Mitchell Manuals, Inc.

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.]