McDonnell Douglas Corp.

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDonnell Douglas Corporation and Technical Em- ployees of Aerospace Manufacturers. Case 14-CA-5823 December 14, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On April 29, 1971, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceeding, finding that 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. Thereafter, Respondent filed exceptions with a supporting brief to the Trial Examiner's Decision. 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 case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made 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 the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner2 with the following additions and modifications. 1. In adopting the Trial Examiner's conclusions regarding the Masterson incident, we rely particularly on the facts that Masterson was attempting to distribute TEAM literature only in a nonwork area, the parking lot, which was outside the security perimeter, and there is no showing that such conduct interfered in any fashion with the orderly movement of traffic in the parking lot or otherwise interfered with production, discipline, or security. 2. We agree with the Trial Examiner's conclusion, for essentially the reasons on which he relies, that the Respondent's no-distribution and no-solicitation rules, as interpreted and applied in the context of this case, unlawfully interfered with employee rights in violation of Section 8(a)(1) of the Act. We particularly agree that the Respondent has not established sufficient justification for limiting employee exercise of the well-established statutory rights to distribute 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3) We have carefully examined the record and union literature and engage in union solicitation to some vague, undefined, and unexpressed "reasonable" period, or for treating employees at other times as nonemployees. In agreeing with the Trial Examiner in this respect, we do not hold, however, that such employee rights are necessarily unlimited at all times and in all places. As noted by the Trial Examiner, the Respondent is concerned with problems involving security, traffic, and littering. These are unquestionably legitimate concerns and Respondent, in attempting to resolve these problems, seeks to exercise its right to control the use of its own property. As noted, however, a result of Respondent's attempted solution has been an interference with employee efforts to exercise well- established employee rights granted by the Act. In cases such as this, where two well-established rights are in conflict, it is the duty of the Board to seek a solution which results in an "accommodation be- tween the two . . . with as little destruction of the one as is consistent with the maintenance of the other." 3 The Respondent's announced rule is, in our opin- ion, unnecessarily destructive of employee rights because it is so vague that employees cannot know what they may and may not do, and because the rule can be and has once been interpreted so as virtually to preclude the exercise of established employee rights. On the other hand, we believe the Trial Examiner's recommended Order is too broad because it may be interpreted to preclude adoption and promulgation by the Respondent of reasonable rules designed to implement its legitimate concerns. We believe an appropriate accommodation can be achieved between the Respondent's right to control the use of its property and the employees' statutory rights, specifically in this case, their right to distribute union literature and engage in union solicitation on Respondent's premises.4 Such an accommodation would require, in our opinion, that any rules which Respondent may establish governing the use of its property, which infringe upon the employee rights here involved, shall be made known to the employees and be framed in such language that the employees can clearly understand what is expected of them, and shall not infringe upon such rights to any greater extent than is necessitated by Respondent's legitimate interest in such matters as security, traffic, and littering. We shall, accordingly, frame our Order in the light of these considerations. find no basis fof reversing his findings 2 The Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the brief adequately present the issues and the positions of the parties. 3 N.L.R B v The Babcock & Wilcox Company, 351 U S. 105, 112. 4 See Stoddard-Quirk Manufacturing Co, 138 NLRB 615. 194 NLRB No. 75 McDONNELL DOUGLAS CORP. 515 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby Orders that Respondent McDonnell Douglas Corporation, St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist, except as Respondent can establish it is necessary to maintain production, discipline, or security, from: (a) Interfering with the rights of its employees to distribute literature on behalf of Technical Employees of Aerospace Manufacturers, or any other labor organization, on its parking lots during nonworking time. (b) Promulgating, maintaining, and giving effect to any rules which limit its employees' rights to distrib- ute literature on its premises during nonworking time in nonwork areas, or to engage in union solicitation on its premises during `nonworking time unless the limitations imposed on such activity can be justified by Respondent as necessary to maintain production, discipline, or security. (c) In any like or related manner interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Revoke and withdraw its existing no-distribution and no-solicitation rules to the extent that they purport to classify employees as nonemployees for the purpose of applying and enforcing such rules, or infringe upon employee rights with respect to union solicitation or distribution of union literature to any greater extent than Respondent can establish is required in order to maintain production, discipline, or security. (b) Inform its employees that they are free to engage in the distribution of union ' literature in nonwork areas of its premises, during nonworking time, and to engage in union solicitation on its premises, during nonworking time, except to the extent such activities violate published rules justified by considerations of production, discipline, or security. (c) Post at its Lambert Airport plant in St. Louis, Missouri, copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 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. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith.5 MEMBER KENNEDY, concurring in part and dissenting in part: I agree with the conclusion of my colleagues that Respondent, by prohibiting its employee, Boyd Masterson, from distributing union literature on Respondent's parking lot about' half an hour before the commencement of his shift violated Section 8(a)(1) of the Act and that a remedial order is appropriate. Respondent has not challenged the finding of a violation made by the Trial Examiner and, in fact, has conceded the violation; however, it has taken the position that the Masterson incident is no longer in issue in that it has taken steps to avoid the recurrence of a similar incident. I disagree with my colleagues, however, in their conclusion that Respondent's no-distribution and no- solicitation rule interferes with employee rights,in violation of Section 8(a)(1) of the Act. In finding a violation, my colleagues have concluded that (1) Respondent has not established sufficient justifica- tion for limiting°the right of its employees to distribute union literature and engage in union solicitation and (2)' Respondent's announced rule is "unnecessarily destructive of employee rights because it is so vague that employees cannot know what they may and may not do, and because the rule can be and has once been interpreted so as virtually to preclude the exercise ' of established employee rights." The reference of my colleagues to a prior interpretation of the rule is undoubtedly to the Masterson incident. In my opinion, the findings and conclusions of my col- leagues in this regard are based on a faulty and incomplete view of the controlling facts and are erroneous. The Trial Examiner found, with record support, that the Masterson incident occurred on September 17, 1970, Respondent's memorandum which dealt with the subject of distribution of literature and union solicitation was not prepared and distributed until September 21, 1970. Respondent's director of security did not issue and distribute the memorandum to the guards and post it on the guards' bulletin board in the locker room where maintenance and cleanup employ- ees could also see it until September 25, 1970. This memorandum, which was also distributed to various high ranking officers of Respondent, set 'forth 5 In the event that this Order is enforced by a Judgment of a United changed to read "POSTED PURSUANT TO A JUDGMENT OF, THE States Court of Appeals, the words in the notice reading "POSTED BY UNITED STATES COURT OF APPEALS ENFORCING AN ORDER ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be OF THE NATIONAL LABOR RELATIONS BOARD " 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's policy of prohibiting employee distribu- tion of union literature during nonworking time in nonwork areas of Respondent's premises except "for a reasonable time before or after their shifts." Thus, since the Masterson incident preceded the publication of the rule there is no basis for my colleagues' conclusion that the Respondent's rule here under consideration was interpreted to preclude the exercise of protected employee rights. Turning to consideration of the rule on its face, my colleagues agree that Respondent has a right to control the use of its property and that in the instant case Respondent had a legitimate concern with problems involving security, traffic, and littering. They hold, however, that Respondent's attempted solution of these problems by limiting the exercise of employee rights to a "reasonable period" before or after employees' scheduled working hours has result- ed in interference with employee efforts to 'exercise rights guaranteed by the Act. In their Decision and Order here, my colleagues require Respondent to" revoke and withdraw its'existing no-distribution and no-solicitation rule to the extent that it purports to classify employees as nonemployees for the purposes of applying and enforcing such rule or infringes on employee rights with respect to union solicitation or distribution of union literature to any greater extent "than Respondent can establish is required in order to maintain production, discipline, or security." The Decision and Order thus concedes Respondent's right to limit by "published rules justified by considerations of production, discipline, or security" the right of employees to engage in the distribution of union literature in nonwork areas of its premises during nonworking time and to engage in union solicitation on its premises during nonworking time. As is plain from the foregoing, my colleagues, in condemning Respondent's rule on the ground that it is "so vague" and undefined "that employees cannot know what they may and may not do," have committed the very sin they purport to correct by framing their order in the "vague" terms of "published rules justified by considerations of prod- uction, discipline, or security" for they fail to indicate what would constitute justification for such rules or why Respondent's concern with such matters as security, traffic, and littering reflected by its present rule is not "justified." Nor do my colleagues indicate when, to whom, and in what manner Respondent "can establish" that its rules are justified. As I view it, Respondent's rule is a reasonable published regulation supported by legitimate consid- erations. In my opinion Respondent, in limiting the rights of its employees to engage in union solicitation and distribution of union literature, and limiting their presence on the plant premises to a reasonable period of time before or after their scheduled working hours, has shown ample justification therefor. At the St. Louis Lambert Field complex here involved, Respon- dent manufactures aircraft and various types of aerospace vehicles and engages in the performance of other special projects for various governmental agencies. Its plant is guarded by a 7-foot fence topped with three strands of barbwire which defines the outer limits of its property and forms the first line in its security perimeter. Within the outer security perime- ter there is an inner security perimeter formed by the same type of fence and building walls. Respondent's operations are carried on in a great number of buildings scattered over 500 acres. The entire area is divided generally into two large tracts. Respondent there currently employs approximately 31,000 people. Each building is adjacent to parking lots which accommodate in the aggregate approximately 18,000 automobiles. Normally, Respondent's operation has three shifts. There are approximately 25,000 people employed on the first shift, which commences at 7 a.m.; 5,000 more employees on the second shift; and between 800 and 1,000 people employed on the third shift. All employees are required to wear a badge about the size of a playing card, which reflects on its face the employee's picture, department, clock number, and governmental security clearance or classification. Some employees have high security classifications, such as confidential, top secret, intelligence,- or cryptographic. The badge identifies each person as an employee of Respondent and has a surface perforated with computer punchcard type holes which, when inserted into an electrical reader, similar to a timeclock, transmits to a central computer the fact that the employee, by clock number, is in the plant and the time of his entry and departure. There are approximately 20 separate badge categories, and no person enters the inner security perimeter without a badge. A visitor without prior clearance must first obtain a visitor's badge, which is worn at all times, and only then, and if he is being escorted by an appropriate McDonnell Douglas employee, will he be permitted past the interior perimeter checkpoints. As a contractor for the U.S. Department of Defense, Respondent, manufactures .fighter planes and various types of missiles and is responsible for other special projects for various defense agencies. Respondent also undertakes projects for the- National Aeronautics & Space Administration, the Defense Intelligence Agency, the National Security Agency, and various intelligence agencies within the three military service branches. By the nature of its work, Respondent is subject to and is required to comply with the provisions of the Department of Defense Industrial Security Manual. Respondent's security McDONNELL DOUGLAS CORP. 517 problems run the spectrum of espionage, property protection, people control, robbery, vandalism, and others. Approximately every 90 days, Respondent is inspected by the Defense Contract Administrative Services Region to determine whether Respondent is performing in accordance with the regulations pre- scribed in the Department of Defense Industrial Security Manual. Similar inspections are made by the C.I.A., the Defense Intelligence Agency, and the Air Force Intelligence unit. Occasionally, representatives from these agencies will, without advance notice to Respondent, attempt to penetrate the security perime- ter to Respondent's facility to test the effectiveness of the security measures taken by Respondent. Respondent disseminated, on September 25, 1970, to its guards and on September 21, 1970, to its supervisory personnel, memoranda concerning the permissible limits of solicitation and distribution of literature on the premises of its Lambert Field facility. In order to control the access which employees had to sensitive areas and materials, as well as for the security of, all property located on Respondent's premises, and to provide for general orderliness, Respondent deemed it necessary to treat its employ- ees as nonemployees beyond a reasonable period before and after the shift on which they worked. Respondent's Director of Security Rutherford testi- fied that Respondent's business-manufacture and development of weapons, weapons systems, and special projects for the intelligence gathering agencies of the government-considered in the light of the "present day enviroment" was fraught with security problems. Considered particularly significant were numerous bomb threats, acts of violence, and civil disorders, which were deemed a source of particular concern in terms of the need for Respondent to protect itself against such eventualities. Respondent's Labor Relations Manager Flynn summarized the need for the rule restricting the presence on the plant premises of employees to a reasonable period of time before and after their shift when he credibly testified: ... [T}here is no supervisor around there to supervise people who don't have business in the place. There are areas in the plant where people store tools that are subject to be stolen, there are offices that can be entered, there are almost 6,000 security containers that would be available to people wandering around the plant, the opportuni- ties of mischief, of security violations are absolute- ly unlimited, we cannot have hundreds of people politically campaigning on the second shift or third shift because there is no way that we can control where they are, we don't have a guard to send to everyone, that is basically our problem, people control. Thus, it is plain that Respondent's rule was supported by legitimate considerations. In my view, the rule promulgated by the Respon- dent on September 21, 1970, permits employees a reasonable period of time before and after their shift, i.e., a period of time as may fairly, justly, and reasonably be required, to solicit or distribute union literature in nonwork areas during nonworking times. The rule does not prohibit or restrict the type of conduct engaged in by Masterson, on the afternoon of September 17, 1970, and Respondent so concedes. Most employees of Respondent arrive at the plant within the half hour preceding their shift and depart within the half hour following the conclusion of the shift. The right of the employees to engage in solicitation and distribution is not restricted by the rule during the period of time when contact with fellow employees is most available ; i.e., during shift changes. Thus, I am unable to agree with the Trial Examiner's and my colleagues' conclusions that the rule "obviously unduly inhibits and circumscribes the employees' exercise of their guaranteed rights." Cf. Diamond Shamrock Co. v. N. L. R. B., 443 F.2d 52 (C.A. 3); N. L. R. B. v. Great Atlantic & Pacific Tea Company, 277 F.2d 759 (C.A. 5). Since I am of the view that Respondent's rule is not so vague or indefinite as to deprive Respondent's employees of the exercise of rights guaranteed and protected by the Act and, in any event, since in my opinion Respondent has shown legitimate considera- tions for the promulgation and publication of the rule, absent evidence of discriminatory application or implementation, I would not find the rule unlawful. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, except as it is necessary to maintain production, discipline, or security, inter- fere with the rights of our employees to distribute literature on behalf of Technical Employees of Aerospace Manufacturers, or on behalf of any other labor organization, in our parking lots or in any other nonwork areas of our premises during nonworking time. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL rescind and withdraw our no-distribu- tion and no-solicitation rules to the extent that they purport to classify our employees as nonem- ployees for the purpose of applying and enforcing 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such rules, or infringe unnecessarily upon our employees' rights. All our employees are free to distribute union literature of the type specified in our rules in nonwork areas during nonwork time and to engage in word-of-mouth solicitations in or outside their work areas during nonwork time except to the extent such, activities violate pub- lished rules justified by considerations of prod- uction, discipline, or security. MCDONNELL DOUGLAS CORPORATION (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 directed to the Board's Office, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4174. TRIAL EXAMINER'S DECISION observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent McDonnell Douglas, Corporation, a Mary- land corporation, maintains plants in the States of California and Missouri, with its principal office and place of business at Lambert St. Louis Airport in the State of Missouri, herein sometimes called the Lambert Airport plant. Respondent is engaged in the manufacture, sale, and distribution of aircraft, space vehicles, and related prod- ucts. During the year ending March 31, 1970, a representa- tive period, of the products manufactured, sold, and distributed at its Lambert Airport plant, valued in excess of $100 million, products valued in excess of $50,000 were shipped from said plant directly to points located outside the State of Missouri. During the same period Respondent manufactured, sold, and delivered to the United States Government from its Lambert Airport plant, military aircraft, valued in excess of $100 million, which had a substantial impact on the national defense. Upon the above admitted facts, I find, as Respondent also admits in its answer, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on September 18, 1970, by Technical Employees of Aerospace Manufacturers, herein sometimes called TEAM, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 14 (St. Louis, Missouri), issued a complaint, dated November 30, 1970, against McDonnell Douglas Corporation, herein some- times called Respondent. With respect to the unfair labor practices, the complaint alleges in substance that Respon- dent violated Section 8(a)(1) of the Act by prohibiting an employee from distributing union literature on its. parking lot and by a no-solicitation and no-distribution rule which Respondent promulgated, maintained, and gave effect to. In its duly filed answer, Respondent denies all unfair labor practice allegations as well as the allegation that TEAM is a labor organization within the meaning of the Act. This case was tried before me at St. Louis, Missouri, on February 25, 1971. All parties appeared and were afforded full opportunity to and did participate in the trial. On April 12, 1971, the General Counsel and Respondent filed briefs which I have fully considered. For the reasons hereinafter indicated, I find that Respondent violated Section '8(a)(1) of the Act as alleged in the complaint. Upon the entire record in the case,' and from my II. THE LABOR ORGANIZATION INVOLVED Witness Herman C. Carl testified that he is president of TEAM, and that TEAM is an organization which seeks to represent Respondent's employees in labor disputes involving wages, hours, and other conditions of employ- ment and which has Respondent's employees as its members. He further testified that TEAM was one of the labor organizations whose name appeared on an NLRB ballot in elections to determine the bargaining representa- tive for Respondent's employees in 1968. Boyd Masterson testified that he is an employee of Respondent and the vice president of TEAM and that he distributed TEAM organizational literature to other employees on Respon- dent's parking lot on September 17, 1970. He further testified that he has been continuously active on its behalf and has,been working at its headquarters from time to time. Although by its answer Respondent raised the issue of whether TEAM was a labor organization within the meaning of the Act, it now has presumably abandoned its position in this respect as its brief no longer mentions this as an issue in the case. In any event, the undisputed testimony hereinabove set forth demonstrates, as I find, that Technical Employees of Aerospace Manufacturers, herein called TEAM, clearly meets the requirements for a labor organization set forth in Section 2(5) of the Act. 1 I hereby note and correct the following inadvertent errors in the "rates" is corrected to read "ratio", on line I of page 228, the name typewritten transcript of the testimony- On line 24 of page 45, the word "Stevens" is changed to "Burke"; and on line 16 of page 228, the word "talked" is corrected to read "walked"; on line 20 of page 215, the word `,complying" is changed to read "relying." Mc DONNELL DOUGLAS CORP. 519 III. THE UNFAIR LABOR PRACTICES A. The Issues The issues litigated in this trial are whether Respondent violated Section 8(a)(1) of the Act by its conduct in the following two specific respects: (1) by prohibiting an employee from distributing union literature on Respon- dent's parking lot about a half hour before the commence- ment of his shift, and (2) by promulgating, maintaining, and giving effect to a rule which prohibited employees, after the expiration of a "reasonable period" before or after their scheduled working hours, from distributing union literature in nonwork areas during nonworking time and from soliciting union membership during nonworking time (emphasis added). Respondent admits the foregoing conduct. As to the first respect above mentioned, it contends that Respondent erroneously prohibited said distribution and that therefore an isolated incident of this kind should not be found to constitute a violation of the Act or require a remedial order. As to the second respect, Respondent ' contends that, under the circumstances disclosed by this record, the prohibitions in its no- distribution and no-solicitation rule are warranted and do not unlawfully interfere with its employees' statutory right to engage in self-organizational activities. B. The Faets2 1. The Masterson incident - Boyd Masterson, an employee of Respondent and vice president of TEAM, was scheduled to start his shift at Respondent's plant at 4 p.m. on September 17, 1970. Between 3 and 3 :30 that afternoon, Masterson parked his car on parking lot 18 and approached Gate 101-D. There is no guard at the entrance to parking lot 18, but in order to get from the parking lot into Respondent's buildings it is necessary to pass by a uniformed security guard stationed at Gate 101-D. When he arrived at Gate 101 -D, he began passing out TEAM literature to employees arriving on the parking lot for the 4 p.m. shift. As soon as he began passing out the literature, Buchanon, one of Respondent's uni- formed security guards , approached him and told him that he could not distribute literature there. Masterson, who was still in the parking lot outside Gate 101-D, protested and claimed that he had a right to hand out such literature. Buchanon admittedly stated that he had a directive not to let any literature be distributed. When Masterson contin- ued to hand out the literature, a marked patrol car with Guard Herring and a third person arrived in response to a telephone call made by Buchanon. Herring told Masterson that he could not pass out the literature. In response to Herring's request, Masterson showed his identification badge containing his number and picture, told his department and shift, and gave him a copy of the literature which he was distributing, Herring also wanted to know if anyone else was distributing this literature at any of the 2 Unless otherwise indicated, the findings in this section are based on testimony and exhibits which are admitted or undisputed. 3 Masterson and Buchanon were the only witnesses who testified to this incident The above findings are based on the credited testimony of Masterson and some admissions by Buchanon. I do not credit Buchanon's other gates, stating that he would like to go and stop them. Masterson continued to pass out copies of the literature, although the guards remonstrated with him, and did not stop his distribution until Herring physically interfered with him. As it was now about 3:40 p.m., Masterson returned the literature to his car and was then checked through Gate 101-D by Buchanon to go to work on his 4 p.m. shift ,3 2. The no-distribution no-solicitation rule Warren Flynn, Respondent's manager of labor relations, with the assistance and advice of Ivan Rutherford, Respondent's director of security, prepared and on September 21, 1970, distributed to Respondent's supervi- sors a memorandum which dealt with the subject of distribution of literature and solicitation. This memoran- dum prohibits "non-employees" from distributing literature or from engaging in solicitation "anywhere on Company premises at any time." In addition, a footnote to the memorandum provides as to both distribution and solicitation that: Employees are not allowed on Company premises except during their scheduled working hours and a reasonable period before and after those hours. At other times, they are to be treated as non-employees. [Emphasis supplied.] On September 25, 1970, Richard McConnell, Respon- dent's then chief of security force, after consultation with and approval of Director of Security Rutherford, issued and distributed a memorandum to the guards and posted it on the guard bulletin board in the locker room where maintenance and cleanup employees could also see it. This memorandum, which was also distributed to various high ranking officers of Respondent, sets forth Respondent's policy of prohibiting employee distribution of union literature during nonworking time in nonwork areas of Respondent's premises except "for a reasonable time before or after their shifts." When called as a witness by the General Counsel in the presentation of his case, Flynn was asked by the General Counsel on redirect examination who would determine what constitutes the "reasonable period" referred to in the footnote to the September 21 memorandum and in the September 25 memorandum. Flynn testified, "I think that the determination would have to be made on an ad hoc basis" and that "it would probably be bucked up to me someplace along the line." When called as a witness by Respondent in the presentation of its case, Flynn was asked by Respondent's counsel what would be a reasonable time in Respondent's cafeterias before and after the employees' shift. Flynn testified, "I would think that a half hour should take care of anyone's reasonable needs for eating." Flynn further pointed out that "there is a wage and hour restriction about people not ringing in more than 29 minutes or some such figure immediately prior to their starting time." However, on cross-examination he testified that the employees can go into the cafeterias without testimony that he did not speak to Masterson before the patrol car arrived. Nor do I deem it necessary to resolve the conflict in testimony as to whether Masterson was passing out some literature from his car before parking because that admittedly was not the reason why Masterson was prohibited from distributing literature near the gate on that occasion 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ringing in although the cafeterias are located "inside of the security perimeter." Respondent's director of security, Rutherford, who admitted having had a hand in framing the objectionable footnotes in the September25 memoran- dum, testified that he "would consider about 1 hour as a reasonable' time before and after" the shift in the context in which the term is used in said footnotes. He explained as the reason for his considering 1 hour to be a reasonable period that "this is normally what we run into, people coming in to work early to have their breakfast or the time that it takes them to get off the parking lot, either due to traffic conditions or vehicle conditions and to get from their work place to their parking place and off of the premises." C. Contentions and Conclusions 1. As to the Masterson incident Respondent's manager of labor relations, Flynn, admit- ted that Respondent's rules in question do not prohibit the solicitation and distribution of the kind engaged in by Masterson on September 17, 1970, and that the action of Respondent's guards in stopping Masterson's distribution was in error. Respondent contends in its brief that the Masterson incident is no longer in issue in view of Flynn's above-stated admissions; that, as this was the only incident of this nature which had been brought to Flynn's attention, the issuance of the memoranda of September 21 and 25, 1970, "have avoided recurrence of similar incidents"; and that "under all the circumstances the prompt curative action taken by Respondent has obviated the need for a punitive finding and order with respect to the Masterson incident." However, although Flynn admittedly was aware of the Masterson incident before the issuance of the above memoranda, neither he nor any other management representative ever informed Masterson that the prohib- ition upon his distributing the literature on September 17, 1970, was erroneous or advised him of his rights to distribute literature on Respondent's parking lots. Moreo- ver, as Rutherford admitted, employees have never been informed of what constitutes the "reasonable period" within which such distribution may be made under Respondent's rules. Under all the circumstances, I agree with the General Counsel that a finding of a violation is warranted and that a remedy is necessary to inform the employees of their right to distribute union literature and that Respondent will accord them that right. Accordingly, I find that by prohibiting Masterson from distributing union literature on its parking lot on September 17, 1970, Respondent interfered with, restrained, and coerced him in the exercise of his rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1). 2. As to the no-distribution no-solicitation rules The United States Supreme Court has held in two landmark cases that, absent unusual circumstances, an employer may not, without violating the Act, forbid employees from (1) distributing union literature on its parking lot in their nonworking time and (2) engaging in union solicitation in the plant in their nonworking time.4 Thereafter, the Board has held that a rule forbidding employee distribution of union literature in nonwork areas during nonworking time is presumptively invalid and that a rule forbidding union solicitation by employees in their nonworking time is also presumptively invalid even though limited to working areas.5 The General Counsel contends that on the basis of the above authorities Respondent's no-solicitation and no- distribution rules unduly limit, and therefore constitute an illegal interference with, the rights of its employees to engage in union organizational activity insofar as they, by their footnotes, put employees in the class of nonemployees for the purposes of union distribution and solicitation when they remain on the premises more than a reasonable time before or after their scheduled work shift. On the other hand, Respondent contends, as witnesses Flynn and Rutherford testified, that the objectionable part of the rules are necessary in order for Respondent to comply with the security restrictions imposed on it by the United States Government because of the nature of its business and that "the severe security restrictions on the operation of Respondent's business constitute unusual circumstances of such a degree as to justify the alleged interference with the employees' rights." Respondent contends, as Rutherford testified, that the objectionable parts of the rules are required by certain specific sections and provisions of the "Industrial Security Manual For Safeguarding Classified Information." Howev- er, there is nothing in these sections and provisions which state that employees should be classified as nonemployees after a reasonable time before or after their scheduled work shift. Nor has Respondent demonstrated that such a classification is the only way in which it can fulfill the security restrictions set forth in these sections and provisions or even that the absence of such a classification would constitute a real and serious threat to proper compliance with the security requirements. It appears that Respondent is most concerned about traffic problems of the employees coming and leaving the premises, littering, the safe keeping of military secrets and proprietory secrets belonging to Respondent, and damage to Respondent's property. Respondent's premises, includ- ing the parking lots, are surrounded by several fences. The outside fence can be entered during most of the day by any stranger who can drive onto the parking area. However, in order to get into a secured area behind the second fence, it is necessary for the stranger to be cleared for entry by a uniformed guard. This is also true of employees who have to submit to a badge check at this point. At night the exterior fences are closed but for one open point where guards check to see that the persons entering the premises are employees. Respondent operates seven cafeterias on its premises and it is common for employees to come in early and to have breakfast before ringing in and beginning their work. Nonwork areas in the buildings include cafeterias, vending machine areas, smoke areas, aisles, and lounges. 4 N L R B v Le Tourneau Company of Georgia and Republic Aviation 5 Stoddard-Quirk Manufacturing Company, 138 NLRB 615. Corp. v. N L R B, 324 U S. 793. Mc DONNELL DOUGLAS CORP. 521 Employees arriving early are permitted to come into Respondent's building, read newspapers, get breakfast, or sit in their work-areas before ringing in and commencing work. Rutherford testified that he would not be concerned if employees came in 1 hour and 15 minutes early and went to a smoke area or snack area. There-are vending machines on Respondent's premises which are serviced by unescorted persons who are supposed to confine themselves to the areas they are servicing and to the aisles leading to those areas. Respondent also sponsors schools for employees and encourages them to attend school on Respondent's premises after working hours. Respondent's director of labor relations, Flynn, admitted that the only security problem on the parking lots per se relates to the traffic problem of getting people onto or out of Respondent's premises as rapdily as possible. Respon- dent normally operates three shifts, with approximately 25,000 employees on the first shift which commences at 7 a.m., 5,000 employees on the second shift, and between 800 and 1,000 on the third shift. Because of the traffic problems, shift starting times are staggered in the various buildings and employees even in the same buildings start work at different times, for example at 7, 7:30, and 8:15 a.m. Respondent adduced no evidence to show that union solicitations or distributions on its parking lots by employees standing near the gates through which employ- ees enter or leave the parking lots to go into and from the secured areas where they work, as in Masterson's case, would in any way hamper or affect the flow of traffic or result in intolerable litter. Nor was any evidence adduced to show that littering has ever been a problem. Moreover, the rules in issue are directed, not to littering, but to the time in which organizational activities may take place. And Respondent has failed to substantiate a valid reason which would justify a rule limiting the time in which employees may engage in union solicitation and distribution on its parking lots. The main burden of Respondent's defense seems to be based on its asserted security problem. Respondent has a security force of approximately 350 uniformed guards under the supervision of Director of Security Rutherford. In addition Respondent's supervisors are also charged with enforcing security and will challenge employees whom they see in areas of the building in which they do not belong. Employees cannot enter secured areas without submitting to a badge check. Despite its asserted fear that its security would be compromised if there were no time limitation on employee union solicitation and distribution, Respondent has in the past permitted and even encouraged, without any time limitation, employee solicitation on its.premises during both working and nonworking hours and in working and nonworking areas of nonunion items such as for the purpose of Yugoslavian hams and for donations to political parties and to, charities. Respondent has cafeterias, smoking areas, and vending machine areas and aisles, all of which are admittedly considered to be nonwork areas. As previously noted, employees are permitted to enter Respondent's premises, after passing a badge check, for the purpose of having breakfast, for the purpose of going in and reading newspapers, and for other purposes. Indeed, even nonemployees, such as suppliers for the vending machines, are permitted to go on the premises unescorted but are expected to remain in the nonworking areas . It would seem that Respondent's own employees should be accorded the same privilege when they are seeking to exercise rights guaranteed by the Act. Respondent contends that, as there are fewer supervisors on the second and third shifts, there is more danger of a security breach at that time and therefore employees should not be permitted in the plant to engage in union solicitation or distribution unless they are working on those shifts. However, that is no answer to the question of why employees at any shift could not be permitted to remain in the cafeterias or any other nonsecurity areas which could be designated by Respondent. Respondent further contends that its rules are not unduly restrictive as they do not entirely prohibit union solicitation and distribution, that they merely specify that such activity "be confined to a reasonable period before and after the shift on which the employee works," and that therefore they do not "unreasonably compromise employee rights." However, Respondent's own officials could not agree on what constitutes a "reasonable period." Thus Flynn testified that he thought "the determination would have to be made on an ad hoc basis" and that he thought a half hour would be a reasonable period. On the other hand, Rutherford testified that he thought about 1 hour would be a "reasonable period" based upon his estimate that this is the time it normally takes for employees who come in early to have their breakfast before their shift and for employees to wash up, leave their work areas, and to get off the parking lot after their shift. Judged by Rutherford's own estimate, the rules allow no time for organizational purposes and Flynn's estimate of one half hour is clearly prohibitive. Furthermore, the record shows that some of Respondent's parking lots are open at 5:30 a.m., others at 6 a.m., and others at 7 a.m., and that the employees in buildings 102-104 do not start work until 7:30 a.m. Applying Respondent's rule of limiting a "reasonable period" to 1 hour, an employee whose shift begins at 7:30 a.m. is barred from engaging in union solicitation or distribution on the parking lots which are open before 6:30 a.m. None of Respondent's evidence affords any reasona- ble justification for prohibiting such an employee from soliciting and handing out literature on the parking lots which open between 5 :30 and 7 :30 a.m. Moreover, as the employees admittedly were never informed of what Respondent regards as a "reasonable period," they would be acting at their peril if they engaged in organizational activity during a time which Respondent later determined did not constitute a "reasonable period." Such a standard obviously unduly inhibits and circumscribes the employees' exercise of their guaranteed rights . Respondent has in the past afforded much greater opportunities and wider latitude for solicitation on its premises both during working and. nonworking -hours and in -working and nonworking areas where the solicitation was not connected with union activities, as previously noted. Without attempting to minimize Respondent's traffic and security problems, I find that Respondent has not sustained its burden of proving the existence of the unusual circumstances necessary to rebut the presumption of the invalidity of, and thereby justify, its rules which restrict the 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD full exercise by their employees of their guaranteed rights to engage in the distribution of union literature in nonworking areas at any time and to engage in union solicitation during nonworking tune at any time or place on Respondent's premises while its plant is in operation. I therefore find that by promulgating, maintaining, and giving effect to its no- distribution and no-solicitation rules, Respondent inter- fered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By promulgating, maintaining, and giving effect to its no-distribution and no-solicitation rules which prohibit its employees, except during a reasonable period before or after their scheduled working hours, from distributing union literature in nonwork areas during nonworking time and from soliciting union membership during nonworking time, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(I) 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. The activities of the Respondent set forth in section III, above, occurring in connection with the business operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce between the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Technical Employees of Aerospace Manufacturers, herein called TEAM, is a labor organization within the meaning of Section 2(5) of the Act. 2. By prohibiting an employee from distributing TEAM literature on its parking lot during nonworking time, THE REMEDY Having found that 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. I will recommend that Respondent revoke and withdraw its no-distribution and no-solicitation rules to the extent that they prohibit the specified organizational activity after the expiration of a "reasonable period" before or after their scheduled working hours and classify employees as nonemployees for that purpose, and inform the employees of their right to engage in such organizational activity without the aforestated time limitation. [Recommended Order omitted from publication.]