Magna Visual

National Labor Relations Board - Board DecisionsSep 3, 1974

213 N.L.R.B. 162 (N.L.R.B. 1974)

162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Magna Visual and Irene VanDeVen . Case 14- CA-7634 September 3, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY. AND PENELLO choice of a supervisor. The case was tried in St. Louis, Missouri, on January 17-18, 1974. General Counsel and the Respondent have filed briefs. Upon the entire record of the case, including my observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT On May 20, 1974, Administrative Law Judge Her- zel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The, Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Magna Visual, St. Louis, Missouri, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 We hereby deny Respondent 's request for oral argument , as the record, including the briefs , adequately presents the issues and the positions of the parties. DECISION HERZEL H. E. PLAINE, Administrative Law Judge: The question presented is whether Respondent, a manufacturer of magnetic plastic and magnetic plastic products, violated Section 8(a)(l) of the National Labor Relations Act (the Act), (1) by discharging seven employees who engaged in a work stoppage on October 22, 1973, to protest, and obtain a meeting with top management for improvement of, work- ing conditions; and (2) by an alleged threat to close the plant if employees formed a union and creation of impres- sion Respondent was spying on employee union activities. The complaint was filed November 29, 1973, on a charge by one of the discharged employees filed October 24, 1973, amended November 29, 1973. Respondent's answer was a general denial. At trial, while conceding the discharge of the seven employees, Respon- dent contended that their work stoppage was not protected activity, claiming that it related to employee interest in the 1. JURISDICTION Respondent is a corporation authorized to do business under the laws of Missouri, with its principal office and plant in St. Louis, where it is engaged in manufacture and nonretail sale and distribution of magnetic plastic and mag- netic plastic products. In the calendar year 1972, a representative period, Re- spondent purchased and received at the St. Louis plant goods and materials valued in excess of $50,000, delivered directly from points outside Missouri. Respondent is, as the parties admit, engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. 11. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations According to its vice president for sales, Eugene Redding- ton, Respondent manufactures, molds, and extrudes mag- netic plastic in several lines of products, such as material for vehicle signs, novelty items like magnetic noteholders, and control boards for a chart system. The production involves several processes, including ma- chining, molding, assembly, alphabetizing (the so-called fonts department, where letters and numbers are grouped on cards, covered with plastic, and placed on magnetic boards), painting, inspection, and packing, performed by about 50 employees operating in a large single-room pro- duction area (testimony of employees VanDeVen, Fedder- sen, and others). Respondent operates two shifts, the day shift starting (for most of the shift) at 7 a.m., the night shift starting at 3:30 p.m. In the case of the molding department employees and several others, the employees start an hour earlier at 6 a.m. for the day shift and at 2:30 p.m. for the night shift, accord- ing to Plant Manager Davis. Respondent's officers were Robert L. Singer, president; Phil Cady, executive vice president and secretary-treasurer; and Eugene C. Reddington, vice president for sales. The plant manager, in charge of plant and personnel, according to Vice President Cady, was Robert Davis. Cady said that Vice President Reddington had no operating au- thority in the plant, but the testimony of Plant Manager Davis and of Reddington himself indicated that Reddington's duties required that he spend time in the shop and that he exercised certain plant operation responsibility, dealing particularly with lead people in the various depart- ments and giving directions on such matters as priorities of orders, paint colors, and quality control suggestions. Signifi- cantly, Reddington (along with Cady and Davis) took part MAGNA VISUAL 163 in the management decision to discharge the employees who engaged in the work stoppage of October 22, 1973. Under Plant Manager Davis was General Foreman Ron- ald (Bill) Chronister, until he quit his job on October 19, 1973. Chronister was supervisor of the day shift operation and was also the superior of the night shift foreman J. Kenneth (Kenny) Sims, at such times as Chronister was present on the night shift or when Sims hours overlapped into the day shift. The various departments were in the immediate charge of "lead persons." Whether or not they enjoyed or exercised supervisory authority outside their departments was not ex- plored on this record (nor was it necessary to the decision), but the apparent claim of such authority over shop employ- ees outside her department by one of the lead persons, Wanda Roderick, of the inspection and quality control de- partment, without management publication or other notice to employees, became a matter of chagrin to Foreman Chronister. Chronister testified that in the control of quality in the paint shop, which he supervised, Mrs. Roderick was supposed to work with him but instead took over and did things her way. According to Chronister (and several of the employee witnesses), Ms. Roderick was Plant Manager Da- vis' girl friend, and when a conflict in authority arose, Davis instructed Foreman Chronister to back her up. In his testi- mony, Plant Manager Davis conceded that when Foreman Chronister and lead person Roderick had come to him over a division of management of the paint shop, he had con- cluded there was no need for Roderick to go through Fore- man Chronister.) B. Attempted Union Organization Respondent's employees are not and have not been repre- sented by a union. However, there were two attempts to organize the plant employees, both of which proved unsuc- cessful. Foreman Chronister testified that in November 1972, union representatives began a handbilling campaign. About the same time, said Chronister, Respondent had a slow- down in work and laid off 11 employees, and nothing fur- ther materialized with the union campaign. Chronister testified that he participated in effecting the layoff. In March 1973, according to employee VanDeVen, she sought to interest the union (Allied Painters) in organizing again and brought in union authorization cards for the em- ployees to sign. Employee VanDeVen recruited an in-plant committee, comprising herself and employees Patricia (Pat) Feddersen, Linda Petit, and Rose Cottoner, to obtain em- ployee card signatures for the union. Sometime later, after harrassment of the employee organizers began , said em- ployees VanDeVen and Feddersen, the union notified Re- spondent by letter that the four employees constituted an in-plant committee for union organization. According to 1 Foreman Chronister testified that being overruled by lead person Roder- ick was one of the causes for his resigning . Among employees caught up in this clash of supervisory authority was employee Irene VanDeVen of the paint shop who testified that in connection with a spat over rejection of some of her work in February 1973, she incurred a disciplinary layoff for a week, later changed to a week 's vacation with pay. employees VanDeVen, Feddersen, and Susan Nessel the employee organizers and sympathizers were the object of verbal abuse and harrassment regarding their union objec- tive, particularly by lead person Wanda Roderick. Foreman Chronister testified that Respondent was op- posed to a union in the shop, that he agreed with that position, and that he, Plant Manager Davis, and Ms. Roder- ick talked about and worked closely on the matter of keep- ing the union out. Chronister corroborated testimony of the female employee witnesses that Ms. Roderick clashed with the women employees over the union. Foreman Chronister testified, as did employee Fedder- sen, that Plant Manager Davis hired in as employees (or part-time employees, according to Feddersen) friends who would not sign union authorization cards and deprived the union of any prospect of a favorable vote in an election? In any event, after petitioning for an election on May 25, 1973 (Case 14-RC-7370), the union voluntarily withdrew the pe- tition on June 18, 1973. C. Plant Working Conditions and Employee Complaints Seven of Respondent's employees, including two who were still working at the time of trial and were called by Respondent to testify on other matters, provided evidence of employee dissatisfaction with adverse working condi- tions and of complaints thereon , in some instances long- standing and repeated, that had gone without redress. Employees Susan Nessel, Irene VanDeVen, Patricia Fed- dersen, Tom Stahl, and Nancy Henderson testified to the paint spray or overspray and fumes that emanated from the paint department and affected employees not only of that department but of other departments in the production area . Employees Nessel and Stahl, who worked directly at paint spraying, testified that the spray booth had a waterfall with a fan on top which was supposed to pull the paint laden vapor back and be washed down into a tank, but it did not work that way; instead part of the overspray and fumes were ejected into the work area. Employee Nessel testified to difficulty in working and breathing in the overspray with and without a face mask, and to discoloration of her hair on head and arms. Employee VanDeVen, who worked at roller coating 10 to 12 feet away from the spraying, testified she was obliged to breathe the spray fumes and got it in her hair because the exhaust fan was not working properly to draw the overspray out of the air. She noted an occasion when President Singer and Vice President Reddington came into the shop and observed, vocally, how do you stand the smell of the paint, but walked out without more. Employee Henderson, who worked as a paint sprayer on the night shift at the time of the October 22, 1973, work stoppage (but did not join the strikers and was still employed at time of trial), also testified to the paint overspray on her shift. Employees Nessel, VanDeVen, and Feddersen testified to bringing complaints concerning the paint overspray and fumes to Foreman Chronister and Plant Manager Davis, to 2 Foreman Chronister testified that in the case of one of these part-time employees, Richard Patton , who took a job elsewhere, Chronister had in- structions to ring Patton in on time cards, as though working , to keep him eligible for voting in an election ; and that he, Chronister, Night Foreman Sims, and sometimes Plant Manager Davis rang Patton in as working. 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no avail . Employees Stahl , Henderson , and Elizabeth Rigo- ni (an expediter still employed) confirmed the complaints made by Nessel and others . Foreman Chronister acknowl- edged that there had been many complaints and testified that the paint booth needed more regular cleaning for which , he said , he did not have adequate help. Manager Davis , on the one hand , denied that there were complaints, or enough to report to President Singer or Vice President Cady (noting that Vice President Reddington was aware of shop conditions from being in and out of the shop); but, on the other hand , claimed doing what he could about the complaints , such as providing masks , though explaining to the employees , he said , that while the plant air unit changed the air there would still be fumes in the plant . Both employ- ees Nessel and VanDeVen testified to renewing their com- plaints about the paint fumes in the week prior to the work stoppage. According to employees VanDeVen , Feddersen, and Nessel , Manager Davis had made clear to them on separate occasions that they could not take their complaints beyond him, and when Nessel on one occasion nevertheless at- tempted to complain to Vice President Reddington (who would not listen to her , she said) Manager Davis "chewed" her out for attempting to go above him. Employees Juil Bailey (of the molding department), Stahl , Feddersen , and Nessel testified to oil and grease on the plant floor, particularly in the molding department leak- ing from molding machines ; and employees VanDeVen and Feddersen testified to paint thinner on the floor and to the unprotected pouring of the inflammable paint thinner from large to small containers in areas where employees passed with lighted cigarettes . Employee VanDeVen slipped and fell on paint thinner on the floor and received medical treat- ment, which Plant Manager Davis acknowledged he or- dered . Employee Bailey also testified to grinder dust blown about by a plant fan. Employees Nessel , VanDeVen, Feddersen , Stahl , Bailey, and Henderson variously described stacks of paint buckets, and boxes , barrels , and drying racks for spray painted parts cluttering the plant aisles , like an obstacle course , said Stahl, and creating a fire hazard , said Feddersen. Feddersen noted that time was taken to clean up the aisles, on management directions, only when fire inspectors and insurance men were due ; and thereafter the clutter was allowed to reap- pear . Feddersen and VanDeVen testified to complaints about the clutter to Foreman Chronister and to Plant Man- ager Davis (through Chronister and directly), and VanDe- Ven additionally complained , apparently fruitlessly, of the work time lost in obtaining needed paints and materials from the disordered stacks . Plant Manager Davis denied that there ever were such conditions in the plant aisles or on the plant floors , or that there were employee complaints about such , and added that whenever oil got on the floors sawdust was put down and the area was cleaned up. Employee Feddersen , who at the time of the work stop- page was working in the fonts department , testified that she and others used a so-called skin packing machine which, if in order, would work automatically , but being faulty had to be manipulated by hand requiring the application of consid- erable force . According to employee Feddersen , Plant Man- ager Davis was directly aware of the problem with the machine and had seen how she and other employees had to operate the machine manually and, though fixing had been tried unsuccessfully several times , made no attempt to ob- tain its replacement . Feddersen testified (contrary to Davis) that on October 19 , 1973 (her last working day), she and the department lead person , Flo Sutton , complained again to Manager Davis that the machine was "killing" them. Davis had an employee work on it with a ratchet , according to Feddersen , but it was not fixed , and Feddersen again noti- fied Sutton. Employees Nessel and Feddersen claimed that Respon- dent discriminated against women in pay and in work as- signments . Employee Nessel testified that she was doing the same spray painting work as employee Tom Stahl for $1 per hour less pay , and was preparing to protest this individually to Plant Manager Davis on the morning of October 22, 1973, when she became aware of the group protest organiz- ing over the range of working conditions and decided to join in that . Employee Feddersen testified that she had come to Respondent's employment as an experienced molding ma- chine operator able to run any machines Respondent had, but was the only woman machine operator and was gradu- ally cut off from machine operation because she was a woman , she said , and assigned to less remunerative work. She agreed to the cut in pay (from $2 .50 to $2.21 per hour), said employee Feddersen, because she needed the job to support her children and self. Lastly, a number of the employees were concerned about their immediate supervisor and the ability to maintain through immediate supervision some channel of communi- cation for redress of grievances . As discussed under heading A and footnote 1, supra, a conflict of authority and resulting confusion for employees had been developing between Foreman Bill Chronister , the designated immediate supervi- sor of the shop , and lead person Wanda Roderick (of qual- ity control and inspection ) who, by reason of her alleged intimate relationship with the Plant Manager Davis and his backing of her, was increasingly viewed as having become, a "background supervisor ," as employee VanDeVen phrased it, capable of overriding Chronister 's orders. Em- ployee Nessel also testified to being given change orders by lead person Roderick without having been told Roderick was the foreman in charge . Employee Feddersen testified that Foreman Chronister had tried to help the employees with Plant Manager Davis in regard to their complaints about working conditions, and that among themselves the employees expressed concern that they would not receive similar consideration or help if Wanda Roderick became their supervisor , particularly because of her previous open hostility toward those employees (such as Feddersen, Van- DeVen, Petit , Nessel, see heading B, supra) who had es- poused union organization of the shop earlier in the year. The latent concern over the status of their immediate supervisor surfaced on October 19, 1973, when the employ- ees learned that Foreman Chronister had resigned his post that day. D. The Work Stoppage On the night of October 19, 1973, a Friday, seven employ- ees including two lead persons, at the invitation of one of MAGNA VISUAL 165 them, Flo Sutton, gathered at Porta's Tavern, not far from the plant, for a discussion .3 Foreman Chronister, who had resigned that day, was at the tavern that night as was his custom every Friday night. According to Chronister (cor- roborated by employee Henderson, who was Respondent's witness), he did not sit with the employee group or take part in their meeting other than to answer the question why he quit, and to make clear that he had no desire to return. Employee Patricia Feddersen testified that the immediate topic of the group discussion was Foreman Chronister's leaving and the feeling that they were losing a good foreman who tried to help by bringing their problems and the condi- tions at the plant to the attention of Plant Manager Davis. The working conditions were reviewed, including the paint overspray and fumes, obstructions in the aisles, excess oil on the floor, the inoperative skin packing machine, pouring of the inflammable paint thinner in dangerous places, and dis- crimination in pay against women; and there was specula- tion on whether the employees and their problems would get a "fair shake" if Wanda Roderick succeeded Bill Chronister as shop foreman. There was apparent pessimism on this score, in view of Roderick's past performances including harassment of pro-union employees, and the prevalent be- lief that she had a personal hold on Plant Manager Davis as his girl friend. Accordingly there was general agreement, said employee Feddersen, that the employees had to get their problems to the attention of Respondent' s management higher than Plant Manager Davis, that talking to Davis was not enough. There was some discussion of whether to accomplish the purpose by trying again to bring a union into the shop, but this was laid aside, according to employees Feddersen and Henderson because, as Feddersen said, she had been warned by Plant Manager Davis on several occasions be- fore, in the last unsuccessful union campaign, that Vice President Cady would close the plant if the employees per- sisted in bringing in a union. It was decided, said employee Feddersen, that a group of the employees would wait to go to work Monday morning (October 22) until the group could talk to Vice Presidents Cady and Reddington, on the possibility that if a whole group stayed outside the plant there was a good chance that the two company officers would listen to what the employ- ees had to say. (President Singer was not included because there was information that he was out of town.) On Monday morning, October 22, employee Feddersen arrived outside the plant about 5:30 a. m., her regular time for the 6 a.m. start. Employee Cassady, who had also been at the October 19 meeting at Porta's Tavern, arrived at the same time, as did other employees who had not been aware 3 The seven employees were lead persons Flo Sutton and Irene Edwards; employees Patricia Feddersen and Nancy Henderson , who testified concern- ing the meeting ; employee Gordon Cassady, who with Feddersen partici- pated in the work stoppage the following Monday, October 22, and employees John Bailey and Al Eugene . The latter two, after leaving the tavern that night, reported to the plant and apparently were discharged or suspended allegedly for being drunk or creating a disturbance . John Bailey and Al Eugene were therefore no longer employees or were suspended em- ployees on October 22, did not participate in the work stoppage, and are not involved in this case . Likewise , a former employee , Mobbs, who had preced- ed them to the plant that night to settle a grudge over a personal matter with night foreman Sims , was not involved in this case. of that meeting. Employees Feddersen and Cassady ex- plained to them, and to others who came by and asked what was going on, that they (Feddersen and Cassady) were going to wait outside the building for Vice Presidents Cady and Reddington to see if the employees could get a hearing from the company officers on plant problems. The others were invited to join. Employee VanDeVen said she had complaints that had not been listened to and would wait with the others to speak to the management on these mat- ters . Employee Nessel said she would join the group with her grievances. Employees Stahl and Juil Bailey, along with employee Cassady, after discussing some of the problems, checked into the plant and then came back outside to join the protestors. Employee Bailey, a relatively new employee who worked on a molding machine, testified that he had wanted something done about the grinder dust that blew about and into his face but had been reluctant to complain by himself and so decided to join the group. Employee Linda Petit, who worked in the magnetizing and packing department, was the seventh employee who joined the group outside. The waiting group of employees stood on a parking area of the next door neighbor's plant (Midwest Pools) adjacent to Respondent's parking area . They were visible to Respondent's employees who came to work through either parking area or through one of two employee entrances into the plant building that faced the two parking areas, and they were visible from that employee entrance and from plant and office windows facing the parking areas (see Exhibit GC-2). The group was at a considerable distance from the plant entrance facing them, and the combined testimony of all of the witnesses, on both sides of the case, was clear that there was no attempt to block or persuade employees from going to work. Employees who came by the group usually asked what was wrong and, when told that the group was staying out to obtain a meeting with management to voice complaints, either proceeded into work or, in the case of those already identified above, joined the group. A few of the employees who did not join the protesters (employees Bradshaw, Williams, Rigoni) came away with the impression, and so testified, that the complaint of the protesters was not wanting to work for Wanda Roderick and opposition to her becoming supervisor. Employees Feddersen, VanDeVen, and Stahl testified that the possibility of having to work for lead person Wanda Roderick, if she were to be appointed supervisor in place of the departed Forman Chronister, was a problem, but each further testified that Roderick was not the only problem or the only problem they discussed. Employee VanDeVen pointed out that, as they talked, each of the seven waiting employees had complaints about physical working conditions that were largely similar, and, without dwelling on them, mentioned them to each other as a reminder of things to be discussed with Vice Presidents Cady and Reddington. Employee Stahl said the group discussed Wanda Roder- ick, the racks and boxes and other obstacles in the plant floor aisles, oil and grease on the plant floor, the paint overspray and fumes, and other working conditions they wanted corrected. In the case of Wanda Rodericks, said Stahl, the group felt it wanted to inquire if she was to be 166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appointed supervisor but had not as yet reached any deci- sion to try to dissuade Vice President Cady from appointing her. It was as a result of this group discussion early that morning, said Stahl , that the decision was made by the seven employees not to go in to work until they could get an audience with the company officers. Employee Nessel testified that she had been preparing individually to talk to Plant Manager Davis, or to someone over him if she could , about her grievances , particularly the inequality in pay and the paint overspray that had been especially bad in the previous week ; but, on talking to the other employees on the morning of October 22, concluded that as a group they mostly had the same complaints, in- cluding the two that most distressed her and such others as grease on the plant floor and the unprotected pouring of flammable paint thinner . She therefore joined the group, she said, in the belief that as a group they would do better if they presented their grievances together . Employee Nessel said she was not upset on hearing of the loss of Chronister as boss or the possibility that Roderick might succeed him. However, she was concerned with, and wanted to be heard on, Roderick's current usurpation of supervisory authority and the confusion Nessel claimed it caused in her part of the shop. One of the employees who talked with the waiting group of employees on his way into the plant was expediter James Williams . Williams telephoned Plant Manager Davis at home about 6 a.m., according to Davis , telling him to get to the plant , that employees were standing outside, but he didn't know why. Someone also called the police, and four patrol cars appeared and stationed themselves three on the street about the plant and one directly behind the group of employees on the Northwest Pools parking area. Employee Feddersen inquired of one of the police, who informed her there was nothing wrong if the employees didn't stop any- one from entering the plant. The police sat and observed them until the employees left later in the morning. Plant Manager Davis got to the plant after 7 a.m. but went directly to his office. From his office window, he said, he observed six or eight people standing outside whom he recognized as employees but he made no effort to go out and talk to them or to send word to them. He went down to the production room and observed that several machines were not operating. One of the nonworking employee group, Linda Petit, had come into the building to use the restroom facilities. She encountered Plant Manager Davis and they talked. Em- ployee Petit came outside again and reported to her col- leagues (as employees Stahl, Feddersen , and others of the group testified), that she told Davis the employees wanted to talk to someone about working conditions , and that he replied he didn't want to talk to anyone and the employees outside should go home before Vice President Cady arrived or Cady would fire them on the spot. Davis admitted that he had the conversation with employee Petit but said that she only asked what was going on, and he replied he didn't know . On cross-examination Davis admitted making the threat to employee Petit that the employees would be fired if Vice President Cady found them outside , which suggests, along with other discrediting factors relating to Davis' testi- mony, infra, that his version of the conversation was not credible. The employee group outside the plant discussed the mes- sage brought by employee Petit from Plant Manager Davis, according to employee Feddersen and others, and as a re- sult Feddersen went into the plant and talked with Davis. Employees VanDeVen and Stahl noted that by then em- ployee Feddersen had become, by acquiesence and without formal appointment, spokesman for the group. Taking up the message employee Petit had brought back to the nonworking employees, employee Feddersen asked Plant Manager Davis why the employees had to go home. Davis replied, according to Feddersen, that the employees would be fired on the spot if Cady saw them. Feddersen said the employees wanted to talk to Cady about Bill Chronister quitting and about working conditions in the plant. Davis answered, you know my door is open anytime you want to discuss anything. Feddersen replied, we want to talk to the higherups. Plant Manager Davis then said, according to employee Feddersen, that he had heard the employees had been at Porta's Tavern discussing the forming of a union. Fedder- sen denied it. Davis continued, if the employees try to form a union again, Cady will close the plant. Feddersen an- swered, we know that and that was why we decided to come in as a body to talk. Davis said, go home, if you're here when Cady comes in you'll be fired on the spot. Employee Feddersen then asked Plant Manager Davis again if the employees could talk to Cady. According to Feddersen, Davis replied, go home, I'll see what I can ar- range. Feddersen asked, could the employees clock in and work and wait for Cady. Davis answered no, said Fedder- sen, you have to go home. Feddersen said. OK and walked outside to her waiting colleagues to whom she repeated her conversation with Davis (testimony Feddersen, VanDeVen, Stahl, Nessel). In his testimony, Plant Manager Davis said that the con- versation with employee Feddersen consisted of her saying, she wanted to have a meeting to know who is going to be boss, and his reply, I am, as usual; and that nothing else was said by employee Feddersen, and particularly that nothing was said about the employees wanting to see Vice Presidents Cady or Reddington and that nothing was said about plant working conditions. Davis added that he told employee Feddersen to get to work or go home, when Phil Cady gets here your checks will be written out and you will be fired. Davis denied, however, saying anything to Feddersen about being aware of the employees holding a meeting for organiz- ing a union or that Cady would close the plant if a union came in. I do not credit Plant Manager Davis' account over em- ployee Feddersen's account of their meeting and what was said between them, and note, among other contradictions of Davis' account, that although Davis maintained he had re- ceived no request for a meeting of the employees with Vice President Cady, Cady testified (infra) that he knew, from Davis' telling him, that the employees wanted a meeting with him. At about 7:45 a.m. the same morning (Monday, October 22), Vice President Reddington came into the parking area to go into the plant. Employee Feddersen had already re- turned from her meeting with Plant Manager Davis to the MAGNA VISUAL 167 group of employees waiting outside, close to the plant park- ing area. In full sight of the other employees, employee Feddersen approached Reddington but he refused to talk with her. According to Reddington, employee Feddersen, accompanied by employee Petit, asked if the employees could have a meeting with him. He replied, he said, that he had nothing to do with their end of the business, that he was in sales , and that he was not the man to see. Reddington then walked into the building and talked with Plant Manag- er Davis. Following the rebuff by Vice President Reddington, the group of nonworking employees caucused once more and, as employees VanDeVen, Stahl, and Feddersen testified, decided that since Vice President Reddington wouldn't talk with them and Vice President Cady would fire them if still there when he arrived, they had better follow Plant Manager Davis' instructions and go home. At a little after 8 a.m. the nonworking employees left the plant area and went to their homes. E. The Discharges Vice President Cady testified that he arrived at the plant at 8:45 a.m., the morning of October 22, after the group of seven nonworking employees had departed. Plant Manager Davis reported the morning's events, and in a meeting of Vice Presidents Cady and Reddington and Plant Manager Davis it was concluded that the seven employees had en- gaged in an unauthorized work stoppage and had elected to go home rather than work, and they were therefore dis- charged. Cady said the final decision to discharge was his, on recommendation of the others, and both Reddington and Davis testified that they concurred in the decision. The announcement of the decision came later in the afternoon for some and on the following morning for others of the employees. In connection with deciding to discharge the seven em- ployees, Vice President Cady initially testified that he was not told that the group of employees had wanted to meet and talk with him. On cross-examination, Cady changed his testimony to say, he knew, because he had been told by Plant Manager Davis, that the group of seven employees had wanted a meeting with him but that he, Cady, did not know what they wanted or what their complaints were. Though professing to be concerned about any employee's complaint, Cady conceded that he never met with or at- tempted to meet with the seven employees and that he made no attempt to find out why they wanted a meeting with him. This was Plant Manager Davis' responsibility, said Cady, to deal with complaints and set up the meeting, adding that the employees had not afforded Davis the opportunity to set up a meeting. Several hours later, not knowing of the discharge deci- sion, employee Feddersen telephoned Plant Manager Davis and asked if he had set up the meeting of the employees with Cady (as promised Feddersen by Davis earlier in the morn- ing). Davis said, no, because all seven of the employees have been fired. Notification that they were fired was given to the other six employees either by telephone that day or in per- son the next day when those not notified reported for work, according to Davis and the employees. Davis testified that he told the discharged employees he was marking their pa- pers "layoff" to enable them to collect unemployment com- pensation, but made clear that the action was discharge. None of the seven employees has been reinstated or re- called. F. Section 8(a)(1) Findings Protected Concerted Activity Respondent's discharge of the seven employees, who en- gaged in the brief work stoppage on October 22, 1973, as a means to obtain a meeting with, and the attention of, Respondent's officers on correcting unsafe and unhealthful working conditions and related grievances, was a violation of Section 8(a)(1) of the Act. Employees have a legitimate interest in acting concerted- ly to make known their views to management without being discharged for that interest, N. L. R. B. v. Phoenix Mutual Life Insurance Company, 167 F.2d 983, 988 (C.A. 7, 1948), cert. denied 335 U.S. 845. The cohesiveness of concerted activity need be no more than the suggestion of group action, and the existence of a group need not be communicated to man- agement, Hugh H. Wilson Corporation v. N.L.R.B., 414 F.2d 1345, 1349 (C.A. 3, 1969), cert. denied 397 U.S. 935. Even if the employees involved did not formally choose a spokes- man or go together to see management, that fact would not negative concert of action, it being sufficient that the em- ployees involved considered that they had a grievance, ibid, and see N.L.R.B. v. Guernsey-Muskingum Electric Coopera- tive, Inc., 285 F.2d 8, 12 (C.A. 6, 1960). The merit or lack of merit of the grievance does not affect the protection afforded by Section 7 of the employee's right to utter it as a matter of concerted activity with other em- ployees for mutual aid, N.L.R.B. v. The Halsey W. Taylor Co., 342 F.2d 406, 408 (C.A. 6, 1965). Nor does the reason- ableness of the method of protest adopted determine the legality of the concerted activity, N.L.R.B. v. Washington Aluminum Co., 370 U.S. 9, 16-17 (1962); N.L.R.B. v. Solo Cup Company, 237 F.2d 521, 526 (C.A. 8, 1956); Plastilite Corp., 153 NLRB 180, 183-185 (1965), affd. in pertinent part 375 F.2d 343, 349-350 (C.A. 8, 1967).4 Hence, a work stoppage, walkout, or strike by a group of nonrepresented employees to protest unsuitable working conditions is pro- tected concerted activity, without regard to the time of the day it occurs or the inconvenience it may cause, ibid., and see First National Bank of Omaha v. N.L.R.B., supra, and even though the work stoppage occurred without advance notice to, or without a prior demand upon, the employer, Polytech, Incorporated 195 NLRB 695, 696 (1972). If the 4 Contrary to Respondent 's assertion in its brief, the Board with the approv- al of the Eight Circuit, as cited in the text above, has declined to follow the view expressed by the Fifth Circuit in Dobbs Houses v. N.L.R.B., 325 F.2d 531, 535-537 (C.A. 5, 1963), namely, that the use of unreasonable means (in that case, a mass walkout of waitresses at the restaurant 's dinner hour to protest what was believed to be the firing of an esteemed supervisor) deprived the concerted activity of legality . The Board has continued to follow the rationale of the Supreme Court in Washington Aluminum, and of the Eight Circuit in Solo Cup, reiterated by the Eight Circuit (after the Fifth Circuit decision in Dobbs Houses ), in Plastilite, supra, and again in First National Bank of Omaha v. N.L.R.B., 413 F.2d 921, 925 (C.A. 8, 1969). 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work stoppage or walkout is in protest of the loss or selec- tion of a supervisor, or of a leadman, whose performance has an impact on the work and employment of the employ- ees, the concerted action is likewise protected activity, Phoe- nix Mutual, supra; Guernsey-Muskingum, supra: Plastilite, supra; The Colson Corporation v. N.L.R.B., 347 F.2d 128, 139-140 (C.A. 8, 1965), cert. denied 382 U.S. 904; Dobbs Houses, 135 NLRB 885, 888-889 (1962), rev'd on other grounds, 325 F.2d 531, fn. 4, supra, the Fifth Circuit holding, nevertheless, in agreement with the Board, that employee protest over the loss of a sympathetic supervisor was a legiti- mate employee concern and a lawful subject of concerted activity, 325 F.2d at 538-539. In the case at bar, contrary to the assertion of Respon- dent, the employee work stoppage did not relate solely to making known employee ideas on supervision affecting them (although if the work stoppage had had that sole pur- pose, under the facts in this case the purpose was well within the protection of Section 7 of the Act, as analyzed in the above-cited cases). Rather, as suggested by General Counsel, the sudden concern created by the unannounced leaving of sympathet- ic Foreman Chronister, and the possibility that hostile lead person Roderick would succeed him, triggered the employ- ee decision to walk out and obtain the attention of Respondent's officers to the accumulation of neglected grievances (as was similarly the case in Dobbs Houses, supra, see 135 NLRB at 888). The supervision matter was an added problem. The record is clear that the employees shared a common concern, and had complained unavailingly, re- garding a number of potentially unsafe and unhealthful working conditions, such as the paint overspray and fumes in the production area, cluttering of the work aisle with paint buckets, boxes, and drying racks, oil and grease on the floors and unprotected pouring of flammable paint thinner; and some of the employees had complaints on inoperative machinery and discrimination in pay against women. The plant manager's responses had been inaction or, at best, feeble action. At trial, his position was that the conditions did not exist or where they did could not be eliminated, as in the case of the paint fumes. Respondent had no established grievance procedure for the employees to follow and had apparently put a lid on employee communications to its management that went be- yond the plant manager. While, as already noted above, the merits of the employee complaints, or the reasonableness of the employee action in seeking a management hearing by work stoppage, is not determinative of the legality of their concerted action, it is not amiss to observe that the employee action here did not appear to be unreasonable in the circumstances. Plant Man- ager Davis had failed to respond or responded only feebly to the employee grievances; the loss of sympathetic Fore- man Chronister coupled with the alliance between Davis and the hostile lead person Roderick, who had assumed or been given some shop supervisory authority by Davis, held no promise in the eyes of the employees for a change for the better; there was a lid on employee communications to management beyond Davis; and continuing to deal only with Davis appeared futile. Shortly after the work stoppage began on the morning of October 22, Respondent's officers Cady and Reddington became fully aware that the striking employees were seeking a meeting with them. Vice President Reddington learned it directly from the strikers; Vice President Cady learned it from Plant Manager Davis, who had sent the strikers home on the threat to their spokesman, Mrs. Feddersen, that they would be fired if they didn't go home and the promise that he would try to arrange a meeting, though refusing to allow them to work while waiting for the meeting. Neither Cady nor Reddington were interested in hearing directly from the employees. On the contrary they chose to fire them for ceasing to work without permission. The firing of the employees for engaging in protected concerted activity was a violation of Section 8(a)(1) of the Act. Likewise the earlier threat by the plant manager that the employees would be fired for such activity if they did not leave the vicinity was also a violation of Section 8(a)(l). Impression of Surveillance, Threat of Plant Closing On the morning of October 22, 1973, in the meeting be- tween employee spokesman Feddersen and Plant Manager Davis, Davis told her he was aware of the employees' meet- ing on the night of October 19 and aware that the employees had discussed forming a union. Such statement to an em- ployee by a supervisor creates the impression for the em- ployee that his union activities are under the employer's surveillance and is an encroachment, in violation of Section 8(a)(1), on the employee's freedom to engage in union and like activities for mutual aid and protection without inter- ference or restraint, N.L.R.B. v. Great Dane Trailers, Inc., 396 F.2d 769, 770-771 (C.A. 5, 1968); Marine Welding and Repair Works, et a!. v. N. L. R. B., 439 F.2d 395, 398 (C.A. 8, 1971). Continuing in the same conversation, Plant Manager Da- vis told employee Feddersen that if the employees tried to form a union again (they had failed in a previous try earlier in the year), Vice President Cady would close the plant. Such statement by a supervisor to an employee is a threat to the employees of retaliatory action by the employer for employees engaging in union activity, and is a violation of Section 8(a)(1) of the Act. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 619 (1969); N.L.R.B. v. Great Dane Trailers, Inc. supra at 770-771. Conclusions of Law 1. On October 22, 1973, by creating the impression of surveillance of an employees' meeting for union and other concerted activities for mutual aid, and by threatening em- ployees with closing of the plant if they attempted to form a union , Respondent has committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 2. By threatening to discharge and by discharging seven employees on October 22, 1973, because they engaged in protected concerted activities for presenting, protesting, and seeking redress of grievances, Respondent committed unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. MAGNA VISUAL 169 The Remedy It will be recommended that the Respondent (1) cease and desist from its unfair labor practices (2) offer to reinstate employees Patricia Feddersen, Irene VanDeVen, Susan Nessel, Tom Stahl, Juil Bailey, Gordon Cassady, and Linda Petit, with backpay from the time of discharge, October 22, 1973, backpay to be computed on a quarterly basis as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven-Up Bot- tling Company of Miami, 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Car- ey Manufacturing Company v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert. denied 379 U.S. 888 (3) post the notice provided for herein; and because the Respondent violated fundamental employee rights guaran- teed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be further rec- ommended that the Respondent (4) cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.L.R.B. V. Entwistle Mfg. Co. 120 F.2d 532, 536 (C.A. 4, 1941); P. R. Mallory and Co., Inc., v. N.L.R.B., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918; N.L.R.B. v. The Bama Co., 353 F.2d 320, 323-324 (C.A. 5, 1965). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: of earnings incurred by each of them as a result of the discharge on October 22, 1973. (b) Offer to each of the seven said employees immediate and full reinstatement to his or her former job or, if the job no longer exists, to a substantially equivalent position, with- out prejudice to the seniority or other rights and privileges of each. (c) Preserve, and upon request, make available, to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to ascertain the backpay due under the terms of this order. (d) Post in its plant at St. Louis, Missouri, copies of the attached notice marked Appendix." 6 Immediately upon re- ceipt of said notice, on forms to be provided by the Regional Director of Region 14 (St. Louis, Missouri), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be main- tained for a period of sixty consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 6 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ORDERS Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Creating the impression of surveillance of employees' meetings concerned with union or other concerted activities for mutual aid or protection. (b) Threatening employees with closing of the plant if they attempt to form or support a union. (c) Discharge of employees or threat of their discharge because they engage in or support concerted activities for presenting, protesting, or seeking redress of, grievances or for other mutual aid or protection. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make whole employees Patricia Feddersen, Irene VanDeVen, Susan Nessel, Tom Stahl, Juil Bailey, Gordon Cassady, and Linda Petit, in the manner set forth in the section of this decision entitled "The Remedy," for any loss 5 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Order herein shall , as provided in Sec- tion 102 .48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes. 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 having found, after a trail, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT discharge you or threaten to discharge you because you engage in or support concerted em- ployee activities for presenting, protesting, or seeking redress of, grievances or for other mutual aid or protec- tion. WE WILL NOT create the impression that we are spying upon employees' meetings concerned with union or other concerted acitivites for mutual aid or protection. WE WILL NOT threaten you with closing of the plant if you attempt to form or support a union. WE WILL NOT in any other manner interfere with your rights to belong to or be active for a labor union, or to otherwise participate in concerted employee activities protected under the National Labor Relations Act, or to refrain therefrom. Because the Board found that we unlawfully dis- charged employees Patricia Feddersen, Irene VanDe- 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ven, Susan Nessel , Tom Stahl , Juil Bailey, Gordon Cassady , and Linda Petit on October 22 , 1973, WE WILL offer each of them his or her former of like job, and WE WILL give each of them backpay with interest from Oc- tober 22, 1973. MAGNA VISUAL (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material . Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board 's Office , 210 North 12th Boulevard, Room 448, St. Louis , Missouri 63101, Telephone 314-622-4167.