National Steel Corp.

NATIONAL STEEL CORP 401 National Steel Corporation, Great Lakes Steel Divi- sion and United Steelworkers of America, AFL- CIO National Steel Corporation , Great Lakes Steel Division and United Steelworkers of America, AFL-CIO, Petitioner . Cases 7-CA- 6274 and 7-RC-8045 October 28, 1968 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 5, 1968, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Ex- aminer further found that the Respondent's unlawful conduct had interfered with a Board election held on June 28, 1967, and recommended that the election be set aside. Thereafter, the Respondent filed excep- tions to the Trial Examiner's Decision and a support- ing brief,' and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, except as modified below.' ORDER si',n, Ecorse and River Rouge, Michigan, its officers, agents, successors, and assigns shall 1. Cease and desist from: (a) Maintaining or attempting to enforce its rule prohibiting employees, when they are on nonworking time and in nonworking areas of its premises, from distributing union literature on behalf of United Steelworkers of America, AFL-CIO or any labor organizations. (b) In any like or related manner interfering with, restraining, or coercing employees in the exer- cise of their right to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid of protection, or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Notify United Steelworkers of America, AFL-CIO, in writing, that it has rescinded its rule prohibiting employees, when they are on nonworking time and in nonworking areas of its premises, from distributing union literature on behalf of the above- named union, and that its employees may resume such activities. (b) Post at its plants in Ecorse and River Rouge, Michigan, copies of the attached notice marked "Appendix."3 Copies of said notice on forms to be provided by the Regional Director for Region 7, shall, after being duly signed by the Respondent's representative, be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for a period of 60 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. (c) Notify the Regional Director for Region 7, in writing, within 10 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election4 conducted at the Respondent's plants located at Ecorse and Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, National Steel Corporation, Great Lakes Steel Divi- 1The Respondent's request for oral argument is hereby denied, as the record, exceptions, and briefs adequately present the issues and positions of the parties. 2The Board finds it unnecessary to consider Petitioner's remaining exceptions filed in Case 7-RC-8045 on February 9, 1968, in view of its disposition of this consolidated proceeding on other grounds. 31n the event that this Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 7 within 7 days from the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances. Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed. Excelsior Underwear Inc., 156 NLRB 1236. 173 NLRB No. 65 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD River Rouge, Michigan on June 28, 1967, be, and it hereby is, set aside, and that Case 7-RC-8045 be remanded to the Regional Director for Region 7 for the purpose of conducting a new election at such time as he deems that circumstances permit the free choice of a bargaining representative. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our em- ployees that: WE WILL NOT maintain or attempt to enforce any rule prohibiting our employees, when they are on nonworking time and in nonworking areas of our premises, from distributing union literature on behalf of United Steelworkers of America, AFL-CIO, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations,. to join or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL notify United Steelworkers of America, AFL-CIO, in writing, that we have rescinded our rule prohibiting employees, when they are on nonworking time and in nonworking areas of company premises, from distributing union literature on behalf of the above-named union, and that employees may resume such distribution. NATIONAL STEEL CORPORATION, GREAT LAKES STEEL DIVISION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 con- secutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with,its provisions, they may communicate directly with the Board's Regional Office, 500 Book Building, 1249 Washington Boule- vard, Detroit, Michigan 48223, Telephone 313-226-3200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A . RICCI, Trial Examiner : These cases , involving objections to conduct affecting the results of an election and unfair labor practice charges , were heard by the fully desig- nated Trial Examiner at Detroit , Michigan , on April 15 and 16, 1968, on complaint of the General Counsel against National Steel Corporation , Great Lakes Steel Division , herein called the Respondent , or the Company, and upon a report on objections issued by the Regional Director . The charge was filed on September 25, 1967, the complaint issued on January 16, 1968, and the Regional Director's report is dated December 19, 1967. The two cases were consolidated for hearing . The sole issue to be decided is whether the Respon- dent violated Section 8(a)(1) of the Act . Briefs were filed after the close of the hearing by the General Counsel and the Respondent. Upon the entire record, and from my observation of the witnesses, 1 make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, is engaged in the manufacture, processing, sale and distribution of steel and re- lated products. This proceeding involves its plants located at Ecorse and River Rouge, Michigan. During the calendar year 1967, a representative period, the Respondent purchased and caused to be transported to its Ecorse and River Rouge plants, goods and materials valued in excess of $1,000,000, of which goods and materials valued in excess of $500,000 were transported and delivered to these plants directly from out-of-State sources. During the same period it sold from these plants products valued in excess of $1,000,000, of which an amount valued in excess of $500,000 was shipped directly to locations outside the State of Michigan. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED United Steel workers of America, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES This is a parking lot case. A long-standing rule of the Company prohibits distribution of literature anywhere on its premises, at any time; the ban is applicable to union literature of all kinds. The plant property is very extensive, with employees leaving the public highway and continuing perhaps a quarter of a mile on private company property before reaching the parking lots where they leave their cars. The rule applies as well to the company streets and [the] roads, the passageways leading from the parking lots to the buildings, and the sidewalks in front of the factories and offices. The complaint calls this limitation upon the employees' right to distribute union literature, and to solicit membership thereby, NATIONAL STEEL CORP. in nonworking areas during nonworking time, illegal under the statute, and demands that the Respondent rescind the rule with respect to such activities by its employees. The illegality of the rule is well established. Republic Aviation Corporation v N.L.R.B., 324 U.S. 793. The Respondent advances a number of reasons why the restriction should be permitted to stand in this case. The purported defenses have been repeatedly reiected in the past, and they are again rejected here. A novel argument is based upon the Board's decision in Excelsior Underwear Inc., 156 NLRB 1236. I find that defense equally without merit The facts are not disputed. In the spring of 1967, the Union, through its Local 1299, made a third attempt to organize the office clerical employees, numbering over 550, and stationed in five different locations of the spawling plant premises Employee members of the in-plant organizing committee distributed union literature at two of the parking lots on a number of locations, both before and after May 24, when a consent election agreement was signed. On a number of these occasions, if not all, plant guards, and their officers, told the employees it was prohibited to do this without company permission, ordered them to cease or to remove themselves from the entire premises, and then wrote down their names for reporting to the Industrial Relations Depart- ment. The employees so engaged referred the guards to the Union's agent in charge of the campaign, and continued their distribution activities. The Union never requested or received permission to distribute the leaflets, and no employee was forcibly restrained from the activity. George Watts, organizing representative of Local 1299, credibly testified that after the second occasion that guards took down the names of the employees, he had difficulty recruiting employees to continue the distribution activities. The guards in fact submitted to their superiors written reports of what was going on.i Quite apart from Watts' conclusionary testimony that "some of them were scared," there can be no question but that such orders by the guards for the employees to cease violating company rules of comportment, and the repeated requests for their individual names, had an intimidating, and deterring effect upon the committee members. In its brief the Respon- dent stresses the fact no one has yet been disciplined for violating the rule I deem this fact irrelevant to the question of the legality of the rule itself. The important consideration here is that at the hearing James Barton, vice president of industrial relations, reaffirmed the existence of the rule as voiced by the guards to the employees, and stated unequivocally the Respondent's intention to continue it in effect. This was tantamount to the Respondent's declared intention to con- tinue to prohibit distribution of union literature on its parking lots absent a restraining order from the Board. I find that by maintaining a rule against distribution -f union literature by its employees on the parking lots, and on the street ways and sidewalks of its plant premises, all nonworking areas, the Respondent has restraineu and coerced, iA number of reports so written by the guards were received in evidence, each dated and signed by the individual guard. They prove that the employee distributors were asked for their names, that the names were reported when obtained , that where the guards did not know the identity of the employees they sent out physical descriptions of the men , and that in a number of instances the automobile license plate numbers of the employees so engaged were reported to the front office 403 ant is restraining and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, all in violation of Section 8(a )(1), as alleged in the complaint. Virtually all of the Respondent's defenses are predicated upon the decision of the Third Circuit Court of Appeals in N.L.R.B. v. Rockwell Manufacturing Co., 271 F.2d 109 (1959), which in turn was based upon that Court's interpre- tation of N.L.R.B. v. United Steelworkers of America, 357 U.S. 375.2 And the central pount of the Rockwell decision, now assertedly supporting the Respondent's defense, is the idea that absent a showing by the Government that the union does not have adequate access to employees elsewhere, a parking lot no-solicitation rule cannot be held illegal. Restated in terms of this Respondent's affirmative defense, where it can be shown that the union does have reasonable or fair access to the employees off the company's premises, the employer need not permit distribution of literature on its parking lot. A Fifth Circuit Court decision held likewise Republic Aluminum Company v N.L.R.B., 374 F.2d 183. This decision proved to be a mistake, and was reversed, en bane, in Republic Aluminum Co v. N.L.R.B., 394 F 2d 405 (C.A. 5). See also N.L.R.B. v. United Aircraft Corp., 324 F.2d 129 (C.A 2). In the course of the organizational campaign the Union held employee meetings in its own halls, at locations away from the plant It mailed literature to the workmen's homes on a number of occasions. There was personal solicitation towards membership in other areas of the plant, in the cafeteria, even-in violation of company rules via the in- plant mailing system. There is also some indication, not very clear on the records, that at certain other smaller parking lots in other areas the Respondent may have permitted distribution of union literature. From all this the Respondent argues there was no need for distribution at the major parking lots, and therefore it cannot be said the Company acted improperly in excluding the in-plant committee from these particular non- work areas This contention is no more than an attempt to evade the fixed rule of law that limitations of this kind are presumptively invalid, and that the presumption can only be rebutted by evidence that the purpose of the prohibition is "to maintain production and discipline."3 In a comparable situa- tion the Trial Examiner rejected a company offer to prove, in defense, precisely this sort of easy access to the employees, and the Board sustained the ruling. Minneapolis-Honeywell Regulator Company, 139 NLRB 849, 860. See also Mallory Capacitator Co., 167 NLRB No. 89. There is no evidence here of necessity to insure production, or to guard against improper littering of the parking lot. Barton's conclusionary statement that the rule was established 2In the Rockwell case the court disagreed with the Board 's holding. Trial Examiners are bound by Board law, unless reversed by the Supreme Court. 3The Supreme Court expressly approved the rule in the following language. It is not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline . Republic Aviation Corp., supra. No restriction may be placed on the employees ' right to discuss self-organization among themselves, unless the employer can demon- strate that a restriction is necessary to maintain production or discipline . Babcock and Wilcox Company, 351 U.S.i105. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "because of litter or housekeeping problems that resulted," is totally without evidentuary support. There is an implicit suggestion that all the Union had to do was ask permission and it would have been granted. But the statutory right of employees to carry on proper self-organizational activities cannot await the good graces of the employer. See footnote 1 in the en bane decision in Republic Aluminum, supra. A final argument is that when an employer places in the hands of the union a list of the names and home addresses of all the employees, in compliance with the Excelsior rule, as this Respondent did on June 1, it is relieved of any duty to permit union distribution anywhere on its premises, at any time. The employer's opinion of how much freedom a union should have to organize is one thing; the Board's holding in the Excelsior case is another. It is for the Board, and not for any individual respondent employer, to decide the proper balanc- mg of private property rights against the statutory prerogative of employees to engage in union activities, I find nothing in the Excelsior case suggesting that the list of employee names in a union's hands is a quid pro quo for the privilege of communicating with employees on the parking lots. Had the Board intended so to curtail statutory organizational rights when it obligated employers to supply the names and addresses of its employees, it would have said so. Absent any clear qualification, in the Board's decision, of the now court- approved decisional precedent relating to parking lot cases, there is no warrant for departing from case authority now. IV. THE OBJECTIONS In his report on objections, dated December 19, 1967, the Regional Director sustained an objection of the Umon and Recommended that the election, held on June 28, 1967, be set aside and a new one held The basis for the Regional Director's holding is precisely the existence of the unlawful no-solicita- tion rule. The Respondent filed exceptions to this recommen- dations and finding of the Regional Director Because the maintenance of the no-solicitation rule was in itself restraint and coercion within the meaning of Section 8(a)(1) and because it of necessity thereby interfered with the election, I overrule the Respondent's exceptions to the Regional Direc- tor's recommendation, and now recommend that the result of the election be set aside and a new one held, when, in the opinion of the Regional Director, it becomes timely. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the above findings of facts, and upon the entire record in the case, I make the following- CONCLUSIONS OF LAW 1 The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 The Union is a labor organization as defined in Section 2(5) of the Act 3. By maintaining a rule against distribution of union literature on its parking lots and other nonwork areas of its premises, the Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]