Herbert F. Darling, Inc.

National Labor Relations Board - Board DecisionsFeb 29, 1988

287 N.L.R.B. 1356 (N.L.R.B. 1988)

1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Herbert F . Darling, Inc. and Robert T . Ewing. Case 3-CA-10565 29 February 1988 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On 26 August 1983 the National Labor Relations Board issued a Decision and Order in this proceed- ing (Ewing 1)1 in which it dismissed the 8(a)(1) complaint in its entirety . Having reversed the judge's factual findings, the Board held that the Respondent had not discriminated against the Charging Party because it believed that he had filed a complaint against the Company with the Occupational Safety and Health Administration (OSHA). In doing so, the Board did not have to reach the underlying legal issue relating to the defi- nition of concerted activity that the Board provid- ed in Alleluia Cushion Co.2 On 17 April 1984 the United States Court of Ap- peals for the Second Circuit reversed the Board's decision and reinstated the judge's factual find- ings .3 Since Alleluia had been overruled by Meyers Industries (Meyers 1)4 while the instant case was pending on review, the court remanded the case to the Board for a determination of the applicability of Meyers I, i.e., "whether Meyers Industries should govern this case, and should be retroactively ap- plied to events which occurred more than two years before it was decided."5 On 14 December 1984 the Board, having accept- ed the court 's remand, issued its Supplemental De- cision and Order in this proceeding (Ewing 11).6 In its supplemental decision the Board found that the Charging Party's suspected actions in connection with the OSHA complaint did not fall within the Meyers I definition of concerted activity.7 The Board observed that this retroactive application of Meyers I was consistent with established Board policies.8 The Board thus affirmed its prior dismis- sal of the complaint. Thereafter, the Charging Party filed a petition for review of the Board's Supplemental Decision and Order with the Second Circuit. In its opinion which issued on 19 July 1985,9 the court of appeals 1 267 NLRB 476. a 221 NLRB 999 (1975) 8 Ewing v. NLRB, 732 F.2d 1117 4 268 NLRB 493 (1984) 5 Ewing, 732 F 2d at 1122 6 273 NLRB 346 Â° Id. at 347. 8 Id. at 346. 8 Ewing Y. NLRB, 768 F 2d 51 took issue with the manner of the Board's rejection in Meyers I of the principles of Alleluia, supra, as applied to the instant case . In agreement with the view expressed by the United States Court of Ap- peals for the District of Columbia Circuit in Prill v. NLRB (frill I),10 the Second Circuit reversed and remanded this case to the Board "for reconsider- ation because of the Board's mistaken view that it was required to interpret `concerted activities' liter- ally, that is, that its decision was mandated by the Act." 11 The court, however, did not express any view on what may be the correct interpretation of "concerted activities" as applied to this case,12 and remanded this case to the Board with the specific direction either to provide a sustainable basis for its defi- nition of "concerted activities" as applied to this case, or to reinstate the decision of the Administrative Law Judge [finding that the Respondent violated Section 8(a)(1) of the Act]. 13 The court further instructed the Board, should it on remand exercise its discretion and reject Alle- luia's presumption of concertedness, to "reexamine and clarify its reasoning with respect to applying any such ruling in Ewing's case." 14 On this point, the court specifically found it unnecessary to decide whether it had been arbitrary for the Board to apply Meyers I retroactively to Ewing's situa- tion. 15 On 21 August 1985 the Board advised the parties that it had decided to accept the. second remand from the court and that they could, if they so wished, submit statements of position with respect to the remanded issues . Thereafter, all the parties filed statements of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Having accepted the remand, the Board must ob- serve the court's second opinion as the law of the case and, necessarily, its judgment that the Meyers I definition of concerted activity is not mandated by the Act. In any event, the Board simply held that the Meyers I definition represents a logical and rea- sonable reading of the statute and not that any other definition was necessarily and finally preclud- ed. 10 755 F 2d 941 (1985), cert denied 474 U S 948 ( 1985). 11 Ewing, 768 F 2d at 54 12 Id at 56. Id 14 Id at 54 In 2. 15 Id at 54 287 NLRB No. 148 HERBERT F DARLING, INC Both the General Counsel and the Respondent contend that it is appropriate for the Board to apply a new test of concerted activity to Ewing's situation and that such retroactive application is consistent with the teachings of the Second Cir- cuit's decision in NLRB v. Niagara Machine & Tool Works, 746 F.2d 143 (1984). In her statement of po- sition, the General Counsel urges the Board to reject the Alleluia standard and to adopt a new test for concert consisting of (1) collective action by employees or action by an individual employee designated by others to so act; (2) individual em- ployee efforts to induce collective action (see Mushroom Transportation Co. v. NLRB, 330 F 2d 683 (3d Cir 1984)); and (3) an individual employ- ee's efforts aimed at enforcing a collective-bargain- ing agreement (see Interboro doctrine 16 as dis- cussed in NLRB v City Disposal Systems, 465 U.S. 822 (1984)) The General Counsel also takes the view that even if an employee's conduct is not con- certed, but he is discharged to chill concerted ac- tivity by other employees, then the discharge may violate Section 8(a)(1) of the Act. The General Counsel further asserts that there is nothing to sug- gest that the Respondent took the action against Ewing with the intent to chill the concerted activi- ty of other employees The Respondent asks that the Board adopt the following standard for concerted activity: activity engaged in with or on the authority of "someone else"; individual action looking toward group action; individual action bringing forth a demon- strated group complaint; or individual action en- forcing rights under a collective-bargaining agree- ment. The Respondent, like the General Counsel, asserts that under its own proposed test the evi- dence fails to show that Ewing was engaged in concerted activity or was suspected of having done so. Thus, both the Respondent and the General Counsel urge the Board to reaffirm its prior dismis- sal of the complaint. The Charging Party takes the opposite view. The Charging Party claims that a retroactive appli- cation of the Meyers I definition to the instant case would be improper and inequitable The Charging Party urges the Board to return to the Alleluia standard of presumed concerted activity and find that the delay in his recall and subsequent intermit- tent employment had a "chilling effect" on the col- lective rights of other employees. The Charging Party seeks the reinstatement of the underlying judge's decision finding a violation of Section 8(a)(1) of the Act 18 Interboro Contractors, 157 NLRB 1295, 1298 (1966), enfd 388 172d 495 (2d Cir 1967) 1357 The Board has reconsidered this case in light of the court's second opinion, the parties' statements of position, and our supplemental decision in Meyers II 17 and has decided to adhere to the Meyers I definition of concerted activity as a rea- sonable construction of Section 7 of the Act and to apply Meyers I retroactively to Ewing's situation, for the reasons set forth below. We begin with a short summary of the key facts to place the remand issues, the parties' statements of position, and our analysis in better perspective. The Charging Party, Robert Ewing, was employed as a piledriver for the Respondent on a rapid tran- sit construction project near Buffalo, New York. In October 1980 OSHA conducted a routine, general inspection of the Respondent's jobsite. This inspec- tion had not been prompted by a specific complaint from Ewing or, for that matter, any employee of the Respondent. In December 1980 Ewing along with other employees assigned to the same crew was laid off by the Respondent. Approximately 2 weeks later, every laid-off crew member except Ewing was recalled to work. Ewing was recalled to work in late April 1981, and worked intermit- tently for the Respondent for the remainder of 1981. The reason Ewing was not recalled to work sooner was that the Respondent mistakenly be- lieved that he had filed a complaint prompting the October 1980 inspection by OSHA. On this point, William Burke, business agent for Piledrivers, Dock Builders, Trestle, Crib Breakwater Builders, Local 1978, AFL-CIO, testified that it was on "the grapevine that [Ewing] was laid off, or wasn't called back because he had blew the Darling Com- pany [the Respondent] into OSHA."18 Roy Shafer, the Respondent's vice president for construction, later told Ewing that the "Respondent had nar- rowed it down to three men who they believed re- ported the company to OSHA, one of them was Ewing, and they didn't want Ewing working for them " Thereafter, Ewing filed an unfair labor practice charge alleging that the Respondent had discriminated against him because he had allegedly filed a safety complaint with OSHA. In its supple- mental decision, the Board dismissed Ewing's charge because he was not engaged, nor suspected of having engaged, in concerted activity under Meyers I. 17 Meyers Industries, 281 NLRB 882 (1986), enfd Prill v NLRB (Prill II), 835 F 2d 1481 (D C Cir 1987) 18 We respectfully point out that, in the recitation of the facts provid- ed by the Second Circuit's second opinion in the case, the court referred to a "co-worker" of Ewing as having made that statement The state- ment, however, was made by Burke, and the record, in fact, does not reveal that Burke was employed by the Respondent 1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In Meyers I the Board reexamined and reevalu- ated the Alleluia standard of concerted activity that created, in effect, a per se standard of concert for certain individual employee activity. Observing that the Alleluia standard had received unfavorable review from several courts of, appeals, the Board recognized the following two important flaws in- herent in Alleluia's analytical framework. First, the Alleluia standard had completely blurred the dis- tinction between "concerted activity" and "mutual aid or protection," thereby eliminating the intended separateness of these two concepts underlying Sec- tion 719 of the Act. Second, the Alleluia standard, without justification, had shifted the burden of proof to the respondent to prove that certain indi- vidual action was not concerted. In Meyers I the Board attempted to set forth a comprehensive definition of the term "concerted activities" as enacted in Section 7 of the Act. While cautioning that the definition formulated was by no means exhaustive and that a myriad of factu- al situations would arise calling for careful scrutiny of record evidence on a case-by-case basis, the Board adopted the following standard: In general, to find an employee's activity to be "concerted," we shall require that it be en- gaged in with or on the authority of other em- ployees, and not solely by and on behalf of the employee himself. Once the activity is found to be concerted an 8(a)(1) violation will be found if, in addition, the employer knew of the concerted nature of the employee's activity, the concerted activity was protected by the Act, and the adverse employment action at issue (e.g., discharge) was motivated by the employee's protected concerted activity. [268 NLRB at 497. Fns. omitted.] In its most recent opinion, the Second Circuit believed that the Board in Meyers I may have un- necessarily limited "concerted activity" to only conduct involving two or more employees. In the court's view, such a limitation would be inconsist- ent with NLRB v. City Disposal Systems, 465 U.S. 822 (1984), which found that an individual employ- ee's invocation of a right contained in a collective- bargaining agreement constituted concerted activi- ty within the meaning of Section 7. The court re- jected the Meyers I standard of concerted activity on the basis that, contrary to the Board's analysis, 19 Sec . 7 of the Act states in relevant part Employees shall have the right to self-organization , to form , join, or assist labor organizations, to bargain collectively through representa- tives of their own choosing , and to engage in other concerted activi- ties 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 . . the Meyers I standard is not an interpretation man- dated by the Act. The court, however, did not pass on the question of whether the Meyers I standard is otherwise a reasonable interpretation of Section 7, leaving this matter for the Board to consider on remand. Although the court refrained from supplying a definition of concertedness, it held that the Act does not require the Board to find Ewing's conduct unconcerted. In this regard, the court requested that the Board consider the following three possi- bilities in reviewing Ewing's situation. First, the court observed that it is clearly within the Board's discretion to find that an individual's reasonable and good faith invocation of an employment-related stat- utory right is not "so remotely related to the activities of fellow employees that it cannot reasonably be said that the employee is en- gaged in concerted activity."20 Second, the court intimated that the Board could find that Ewing's layoff for a supposed safety com- plaint, even if not concerted itself, may have a "chilling effect" on other employees' concerted ac- tivity to the extent that Ewing's layoff should be found violative of the Act. Finally, the court seem- ingly endorsed the Alleluia standard of concerted activity although it had previously rejected the concept of presumed concerted activity in Ontario Knife Co. v. NLRB, 637 F.2d 840 (2d Cir. 1980).21 More specifically, the court found: It is reasonable to presume, as did the Board in Alleluia, that co-employees support an individ- ual employee's right to seek statutorily guaran- teed terms and conditions of employment. The validity of that presumption "depends upon, the rationality between what is proved and what is inferred." Republic Aviation Corp. v. NLRB, 324 U.S. 793, 805 (1945). Group sup- port may rationally be assumed, absent evi- dence to the contrary, because fellow employ- ees presumably want to be free to assert such a right without fear of losing their jobs. 768 F.2d at 55. zo Ewing, 768 F.2d at 55 (quoting NLRB Y. City Disposal Systems, 465 U.S. 822 , 833 fn 10 (1984)) 21 The court distinguished the instant case from Ontario Knife that it indicated involved a "personal gripe " Ewing, 768 F 2d at 56. In Ontario Knife the court found the action of an individual employee in walking off the job in protest of a work assignment was not concerted in the absence of evidence that other employees participated in or approved the walkout or evidence that the employee looked toward group action in walking off the job. HERBERT F DARLING, INC The court (768 F.2d at 56) then explained that the Board's rationale for which the court was remand- ing the proceeding would be examined in light of the presumption that the old [Alleluia] rule effectuated the policies of the Act and to ensure that the Board has given "a reasoned explanation of why the new rule effectuates the statute as well as or better than the old rule" [quoting New York Council, Asso- ciation of Civilian Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir. 1985)]. The court also rejected the view of the United States Court of Appeals for the Fourth Circuit in Krispy Kreme Doughnut Corp. v. NLRB, 635 F.2d 304 (1980), that the Alleluia presumption of concert is irrebutable. The court suggested that an employ- er can rebut the presumption of concert by estab- lishing that the activity in question was, in fact, frivolous or in bad faith and therefore both unpro- tected and lacking in group support, citing Socony Mobil Oil Co. v. NLRB, 357 F.2d 662, 664 (2d Cir. 1966). To summarize, we believe that the most recent remand of the Second Circuit highlights four prin- cipal concerns. The court questioned whether (1) Meyers I is consistent with City Disposal; (2) the definition of concerted activity in Meyers I includes individual activity and to what extent; (3) the defi- nition of concerted activity in Meyers I effectuates the Act and its policies as well as or better than Al- leluia's definition of presumed concerted activity; and (4) applying the definition of concerted activi- ty in Meyers I to Ewing's situation is fair and just. We believe that our intervening decision in Meyers II directly addresses the court's first three con- cerns. We summarize the Meyers II analysis and also respond to the court's fourth concern below Subsequent to the court's remand here, the Board issued its decision in Meyers IT Responding to the remand directed by the District of Columbia Circuit,22 and consistent with City Disposal, supra, the Board exercised its discretion and chose the Meyers I definition of concerted activity, over other possibly permissible standards, as a reasona- ble construction of Section 7 of the Act. In the Board's view, the Meyers I definition struck a rea- sonable balance in that it is "not so broad as to create redundancy in Section 7, but expansive enough to include individual activity which is con- nected to collective activity, which lies at the core of Section 7." 281 NLRB 882 (1986). In the Board's view the Meyers I definition merely re- quired that individual activity have "some linkage to group action in order for conduct to be deemed 22 Prill Y NLRB, supra 1359 `concerted' within the meaning Section 7 " Id. at 884. On review of the Board's decision in Meyers II, the District of Columbia Circuit concluded that "the Board's interpretation of Section 7 [was not] inconsistent with the NLRA." Prill II, 835 F.2d at 1484. In fact, the court agreed with the Board that Meyers II is a reasonable interpretation of the Act. Id. at 1482, 1484, and 1485. The court thus af- firmed the Board's decision in Meyers IT Id. at 1482 and 1485. Central to our reaffirmation and clarification of the Meyers I definition in Meyers II was our con- clusion that it was "most responsive to the central purposes for which the Act was created." 281 NLRB at 884. In parts A and B of Meyers II, we first traced the legislative context in which the phrase "concerted activities" arose and discovered a marked emphasis on collective, as distinct from purely individual, activity as the underlying statu- tory purpose.23 We then sought guidance from rel- evant Supreme Court decisions, including City Dis- posal, supra, and observed that the Supreme Court likewise had focused on joint employee action in its analysis of what kinds of activities qualify as "con- certed" within the scope of Section 7.24 On this point, the Court in City Disposal, supra, 465 U.S at 831, stated that its inquiry as to what constitutes "concerted activities" under Section 7 was one in which it must determine "the precise manner in which particular actions of an individual employee must be linked to the actions of fellow employees." We next demonstrated how the approach taken in Meyers I was consistent with the groundwork laid by the Court in City Disposal and with the Court's analytical framework in Eastex, Inc. v. NLRB, 437 U.S. 556 (1978), because both cases gave separate meanings to the "mutual aid or protection" clause and the "concerted activities" clause of Section 7, which was the aim of Meyers I.25 Thus, we illus- trated how the Meyers I definition proceeded logi- cally from the origin of the phrase, "concerted ac- tivities," and from the structure and purposes of the statute itself and how it was consistent with City Disposal. 23 See also Prill II, supra, 835 F 2d at 1484 24 See also Pril! II, supra, 835 F 2d at 1484 25 In City Disposal there was no dispute that the individual employee's invocation of his collective -bargaining right constituted "mutual aid or protection" for purposes of Sec 7 This did not, however, end the Su- preme Court 's inquiry into the matter Rather , the Court demonstrated in great detail why this particular individual conduct was "concerted" for purposes of Sec 7 as well This method is like the analytical mode previ- ously adopted by the Court when it faced the reverse situation in Eastex In Eastex, the employees ' request to distribute a union newsletter was ob- viously concerted , yet the Supreme Court examined the employees' con- duct to ascertain if it constituted activity for "mutual aid or protection" within the meaning of Sec 7 1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD In part C of Meyers II we also eliminated any lingering misconception that individual activity can never constitute concerted activity for purposes of Section 7. We explicitly stated: There is nothing in the Meyers I definition which states that conduct engaged in by a single employee at one point in time can never constitute concerted activity within the mean- ing of Section 7. On the contrary, the Meyers I definition, in part, attempts to define when the act of a single employee is or is not "concert- ed." [281 NLRB at 885 . Emphasis in original.] To support this conclusion we gave examples of in- dividual activity that are readily recognized as cov- ered by the Meyers I definition of concerted activi- ty. See id. at 886 fns. 34 and 35. We expressly stated that concertedness under Meyers I can be es- tablished even though the individual was not "spe- cifically authorized" in a formal agency sense to act as a group spokesperson for group complaints. Ibid. By way of further clarification, we stated that "Meyers I [should] be read as fully embracing the view of concertedness exemplified by the Mush- room Transportation line of cases ," that is, "those circumstances where individual employees seek to initiate or to induce or to prepare for group action. . . ." Id. at 887. On the other hand, in part D of Meyers II, we rejected the idea that an individual acting alone to enforce an employment -related statute must be found to be engaging in concerted activity simply on the ground that other employees can be pre- sumed to support the individual action because it may benefit them. Our rejection was based, in part, on the conclusion that such individual action in- voking a statutory right was not linked to group action in any realistic sense, using City Disposal as guidance . We examined the lobbying and legisla- tive processes associated with the enactment of em- ployment-related statutes, and discovered that the more likely occurrence of any possible employee group action was in the lobbying stage which was too far removed from any subsequent efforts by the lone individual seeking to enforce such statutes. We contrasted this situation to the ongoing process of employee concerted action underlying the invo- cation of employee contract rights as described by the Supreme Court in City Disposal, and deter- mined that the policies of the Act could be best ef- fectuated if we "focus[ed] our resources on the protection of actions taken pursuant to that proc- ess." Id . at 888. Applying the rationale expressed in Meyers II to Ewing's situation, we reaffirm our finding that he was neither engaged in , nor suspected of engaging in, concerted activity. Here, neither do the facts show, nor do the parties contend, that Ewing had any real or suspected relationship to employee group action related to safety complaints at the Re- spondent's jobsite. In its conversation with Ewing, the Respondent never indicated, expressly or im- pliedly, that it suspected that he had acted with others on a group basis. The Charging Party argues that the detrimental action against Ewing may have had a "chilling effect" on concerted activity in general . In part E of the Meyers II decision, we noted an apparent pit- fall of a pure effects test for concerted activity sug- gested by the "chilling effect" argument. It ap- peared to us that, even assuming arguendo that an otherwise lawful discharge may have some remote incidental effect on other employees, a key to dis- cerning whether some incidental effect was strong enough to "chill" employees' Section 7 rights rested with the distinction drawn in City Disposal, supra, 465 U.S. at 833 fn. 10. In City Disposal, ibid., the Court seemed particularly concerned with whether the individual's actions "are related to other employees' concerted activities" in ascertain- ing whether the disciplinary action against the indi- vidual constituted an interference or restraint on employees' Section 7 right. This connection to other employees' concerted activities appeared to us to provide a reasonable dividing line when con- sidering whether the respondent's actions had a "chilling" effect, warranting the finding that an otherwise lawful action against the individual was a violation of the Act. Applying this distinction here, we see that the Respondent 's suspicions ran only to Ewing , acting as a single employee, making a complaint against the Respondent. There is no contention that the Respondent thought or communicated to other em- ployees that it considered Ewing's suspected activi- ty as tied to any group action. In fact, the record shows that, at the time, there was not any ongoing group activity relating to safety complaints at the Respondent's jobsite. Since there is not the connec- tion to group activity referred to by the Court in City Disposal, we do not see the action against Ewing as signaling a message to others to refrain from concerted activity, any more than we found such a signal in Prill's situation in Meyers II, where we noted that he "acted alone and without an intent to enlist the support of other employees." 281 NLRB at 888. HERBERT F DARLING, INC In Meyers II the Board again rejected the Alle- luia standard of presumed concerted activity and attempted to explain why Meyers I was preferred over Alleluia . Besides the reasons advanced in Meyers I previously discussed, Alleluia was rejected because ( 1) employee invocation of statutory rights does not have the requisite linkage to collective employee action, and (2) overall public policy con- siderations do not favor protection of such pure in- dividual action. In connection with the second point , we stated our belief that our resources should be directed to protecting activity which has some linkage to collective employee action. In our opinion, this focus would better effectuate the poli- cies of the Act and would be more in harmony with the Board ' s statutory duties to enforce the NLRA and leave the enforcement of other statutes to other forums designated for that purpose. We believe those reasons are equally valid in Ewing's situation. Although we are mindful of the Second Circuit's view that the Alleluia presumption of concert may be rebutted, we further note that when, as here, the employee has engaged in no activities of any kind and the issue turns on the employer's perception of a possible safety complaint , we are uncertain as to what evidence an employer might present on re- buttal to establish that nonexistent activity was, in fact, frivolous or in bad faith . In our view , this par- adox is yet another reason for rejecting the Alleluia standard in Ewing's situation. In conclusion , in response to the court's con- cerns, we state that, in our view, Meyers I is con- sistent with City Disposal in pertinent respects; cer- tain individual activity is encompassed within the Meyers I definition of concerted activity; and the Meyers I definition of concerted activity effectuates the Act and its policies better than Alleluia's defini- tion of presumed concerted activity. We believe that the Meyers I definition does not represent "an unreasonable or unprincipled construction of the statute." Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979). Accord. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267 (1975), Hotel & Restaurant Em- ployees Local 11 (Rossmore House) v. NLRB, 760 F.2d 1006, 1008-1009 (9th Cir. 1985). See generally Chevron U.S.A., Inc. v. National Resources Defense Council, Inc., 467 U.S. 837, 842-843 (1984). Since we adhere to the Meyers I standard, we now treat the court 's last concern . We must decide whether it is appropriate to apply the Meyers I standard retroactively to cover Ewing 's situation In Ewing II we noted that (1) the Meyers I stand- ard, consistent with the Board 's traditional ap- proach , had uniformly been applied to all pending cases involving the issue of concerted activity; and 1361 (2) there were no special circumstances warranting an exception to this general rule in Ewing's situa- tion . On review, the Second Circuit has indicated that we should give a fuller explanation for this ret- roactive application. To accomplish this task, we begin by observing that in John Deklewa & Sons,26 we recently decid- ed a similar retroactivity question which arose in the context of changes to Board law involving Sec- tion 8 (f) of the Act. In Deklewa we employed a balancing test modeled after the approach suggest- ed in Securities & Exchange Commission v. Chenery Corp.27 This approach appears to encompass the considerations highlighted by the Second Circuit in NLRB v. Niagara Machine & Tool Works, 746 F.2d 143 (1984).28 Under the approach set out in Deklewa, one weighs "any ill effects of retroactiv- ity against `the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles."' Deklewa, supra, at 1389 (quoting Securities, supra), footnote omitted. Examining Ewing's situation under this balancing test , we conclude that a reliance argument in his favor carries little weight. Since Ewing did not ac- tually engage in the activity of filing an OSHA complaint, the conduct which the Respondent sus- pected, we do not see how Ewing could be said to have acted in reliance on the Alleluia presumption of concerted activity. Next, our review of the record reveals that the precise circumstances sur- rounding the acts alleged by the complaint have been fully litigated and there is no contention that additional facts would have been presented at the trial if the parties had known that Alleluia was not the relevant standard In addition, in view of the circuit courts' general rejection of the Alleluia standard, it cannot be fairly said that our rejection of this standard as shown above in Meyers I was an abrupt departure from a well-established practice. Moreover, as previously discussed herein, the Meyers I definition, in relation to the Alleluia stand- ard, is more supportive of statutory design and pur- pose, more consistent with City Disposal's analytical framework, and more reflective of overall public 2s 282 NLRB 1375 (1987) 27 332 U S 194, 203 (1974) 28 The Second Circuit has considered five factors when determining whether to give retroactive effect to new rules adopted through agency adjudication (1) whether the particular case is one of first impression, (2) whether the new rule represents an abrupt departure from well established practice or merely attempts to fill a void in an unsettled area of law, (3) the extent to which the party against whom the new rule is ap- plied relied on the former rule , (4) the degree of the burden which a retroactive order imposes on a party, and (5) the statutory interest in applying a new rule despite the reliance of a party on the old stand- ard NLRB v Niagara Machine & Tool Works, supra at 151 1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD policy considerations. Therefore, we find it appro- priate to apply the Meyers I standard to Ewing's situation.29 29 Applying the test proposed by the Second Circuit in Niagara Ma- chine & Tool Works, supra, we reach the same conclusion . This is not a case of first impression . The Board has struggled with the concept of concertedness in prior cases . Since the circuit courts , including the Second Circuit in Ontario Knife Co. Y. NLRB, 637 F.2d 840 (2d Cir. 1980), had repeatedly rejected the Alleluia doctrine , the continued status of Alleluia, at the very least , was questionable . Ewing did not engage in any conduct in reliance on the Alleluia standard ; he did not act at all, but Accordingly, we reaffirm our prior dismissal of the complaint. ORDER The complaint is dismissed. was suspected of having acted . Since Ewing did not take any action in reliance on Alleluia , we fail to see any discernible burden that has been imposed on him except for possible litigation costs . Finally , even assum- ing arguendo that Ewing did rely on Alleluia , we think that the interest in applying the statute in a manner more consistent with its core purposes should prevail.