dissenting.
Because I find no substantial evidence that Dalton was engaged in concerted activity when he went to Ajax’s main office and complained to the payroll clerk about his check, I respectfully dissent. Although there was testimony that the members of the paving crew discussed the shortages in their checks among themselves, the only evidence of what was said is found in the testimony of co-employee, Rick Mitchell, that it was “just general talk about they’d like to get that money that week if they could or at least get it straightened out .... ” Mitchell and Nelson, the only other Ajax employees who testified, each stated that he spoke individually to his supervisor about the shortage. Dalton did not testify that his action in going to the office was on behalf of the group. He did not tell his co-employees of his intentions before acting. Rather, one morning before work, on his own initiative, he went to complain *1221about his check. He testified that in his conversation with the clerk, he said, “I just asked her about my shortage of pay and if she knew why we hadn’t received it, or why I hadn’t received mine.” (App. 13). The payroll clerk testified that, “Mr. Dalton walked into the office and said that he had been short and asked me what the hell I was going to do about it .... ” (App. 134a). After the fact another employee said that if he had known Dalton was going to the office, he would have gone with him. However, there is no evidence that the employer knew of this conversation. Neither this after the fact ratification, nor the fact that “[t]here is no indication that any employee disapproved of what Dalton had done,” (Decision and Order of ALJ, pp. 9-10) proves that Dalton acted on behalf of the group.
There is nothing in foreman Rea’s statements when he called the crew together that indicates that he believed Dalton was acting on behalf of his fellow employees. All three Ajax employees testified that Rea told the crew that complaints should come to him instead of individual employees going to the payroll clerk who could do nothing about the checks.
Although the Board does not acknowledge that it is doing so it appears to me that it is relying upon the doctrine of “constructive” concerted activity articulated in its decision in Interboro Contractors, Inc., 157 N.L.R.B. 1295 (1966), enforced, 388 F.2d 495 (2d Cir.1967), and rejected by our Court in ARO, Inc. v. NLRB, 596 F.2d 713 (6th Cir.1979), and Air Surrey Corp. v. NLRB, 601 F.2d 256 (6th Cir.1979).
In the absence of substantial evidence that Dalton was engaged in protected activity and knowledge of that fact by Ajax, the Board’s order should be denied enforcement.