# Hugh H. Wilson Corporation v. National Labor Relations Board > Court of Appeals for the Third Circuit · October 7, 1969 · 414 F.2d 1345 URL: https://www.frixlaw.com/law-library/cases/9454817 ## Case - **Full name:** HUGH H. WILSON CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent - **Court:** Court of Appeals for the Third Circuit - **Decided:** October 7, 1969 - **Citations:** 414 F.2d 1345 - **Precedential status:** Published - **Opinion:** Dissent by Kalodner - **Judges:** McLaughlin, Kalodner, Stahl - **Cited by:** 41 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454817 ## How later opinions describe it (automated extraction) - finding concerted activity because "[i]n substance, the employees had a gripe. They assembled. They presented their grievance to management____” ## Opinion text KALODNER, Circuit Judge (dissenting). I would deny the petition of the National Labor Relations Board for enforcement of its Order and grant the petition of the Hugh H. Wilson Corporation to set aside the Board’s Order. I would do so for the reason that the evidence establishes that the discharged employees were not engaged in protected “concerted activity” when they expressed their criticism of the employer’s conduct unaccompanied by an indicated intention to initiate or promote any concerted action by their fellow employees. The instant situation is clearly governed by Mushroom Transportation Company, Inc. v. National Labor Relations Board, 330 F.2d 683 (3 Cir. 1964). *1357 There, the question presented was whether an employee’s statements to his co-workers that “they were not getting what they were entitled to” under the existing contract constituted “concerted activity” protected by the National Labor Relations Act. In answering that question in the negative we held that a conversation between employees is not protected by the Act as “concerted activity” merely because it relates to employees’ interests and that it must at least have the object of initiating, inducing or preparing for group action or have some relation to group action in the interests of employees. Our holding in Mushroom was subscribed to and applied in Indiana Gear Works v. National Labor Relations Board, 371 F.2d 273 (7 Cir. 1967) where enforcement was denied of the Board’s Order which was premised on its finding that the employer had discharged an employee for allegedly engaging in “concerted activity”. In Indiana Gear the Court said at page 276: “To support the Board’s findings, there must be substantial evidence in the record that Packard was engaged in a concerted activity for the purpose of mutual aid or protection, and that the employer had knowledge of the concerted nature of the activity at the time it discharged the employee. Mushroom Transportation Company v. N. L. R. B., 3 Cir. (1964), 330 F.2d 683 ; N. L. R. B. v. Ford Radio & Mica Corp., 2 Cir. (1958), 258 F.2d 457 ; N. L. R. B. v. Office Towel Supply Co., Inc., 2 Cir. (1953), 201 F.2d 838 . It has been held that a complaint or gripe by an employee is not a concerted activity, Mushroom Transportation Company v. N. L. R. B., supra, 330 F.2d at 685 , even though addressed to other employees. N. L. R. B. v. Office Towel Supply Co., Inc., supra, 201 F.2d at 841 .” The evidence in the instant case establishes that everything said by the discharged employees was no more than an expression of their dissatisfaction with respect to the employer’s announcement that it would, for pressing financial reasons, be unable to make contributions to its profit-sharing plan for the year 1966. These expressions were nothing more than “griping” and could not by any stretch of the imagination be said to attain the dimension of an intention or attempt to initiate or promote concerted action by their fellow employees. There is still another reason why the Board’s petition for enforcement of its Order should be denied and that of the employer should be granted. There was lacking in the instant ease substantial evidence to support the trial examiner’s finding that the employer had knowledge of any “concerted activity” on the part of the discharged employees. The finding that the employer had such knowledge is, as the employer contends in his brief, “at best, sheer speculation, wholly unwarranted.” It is settled that to constitute a violation of Section 8(a) (1) of the Act it is imperative the evidence must establish that the employer has knowledge of the concerted nature of the employee’s activity. National Labor Relations Board v. Burnup & Sims, Inc., 379 U.S. 21, 23 , 85 S.Ct. 171 , 13 L.Ed.2d 1 (1964). In conclusion, it must be said that the majority has not given effect to the teaching that “Courts should be ‘slow to overturn an administrative decision,’ [National Labor Relations Board] v. Babcock & Wilcox Co., 351 U.S. 105, 112 , [ 76 S.Ct. 679 , 100 L.Ed. 975 ], but they are not left ‘to “sheer acceptance” of the Board’s conclusions,’ Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 803 [ 65 S.Ct. 982 , 89 L.Ed. 1372 .]” and “Courts must, * * * set aside Board decisions which rest on an ‘erroneous legal foundation.’ [National Labor Relations Board] v. Babcock & *1358 Wilcox, Co., supra, [ 351 U.S. at 112-113 , 76 S.Ct. 679 ].” National Labor Relations Board v. Brown, et al., 380 U.S. 278, 291, 292 , 85 S.Ct. 980, 988 , 13 L.Ed.2d 839 (1965). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454817. Public record. Not legal advice.