                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-1249
                                    ___________

David Williams; Bonnie Williams,    *
                                    *
                  Appellants,       *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * Western District of Missouri.
Watkins Motor Lines, Inc.,          *
                                    *
                     Appellee.      *
                               ___________

                              Submitted: September 9, 2002

                                   Filed: November 20, 2002
                                    ___________

Before WOLLMAN, HEANEY and BYE, Circuit Judges.
                         ___________

HEANEY, Circuit Judge.

       David Williams and Bonnie Williams appeal from the district court’s dismissal
of their wrongful discharge complaint against their former employer Watkins Motor
Lines, Inc., and denial of their motion for leave to file a first amended complaint. We
reverse and remand the case to the district court for further proceedings.
                                 I. BACKGROUND

        David and Bonnie Williams (hereinafter “David” and “Bonnie”), a married
couple, were hired by Watkins Motor Lines, Inc., beginning in 1997 as an over-the-
road truck driving team. On or about January 31, 2001, the Williamses reported to
Watkins’s Kansas City terminal and received a linehaul tripsheet that directed them
to drive a tractor/trailer along the Missouri interstate highway system. Before starting
the trip, David drove the tractor to a nearby weigh station, and discovered the vehicle
weighed significantly in excess of 80,000 pounds. Under Missouri law, a tractor
cannot be driven on Missouri highways if it exceeds 80,000 pounds. Mo. Rev. Stat.
§ 304.180.3 (2001). David drove the tractor back to the terminal. Upon the request
of the dispatcher, David weighed the tractor at a different weigh station; the tractor
again exceeded the legal limit. David returned to the terminal and advised the
dispatcher that the tractor was overweight.

       The dispatcher then asked David if he and Bonnie would consider driving a
single-axle tractor. The Williamses agreed to do so. Upon weighing the single-axle
tractor, however, David discovered that it, too, exceeded the Missouri weight limit.
He returned to the terminal and informed Bonnie and the dispatcher of the vehicle’s
weight. David then suggested to the dispatcher that he and Bonnie receive an
accommodation, meaning an adjustment to the load or truck to bring it into
compliance with weight restrictions. The dispatcher agreed to provide the Williamses
with a different tractor if they stayed the night. In the morning, however, a Watkins
employee informed David that because he and Bonnie had refused a load, they should
leave the terminal and return to their home. Approximately one week later, Watkins
informed the Williamses that they were terminated from employment because they
had refused an assigned load.

       The Williamses filed suit against Watkins Motor Lines in Missouri state court
alleging wrongful discharge. Watkins removed the case to the United States District

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Court for the District of Missouri, and moved to dismiss the suit on grounds that it
fell under the jurisdiction of the National Labor Relations Act, and was therefore pre-
empted. The Williamses subsequently filed a motion to amend their complaint, which
added a fraud claim. Watkins responded by arguing the additional claim was
inextricably intertwined with the original claim for wrongful discharge, and therefore
also was pre-empted by the NLRA. The district court denied the motion and
dismissed the complaint.

                                  II. DISCUSSION

                      A. “Concerted Activity” within the NLRA

       The first issue in this case is whether David and Bonnie engaged in “concerted
activity” within the meaning of 29 U.S.C. § 157, thus precluding review by the
district court. We conclude that they did not.

      The National Labor Relations Act gives employees the right to engage in
concerted activities1 for the purposes of mutual aid and protection. 29 U.S.C. § 157.
This language contemplates a context where employees are organizing or have
organized, and need to be protected from retaliatory measures by their employer. 29
U.S.C. § 102.

      NLRA preemption analysis has developed into two distinct doctrines, which
are commonly referred to as Garmon2 and Machinists3 preemption. Thunderbird

      1
      The NLRA is silent as to what precisely constitutes “concerted activity.”
N.L.R.B. v. City Disposal Systems, Inc., 465 U.S. 822, 831 (1984).
      2
          San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)
      3
     Lodge 76, Int’ Ass’n of Machinists and Aerospace Workers v. Wisconsin
Employment Relations Comm’n, 427 U.S. 132 (1976)

                                         -3-
Mining Co. v. Ventura, 138 F.Supp.2d 1193, 1196 (D.Minn. 2001). Garmon
preemption, which the appellees suggest is applicable here, “protects the jurisdiction
of the National Labor Relations Board . . . by displacing state jurisdiction over
conduct which is ‘arguably within the compass of § 7 or § 8 of the Act.’” Id. (quoting
St. Thomas - St. John Hotel & Tourism Assoc. v. United States Virgin Islands, 218
F.3d 232, 239 (3rd Cir. 2000)). The Garmon doctrine supports the theory that
Congress has an overriding interest in nationally uniform application of the NLRA,
rather than in protecting particular conduct of private bargaining parties. St. Thomas,
218 F.3d at 239. Machinists preemption, on the other hand, focuses on protecting the
collective bargaining process from interference by the states. Since we do not think
Machinists preemption applies in this case, and neither party has briefed the
Machinists preemption analysis, we defer to the Garmon analysis, which poses the
question of whether the Williamses’ conduct was either clearly or arguably
“concerted activity” within the meaning of § 7 of the NLRA.

       One component of protected concerted activity is “concertedness.” Calvin
Sharpe, ‘By Any Means Necessary’ – Unprotected Conduct and Decisional Discretion
Under the National Labor Relations Act, 20 Berkeley J. Emp. & Lab. L. 203, 207-8
(1999). This component requires some sort of group activity; individuals acting on
their own behalf are not engaged in concerted activity. Id. The issue has been raised
whether actions taken individually, but presumed to be of interest and benefit to other
employees, should be considered concerted activity under a “constructive concerted
activity” theory. NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984). The
NLRB, however, does not recognize such individual activity as concerted.4




      4
       In a NLRB decision involving a single employee who resisted driving an
unsafe truck, the NLRB rejected the claim that such activity was “concerted,” even
though the employee was asserting contractual rights. See Meyers Indus. Inc., 281
NLRB 882 (1986).

                                         -4-
       Watkins contends that David’s statements and acts, such as returning the
tractor after weighing it and requesting an accommodation, were not taken up
individually but were concerted because his actions received Bonnie’s implicit
approval. As a practical matter, we cannot see the significance of Bonnie’s possible
approval. David and Bonnie were hired as a team. They worked together
exclusively, and shared all of their trips. It puzzles this court how David and Bonnie
could have engaged in concerted activity, since for all intents and purposes they
operated as a single unit. Bonnie could not have left the terminal and driven the
tractor without her team driver.

       Watkins argues that the surest sign of concerted activity was the fact that no
tractor left Watkins’s Kansas City terminal on January 31, 2001, because neither
David nor Bonnie accepted the load. Without a second driver to help share the
burden of driving the long hours necessary to deliver the load, however, Bonnie was
not capable of delivering the load on time by herself had she opted to drive the truck
in spite of the excess weight. She would have failed in her job, no doubt reasonable
grounds for termination in the trucking industry. The Williamses did not organize to
work together, but operated as one unit. Although Watkins asserts that Bonnie was
aware of and agreed with David’s refusal, we believe Bonnie’s awareness or lack
thereof is irrelevant. All the evidence suggests that the Williamses were a single
individual for the purposes of employment. To treat them now as separable is to deny
the original arrangement between Watkins and the Williamses.

       Counsel for Watkins suggested at oral argument that because this question is
being litigated, it is an arguable point, and therefore constitutes “arguably concerted
activity.” We disagree. The Garmon doctrine should not be used to preclude any
discussion of whether an activity falls within NLRB jurisdiction. Following
Watkins’s line of reasoning, any dispute between two parties regarding whether an
activity fell within sections 6 or 7 of the NLRA would automatically fall within
NLRB jurisdiction because there was a dispute, thereby meeting the “arguable”

                                         -5-
requirement. We reject this interpretation because it would vastly expand the
jursidiction of the NLRB, and more importantly, deny the courts its basic function -
to hear and resolve arguments between parties that may have no other form of relief.

      This is not a standard labor arrangement. Counsel for Watkins could not point
to any NLRB cases at oral argument where team drivers (much less married team
drivers) were treated as workers engaging in concerted activity. Our research
unearthed only one case, and it involved team drivers that did not engage in exclusive
driving relationships. See C.D.S. Lines, Inc., 313 NLRB 296 (1993). We therefore
believe this case does not fall within the NLRB’s jurisdiction.

                            B. “Mutual Aid or Protection”

       Finally, given the “mutual aid or protection”5 requirement of § 7, it is also
doubtful that David’s actions would be considered by the NLRB. According to the
record, David honestly believed that the tractors exceeded the Missouri highway
weight restrictions. These regulations do not provide suggestive guidelines; they are
the law. Violating them is no more an option than violating health standards in food
production. David’s refusal to leave the Kansas City terminal after having weighed
the two tractors a total of three times appears to be reasonable. This case differs from
cases where employees were fired after refusing to drive a company vehicle because
they believed driving the vehicle was dangerous. See Prill v NLRB, 755 F.2d 941
(D.C. Cir. 1985). In such cases, employees have made decisions designed for their
own protection and, by extension, for the protection of their fellow employees, and
can be reasonably considered to be engaging in concerted activity. In this case, David
Williams was following Missouri law. He was not acting for his benefit, or for any
other employee’s benefit. We find no reason to describe David’s adherence to
applicable law as concerted activity.


      5
          The NLRA does not define “mutual aid or protection.”

                                          -6-
                                III. CONCLUSION

       The Williamses do not fall within the jurisdiction of the NLRB because their
acts do not constitute “concerted activity” under the NLRA. We reverse the district
court’s dismissal of the original complaint against Watkins Motor Lines and the
denial of appellants’ motion for leave to file first amended complaint, and remand for
further proceedings consistent with this opinion.

      A true copy.

             Attest:

                CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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