Before DUFFY, SCHNACKENBERG and KILEY, Circuit Judges.
DUFFY, C. J.: This is a petition to review an order of the National Labor Relations Board (Board).*fn1 In answer to the petition, the Board has requested enforcement of its order.
Petitioner has its plant and place of business in a small community located close to Indianapolis, Indiana. It is engaged in the manufacture of school supplies, including kilns, crayons, chalk and finger paints. For more than fifteen years prior to September 20, 1962, the foreman of the kiln department was Bud Stuard. About September 1, 1962, Stuard became ill. At that time, Jacob Schell was Stuard's assistant, and he acted as foreman in the kiln department during Stuard's illness. Schell changed some of Stuard's practices and procedures. He instructed the employees what kind of kilns to make and directed them to fill the oldest orders before building kilns for stock. Instead of letting the employees of the kiln department work on anything they desired, Schell used a card system by which the employee was given a card each morning, listing the orders and types of kilns upon which he was to work. Under Stuard, the kiln employees had been left "pretty much alone."
Stuard returned to work on Monday, September 17, and asked that Schell continue as foreman until he could catch up with what had been going on in his absence. Schell continued his practice of issuing daily instructions on cards to each employee.
On September 20, 1962, at about 9:30 in the morning, Ed Smither, the plant superintendent, made the decision to change Bud Stuard to foreman of the wheel department (which had previously been a part of the kiln department), and to make Schell foreman of the remainder of the kiln department. This change did not affect Stuard's pay or other benefits.
Although no official announcement had been made of the change, by 10 a.m., a small group of employees led by Henderson Gregory began notifying the other employees of the kiln department that the entire kiln and wheel department were going to walk out "in sympathy for Bud Stuard" who, they though, had been down-graded.
When approached, employee Joe Songer apparently sounded a note of caution. He told employee Bill Convey "that their decision on walking out in sympathy of a foreman was not right and we do not have the right to do that in regards to management," and that "management had the right to hire their supervision. . . ." Songer suggested to Convey that they take more time at noon and talk things over. Apparently this advice was not heeded.
There is no evidence that the employer had any knowledge of any employee dissatisfaction or unrest. The employees who walked out on September 20th had no union affiliation and there is no evidence of any connection between the walkout and any union agitation.
About ten minutes before the noon break on September 20, 1962, Jim Sheads, the assistant plant superintendent, called the men of the kiln department together to inform them of the change of foreman.While making the announcement, Sheads was interrupted by Joe Songer who said that the change was not fair to Bud Stuard, and that if the change in foreman was because the Company wanted more production, then the men wanted more money. There is some evidence that some employees cried out, "That's right, we're with Joe."
There is no evidence that Joe Songer had received any authority from the other employees to speak in their behalf.Nor is there any evidence that the employees of the kiln department had any conversation among themselves or with any one else concerning a request for either higher wages or improved working conditions. At no time during the morning of September 20, 1962, nor at any time immediately prior thereto, had any employee or group of employees approached company officials and requested higher wages or better working conditions.
The employees did not return to the kiln department at the 1 p. m. starting time. Instead, they gathered in the parking lot. A short time later when the walkout was reported to Philpott, the president of petitioner, Sheads informed him that the walkout was due to the change of foreman. After some discussion, Philpott made the decision to discharge all of the employees of the kiln department who had walked out.
All twenty-nine men in the Kiln department were discharged. Subsequently, eighteen of these employees were re-employed. Six of the eleven men not re-employed made application for re-employment. Five of the men, including Joe Songer, never submitted application for re-employment.
The trial examiner found that the change in foreman created the initial impetus for a walkout. However, he found that the employees as a group, acting through Songer, were claiming it was unfair to get more production without paying the men more money.
The Board adopted the Trial Examiner's report and applied the rule of Dobbs Houses, Inc . (1962), 135 NLRB 885, holding a strike over an employer's selection or termination of a supervisor is a protected activity under the Act, if the identity and capabilities of the supervisor involved ...