a matter governed by the collective bargaining
agreement, Security Walls fails to identify any provisions in the agreement
inconsistent with Kelley’s request, which was simply that employees be
treated fairly and respectfully by supervisors.
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22-11339 Opinion of the Court 25
evidence—and we see none—that the union was prejudiced or
considered Kelley’s conduct objectionable or in derogation of its
bargaining position on any matter.14 Likewise, Kelley did not
“request to negotiate wages,” as Security Walls argues, when he
called human resources about the underpayment and
reimbursement issues that affected himself and another officer.15
Instead, he simply wanted Security Walls to correct its mistakes
and pay him and the other officer the proper amount—consistent
with the collective bargaining agreement. Finally, Kelley did not
attempt to renegotiate the collective bargaining agreement by
raising concerns that Robinson was assigning mandatory overtime
to junior employees without proceeding through the seniority list
in order. Instead, as the Board correctly found, Kelley’s
“complaints . . . were consistent with the requirements of the
collective-bargaining agreement,” which provides that “[o]vertime
shall be assigned on a rotating seniority basis.”
Moreover, Kelley’s activities are distinguishable from those
in Emporium Capwell. In Emporium Capwell, the dissident employees
14 To the contrary, the record shows that the union stood with Kelley and
filed a grievance on his behalf when Security Walls suspended him in
retaliation for his concerted activity.
15 To the extent Security Walls’s argument is that Kelley attempted to
renegotiate wages when he pointed out that the rumored shift changes may
have compensation ramifications, Security Walls has failed to support its
point. Far from attempting to renegotiate wages, Kelley merely pointed out
that such a shift change may have a disparate impact on dayshift employees as
compared to nightshift employees.
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26 Opinion of the Court 22-11339
acted against the express directions of the union; the union itself
urged the dissident employees to halt their activities and warned
that they might be terminated; and the employees took steps to
pressure the company to renegotiate, directly with the employee
group, terms that were already addressed in the parties’ collective
bargaining agreement. 420 U.S. at 52–56. In contrast, here, the
record is devoid of evidence that Kelley acted against union
instructions, took any position contrary to the collective bargaining
agreement or in derogation of the union’s authority, or pressured
Security Walls to bypass the union and negotiate with him
directly.16
In short, the record does not support that Kelley attempted
to renegotiate provisions contained in the collective bargaining
agreement or undermine the union’s role as its exclusive bargainer.
Accordingly, Kelley did not need union approval or intervention
for his activities. Instead, as the Board found, his activities were
covered by section 7. Applying our deferential review, we agree
with the Board’s rational and supported conclusions that there is
“no evidence” that the workplace issues that Kelley raised were
inconsistent or in conflict with the collective bargaining
agreement; “no basis to conclude that Kelley’s conduct was
16 Security Walls repeatedly asserts that Kelley’s actions were inconsistent
with the collective bargaining agreement. But simply repeating an assertion
does not make it true. Security Walls fails to explain how Kelley’s actions were
inconsistent or in conflict with the collective bargaining agreement.
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22-11339 Opinion of the Court 27
unprotected”; and no analogy between this case and Emporium
Capwell.
V. Conclusion
Because Kelley’s activity did not undermine the union’s
objectives or its position as a bargaining authority, we conclude
that Kelley’s activity was protected.
Petition DENIED and cross-petition for enforcement
GRANTED.
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