Mitchell Manuals, Inc.

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 230 (N.L.R.B. 1986)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cordura Publications , Inc., d/b/a Mitchell Manuals,
Inc. and Ernie Herwehe . Case 21-CA-23413
30 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 19 August 1985 Administrative Law Judge
James S. Jenson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a brief in opposi-
tion, cross-exceptions, and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent did not
violate Section 8(a)(1) by discharging employees
Herwehe, Smith, and Clark for authoring and dis-
tributing a letter to, inter alia, the chairman of the
board of Respondent's parent corporation. The
General Counsel excepts, contending that an analy-
sis of the letter reveals that it is directly related to
the employees' wages, hours, and working condi-
tions and that therefore the authoring and distribu-
tion of the letter constituted protected activity
under the Act. For the reasons set forth below, we
find, contrary to the judge, that the employees' ac-
tivities were protected by the Act and, consequent-
ly, that the Respondent violated Section 8(a)(l) by
discharging the employees.
The facts are fully set forth in the judge's deci-
sion. In brief, on 30 August 19841 a meeting, ap-
parently initiated by alleged discriminatee Her-
wehe, was held among some of the Respondent's
employees, including the three discriminatees and
Assistant Managing Editor Schmidt. Among the
items discussed were employee morale, more pay,
providing employees with business cards, and keys
to the premises. On 31 August a second meeting
was held among the same employees, Schmidt, and
Managing Editor Yeoman, at which the same mat-
ters were discussed. The meeting concluded with
Yeoman stating that he would present the employ-
ees' concerns to the necessary people and report
back to them the following Friday. Later that day
Herwehe asked Yeoman what he thought about the
meeting . Yeoman asked Herwehe what the em-
ployees were trying to accomplish, and was told
1 Unless otherwise indicated all dates are in 1984
"higher wages." Apparently unsatisfied with Yeo-
man's responses during the discussion ,2 Herwehe
left a note stating that he did not feel well and was
going home . Clark, Smith, and another employee
also left notes or told Schmidt personally that they
were sick and going home.
On 4 September Herwehe, Clark, Smith, and
Clifford Jim3 signed and mailed a letter to Dr.
Friedman, chairman of the board of Cordura Cor-
poration, the parent company of the Respondent.4
The letter reads as follows:
Dr. Friedman; [sic]
Mitchell Manuals Collision Estimating
Guide, "Cordura's mainstay," as reported by
Forbes Magazine ; is well thought of in the
automobile industry and has much credibility
at this point.
Because of our combined extensive experi-
ence in the automotive collision field, we the
undersigned are greatly disturbed by the
present labor practices utilized by Mitchell
Manuals Collision Estimating Guide.
In the history of the M.C.E.G., less than 2%
of over 14,000 necessary time studies regard-
ing labor requirements have been attained.
Lack of consideration by management for the
concerns of the industry in which we set
standards has brought about current practices
involving limited, inaccurate labor research.
At present there is only one full time labor
editor. The suppressive actions of present man-
agement in restraining our efforts to bring
about positive change can and will cause seri-
ous repercussions involving manufacturers and
safety standards.
Changes must be made to upgrade and
maintain the "heart" of Cordura's mainstay,
not only for the credibility and future of the
product but also for the industry and public
depending on our expertise.
Because of the individualized characteristics
of a department responsible for the credibility
of our product, a seperate [sic] labor depart-
ment is essential . Using our combined 60 plus
years of actual hands on collision labor and
managerial experience, the labor department
2 The judge noted that while there was disagreement about precisely
what Yeoman responded, Herwehe told Clark and Smith that the em-
ployees could expect at most a 1 - or 2-percent raise at their next evalua-
tion which was about a year away.
8 Jim had resigned from the Respondent 's employ on 31 August.
4 Copies of the letter were also either mailed or hand delivered to
Sims, the president of the parent Cordura Corporation; Evanoff, the Re-
spondent's president; Opelt , the Respondent 's senior vice president of fi-
nance; Ferrier, the Respondent's senior vice president , and Norton,
Young, and Yeoman , the president, editorial director, and managing
editor respectively of Mitchell Manuals.
280 NLRB No. 23
MITCHELL MANUALS, INC.
would be able to exist as a seperate [sic] entity
making independent decisions regarding labor
concerns.
In order to structure a professional depart-
ment, sufficient budgeting would be required
to encompass:
A. Professional wage standards-Minimum
wage equal to the average of collision spe-
cialists within the industry.
B. Continuance of education and training.
C. Participation in direct factory contact,
seminars , and related autobody functions.
D. Essential department expenses.
An additional requirement for the depart-
ment would be direct departmental interfacing
with MMX in order to maintain a balance
within both systems, which , to this date has
not been accomplished.
After several attemps [sic] at communicating
in a professional manner through the chain of
command with no professional courtesy in
return , we request you review the content of
the above letter with a return response to us
by Friday, September 7, 1984. We hope, with
this letter, we have reached a person with the
authority to make decisions not excuses.
With much concern for the industry and our
product,
Finding that the employees ' activities were clear-
ly "concerted," the judge defined the issue as
whether the writing and distribution of the letter
was "protected" within the meaning of Section 7
of the Act. Rejecting the General Counsel's con-
tentions that the letter was "directly related to con-
cerns about employees ' wages, hours, and working
conditions," and was an extension of the matters
discussed in the 30 and 31 August employee meet-
ings, the judge found that the letter omitted all ref-
erence to the matters discussed during those meet-
ings and noted that there was no evidence that the
Respondent 's labor research practices , organiza-
tional structure, or product were mentioned during
those meetings. Rather , the judge found that the 4
September letter was an attack on the Respondent's
management and product, containing "a prediction
(or threat)" that Friedman 's failure to establish a
new department "will cause serious repercussions
involving manufacturers and safety standards." The
judge found that the letter was "a complaint
against the integrity of the Respondent's product
and the competency and good faith of local man-
agement-vis-a-vis conditions of employment-be-
cause of management's failure to make the organi-
zational changes which the writers propose[d]."
Noting that there is a significant difference be-
tween a concern with conditions of employment
231
and a personal disagreement with an employer
over basic managerial guidelines and philosophy,
the judge found the evidence insufficient to estab-
lish that the contents of the letter were directly re-
lated to the employees ' work conditions , and rec-
ommended dismissing the complaint.
Section 7 of the Act guarantees employees the
right to engage in "concerted activities for the pur-
pose of collective bargaining or other mutual aid or
protection ." In the instant proceeding , the parties
stipulated that the employees were discharged for
composing and mailing the 4 September letter. We
agree with the judge 's fording that these activities
were "concerted." Contrary to the judge, however,
we find that the 4 September letter addressed mat-
ters directly related to the employees ' job interests
and is therefore protected by Section 7 of Act.
In this regard , we note that not all concerted ac-
tivity is protected. As the Supreme Court stated in
Eastex, Inc. v. NLRB, 437 U.S. 556, 567-568
(1978):
It is true , of course, that some concerted activ-
ity bears a less immediate relationship to em-
ployees' interests as employees than other such
activity. We may assume at some point the re-
lationship becomes so attenuated that an activi-
ty cannot fairly be deemed to come within the
"mutual aid or protection" clause.
However, we believe that an analysis of the 4
September letter reveals that it is directly related to
concerns about the employees ' terms and condi-
tions of employment. Although the employees'
message is couched in terms of criticism of Re-
spondent 's operations , the thrust of the letter is the
employees ' proposal for increasing the professional-
ism of their jobs. Paragraphs 4, 5, and 6 directly
concern the working conditions of the employees
and specifically address typical employee concerns
such as wages, education, and training. Thus, in the
later paragraphs , the employees essentially tie the
asserted defects in the labor research to what they
contend is the Respondent 's poor treatment of col-
lision department employees . Moreover, contrary
to the judge , the letter does refer to a key issue
raised at the August employee meetings, i.e.,
wages . And, although the letter may fail to refer to
the other job-related matters discussed by the em-
ployees at the 30 and 31 August meetings, it is
clear that the letter was part of and related to the
ongoing labor dispute which became manifest at
those meetings. Indeed , in paragraph 8 the employ-
ees note that they had attempted on several prior
occasions to lodge protests with Respondent's man-
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agement.5 Respondent has additionally failed to
demonstrate that the 4 September letter used suffi-
ciently opprobrious, defamatory, or malicious lan-
guage to remove the employees from the protec-
tion of the Act.e Moreover, we reject the Re-
spondent's contention that the 4 September letter is
unprotected as it contains statements which are
false, as there is no evidence that, if false, they are
deliberately or maliciously false and it is well set-
tled that the falsity of a communication does not
necessarily deprive it of its protected character.7
Accordingly, in light of the foregoing, we con-
clude that the Respondent violated Section 8(a)(1)
of the Act by discharging employees Herwehe,
Smith, and Clark for sending the 4 September
letter to the Respondent's chairman of the board,
among others.
6 See generally Allied Aviation Service Co, 248 NLRB 229, 231 (1980).
Contrary to our dissenting colleague, our decision does not expand
"protected activity" to encompass attempts by employees to affect man-
agement philosophy or policies. Instead , we conclude , based on the facts
of this case, that the focus of the employees' letter concerned their terms
and conditions of employment and it was therefore protected While our
colleague concedes that the letter discusses terms and conditions of em-
ployment , he contends that it is unprotected because these matters do not
pertain to the collision department in which the discharged employees
work. Rather, he asserts that the letter addresses terms and conditions in
a proposed new "labor department " It is clear from the letter, however,
that the new department was proposed with the expectation that the col-
lision department employees would staff the new department . And, the
proposal to create the department was in the context of, and thoroughly
intertwined with, the letter writers' request that their own jobs be up-
graded by, inter alia, increased professionalism and remuneration. Ac-
cordingly, while we recognize that in some instances employees ' protests
may lose the Act's protection when those protests relate to management
concerns and have only an attenuated relationship to the employees' own
terms and conditions of employment, we cannot conclude that such is the
case here.
a American Hospital Assn ., 230 NLRB 54 (1977).
7 Vender-Root Co., 237 NLRB 1175, 1177 (1978 ); Patterson-Sargent Co,
115 NLRB 1627, 1629 (1956)
The Respondent argues that the chairman of the board and the presi-
dent of the Respondent 's parent corporation are outside of the Respond-
ent's management and, accordingly , the employees' communication to
them should be evaluated as if made to a third party . We note, however,
that this situation is clearly distinguishable from those cases cited by the
Respondent which involve disparagement of the employer's product to
customers or the public at large . Further, even to the extent that the Re-
spondent's letter might be considered analogous to a third party appeal,
the appeal was clearly tied to the employees ' own working conditions
and, as noted above, manifestly part of an ongoing labor dispute . Cf. Jef-
ferson Broadcasting Co., 94 NLRB 1507, enfd . sub nom . Electrical Workers
Local 1229 v. NLRB, 346 U.S. 464 (1953).
We also find those cases relied on by the judge in support of his con-
clusion to be distinguishable . In Damon House, 270 NLRB 143 (1984), the
General Counsel failed to establish that the employees were discharged
for protected activity because the overwhelming majority of concerns ex-
pressed in the employees ' letter were not directly related to job interests
In Lutheran Social Services of Minnesota, 250 NLRB 35 (1980), the em-
ployees' protests fell outside the protection of the Act because they con-
cerned the quality of the respondent 's care for socially maladjusted chil-
dren rather than matters that would improve the employees ' "lot as em-
ployees." Finally, in New York Chinatown Senior Citizens Coalition, 239
NLRB 614 (1978), the Board found that the "thrust and purpose" of the
employees ' activities was to effect a change in the top management of the
employer for reasons not primarily related to their own working condi-
tions.
THE REMEDY
Having found that the Respondent interfered
with, restrained, and coerced Ernie Herwehe, Gary
L. Smith, and James A. Clark in the exercise of
their Section 7 rights by discharging them about 4
September 1984, we shall order that the Respond-
ent cease and desist therefrom and take certain ac-
tions intended to effectuate the policies of the Act.
We shall order the Respondent to offer Ernie Her-
wehe, Gary L. Smith, and James A. Clark immedi-
ate and full reinstatement to their former positions
or, if those positions no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or other rights and privileges previously
enjoyed and to make them whole for any loss of
earnings they may have suffered as a result of their
unlawful discharges, with backpay to be computed
in a manner set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and with interest to be comput-
ed in the manner set forth in Florida Steel Corp.,
231 NLRB 651 (1977).
We shall also add the affirmative requirement
that the Respondent remove from its records any
reference to the unlawful discharges of the discri-
minatees . The Respondent shall also be required to
provide written notice of such removal to the dis-
criminatees , and to inform the discriminatees that
the unlawful conduct will not be used as a basis for
future personnel actions concerning them. See Ster-
ling Sugars, 261 NLRB 472 (1982).
CONCLUSIONS OF LAW
1. Cordura Publications, Inc., d/b/a Mitchell
Manuals, Inc. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. By discharging employees Ernie Herwehe,
Gary L. Smith, and James A. Clark because of
their protected concerted activities, the Respondent
has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Cordura Publications, Inc., d/b/a
Mitchell Manuals, Inc., San Diego, California, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging employees because of their pro-
tected concerted activities.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
MITCHELL MANUALS, INC.
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Ernie Herwehe, Gary L. Smith, and
James A. Clark immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, in the
manner set forth in the remedy section of the deci-
sion.
(b) Remove from its files any reference to the
unlawful discharges of Ernie Herwehe, Gary L.
Smith, and James A. Clark and notify them in writ-
ing that this has been done and that their unlawful
discharges will not be used as a basis for future
personnel actions concerning them.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, time cards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its San Diego, California facility
copies of the attached notice marked "Appendix."8
Copies of the notice, on forms provided by the Re-
gional Director for Region 21, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I agree with the
judge that the Respondent did not violate Section
8(a)(1) by discharging employees Herwehe, Smith,
and Clark for writing a letter on 4 September 1984
to the chairman of the board of the Respondent's
parent company inasmuch as it did not constitute
protected activity.
e If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
233
On 30 and 31 August 1984, a group of the Re-
spondent's collision department employees, includ-
ing Herwehe, Smith, and Clark, met with the Re-
spondent's assistant managing editor Schmidt and
managing editor Yeoman. They discussed among
other items employee morale, wage increases, and
providing employees with business cards and keys.
In the afternoon of 31 August, Herwehe had a
short discussion with Yeoman about the earlier
meetings . Upset with Yeoman's response, Herwehe
signed a note stating that he was sick and went
home. Clark and Smith also left work, saying they
were sick. On 4 September 1984 Herwehe, Smith,
Clark, and a former employee signed and mailed
the following letter to the chairman of the board of
the Respondent's parent company Cordura Compa-
ny.
Dr. Friedman;
Mitchell Manuals Collision Estimating
Guide, "Cordura's mainstay," as reported by
Forbes Magazine; is well thought of in the
automobile industry and has much credibility
at this point.
Because of our combined experience in the
automobile collision field, we the undersigned
are greatly disturbed by the present labor
practices utilized by Mitchell Manuals Colli-
sion Estimating Guide.
In the history of the M.C.E.G., less than 2%
of over 14,000 necessary time studies regard-
ing labor requirements have been attained.
Lack of consideration by management for the
concerns of the industry in which we set
standards has brought about current practices
involving limited, inaccurate labor research.
At present there is only one full time labor
editor. The suppressive actions of present man-
agement in restraining our efforts to bring
about positive change can and will cause seri-
ous repercussions involving manufacturers and
safety standards.
Changes must be made to upgrade and
maintain the "heart" of Cordura's mainstay,
not only for the credibility and future of the
product but also for the industry and public
depending on our expertise.
Because of the individualized characteristics
of a department responsible for the credibility
of our product, a seperate [sic] labor depart-
ment is essential. Using our combined 60 plus
years of actual hands on collision labor and
managerial experience, the labor department
would be able to exist as a seperate [sic] entity
making independent decisions regarding labor
concerns.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order to structure a professional depart-
ment, sufficient budgeting would be required
to encompass:
A. Professional wage standards-Minimum
wage equal to the average of collision spe-
cialists within the industry.
B. Continuance of education and training.
C. Participation in direct factory contact,
seminars, and related autobody functions.
D. Essential department expenses.
An additional requirement for the depart-
ment would be direct departmental interfacing
with MMX in order to maintain a balance
within both systems, which, to this date has
not been accomplished.
After several attemps [sic] at communicating
in a professional manner through the chain of
command with no professional courtesy in
return, we request you review the content of
the above letter with a return response to us
by Friday, September 7, 1984. We hope, with
this letter, we have reached a person with the
authority to make decisions not excuses.
With much concern for the industry and our
product,
Herwehe, Clark, and Smith were subsequently dis-
charged for writing the letter.
Unlike the majority, I do not believe that the
letter was either directly related to the employees'
terms and conditions of employment or any exten-
sion of the matters discussed in the prior meetings
with the Respondent. In fact, none of the topics
mentioned in the 30 and 31 August meetings were
included in the letter. Rather, the letter concerned
itself about the Respondent's organizational struc-
ture. It criticized the Respondent's current labor
research practices as limited and inaccurate. As a
remedy, the letter called for the establishment of a
separate labor department to be manned by Her-
wehe, Clark, and Smith, which would make inde-
pendent decisions regarding labor research. It also
set forth some of the characteristics the new de-
partment should possess . Although, as noted by my
colleagues, the letter mentioned wages, education,
and training, it was in regard to the staffing of the
proposed labor department and not to the terms
and conditions of employment of the collision de-
partment employees. The majority is, therefore,
mistaken when it states that "in the later para-
graphs, the employees essentially tie the asserted
defects in the labor research to what they contend
is the Respondent's poor treatment of collision de-
partment employees." They are also wrong in stat-
ing that the mention of wages in the letter referred
to an issue raised in the August meetings between
the employees and the Respondent. In fact, as
noted above, it was in reference to the establish-
ment of a labor department. If the majority's factu-
al conclusions were correct, I would agree with
them that Herwehe's, Clark's, and Smith's writing
and distribution of the letter was protected.
The letter, however, instead of relating to the
employees' working conditions, was an attempt to
change the Respondent's managerial policies and
organizational structure. Consequently, rather than
being distinguishable , as my colleagues allege in
footnote 7, I find that the cases cited by the judge
to be controlling . In similar circumstances to here,
the Board in Damon House, 270 NLRB 143 (1984),
found that an employee's writing and distributing a
letter attacking management, in which the over-
whelming majority of concerns expressed where
not directly related to job interest, were unprotect-
ed. Similarly, in Lutheran Social Services, 250
NLRB 35, 42 (1980), employees attacked both
management's competency and the quality of the
employer's treatment of emotionally troubled and
socially maladjusted children. The Board adopted
the judge's finding that protests against quality of
the employer's product and "those vested with the
ultimate authority to establish basic managerial
guidelines and philosophy" were not protected.
Further, in New York Chinatown Senior Citizens Co-
alition Center, 239 NLRB 614 fn. 1 (1978), the
Board found that the employer had lawfully dis-
charged three employees because "the thrust and
purpose of their activities was to effect a change in
the top management of their employer." Therefore,
the cases cited by the judge establish that employee
protests, like here, against the employer's product
and management were not protected activity.
The majority's expansion of "protected activity"
to encompass not only protests concerning terms
and conditions of employment but also attempts to
affect ultimate management philosophy and policies
is without precedent. Section 7 protects employees'
rights to engage in legitimate activity which could
improve their lot as employees;' it does not protect
attempts to manage the company by which they
are employed.
Accordingly, inasmuch as Herwehe's, Smith's,
and Clark's 4 September letter consisted of nothing
more than meddling in the Respondent's organiza-
tional structure, and any mention therein of wages
and conditions of employment was part and parcel
of that interference, I conclude that the writing
and the distribution of the letter did not constitute
protected activity.2
1 Eastex Inc. v. NLRB, 437 U S. 556 (1978)
2 Good Samaritan Hospital, 265 NLRB 618 , 626 (1982).
MITCHELL MANUALS, INC.
Consequently, in agreement with the judge, I
would find that the Respondent did not violate
Section 8(a)(1) when it discharged the three em-
ployees, and, accordingly, would dismiss the com-
plaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge employees because of
their protected concerted activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Ernie Herwehe, Gary L. Smith,
and James A. Clark immediate and full reinstate-
ment to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other
rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings
and other benefits resulting from their discharge,
less any net interim earnings, plus interest.
WE WILL remove from our files any reference to
the discharges of Ernie Herwehe, Gary L. Smith,
and James A. Clark, and notify them, in writing,
that this has been done and that evidence of the
unlawful discharges will not be used against them
in any way.
CORDURA PUBLICATIONS, INC., D/B/A
MITCHELL MANUALS, INC.
Robert R. Petering, Esq., for the General Counsel.
Robert W. Bell, Jr., Esq. (Gray, Cary, Ames & Frye), of
San Diego, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This
case was heard in San Diego, California, on 12 and 13
March 1985. The complaint was issued on 9 October
1984,1 pursuant to a charge filed on 5 September and al-
leges the Respondent violated Section 8(a)(1) of the Act
by discharging Ernie Herwehe, Gary L. Smith, and
James A. Clark because they concertedly complained to
the Respondent regarding wages , hours, and working
1 All dates are in 1984 unless stated otherwise
235
conditions. The General Counsel and the Respondent
stipulated that the three employees were discharged for
authoring and distributing a letter which the General
Counsel contends was protected by Section 7 of the Act,
and which the Respondent argues was not protected be-
cause the letter was false, malicious, and unrelated to
protected activity. All parties were afforded full oppor-
tunity to appear, to introduce evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. Briefs were filed by the General Counsel and the
Respondent and have been carefully considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
It is admitted and found that the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent is a wholly owned subsidiary of Los
Angeles-based Cordura Corporation , and is engaged in
the business of publishing and distributing automobile
collision reference manuals used by body shops and in-
surance companies to estimate the cost of repairing auto-
mobiles damaged in collisions. Barry Norden is the Re-
spondent's president, Ken Young is editor-in-chief, Jay
Yeoman is managing editor, Phil Schmidt is assistant
managing editor, and Keitha Seagran is the Respondent's
personnel manager . The alleged discriminatees are co-
ordinating editor Ernie Herwehe and technical editors
James A. Clark and Gary L. Smith. Those three, togeth-
er with Clifford Jim Jr., another technical editor who re-
signed from the Respondent's employ on 31 August,
were the authors of the letter composed on 1 and 2 Sep-
tember, and dated and mailed 4 September, which this
case is all about. There is no dispute regarding events.
On 30 August, Herwehe circulated a memorandum no-
tifying employees in the collision department of a meet-
ing that day at 1 p.m. concerning "overtime." According
to Herwehe, he had noticed a deterioration in the quality
and performance of the people and wanted to find out
what was going on. Besides the three discriminatees,
seven other employees and Assistant Managing Editor
Schmidt attended. Herwehe characterized the meeting as
a "bitch session." Among the items discussed were em-
ployee morale, more pay, and providing employees with
business cards and keys to the premises . Schmidt in-
formed the employees that he would take the matters up
with Managing Editor Yeoman on his return from jury
duty.
The following morning, 31 August, after Schmidt told
Yeoman about the meeting the previous day, a second
meeting was held with the same employees with both
Schmidt and Yeoman present. The same matters were
discussed, during which time Yeoman took notes, and
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting concluded with Yeoman stating that he
would take up the employees ' concerns with the neces-
sary people and report back the following Friday.2
Following the meeting, Herwehe, Clark, Smith, and
Ted Overfield, another collision department employee,
went out together for lunch. Herwehe testified that after
lunch he saw Young go into Yeoman's office, observed
them laughing and joking and, although he could not
hear what was said , surmised they were not taking the
employees' concerns very seriously. After Young left,
Herwehe went in and asked Yeoman what he thought
about the meeting that morning. According to Yeoman,
he questioned Herwehe about what the employees were
trying to accomplish, and was told "higher wages." Al-
though there is some disagreement about precisely what
Yeoman responded, Herwehe told Clark and Smith that
the most they could expect was a 1- or 2-percent raise at
their next review, which was about a year away. Ac-
cording to Herwehe, he returned to his desk but was
"fed up" and "pretty upset" and "just wanted to get
some time to think about it, just get away from it," so he
wrote out a note stating he did not feel well and was
going home, which he left on Schmidt's desk. As he was
leaving, Herwehe told Smith and Clark, and "maybe"
Sheila White and Overfield, that he was sick and was
leaving. Clark, Smith, and Overfield then either left
notes on Schmidt's desk or told him personally that they
were sick and leaving work.
The following day, Herwehe, Clark, Smith, and Clif-
ford Jim, who had resigned from the Respondent's
employ on 31 August, met at Smith's house and decided
to write a letter to Dr. Norman E. Friedman, the chair-
man of the board of Cordura Corporation, the parent
company in Los Angeles.
The letter was completed on Sunday, 2 September,
was signed by the four authors on Tuesday, 4 Septem-
ber, and mailed to Dr. Friedman early that morning by
Clark's wife.3 Copies of the letter were also either
mailed or hand delivered to: Robert G. Sims, president
of the parent Cordura Corporation; George C. Evanoff,
the Respondent's president; John Opelt, the Respondent's
senior vice president of finance; Malcolm Ferrier, the
Respondent's senior vice president; and Barry Norton,
Young, and Yeoman, the president, editorial director and
managing director, respectively, of Mitchell Manuals Di-
vision . The letter reads:
Dr. Friedman;
Mitchell Manuals Collision Estimating Guide,
"Cordura's mainstay," as reported by Forbes Maga-
zine; is well thought of in the automobile industry
and has much credibility at this point.
Because of our combined extensive experience in
the automotive collision field , we the undersigned
are greatly disturbed by the present labor practices
utilized by Mitchell Manuals Collision Estimating
Guide.
H Although Yeoman met again with the employees the following
Friday, the record does not disclose what, if any, action the Respondent
took with respect to the employees' concerns
a Monday, 3 September, was the Labor Day holiday.
In the history of the M.C.E.G., less than 2% of
over 14,000 necessary time studies regarding labor
requirements have been attained . Lack of consider-
ation by management for the concerns of the indus-
try in which we set standards has brought about
current practices involving limited, inaccurate labor
research. At present there is only one full time
labor editor. The suppressive actions of present
management in restraining our efforts to bring about
positive change can and will cause serious repercus-
sions involving manufacturers and safety standards.
Changes must be made to upgrade and maintain
the "heart" of Cordura's mainstay, not only for the
credibility and future of the product but also for the
industry and public depending on our expertise.
Because of the individualized characteristics of a
department responsible for the credibility of our
product , a seperate [sic] labor department is essen-
tial. Using our combined 60 plus years of actual
hands on collision labor and managerial experience,
the labor department would be able to exist as a se-
perate [sic] entity making independent decisions re-
garding labor concerns.
In order to structure a professional department,
sufficient budgeting would be required to encom-
pass:
A. Professional wage standards-Minimum
wage equal to the average of collision specialists
within the industry.
B. Continuance of education and training.
C. Participation in direct factory contact, semi-
nars, and related autobody functions.
D. Essential department expenses.
An additional requirement for the department
would be direct departmental interfacing with
MMX in order to maintain a balance within both
systems, which, to this date has not been accom-
plished.
After several attemps [sic] at communicating in a
professional manner through the chain of command
with no professional courtesy in return, we request
you review the content of the above letter with a
return response to us by Friday, September 7, 1984.
We hope, with this letter, we have reached a person
with the authority to make decisions not excuses.
With much concern for the industry and our
product,
As noted earlier, the parties stipulated that Herwehe,
Clark, and Smith were terminated that morning for au-
thoring and distributing the letter. Smith was told, "You
are being discharged for signing the letter and not fol-
lowing the chain of command." The record also shows
that Yeoman gave Overfield a verbal warning that morn-
ing concerning Friday's unauthorized absence. There is
no evidence to show that Herwehe, Clark, or Smith
either sent or showed a copy of the letter to anyone out-
side the Respondent 's management until 1 October,
during job interviews, when they produced a copy in re-
sponse to a question regarding the reasons for their dis-
charge.
MITCHELL MANUALS, INC.
Discussion
The General Counsel argues that the authoring and
mailing of the 4 September letter to Dr. Friedman in Los
Angeles was concerted activity within the meaning of
Meyers Industries, 268 NLRB 493 (1984), in that it was
"engaged in, with, or on behalf of other employees," and
that it was "protected" because "it is directly related to
concerns about employees ' wages , hours, and working
conditions." It is contended that "the paragraphs con-
taining the employees ' `request' or `demands, ' paragraphs
5, 6, 7, and 8, deal with job-related concerns about a sep-
arate labor department , wages, continuing education and
training, participating in seminars, etc., departmental ex-
penses, liaison within the Mitchell Matix Department and
a response by higher management and are obviously ex-
tensions of the points raised in the 30 and 31 August em-
ployee meetings . These matters clearly fall within the
ambit of, and in fact constitute the `heart' of `protected'
activity." The General Counsel also argues that the first
four paragraphs of the letter "are connected to the di-
rectly job-related subjects in that the authors assert that
the poor quality of the Respondent's product is the result
of its poor treatment of the employees turning out the
product."
The Respondent argues that in order to avoid reprisal
for their unauthorized walkout on 31 August, "after they
believed their demands had been rejected," Herwehe,
Clark, and Smith "sought to drive a wedge between
their immediate supervisors and upper level management.
They knew the letter they authored would be embarrass-
ing and potentially harmful to existing management," as
evidenced by Herwehe's acknowledgement that the
letter would be a concern to local management whom
the men feared would attempt to intercept it before it
reached Dr. Friedman. Distribution of the letter, it is
claimed, is unprotected because (1) it represents an im-
proper attempt to interfere in matters of management
policy outside the purview of Section 7 of the Act; (2) it
dealt with the alleged quality of Mitchell Manuals' prod-
uct vis-a-vis hours, wages, and working conditions; and
(3) the letter was false and written and distributed with
knowledge of such falsity or with reckless disregard for
its truth or falsity, thereby showing a malicious motive
and therefore not protected activity.
It was stipulated that Herwehe, Clark, and Smith were
terminated for composing and mailing the 4 September
letter to Dr. Friedman, and it is clear that these activities
were "concerted." The Act, however, does not protect
all concerted activity. "It is not a violation of the Act to
restrain or coerce an employee because he engages in
concerted activity that is not protected-either, for ex-
ample, because such activity contravenes another section
of the Act or another statute, or because it was not en-
gaged in `for the purpose of collective bargaining or
other mutual aid or protection."' Meyers Industries, supra,
fn. 6. The issue here is whether the writing and distribu-
tion of the letter was "protected" within the meaning of
the "mutual aid or protection" clause of Section 7 of the
Act.
A detailed analysis of the letter is necessary. Para-
graph 1 , making reference to Forbes Magazine, notes
that the estimating guide is "Cordura's mainstay," and
237
refers to its high esteem in the industry. Paragraph 2,
however, recites the writers' concerns regarding the
Company's labor research practices, which in paragraph
3 are characterized as limited and inaccurate due to man-
agement's "suppressive actions" in failing to heed the
writers' efforts to bring about an organizational change,
which will "cause serious repercussions involving manu-
facturers and safety standards." Paragraph 4 calls for
changes to upgrade the company's estimating guide
which will benefit "the industry and public." Paragraph
5 calls for the establishment of a separate labor depart-
ment which, presumably, would be comprised of the
writers and would "exist as a separate entity making in-
dependent decisions" regarding labor research. Para-
graph 6 outlines the writers' thoughts regarding budget
requirements for a separate department. Paragraph 7 pro-
poses "direct departmental interfacing with" Mitchell
Matix. Paragraph 8 alludes to the fact the writers have
not been successful in accomplishing their goal through
local management, and expresses the hope that Dr.
Friedman has authority to make "decisions" instead of
"excuses," presumably resulting in the establishment of
the new department which they will manage. The last
paragraph reiterates the theme of the entire letter, "con-
cern for the industry and our product."
Contrary to the General Counsel, I do not view the 4
September letter as "directly related to concerns about
employees' wages, hours, and working conditions," nor
is it an obvious extension of the matters discussed in the
30 and 31 August employee meetings. In contrast to the
subjects discussed during those meetings-employee
morale, more pay, business cards and keys to the prem-
ises-the 4 September letter omits all references to them.
Further, there is no evidence that the Respondent's labor
research practices, organizational structure, or the prod-
uct were mentioned in those meetings. Rather, the 4 Sep-
tember letter is an attack on the Respondent's manage-
ment and product, with the prediction (or threat) that
Dr. Friedman's failure to consent to the establishment of
a new department manned by the writers "will cause se-
rious repercussions involving manufacturers and safety
standards." Basically , the letter is a complaint against the
integrity of the Respondent's product and the competen-
cy and good faith of local management-vis-a-vis condi-
tions of employment-because of management's failure to
make the organizational changes which the writers pro-
pose. "There is a difference, and a very significant one,
between a concern with conditions of employment-or
matters that traditionally belong in collective-bargaining
agreements-and personal disagreement with an individ-
ual employer that has nothing to do with wages, work
assignments, and things like that." New York Chinatown
Senior Citizens Coalition Center, 239 NLRB 614 at 617
(1978). "Protest against the quality of the product .. .
and of those vested with the ultimate authority to estab-
lish basic managerial guidelines and philosophy is not ac-
tivity which could improve the employees' ` lot as em-
ployees' (Eastex, Incorporated [v. NLRB, 347 U.S. 556
(1978)]); that sort of interest is not encompassed by the
`mutual aid or protection ' clause, as the Board has made
clear in the cases . . . dealing with employee efforts to
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affect 'top management."' Lutheran Social Service of Min-
nesota, 250 NLRB 35 at 42 (1980). Accordingly, I find
that the evidence is insufficient to establish that the con-
tents of the 4 September letter were directly related to
the employees' working conditions, and hence the Gen-
eral Counsel has failed to establish that the alleged discri-
minatees' activities are protected by Section 7 of the Act.
Damon House, 270 NLRB 143 (1984). Had the 4 Septem-
ber letter articulated clearly the matters discussed in the
30 and 31 August meeting, presumably the evidence
would be sufficient to find that the authoring and distri-
bution of it would then have been protected; and pre-
sumably the authors would not have been disciplined
therefor. In this regard, it is noted that the complaint
does not allege, nor does the evidence establish , that any
employees were disciplined for participating in the
August meetings . It is recommended that the complaint
be dismissed.
CONCLUSIONS OF LAW
1. Cordura Publications , Inc., d/b/a Mitchell Manuals,
Inc. is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Respondent has not engaged in the unfair labor
practices alleged in the complaint.
[Recommended Order for dismissal omitted from pub-
lication.]