The Magnavox Co. of Tennessee

MAGNAVOX OF TENNESSEE The Magnavox Company of Tennessee and Interna- tional Union of Electrical, Radio and Machine Workers, AFL-CIO--CLC and its Local 796. Case 10-CA-8555 January 31, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, JENKINS, AND KENNEDY On April 28, 1971 , Trial Examiner Abraham H. Mailer issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief. Respondent also filed a brief in reply to the Charging Party's exceptions. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, ' findings, and conclusions and to adopt his recommended Order as modified below. 1. For many years Respondent has maintained a rule prohibiting the distribution of literature on Respond- ent's parking lots and on other company property. The Trial Examiner further found that this rule was pre- sumptively invalid under the standards declared in Stoddard-Quirk Manufacturing Company and that, as applied to employee distribution of organizational liter- ature in nonworking areas on nonworking time, the rule was not justified by any extraordinary operational or disciplinary needs of Respondent. We affirm these findings. As noted above,' however, Respondent has inter- posed as a defense to the complaint the claim that the Union had contractually waived any objection it might have to the no-distribution rule. In passing on that claim, the Trial Examiner found that the terms of the collective-bargaining contract between the Respondent and the Union made no explicit reference to the no- distribution rule. But, interpreting the contract's terms in light of the historical relationship of the parties, he agreed with the Respondent that the contract implies the Union's acquiescence in the maintenance and en- ' In its exceptions, the Charging Party argues that it was error for the Trial Examiner to permit the Respondent to introduce evidence with respect to its "contractual waiver" claim because the Respondent did not allege such a waiver as an affirmative defense in its answer to the complaint In light of our ultimate decision in this case, we find it unnecessary to pass on this alleged error We note, however, that neither the Union nor the General Counsel claimed surprise at the introduction of this evidence, and that Respondent relied on exhibits introduced by the General Counsel to support its position Therefore, we do not believe the "waiver of defenses" rule applies to Respondent under these circumstances Moreover, as the issue of contractual waiver was fully litigated by all parties, the Trial Examiner's ruling is not prejudicial 138 NLRB 615, 621 See fn 1, supra. 265 forcement of the rule. We arrive at a similar conclusion in light of the following undisputed facts: (1) The con- tract terms expressly reserve to the Respondent broad rulemaking powers; (2) the contract clauses currently describing the reserved management powers have ap- peared in all prior contracts of the parties over the 16-year period of their bargaining relationship; (3) the no-distribution rule, as now maintained, was in exist- ence when the first contract between the parties was negotiated and has been in force continuously ever since; and (4) neither the Union nor the employees have heretofore challenged Respondent's right to maintain and to enforce the rule, but rather have accepted and obeyed its terms. 2. The Trial Examiner made it clear in his Decision that he would have dismissed the complaint were it not for the inhibiting effect the rule might have on those employees who might wish, during the course of the contract's term, to exercise their basic Section 7 right to oust their bargaining representative. But in deference to Gale Products' and its progeny, the Trial Examiner (a) found the alleged violation of Section 8(a)(1) of the Act based on Respondent's maintenance of the rule and (b) recommended, as a remedy, Respondent's rescis- sion of the rule to the extent that it forbids the em- ployees' distribution of organizational literature on be- half of any union other than the present incumbent during nonworking time and in nonworking areas. Respondent, in its exceptions, questions the validity of the Gale Products rule and asks us, in effect, to reexamine that rule in light of its rejection by the Court of Appeals for the Seventh Circuit and the subsequent decisions of the Court of Appeals for the Seventh Cir- cuit., In Gale Products, the Board said, in pertinent part: The validity of a contractual waiver of employee rights must depend ... upon whether the interfer- ence with the employees' statutory rights is so great as to override any legitimate reasons for upholding the waiver. Upon consideration of all the relevant factors, we are persuaded that, in the circumstances of this case, an unlimited contrac- tual prohibition against union solicitation and dis- tribution would unduly hamper the employees in exercising their basic rights under the Act. Their place of work is the one location where em- ployees are brought together on a daily basis. It is the one place where they clearly share common interests and where they traditionally seek to per- suade fellow workers in matters affecting their un- ion organizational life and other matters related to ' Gale Products, Div. of Outboard Marine Corp, 142 NLRB 1246, en- forcement denied 337 F.2d 390 (C A 7). ' Armco Steel Corporation v NL.R.B., 344 F 2d 621; General Motors Corporation v. N.LR.B., 345 F.2d 516. 195 NLRB No. 40 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their status as employees.... [142 NLRB at 1249.] These views have since been approved by the Courts of Appeals for the Fifth and Eighth circuits in cases where basically the same issue was involved.' We have reexamined the Board's holding in Gale Products under the additional light cast thereon by these decisions. We are persuaded that we should ad- here to what was said in Gale Products concerning the consideration to which paramount weight must be ac- corded in resolving issues of the kind before us here. The Board's judgment, as above expressed, appropri- ately envisages, so we believe, the Board's performance of the duty imposed upon it by the Act to protect the basic organizational rights granted to individual em- ployees against encroachment by either employers or unions.' But, given the basic premise of Gale products that an overly broad no-distribution rule hampers the Section 7 rights of individual employees to select a bargaining representative-even though that rule is sanctioned by a union-employer contract-we have difficulty in accepting as valid the two-sided remedy fashioned in Gale Products.I Certainly, we find nothing in the statute to suggest that employees who wish to exercise their Section 7 right to reject a union represent- ative are entitled to more protection than employees who wish to exercise the same Section 7 right to support a union representative. This was pointed out by Court of Appeals for the Sixth Circuit when it reversed the Board's decision in Armco Steel, in which the order was 6 N.L.R.B. v Mid-State Metal Products, Inc., 403 F.2d 702 (C.A 5); International Association of Machinists and Aerospace Workers, District No. 9 [McDonnell Douglas] v N.L.R.B., 415 F 2d 113 (CA 8). ' We do, of course , acknowledge that, although the right to strike is also protected by the statute, the Supreme Court has held that a waiver of that right in a collective-bargaining agreement is, in normal circumstances, bind- ing on the unit employees involved. However, as the Supreme Court further indicated, the binding effect of such a waiver is subject to the proviso, that the "selection of the bargaining representative remains free.. "Mastro Plastics Corp v. N.L.R.B., 350 U S. 270, 280. Analyzing the possible effect of the Supreme Court's decision on the waiver issue here involved, the Court of Appeals for the Fifth Circuit said in the Mid-States Metal Products case, footnote 6, supra, 403 F.2d at 704 The Act "was passed for the primary benefit of the employees as distinguished from the primary benefit to labor unions, and the prohibi- tion of unfair labor practices designed by an employer to prevent the free exercise by employees of their wishes in reference to becoming members of a union was intended by Congress as a grant of rights to the employees rather than a grant of power to the union " The rights to distribute materials and solicit in organizing for collec- tive bargaining are rights of individual employees , relating to their selecting (or choosing not to select) and constantly re-evaluating their collective bargaining agent They are to be distinguished from rights which employees acting in concert, through the collective bargaining agent, may exercise in attempts to achieve economic advantage [Cita- tions omitted ] Member Jenkins has heretofore expressed his disapproval of this aspect of Gale Products in his dissenting opinion in General Motors Corporation, 147 NLRB 509, 514 As set forth hereinafter, Chairman Miller and Member Kennedy agree with Member Jenkin's position. fashioned after that in Gale Products. There the court said: Under Section 9 of the Act, the collective bar- gaining representative was the exclusive represent- ative of all the employees, which included dissi- dent as well as those who were loyal to the incumbent. It was the Board who divided Armco's employees into two classes and held the collective bargaining agreement invalid as to dissident and valid as to loyal employees supporting the repre- sentative. The purpose of the National Labor Re- lations Act is to promote industrial peace. Policy making decisions of the Board favoring employees supporting a rival union over those loyal to the incumbent would seem to us to have the opposite effect. [344 F.2d at 624.] The Eighth Circuit, although enforcing our decision in Machinists v. N.L.R.B., footnote 6, supra, took issue with that part of our order which, out of deference to a bargaining contract's terms, would have subjected employees who chose to support the contracting union to the prohibitions of the no-distribution rule while at the same time exempting dissident employees from such prohibition. The court therefore expressly added to our order language that would insure to all em- ployees equal literature distribution rights "on behalf of any labor organization or in opposition to any labor organization. " (Emphasis supplied.) Upon due reflection, and with all due respect to the adverse decisions of the Courts of Appeals for the Sixth and Seventh Circuits, we believe the course mapped out for us by the decision of the Eighth Circuit in Machin- ists v. N.L.R.B., supra, and earlier suggested by the Fifth Circuit in Mid-States Metal Products, supra, best serves to effectuate the fundamental purposes of Sec- tion 7 of the Act and the rights it guarantees. We therefore feel it appropriate to modify the remedy announced in Gale Products and followed in related cases, insofar as that remedy prohibits em- ployee distribution of literature by or on behalf of mem- bers of an incumbent labor organization which pertains to:(l) the employees' selection or rejection of a labor oganization as the bargaining representative of the em- ployees; or (2) other matters related to the exercise by employees of their Section 7 rights., We shall reframe the remedial order accordingly. As our holding is concerned solely with the exercise by employees of their Section 7 rights, it is not to be taken as licensing in any way the distribution of institutional-as distinguished from purely organizational- literature of a labor organization which has acquiesced in an employer's promulgation or maintenance of a broad no-distribution rule. MAGNAVOX OF TENNESSEE 267 ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified below and hereby or- ders that the Respondent, The Magnavox Company of Tennessee, Greeneville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, with the following modifications: 1. Delete paragraph 1 and substitute the following: "Cease and desist from maintaining, giving effect to, or enforcing any rule which prohibits employees from distributing literature iii nonworking areas on non- working time on behalf of any labor organization relat- ing to the selection or rejection of a labor organization as the exclusive bargaining agent of the employees in a unit appropriate for collective bargaining, or other matters related to the exercise by employees of their Section 7 rights." 2. Substitute the attached notice for the notice of the Trial Examiner. MEMBER FANNING concurring: Respondent is charged with restraining and coercing its employees in their exercise of Section 7 rights be- cause it has invoked against the Union a long-estab- lished rule against distribution of union literature any- where on its premises. As a defense to the charge, Respondent cites a provision in its collective-bargain- ing agreement with the Union which states: The Company will from time to time issue Rules and Regulations for the maintenance of orderly conditions on plant property. These rules will not be unfair or of a discriminatory nature, nor will they conflict with this agreement. Respondent contends that by agreeing to these provi- sions the Union has given Respondent the contractual right to promulgate the rule in question and has waived its statutory rights and the statutory rights of its sup- porters to disseminate union literature on plant prem- ises. The Trial Examiner, relying on the Gale Products decision,1° found no violation in Respondent's invoca- tion of the rule to ban the Union's proposed distribu- tion, but found a violation in the continued mainte- nance of the rule insofar as it operated to discourage solicitation and distribution of literature by employees on behalf of another labor organization. He therefore recommended that Respondent be ordered to cease and desist from giving effect to or enforcing any rule which prohibits any employees from distributing literature 10 Gale Products, Div. of Outboard Marine Co , 142 NLRB 1246, en- forcement denied 337 F 2d 390 (C.A. 7) during nonworking time and in nonworking areas on behalf of any union other than the incumbent Union. Quite clearly the Trial Examiner is correct in finding that the mere maintenance of the rule involved herein has an inhibitory effect on the exercise of Section 7 rights by employees who would seek to support another union. He is also correct in holding that, under the Gale Products rule, the fact that the incumbent Union has impliedly agreed to such restriction is an insufficient basis for permitting it to remain in effect. However, if we strike down the rule as applied to such activities, we can hardly, on the facts of this case, permit it to stand as a bar to similar activities on the part of the Union or its supporters. This is not a case in which the Union has explicitly agreed not to engage in organizational activities on plant premises. It has agreed only to abide by rules issued by the Respondent for the maintenance of orderly conditions on plant premises provided the rules are not unfair or discriminatory. The Union has not acquiesced in a rule which would be applied against it and its supporters but not against activities in support of another union, for such a rule would be unfair and discriminatory. As Respondent is precluded by law (Gale Products) from maintaining the rule in question against distribution on behalf of another union, the contractual provision requiring any rules issued by Re- spondent to be fair and nondiscriminatory preclude Respondent from maintaining the rule only against the Union. I, therefore, find that Respondent violated Sec- tion 8(a)(1) when it refused the Union permission to distribute literature during nonworking time, and I join my colleagues in striking down the entire rule." " Heretofore we have dealt with this issue in the context of employer action enforcing an explicit contractual agreement restricting employees' organizational activities against activity in support of a union other than the contracting union We have not had occasion therefore to consider whether the contractual language sufficed to justify a restriction solely on such ac- tivity by the contracting union or its supporters. I disagiee with the order only insofar as it may be read to permit restric- tions on the distribution of literature in working areas when work is not being performed in such areas. See my dissenting opinion in Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 625-631 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT maintain, give effect to, or en- force any rule which prohibits our employees from distributing literature in nonworking areas on nonworking time on behalf of any labor organiza- tion relating to the selection or rejection of a labor organization as the exclusive bargaining agent of the employees in a unit appropriate for collective bargaining, or pertaining to other matters related 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the exercise by employees of the rights guaran- teed to them by the National Labor Relations Act, as amended, to form, join, or assist labor organiza- tions, to bargain collectively through representa- tives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organ- ization as a condition of employment as author- ized in Section 8(a)(3) of the Act. THE MAGNAVOX COMPANY OF TENNESSEE (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, Peachtree Building, Room 701, 730 Peachtree Street, NE., Atlanta, Georgia 30308, Telephone 404- 526-5760. TRIAL EXAMINER'S DECISION ABRAHAM H. MALLER , Trial Examiner : On August 27, 1970, International Union of Electrical , Radio and Machine Workers, AFL-CIO-CLC and its Local 796, herein called the Union, filed a charge against The Magnavox Company of Tennessee, herein called the Respondent. Upon said charge, the Regional Director for Region 10 of the National Labor Relations Board, herein called the Board, issued on behalf of the General Counsel a consolidated complaint against the Respondent. Briefly, the complaint alleged that the Respond- ent has maintained and enforced in its plant a rule prohibiting the soliciting of any kind on company property during work- ing hours, and on or about May 21 , 1970, by maintaining and enforcing said rule, Respondent has prohibited its employees from distributing literature on behalf of the Union during employees' nonworking time in nonworking areas of Re- spondent's premises, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein callea the Act. In its duly filed answer, the Respondent denied any violations of the Act. Pursuant to notice, a hearing was held before me at Greeneville, Tennessee, on February 9 and 10 , 1971. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument , and to file briefs with me . Helpful briefs were filed by all parties. Upon consideration of the entire record' and the briefs, and upon my observation of each of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a Tennessee corporation with an office and place of business located at Greeneville, Tennessee, where it is engaged in the manufacture and sale of television and sound products. Dur- ing the calendar year preceding the filing of the complaint herein, which period is representative ofall times material herein, Respondent has sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Tennessee. Accordingly, I find and con- clude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE ISSUE Whether the Respondent by prohibiting its employees from distributing literature on behalf of the Union during employees' nonworking time and in nonworking areas of Re- spondent's premises has violated Section 8(a)(1) of the Act. IV THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The Union was first certified as the collective-bargaining representative of Respondent's employees in the latter part of 1954 or early in 1955. Prior to and at the time of the Union's initial certification, Respondent maintained and had dis- tributed to employees an employee handbook which con- tained the following statement: "You are asked to refrain from distributing notices or handbills in the parking lots or on other Company property." It is undisputed that the Re- spondent has at all times treated the foregoing statement as a rule and has prohibited the distribution of notices or hand- bills with the few exceptions noted infra.: Following the Union's certification, the parties entered into negotiations resulting in a collective -bargaining agreement governing wages, hours, and working conditions. This collec- tive-bargaining agreement was effective for a 1-year period commencing on April 30, 1955. During these contract negotiations, the union negotiating committee was headed by Edward Lingo, a CIO representative on loan to the Union. It was stipulated by the parties at the hearing that Lingo was instrumental in organizing Respondent's employees and negotiated at least the first two collective-bargaining agree- ments between the parties and that in doing so he was acting as agent of the Union. ' Both the General Counsel and the Respondent have filed motions to correct the record in certain particulars No opposition to said motions has been filed. Upon consideration of the motions, it is hereby ordered that the record be corrected as requested ' In another part of the employees' handbook, the Respondent had set forth a section entitled "Plant Rules " One of said rules is the one referred to in the complaint which reads as follows "The following will not be permitted- . 6 Soliciting of any kind on Company Property during work- ing hours " That rule however does not appear to be involved in the instant proceeding MAGNAVOX OF TENNESSEE During the course of the negotiations, the Union proposed a negotiating of the rules and making them part of the con- tract. The Respondent opposed this and contended that it, alone, should make the rules and the Union should have the right to protest if it felt that the rules were discriminatory. The Union inquired whether the Respondent had any inten- tion of making rules beyond those which were in the em- ployee handbook which was in effect at that time. At a subse- quent meeting, the Respondent stated that it had no immediate plans for any change in the rules, but offered a proposal that it would have the right to make changes when circumstances dictated it. The specific proposal made by the Respondent read as follows: The Company will from time to time issue Rules and Regulations for the maintenance of orderly conditions on plant property. These plans will not be of a dis- criminatory nature. The Union then suggested that there might be rules which might not be discriminatory but would be unfair, and the Respondent agreed to change the language of the last sen- tence to read: "These rules will not be unfair or of a dis- criminatory nature." The Respondent's proposal as so modified was accepted and became part of the collective- bargaining agreement (art. XII, para. 3). The initial contract contained a further provision regarding bulletin boards, as follows: The Company will provide a Bulletin Board in Plant I and a Bulletin Board in Plant II each of which will be used exclusively for the posting of Union Notices. Such notices must be approved by the Director of Industrial Relations or his designated representative and will be placed on the boards by the Personnel Department. It is understood that such notices will be automatically ap- proved unless they are of a controversial nature. These Bulletin Boards will be labeled "Local 796, IUE-CIO." There have been six collective-bargaining agreements be- tween the Respondent and the Union. The most recent one was effective July 1, 1968, and is to remain in effect for 3 years and from year to year thereafter unless notification of termi- nation, modification, or amendment is given by either party as prescribed therein. Each of said agreements has contained a provision giving the Respondent authority to make and enforce rules and regulations and provides for the mainte- nance of bulletin boards furnished by the Respondent for the benefit of the Union. All of these provisions are essentially identical to those contained in the 1955 collective-bargaining agreement.' On March 21, 1956, a decertification election was con- ducted at Respondent's plant. During the campaign preced- ing that election, Union Representative Lingo telephoned Byron Sites, Respondent's Director of Industrial Relations, and complained that employees opposed to the Union were distributing literature on Respondent' property, while those supporting the Union were prohibited from engaging in such activity. Sites assured Lingo that he was not aware that this had taken place and that he would take immediate steps to prohibit such action. Lingo confirmed the foregoing tele- ' In the most recent agreement, the provision giving the Respondent the right to make rules and regulations reads as follows The Company will from time to time issue Rules and Regulations for the maintenance of orderly conditions on plant property These rules will not be unfair or of a discriminatory nature, nor will they conflict with the terms of this agreement The section regarding bulletin boards now provides for one bulletin board in Plant 1, two bulletin boards in plant 2, and six bulletin boards in Plant 3. 269 phone conversation by letter dated March 15, 1956, which reads in pertinent part as follows: It has been called to our attention that on several occasions handbills have been distributed in the plant by the "Committee for Independent Action." By the same token, yesterday employees distributing our handbill have been denied this right. Yesterday they were driven off company property by one of your plant guards. Please consider this letter a request that our members be allowed an opportunity to distribute handbills in the plant as has our opposition. On the same day, Sites replied as follows: In reference to your letter of March 15, any action by any employee in distributing hand bills on Company property was strictly without authorization and in violation of Company rules. Various steps have been taken to prevent such incidents and the following letter today is being addressed to all of our supervision in a further effort to control the matter. "In this period preceding the election we are faced with the problem of maintaining normal work conditions. It has been called to my attention that people have been bunging in various types of propaganda material and distributing it in- side the plant. This is a violation of our rules and must be stopped immediately. If you find any employee engaging in this practice order him to cease immediately and if he fails to abide by your instructions take him to the Personnel Office for disposition of the matter." We feel that it is improper to permit this type of campaign- ing within the plant by either party and therefore must refuse your request to permit such distribution. For more than 16 years, antedating the time of the Union's initial certification to the present, the Respondent has main- tained the rule prohibiting all distribution of literature on company property by any persons, including Respondent's employees. Throughout this extended period, the Union has frequently distributed handbills to Respondent's employees as they were coming to or leaving work. The distributors, however, have always stood at the gates off of company prop- erty to make their distributions. Throughout that period, the Union has never filed a grievance protesting the Respondent's no-distribution rule nor has it ever attempted to secure a change of the Respondent's rule through the negotiation pro- cess. The Union's officers have always instructed the em- ployees to pass out union literature at the entrances to the Company's premises and not on the premises themselves. On numerous occasions, civic organizations, political can- didates, and local merchants have requested permission to distribute literature to Respondent's employees on its prop- erty. These requests have uniformly been denied. The only distribution ever allowed on Respondent's premises occurred in 1965, when the Respondent allowed the Union to distrib- ute a pamphlet to employees. This pamphlet concerned the "City of Hope," a charity supported by the Union. The distri- bution occurred prior to the Union's solicitation for the charity and was allowed by the Respondent only after the president of the local union specifically requested permission to make the distribution. The Respondent also permitted, indeed encouraged, the employees to distribute literature for the United Fund on company time and property. On one occasion, Respondent distributed its monthly magazine to the employees on company property. Respondent also has a newspaper which it publishes every Wednesday. This publi- cation is placed in boxes located throughout the plant. It is not uncommon for employees to pick up a number of the weekly papers and distribute them to fellow workers in the plant. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the entire time that the Union has acted as the representative of Respondent's employees, the Respondent has never refused a request to post a notice on the bulletin boards allocated for the Union's use in the plant. On only one occasion in all that time did a question apse concerning the language of a proposed notice, and the Union and the Re- spondent promptly worked out acceptable language . The Re- spondent has always cooperated with the Union in ensuring that the notices which the Union wished to have posted were placed on the bulletin boards immediately. On May 21 , 1970, the Union requested permission to dis- tribute a union leaflet at the timeclock . Permission was denied by the Respondent. On June 25 , the Union's counsel in writ- ing requested the Respondent to allow employees to distrib- ute literature in nonwork areas of the Respondent 's property, including nonwork areas of the plant on the employees' own time. On July 16, Respondent's counsel wrote the Union, pointing out that by virtue of the collective-bargaining agree- ment the Union had waived its right to distribute literature on company property . The letter further pointed to the exist- ence of the bulletin boards for posting union notices and the further fact that the Respondent had provided the Union with current lists of the names and addresses of its employees. In rebuttal, the General Counsel produced the following evidence to demonstrate that alternative methods of com- munication available to the Union are not sufficient for it to communicate with the unit employees and its members for the following reasons: The mailing of leaflets and notices involves a mailing expense of approximately $400 per mail- ing. Many letters are returned because members do not keep the Union apprised as to changes of address. Door-to-door distribution is impractical because of the great number of employees involved and because employees ' residences are scattered over a large area, including some in the State of North Carolina . Plant entrance-exit distribution has proved inadequate because there is danger that the leaflet distributors may be hit by cars or may be out in inclement weather, and the distribution to occupants of automobiles creates traffic jams and hazards and causes employees to be late for work. Bulletin board posting is not satisfactory because members do not read the bulletin boards . On one occasion, the Union had a leaflet prepared but did not submit it to the Respondent for fear that the Respondent would reject it for posting as being controversial. Communication at monthly union meetings is not satisfactory because attendance at such meetings is light and nonmembers do not attend union meetings. B. Concluding Findings There is no question but that the prohibition against the distribution of notices or handbills, set forth in the employee handbook, though expressed as a request , had the force and effect of a rule. It was enforced by the Respondent as a rule and was accepted and observed by the Union and by the employees as such. The rule, applicable as it was "in the parking lots or on other Company property," is presumptively invalid. Indeed, the following language of Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 621 , is particularly applicable in the instant case: . the no-distribution rule maintained by the Respond- ent is presumptively invalid on its face, as applied to employees who may wish to distribute union literature, since its reach is not limited to working time or to the working areas of the plant. We also find that the pre- sumption of invalidity is not overcome by the testimony of Carson Butcher, Respondent's vice president, that the rule was adopted years ago for the purpose of "keep[ing] down the litter ... [and] fire hazards ... in the plant." The mere assertion that a broad no-distribution rule has this purpose hardly proves that it is actually "necessary" for the employer to prohibit union handbilling by his own employees in nonworkin§ areas in order to "main- tain production or discipline' (Babcock & Wilcox, su- pra). Such necessity has not been shown here. In the instant case, no evidence of necessity whatsoever has been shown. Respondent, however, contends that the presumption of invalidity is overcome by the fact that the Union in the first instance and repeatedly thereafter waived any objection to the broad no-distribution rule. Respondent 's position has merit and should be sustained . The rule in its present form was in effect when the Union was certified and, in the first and in each of the succeeding collective -bargaining agreements, the Union agreed to a management -perogative clause giving the Respondent the power to make rules, thereby incorporat- ing by implication the existing rules and giving the Respond- ent the right to make new rules . That the Union was aware of the broad no-distribution rule when it agreed to the man- agement-prerogative provision is not open to question. More- over, in the ensuing relationship between the parties over a period of 16 years, the Union acquiesced in Respondent's enforcement of the broad no-distribution rule. The management-prerogative provision does not stand alone. On its part, the Respondent in the original contract agreed to maintain two bulletin boards (increased to nine in the current agreement) for the Union's exclusive use. Both the provision for the maintenance of union bulletin boards and the provision giving the Respondent the right to make rules are contained in article XII of the original and succeed- ing contracts. The juxtaposition of these provisions is signifi- cant. It suggests a quid pro quo for the Union's acceptance of the Respondent's right to prohibit distribution of union literature on company property . Cf. General Motors Corpora- tion, 158 NLRB, 1723, 1727. That the Union may waive statutory rights is not open to question. Thus it is well settled that a union may waive the right of employees to strike. The General Counsel and the Charging Party argue that waiver by the Union may not be found to have occurred in this case, because waiver will not readily be inferred, but there must be a clear and unmistakable showing that the waiver occurred and that the Union bargained away its statutory rights. They rely on Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956, and a long line of cases implement- ing this policy . These cases are not controlling. They involve situations in which the collective-bargaining agreement is silent on the rights alleged to have been waived or where the changes unilaterally effected by the Employer exceeded the powers reserved to him in the collective-bargaining agree- ment. E.g., C & C Plywood Corporation, 148 NLRB 414, 417. Hence, the bargaining negotiations in those cases were exam- ined to determine whether the union had , in fact, bargained away its rights. In the instant case , the waiver was explicit and was set forth in each contract . Even if, arguendo, there were any doubt as to incorporation by implication of the existing broad no-distribution rule in the explicit manage- ment-prerogative provision, such doubt has been effectively erased by the construction which the parties themselves have placed on the provision. Thus , for 16 years, the parties have consistently interpreted the contracts as prohibiting the dis- tribution of union literature on company property. As the Supreme Court said in Insurance Co. v. Dutcher, 95 U.S. 269, 273: The practical interpretation of an agreement by a party to it is always a consideration of great weight . The con- struction of a contract is as much a part of it as anything MAGNAVOX OF TENNESSEE else. There is no surer way to find out what parties meant, than to see what they have done. . . Parties in such cases often claim more, but rarely less, than they are entitled to. See, also, N.L.R.B. v. Local 825, Operating Engineers, 315 F.2d 695, 699 (C.A. 3), enforcing 135 NLRB 578; Williston on Contracts, 3rd ed., Sec. 623, Vol. 4, 789-790.' The record is clear that Respondent's enforcement of the no-distribution rule has not been discriminatorily applied against the Union. It is undisputed that the Respondent has steadfastly refused requests by civic organizations, mer- chants, and political candidates to distribute literature on its premises. There have been only isolated exceptions: The Re- spondent on one occasion granted the request of the Union to distribute literature on behalf of the City of Hope, a chari- table institution supported by the Union. As this request was made by the Union, the granting of it can hardly be termed discriminatory. Also, as noted above, the Respondent permit- ted employees to distribute literature and to solicit for the United Fund on company property and time. But as pointed out in Emerson Electric Co., 187 NLRB No. 33, fn. 2, isolated instances of permissible solicitation for beneficient causes do not establish disparate application of a rule prohibiting solici- tation. Nor is it significant that the Respondent on one occa- sion distributed its monthly magazine to employees on com- pany property and places its weekly newspaper in boxes located throughout the plant where they can be picked up by employees. As the Supreme Court pointed out in N.L.R.B. v. United Steelworkers, 357 U.S. 357 at 363-364: Of course the rules had the effect of closing off one channel of communication; but the Taft-Hartley Act does not command that labor organizations as a matter of abstract law, under all circumstances, be protected in the use of every possible means of reaching the minds of individual workers, nor that they are entitled to use a medium of communication simply because the employer is using it. Cf. Bonwit Teller, Inc. v. N.L.R.B., 197 F.2d 640, 646; N.L.R.B. v. F. W. Woolworth Co., 214 F.2d 78, 84 (concurring opinion).' In view of the foregoing, as the Union is the charging party in this proceeding, it would be appropriate to recommend dismissal of the complaint, were it not for the fact that the existence of the no-distribution rule would have an inhibiting effect on the employees in the event that some of them might at a future time desire to campaign for the selection of another union as their collective-bargaining representative. As the board pointed out in Gale Products, Division of Out- board Marine Corp., 142 NLRB 1246, 1249: The validity of a contractual waiver of employee rights must depend, however, upon whether the interference with the employees' statutory rights is so great as to override any legitimate reasons for upholding the waiver. Upon consideration of all the relevant factors, we are persuaded that, in the circumstances of this case, an unlimited contractual prohibition against union solic- itation and distribution would unduly hamper the em- ployees in exercising their basic rights under the Act. See, also, General Motors Corporation, 147 NLRB 509. Following its holding in Gale and General Motors, supra, the Board said that "neither an employer nor an incumbent union is entitled to attempt to freeze out another union by While the Union has waived its right to object to the no-distribution rule during the term of the current contract, it is, of course, free to negotiate the entire question of rules when bargaining for a new contract ' There is no evidence , indeed there is not even the suggestion in the record, that the Respondent's literature was antiunion in character as was the case in United Steelworkers 271 waiving the employees' right to urge a change in their collec- tive-bargaining representative" General Motors Corporation, 158 NLRB 1723, 1726. Accordingly, the Board has sustained the defense of waiver of broad no-distribution rules only inso- far as the waiver applied to the distribution of literature by the union.' To the extent, therefore, that the rule prohibits the employees from distributing literature, other than that of the Union, during nonworking time and in nonworking areas of Respondent's premises, it is invalid and violates Section 8(a)(1) of the Act, and I so find. While relying on the foregoing decisions as to the power of the Union to waive its right to distribute literature on com- pany premises, Respondent asks that I go further and hold that the Union's waiver is complete and should not be limited to the Union qua Union, but should apply to all employees. Respondent argues that, as the certified collective-bargaining representative of all employees, the Union had the power to, and did, waive the right of all employees to distribute litera- ture on company premises. Respondent points to the fact that the Court of Appeals for the Seventh Circuit has denied enforcement of the Board's decision in Gale, holding the waiver to be complete. 337 F.2d 390. Respondent also cites the fact that the Sixth Circuit, in whose jurisdiction Respond- ent's plant is located, has disagreed with the limitation which the Board place on the no-distribution rule in General Motors Corporation, 147 NLRB 509, 345 F.2d 516. See, also, Armco Steel Corporation, 344 F.2d 621 (C.A. 6), denying enforce- ment of 148 NLRB 1179. The argument is misaddressed to me. As a Trial Examiner of the Board, it is my "duty to apply established Board prece- dent which the Board or the Supreme Court has not re- versed" (Insurance Agents' International Union, 119 NLRB 768, 773). The Board has not acquiesced in the foregoing court decisions, but has expressed its respectful disagreement with them. Armco Steel Corporation, 183 NLRB No. 26; General Motors Corporation, 158 NLRB 1723, 1726; Armco Employees Independent Federation, 155 NLRB 551, 552, enfd. 377 F.2d 140 (C.A.D.C.). Moreover, there is a conflict between the circuits. The Fifth and Eighth Circuits have agreed with the Board's holdings in this respect. N.L.R.B. v. Mid-States Metal Products, Inc., 403 F.2d 702 (C.A. 5), en- forcing 156 NLRB 90; International Association of Machinists and Areospace Workers, District No. 9 v. N. L. R. B., 415 F.2d 113 (C.A. 8), enforcing 171 NLRB No. 35. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section IV, above, occurring in connection with the operations of the Respondent set forth in Section I, above, have a close, inti- mate, 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 thereof. ' Respondent argues that there is no move at present to unseat the Union as the collective -bargaining representative , hence, there is no necessity to consider the validity of the broad no-distribution rule in a nonexisLng con- text. The absence of a move to unseat the Union is not significant. The Board has in the foregoing cases emphasized its concern for protection of the rights of employees to select and change their collective-bargaining representative Consequently, it would be inconsistent with established Board policy for the Board, by dismissing the instant proceeding , to place its imprimatur on a rule which would obviously have an inhibiting effect on employees desiring to campaign for another collective-bargaining representative at a future time 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VI THE REMEDY Having found that the Respondent has engaged in an un- fair labor practice violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Sec- tion 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By maintaining and enforcing a rule which prohibits employees from distributing literature on nonworking time in nonwork areas, Respondent has violated Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice is an unfair labor practice affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:' ' 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 recommended Order herein shall, as provided in Section 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 ' 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 ORDER Respondent, The Magnavox Company of Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from maintaining, giving effect to or enforcing any rule which prohibits any employee from dis- tributing literature in behalf of any labor organization other than International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC and its Local 796, where the ac- tivity occurs in nonworking areas on nonworking time. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post at its plants and office in Greeneville, Tennessee, copies of the attached notice marked "Appendix. "e Copies of the notice on forms provided by the Regional Director for Region 10, after being duly signed by an authorized repre- sentative of the Respondent, shall be posted by the Respond- ent 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 cus- tomarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.' "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " ' In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 10, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith