Hugh H. Wilson Corporation v. National Labor Relations Board

McLAUGHLIN, Before KALODNER STAHL, Judges. Circuit OPINION OF THE COURT STAHL, Judge. Circuit appeal This arises because of dis- charge petitioner, of two Hugh Corporation, H. Wilson a man- bobby pins ufacturer of hair curlers and Sunbury, Pennsylvania, after certain activities re- sponse employer’s to the announcement making instead of contributions corporation’s profit-sharing plan prior year 1966, profits would be purchase used machinery of new equipment. -employees, claim- ing they engaging concerted viola- tion of the National Labor Relations Act, practice charges filed unfair labor with the National Labor Relations Board.

Following days hearings, several examiner, trial in a well-reasoned interfering decision,1 approved and well-documented conduct Board,2 upheld the unfair labor found to be under § charges practice 7 of the and ordered National Labor Relations Act provides, pertinent part: (a) of one of the the reinstatement Moll, Employees employees, shall * * * * * * engage con (b) payments to the estate certain * * * certed activities Gibson,3 employee, and the other * * * purpose of mutual aid and (c) other affirmative protection. 29 U.S.C.A. 157.4 § employer. right defining lines The petitioner-corporation seeks to set The necessity painted been approving the de aside Board order protect To concerted ac broad strokes. examiner, contending, cision of the trial bloom, protection must tivities in full alia, prop inter were “intended, necessarily con be extended erly fired cause and templated group or even referred to” ac not been in concerted activities tion, Transportation Mushroom Co. v. individually rather “acted but NLRB, (3d Cir.1964), 683, 330 F.2d 685 reflecting independently sole infra, employer discussed further lest brief, ly (Petitioner’s their own views.” destroy retaliation bud 6). p. The countered with a Board has bettering initiative aimed at terms of request for of its order. enforcement employment working conditions. disputed appear It does not to be protection The mantle of of concerted subject discharged em matter of the activities, circuit various courts have ployees’ protest, company’s profit- held,5 extends union both and non sharing plan, concerns a term or condi employees.6 union employment. tion of Nor it contended is employees, of the if designed Section of7 the Act is concerted, were unlawful. guarantee the funda adopted grievances The trial present decision examiner’s mental employer Board held that to secure better terms guilty practice of an unfair labor employment, and conditions of if even Appendix (App.) NLRB, 1. 749, (4th 6. 176 F.2d 752 Cir. 1949) ; NLRB v. Phoenix Mut. Life Ins. 145, 5, 2. N.L.R.B. 171 No. June 1968. Co., 983, 988, 167 F.2d 6 A.L.R.2d 408 (7th Cir.), denied, 845, hearings cert. 335 U.S. Gibson died before the 69 68, (1948) ; (App. 23.) S.Ct. 93 L.Ed. 395 held. Schwartz, 773, NLRB v. 146 F.2d 774 8(a) (1) Act, 4. Section 29 U.S.C.A. (5th Cir. 158, practice makes an unfair labor Apparently petitioner’s plant was not with, for strain, “to re interfere unionized. or coerce exercise joining protests demands, “The or rights guaranteed” § 7 group employees, even a small if in Act. such, furtherance of their interests NLRB, U.S.App.D.C. 388, activity protected by 5. Elam v. 129 a concerted the act. (1968) ; necessary activity 395 F.2d 611 Indiana Gear It is not that union NLRB, 273, (7th Works v. bargaining 371 F.2d 276 be involved or that collective 1967) ; Kearney contemplated.” Cir. NLRB v. 416, & Trecker Annot. 6 A.L.R.2d Corp., 416, 1956) ; (7th (1949). F.2d 420 237 Cir. 434 Oxygen NLRB, Co. v. Southern 213 F. See also NLRB v. Western Meat Pack 1954) 738, (4th ; ers, Inc., 65, (10th 2d 741 Cir. Salt River 71 n. 13 Cir. Valley NLRB, 1966) ; Annot., Ass’n Water Users’ v. 206 (1951). 19 A.L.R.2d 566 (9th 1953) ; F.2d 328 Owens-Corning Fiberglass Corp. Cir. v. (8th NLRB, v. J. I. Case (4th F.2d Cir. denied, 1952), protest cert. 345 U.S. and concerted (1953) ; S.Ct. L.Ed. 1351 Modern company policy related to the lack of a Motors, NLRB, (8th quickly Inc. v. getting employees 198 F.2d 925 home in times 1952) ; personal Joanna tragedy. Cotton Mills Co. v. grievance requires presentation The one seldom exists without the oth Washington stoppage: NLRB er. a work Co., 370 82 S.Ct. U.S. Aluminum griping” “Mere condi about a (1962); NLRB v. Serv- L.Ed.2d 298 employment protected, tion of Cir.1968). Inc., (10th Air, “griping” ex when the coalesces with single Although employees’s encour produce group pression inclined to agement workers to of individual fellow action, representative pro the statute protect present grievances been Transpor activity: tects the Mushroom NLRB, ed, Works Indiana Gear supra. NLRB, Co. v. stimu tation Cir.1967); Mushroom F.2d 273 the coalescence of a lus which caused supra; Transportation Co. v. grievance may, of action concert NLRB, 176 Mills Co. v. Joanna Cotton course, employee, by be initiated Cir.1959); (4th Carbide Union F.2d 749 triggered by the coalescence also be Corp., LRRM 69 171 N.L.R.B. No. by of or to act an action a failure man single attempt (1968), employee 1086 a agement. join in to induce fellow to a workers Washington In NLRB v. Aluminum petition grievance regarding a common Co., supra, employees had com several Valley protected, Users’ Salt River management plained individually NLRB, (9th 206 325 Cir. Ass’n F.2d v. plant. the lack of heat in the 1953); Mills Co. v. Joanna Cotton Management remedy failed situ supra, as an indi NLRB, is the of morning, especially On an cold ation. grievances presenting employee vidual thought employees too several was Guernsey- others, NLRB behalf v. cold to After work. a brief discussion Muskingum Inc., Co-op., F.2d 8 Elec. 285 notify among themselves, and without (6th Cir.1960). Indeed, Cir Ninth ing any management member who cuit, applying the test set Third Circuit might remedy, able to effect a Transportation Co. out in Mushroom v. employees, unison, out walked single NLRB, supra, held non that a plant. Those who out were walked dis employee’s support of union a verbal charged. walkout, The concert by pro threatened the union strike was activity, response to a ed was situa discharge employee’s tected that management tion which had failed employer an interference was remedy; Supreme it was held rights. Signal Oil and Gas his § protected to be under the Act. Court NLRB, (9th Co. v. 390 F.2d 338 Cir. Owens-Corning Fiberglass Motors, NLRB, In Inc. v. Modern NLRB, (8th Cir.1952),

Corp. v. go (4th Cir.1969), activity a refusal the court back said: Indeed, suggestion * * * work. single activity The em of a employees premises leave came from enlisting ployee employer:7 fellow their mutual aid protection is The involved much “concerted as activity. prompted employer’s activity” ordinary group were fail as is Kennametal, U.S.App.D.C. NLRB, NLRB v. Elam Also relevant v. See 817, 818, (1968), Inc., 182 F.2d 395 F.2d 611 and Morrison- A.L.R.2d (3d 1950) NLRB, : Knudsen v. Cir. Co. * * January 31, 1947, 1966), (9th situa On seven for similar factual Corp. eight employees gathered Design around results. tions and Hoover working enf’d, during a water fountain hours 167 N.L.R.B. No. discussing wage an increase 402 F.2d 987 involved reportedly generated protest won after a strike at a who dis been suggested plant. among neighboring one be Some satisfaction immediately promise group pre reneged should on a cause the Philip wage give premium pay Thanksgiving grievances to Mc- sent its * * * respondent’s holiday employee’s Kenna, president. dis weekend. The * * * days meeting charge 8(a) (1). held to after violate Four pay The cohesiveness the concert ure at Christmas-time ed suggestion bonus, employees’ done need as been not be more an during than the preceding years. group fact, a number action. following morning “group” existence of a the Christ need not On the be com management, holiday, municated to eleven mas asserted by petitioner shop upon employer’s (p. 39).8 insisted its brief opportunity matter that, Sixth Circuit to discuss “the stated mere * * * Company. fact president that the [employees] with the did spokes formally spokesman not they acted as Two of their number choose a or that president go together group. The de did not men for the to see [management’s Company representative] could af clared that does not negative year pay and di ford to concert of bonus action. It is suffi go cient to back to rected all of them either constitute concert of action if from all premises. The two work or leave the the facts and circumstances spokesmen they replied felt that case a reasonable inference can be legal drawn seek were entitled to advice. the men involved considered * * *." They shop grievance left and went down had a Guernsey-Muskingum town to find consult with a law Elec. yer. They suggested Co-op., Inc., supra to the other nine at 12.9 go they to work until back grievance Guernsey The involved president the their return. When appointment Larry Miller, the a son- shop came out the a few into minutes company executive, in-law of a as fore spokes later and learned the two man. His father-in-law announced the premises, men had left the he an appointment employees to some of the as they or nounced that fired and were “Now, Larry follows: don’t know a get “go dered to to the rest work thing it, going damn about he to is be your building.” the tools and All leave e your employees, foreman.” Th other one, nine, except of the returned to who felt that one of their own number * * * jobs. their When the two qualified would supervi be more * * * spokesmen came back [an sory post, problem among discussed order, Board’s The three fired. were themselves, and at various times each pay including back reinstatement individually man in the crew went to discharged employees, complain management for the three representa to a 925-926. company’s general manager 198 F.2d tive. The was enforced.] respondent’s knowledge president], offi- [with activities * * * discharge present four found to be cers decided to in this case. they in the leaders because men quotation Guernsey 9. The from case * * * stoppage. work by stating pre following continues requisite Judge among themselves, observed: : “and Goodrich decided * * * * * they up manage was occurred What would take it ” * * * activity certainly ment. a concerted F.2d at 12. bargaining, purpose Washington, kind case, In the of collective Aluminum Co. expressly protected Supreme activity Court has modified this re quirement following That the em- Act. Section 7 manner: suddenly dropped ployees agree tools and their We cannot neces- grievances sarily upon presenting engage their lose insisted their to in con- during working merely not detract does certed hours under be- they present specific conduct. of their cause lawfulness did from the * * * upon remedy omitted.] demand to [Footnote objectionable. a condition find at 819. language enough pro- of § 7 is broad to point found, and as tect concerted activities whether 8. As the examiner sufficiently place before, after, later, petitioner aware take was or at the same out profit- complaints lack of time such a demand made. charge sharing it with 370 U.S. to 82 S.Ct. at 1102. contribution pervisor unhappy” the com latter about James Howard as the “damned was through shop (App. one employees so he fired walked machine plaints of 147-148, 152). explain held This was Howard tried to for “cause.” of them company’s practice. Even to Gibson the reason for the labor an unfair (Id.) reported though not communi Howard later existed, “group” supervisor, incident to Gibson’s direct cated that 181). management (App. have inferred that Minnier dealing gripes, with individual When some of affected, unhappy em consensus complained individually Minnier ployees a find was sufficient plan, told and, ing concert meeting them later in there would be a therefore, protected. whys afternoon discuss “the recognizes short, that em the law wherefores contribution this legitimate ployees interest have a year.” (App. disa is some There “acting concertedly to views make their greement parties between the management being known to without hold whether Minnier decided discharged for that interest.” NLRB v. meeting complaints, or because of the Co., Phoenix Life Mut. Ins. initially whether he had been instructed (7th Cir.), denied, cert. 335 U. handing profit-shar even before out the (1948); L.Ed. 395 S. S.Ct. meeting, or statements to hold a City NLRB v. Yellow Cab whether instructions were to (6th Cir.1965). meeting necessary do if so it became explain company’s action. order briefly opening part As stated (See brief, p. 3; petitioner’s opinion, appeal the events brief, p. 1.) 3 n. We do not believe this began when its informed Even if man factual issue is crucial. going employees that it was retool to agement meeting had call the decided to equipment supplies in and invest and so place, protests in the the first the about little, any, money pay there if would be profit-sharing plan preceded and profit-shar able as a to the contribution it, questions and and the raised followed ing plan year for the news 1966. This suggestions meeting, are made the conveyed are to the who in the sufficient in our view fit mold to subject practice of the the unfair labor “group action,” of to considered which is charge, others, by as well to Bruce be an of un element concerted activities Minnier, tool room foreman. He Transportation der Co. 7: Mushroom by management been instructed supra, at 685. sharing profit when he the distributed get he statements was to make to sure meeting again At ex Minnier to why “across there plained why little no there was to be (App. wasn’t a contribution made.” profit-sharing plan. to the contribution 116.) remarks, he so After made his Minnier spoke present. When Minnier to tool room em licited comments from those ployees Yoxheimer, individually, Moll employee, ex and One Gibson William 66-67, complained (App. pressed suspicion petitioner’s both 147- fail at the 148, 164). copy presence provide with a oth ure to some suggested employees, loudly plan profit-sharing er Gibson announced 71, 165). company (App. his do dissatisfaction10 to su maintenance so profit-sharing (General precisely, Gibson’s affidavit Coun More 10. In Gibson’s App. 7, App. 30), (General in Exhibit said Counsel’s Exhibit No. record sel’s company’s 39) profit-sharing plan: to contribution showed with the connection plan period, profit-sharing year, in the his interest in we also “Last high especially $238.86, got with a so this 1965 to a small sum years prior disturbing $668. for 1963 and low $952.01 earlier because year.” getting each about $900 been suggestion ping help in this concurred from Gibson wanted column of the 72-73). employee, (App. newspaper. Rus Another local It was an advertise Haas, urged company make secretary sell ment for a which told about profit-sharing company’s some to the contribution “excellent includ benefits plan profits in outstanding even if most profit-sharing plan.” company (App. back vested into clipping Moll, Yoxheimer handed the to 165). expressed who, turn, con Gibson and Moll Minnier, handed to stat suggestion (App. ing, going currence put my “I’m to this with points 208). response profit-sharing to Minnier’s these get statement so when I company.” again was “to have faith in bring up office 72). (App. profit-sharing plan up, why, I’ll have it to personnel show Miss Lane [the reported Minnier then events (App. 170.)13 director].” After who, meeting superiors to his reading clipping, Minnier went di president petition turn, informed the rectly personnel (App. office Mary (App. er-company, Pich Miss did, As he came over Moll and 116-118). Gib told that When she was said, something.” “Isn’t (App. Moll, complaining about while son and 76-78). derog plan, had made At end day, company, atory Presi June remarks about the meeting Moll was personnel fired. In a held dent Pich see asked personnel examining office Minnier discov said to files she files. him, you “Bill no since information ered some adverse longer going satisfied here we are employees.11 talked to let Pich then both Miss you go.” (App. 80, 171.) and, company after counsel describing situation, she was advised Gibson was next. When he came (App. 134- Moll and Gibson dismiss personnel office, “Ed, said, Minnier 135).12 reviewing your we’ve been feelings and 19, 1967, following morning, you June happy since aren’t company with the fired, employee we you the men were go.” before decided to (App. leave clip- brought plant 182.)14 Yoxheimer to the Generally, personnel file disclosed Moll’s also is not material. As the court said horseplay, warnings prior ab Halsey Taylor Co., in NLRB v. W. attending senteeism, “not Cir. “socializing” employees. job” with other We are not concerned in case this with about information Weekley’s file contained the Gibson’s merit or of lack merit of suggestions grievance. and orders to follow refusal But it is clear that Sec. 7 wandering supervisors, protects around of his to utter it as a matter plant bothering activity the of concerted with other em 158-162.) ployees (App. for mutual aid. petitioner’s prior testimony, of 13. 12. bona fides The Moll recalled the discharging di is not gave two facts the as follows: “When he me the rectly profit-sharing a of determination relevant I statement him told that I rights. going put my Pack v. Western Meat was init tool box and 65, Inc., ers, n. Cir. brought 9 368 F.2d save for it when Miss Lane the profit 1966), sharing up : the court declared when we were at discharge though meeting.” (App. is motivated 77, 170.) Even sort of a (Emphasis employer’s good added.) that an faith belief employee engaged in misconduct the activity, testimony if of a in the course Minnier’s as to he what said discharge erroneous, plant the manager Bidelspach’s belief the is differs from 8(a) (1) may be of violative recollection of the conversation. Bidel spach Relations Board National Labor said, Act. “Ed, testified that Minnier Sims, 21, Burnup you happy U.S. S. & since company aren’t with this (1964). you 171, your performing 13 L.Ed.2d Ct. aren’t work complaint satisfactory concern quits Whether we decided to call it legitimate profit-sharing plan you.” (App. 126). 19, discharge on that for union activ to their June the dismissals were Prior Judge Goodrich, 1967, company ity. speaking for Moll had worked for court, said, years for 178 F.2d at 983: for and Gibson over 3½ periodic years. rais Each had received Bernard to be the Czankner seems compliment been es and had on occasion discharged. helpers weakest 125, 82-83, 100, (App. for ed his work sloppy probably guilty of He was 196-200). 131-133, packing, Heilig testified that discharged discharge following day should have been five Gibson, company called a But for some time Moll months earlier. respondents prior discharges, special meeting of the other to the forty persons seek list of over them that the dismissals and informed say ing employment, poor work cannot and we to the attitude and were due gave weight Gibson, and had performance that undue of Moll and the Board discharge, timing complaints nothing to do with their presence (App. closely plan. profit-sharing followed Czankner’s meeting. 119-120.) the union Czankner’s apparently intolerable work became upon an examina conclude We joined the union. after he suffi that there was record N.L.R.B., Cir., Agwilines, Cf. Inc. v. finding of cient evidence Moreover, 146, 154. Moll and trial examiner apart reasons matters discharged activi of their because [concerted1] the union from profit-sharing response to the ties summary employee dis deserves neither It announcement.15 charge un as a the reason was if fact acceptable em even was an ideal16 or [concerted] activity. G. ion Edward protection ployee, policy and Cir., B., Mfg. v. N. L. R. Budd Co. Rela provided by Labor the National de certiorari employer to allow the tions Act does not nied, 1944, 64 S.Ct. 321 U.S. “good” rea for “real” reasons substitute added.) (Emphasis L.Ed. discharge purpose sons when the principle this same We have reiterated employee’s con to retaliate for an subsequent cases. clear It activities. certed discharges Corp., 298 here In NLRB Buitoni Foods “real” stimulus (3d 1962), response said: employee’s conduct each peti lack of a contribution to the where, preliminarily observe We plan. tioner here, contradictory reasons discharge City ad Dyeing of an In NLRB v. Electric vanced, responsibility (3d it is the court 178 F.2d 980 weigh re comparable evidence and sit Board to on had occasion rule ** alleged conflict. solve the factual uation where clearly obligation no There is employees were certain accept rea face the Board Board to value unsatisfactory the whereas work concurred, by employer. The son advanced the finding, we in which a made fire the sel advised to Bidelspach soon that as testified (App. 134-135.) made Gibson Moll and that heard derogatory com the remarks some plan, profit-sharing examiner observed: regard trial pany to the in disposition my this I do not personnel re case files and he called give impression 117.) (App. be I want ported Pich. to President stipulated that Moll and were lieve or find Presi counsel Petitioner’s any perfect employees Monday, faults devoid of him on called Pich had dent shortcomings. (and I am sure that Moll’s him of informed and June personnel Gibson’s) as do most em and their deficiencies files presumably 13.) ployees. (App. derogatory 18 n. remarks had made plan. Coun regarding the Buitoni, otherwise It should of an be noted that concurrent existence discharge alleged of an there was be reason valid “concurrent preclude discharging employee, a factual reason” does not the . discharge viz., line, picket was violence on determination discriminatory appears from the if it examiner and the Board did not en evidence, tirely accept. preponderance In our case the claimed unsatisfactory there drawn inferences work record not reasonable was even discharge from, in fact was concurrent but had occurred well before employer’s opposi by appeal.18 motivated involved this employee’s union activities. tion brief, petitioner In its contends that * * * 17 in order to constitute concerted comparable provi involving 1968) ; Top Baggage 17. In a case NLRB v. Red Cab & Law, Virgin Co., (5th Labor 1967); Islands sion 383 F.2d 547 South Cir. Virgin Oxygen Caribe NLRB, Labor Union Islands ern Co. v. 213 F.2d 738 (3d (4th 1954). Cir. 343 F.2d Constr. Cir. In Gain’s Goffee presented 1965), assessing Top evidence Red the court refused to enforce Deputy of La Commissioner before the order of the Board it con because bor, finding we said: cluded that of anti-union support an inference that discharge this All would motivation for was not relationship between supported existed a causal substantial evidence. abrupt men and dismissal Oxygen clearly distinguish Southern is joining omit [footnote the Union prior There, employer, able. was “function ted]. The Commissioner’s occurrence of activities claimed to reason for dis the real to determine charges protected, plan had announced a given the reasons whether and employer operations requiring decentralize reduc pretexts. mere the work force. The four em doing con [he] In so ployees discharged who were had en evidence and draw sider circumstantial protected gaged in conduct but there was as direct evidence therefrom inferences not sufficient evidence show that * * * always We not obtainable”. discharge stemmed from their concerted course, not, the fact intimate that do activities. It was found that the com required to infer draw the finder was pany’s discharge, stated reason for the were the result dismissals ence that force, the reduction of the work was not activity, such an of union colored a desire to stifle the concerted permissible the evi was inference activities in issue. * * * dence in the record. appeal, In the instant we believe there ease, aIn Sixth Circuit the court said: is substantial evidence the record to Respondent [the that he em contends the Board”s determination that ployee] petitioner’s accumu was motivation for the dis irresponsibility, charge insub lation acts of Moll and Gibson was their inefficiency disturbing protest be against ordination the failure of activity. company cause of union profit- to contribute to the apply determining question, sharing plan. rule that if Hetrick’s the well-settled wholly discharge or even motivated Rolls, Inc., 18. In NLRB v. Rubber part by activity, his union (3d Cir. a union ac adequate illegal despite tivity case, Judge existence Freedman reiterated * * * firing position [Em him. cause the may of this An circuit. “ phasis v. Barberton pretext ‘dredged added.] up use * * * Products, Inc., 354 F.2d Plastics from the bottom of the barrel ** (6th up Cir. cover ac ** Bates, Reading Inc. v. discharge, also & ee tual reason for the (5th 1968) ; NLRB, when the real reason ac Baking NLRB, tivity. Co. v. Betts 1967) ; Annot., Corp. Design In Hoover (1962). 62, enf’d, A.L.R.2d N.L.R.B. No. 402 F.2d 987 (6th courts have found In some cases the the Board said: ** * employee was so Company that improper the conduct of an Of course the could justified discharge discharged Vogt any that his have ing dur time spite engaged employment poor in of the fact he was also attend protected any Cain’s Coffee activities: ance or for other reason em [the NLRB, ployee drinking problem] 404 F.2d 1172 Co. had also Act, by management, 7 of this court was in violation of called it was no employees’ general conduct doubt that called because of the has said dis- anticipated “group contemplate some sort satisfaction from or ex- must pressed Transportation by action,” employees v.Co. under Min- Mushroom protests NLRB, supra, supervision. nier’s their The vocalization of otherwise griping. support of its this dissatisfaction on of the em- behalf are mere ployees group by and no action Moll and Gibson others claim there was that “group here, petitioner chart action” to has constructed a constituted sufficient protected listing Gib- come within concerted ac- Moll and each statement way any to tivities under related the statute. son which could activity” char- their and “concerted substance, employees had being an such statement as acterized each gripe. They pre They assembled. sugges- gripe, or comment “individual grievance management, sented their intended, “group not action tion” and meeting by represented at Minnier. (Brief, contemplated referred to.” or Standing alone, con believe this was pp. 30-32.) activity shield Moll certed sufficient too narrow takes We believe discharge a result of from as Gibson or act of the a view of each statement employees Moreover, protests. Moll’s their indica totality It is isolation. meeting day following tion the conduct, complaints to their of their management wanted show meeting, prior to the Minnier and others given Yoxheimer, “want ad” to him 16 meet- participation in June their response by and Minnier’s immediate ing suggestions' and in which certain going personnel office, to the further re generated, the consternation ideas were himself flects Moll’s desire to act for behavior remarks group arid for adverse management, top petitioner’s caused the ly respect profit- with affected meeting post-discharge with the and the sharing plan and the dis reveals explain what charges directly con were related supports Board’s happened, which activity certed in which the reflect- conclusion Moll engaged. general mani- ed a dissatisfaction which inartfully, rely itself, parties appeal Both fested however disap- something Transportation Mushroom supra, Co. to do desire pointing where we said: contribution employ- adversely affect which could questioned It is not that a conversa- benefits. ultimate retirement ees’ concerted activi- constitute a although only indicated, ty speaker meet- it involves previously at the As listener, qualify such, by Minnier, and a but to as called appear very Gibson, it at the least not must employees, Moll and against object protest it was initiating prior with continued their inducing preparing respect or to the or employer’s decision group or some profit-sharing plan also concurred but group put oth- relation to action in the interest suggested forward remedies meeting employees.19 Although 330 F.2d at 685. er 19. The court This cussions pay and material tivity was the him for cumstances ^[*] issue ^[*] his concerted continued: could disqualified when say discharge cause precipitating, Vogt’s legally preliminary him under cir- proximate discharge. discharge on the dis- ac- ac- munication between has to start with some kind of com- come that, steps tivities recognize sulted in organization inasmuch as almost very toward merely for mutual aid and organized near presenting validity because action or in nullifying collective individuals, demands. We have not re- bargaining protection concerted argument it would positive rights group to employees.” here meet action the interest of that the facts We believe surpass concerted threshold of and Mushroom estab- which test points Two more should covered be lished. briefly prime on the issue of concerted activity. pointed a viola- Petitioner out that contends that there It should be spokesman employees Mush- must be a not found tion of the Act was leading case, action, part-time “ex- group or for a call and room. In that during knowledge employer that employee, work must tra” nonunion

hours, employees employees engaged that of their other are in con- advised existing “rights” certed under action. various bargaining which had contract collective respect “spokesman” With ques- negotiated by the union been tion, Guernsey-Muskingum NLRB v. was no evi- full-time There Co-op., Inc., Elec. supra, expressly held any “griev- dence in case that of that there is no need for a formal selec- employees group or of ances” a involved spokesman. tion of a “It is sufficient to Keeler, employee, that constitute concert of action if from all forming any any such of intention the facts and circumstances in the case a group. refusing the order to enforce reasonable inference can be drawn that Board, this court said: the men involved considered that grievance. We that decided, look in vain evidence among a and finding themselves, would Keeler’s up would take it management.” in- talks with his fellow 285 F.2d at 12. any part their volved effort on his or Furthermore, spokesman may promote any concerted initiate or voluntary represen be one or a chosen anything the vari- action to do about Here, might tative. it said Moll ous as to which Keeler ad- matters and speaking Gibson were volunteers in anything or vised the to do men protesting and on themselves grievances any complaints and which behalf of petitioner. of they may have discussed with him. respect knowledge With 330 F.2d at 684-685. activity, concerted it is difficult to words, In other we held that mere believe that at the time officers employees do not conversations between decided to effect' the dis pro- come “within the ambit of activities charges * * they were unaware of the dis dif- tected the Act How pulsating plant, satisfaction is, then, from ferent the Mushroom case room, least in the tool the trial two dis- facts at bar where the properly examiner held to constitute charged employees com- and others activity. plan plained ar- about the Finally, petitioner great rangement, employer and the found laid meetings necessary stress on the to deal fact that Moll to hold two both indulged profani- problem, of which with the the first considerable ty in discharged employees participated protests. course Supreme generate held, suggestions apply helped Court has and we here, Certainly, principle balancing dealing grievance. the rights that in with their suggests, employ- conduct as the Board and the ees, long as part within that comes at least holding are lawful “a conversa- character of con- Mushroom test activity” duct is not context a concerted constitute indefensible grievance involved, appears relation “that it had if it some appears guaranteed if force Act when it from Section the conversa- protec- group tions denied themselves no such communications intended, contemplated, kind How- of lack fruition. tion because ever, argument of its even referred to. 330 much F.2d at 685. loses 1356 request of set aside protected 7 the act: Petitioner’s under § Washington re The Aluminum Board’s order will be denied. v. 1099, quest of U.S., of Board for enforcement supra 82 S.Ct. 17 of 370 granted. generally, Plas Falcon its order will be 298. L.Ed.2d See Laboratories, Inc. of B-D

tics Division 1968). (9th NLRB, Cir. v. (dissent KALODNER, Judge Circuit ing). agree that the mea We cannot deny petition of I would the dis profanity in which sure of en Board for National Labor Relations indulged charged was employees here grant pe of Order forcement its totally indefensi completely unusual Hugh Corpora tition of H. Wilson claimed of their context ble the Board’s Order. to set aside grievance.20 I would do the reason so points other We considered have evidence establishes com by able in the raised not find prehensive of counsel and brief activity” ex when “concerted any different them not warrant employer’s pressed of the their criticism result.21 by unaccompanied indicated conduct any promote con to initiate or intention record as a From a review certed action their fellow substan there is whole we conclude findings clearly gov tial evidence is situation The instant Transportation action of the trial examiner Mushroom erned it has relief which Company, Board Rela Labor Inc. v. National (3 Board, ordered.22 F.2d 683 Cir. tions 20. In 2d 664 did all know Cf App. of what the trial examiner rise to the the trial examiner worst langue world. 53, 58, arena, machine incidently disputes, While the than other It is common tions than icans use more Guard Workers sible tory v ^[*] and inexact. (1966), shop is not have language U.S. * * dealing 19. angelic workers. profanity exception (1969), ^[*] like heard it in their [86 S.Ct. . shop. He further dignity see [sic] that of the street with often recognition and that Watts knowledge factory 89 S.Ct. a normal cause where the Court said: (Emphasis added.) language Indeed, was trait occurs Linn v. United Plant language said day profanity this commented, vituperative, used America, Moll Australians, judicial workers Minnier admitted particular 15 L.Ed.2d in this that some of United throughout people day rough used in labor in a was said with among and coarse notice, 22 L.Ed. 383 U.S. conversa no tend not testified, plant for dismissal. political respect. validity abusive or sor States, Amer worse issue, 582] pos fac 21. concerned son said: er testimony missible were firing. missibility ployees discharged brief, p. 12.) said or We evidence of others NLRB, handbill hearing, 1969), In view of the Board’s “substantial record as a whole. Corp. * * Cf. or the rule because agree may S.Ct. Reading Owens-Corning held where * distributed as a did. Petitioner was inadmissible as alleged with the Board that while not with the truth of Moll’s question NLRB, 1950, Our insufficient Moll and others as misstatements of Gibson’s & evidence”, actually 95 L.Ed. been well-recognized exception findings respect to have Bates, for concerted arose hearsay, testimony Fiberglass Corp. the examiner inquiry Universal death said it. one are founded to what Gibson Inc. v. said considering 340 U.S. contended the as to the ad justify is whether before the court (4th and that fact in a of what the em hearsay. was ad Camera (NLRB wheth Gib was v. charged presented There, question no more than an expression of employee’s to his an statements dissatisfaction with whether getting respect “they employer’s were not to the announcement co-workers would, pressing it to” under the financial rea- what were entitled sons, existing “concerted unable to make contributions to contract constituted year activity” plan its protected by La- for the the National nothing expressions These more bor Relations Act. “griping” by any than could not answering neg- question in imagination stretch of the be said to at- a conversation be- ative held that tain the dimension of an intention or at- by tween is not tempt promote to initiate or concerted activity” merely be- Act as “concerted employees. fellow employees’ interests cause relates to object and that it must at have least why There is still another reason initiating, inducing preparing or petition Board’s enforcement its group relation to action or some Order should be denied that of the employ- group action in the interests employer granted. should be ees. lacking There was in the instant ease holding Our Mushroom was sub- support substantial evidence to the trial applied in Indiana Gear scribed finding employer examiner’s Works v. Labor Relations National knowledge had “concerted activi- Board, 1967) (7 where 371 F.2d 273 Cir. ty” discharged part on the em- of the Board’s enforcement was denied ployees. finding employer that the premised find- Order its knowledge is, employer had such as the discharged employer an that the brief, best, contends in his “at sheer engaging employee allegedly “con- speculation, wholly unwarranted.” activity”. certed It is settled that to constitute a viola- In Indiana Gear the Court said at 8(a) (1) tion Section of the Act it is page 276: imperative the evidence must establish findings, “To Board’s knowledge employer that the there must be substantial evidence employee’s concerted nature of the activ- record that Packard ity. National Labor Relations Board v. purpose in a concerted Burnup Sims, Inc., 21, 23, & 379 U.S. 85 protection, of mutual aid or and that 171,13 (1964). S.Ct. 1 L.Ed.2d knowledge conclusion, it must be said that the activity at concerted nature of the majority given has not effect to the employee. time it teaching that Transportation Company Mushroom v. B., (1964), N. L. R. 3 Cir. F.2d “Courts should be ‘slow overturn an 683; N. L. R. Ford Radio & decision,’ B. v. administrative La- [National Corp., (1958), Mica F.2d bor Relations v. Babcock & Wil- Board] 457; Sup N. L. R. B. Towel Co., v. Office 105, 112, cox 351 U.S. S.Ct. [76 Co., ply Inc., (1953), 679, 975], 100 L.Ed. are not It has been held that a com acceptance” left ‘to “sheer plaint gripe is not conclusions,’ Republic Board’s Avia- activity, Trans Corp. Mushroom v. National Labor Relations B., portation Company N. L. R. su Board, v. U.S. S.Ct. [65 though pra, 330 F.2d at even ad 89 L.Ed. 1372.]” N. L. R. dressed Supply Inc., B. v. Office Towel * * must, “Courts set aside supra, 201 F.2d 841.” at Board decisions which rest on an ‘er- legal case roneous instant estab- foundation.’ The evidence [National everything dis- Labor lishes that Relations Babcock & Board] said supra, 112- Wilcox, Co., U.S. [351 Labor National 679].” 76 S.Ct. Brown, al., 380 et Board

Relations 291, 292, 85 S.Ct. U.S. (1965). L.Ed.2d LABOR RELATIONS

NATIONAL BOARD, Petitioner, Quail INN and

HISTORIC SMITHVILLE Hill, Respondent, Employees

Hotel, Restaurant Motel and 508, AFL-CIO, Union, Local

Intervenor.

No. 17503. Appeals Court of States

United Third Circuit.

Argued June July

Decided

Case Details

Case Name: Hugh H. Wilson Corporation v. National Labor Relations Board

Court Name: Court of Appeals for the Third Circuit

Date Published: Oct 7, 1969

Citation: 414 F.2d 1345

Docket Number: 17418

Court Abbreviation: 3rd Cir.