McDonnell Douglas Corp.

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McDonnell Douglas Corporation and Milford M. Morris. Case 14-CA-7046 April 29, 1974 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO conditions, and that that activity, namely, the distribution of handbills on company premises during their nonworking time and in nonworking areas, was protected by Section 7 of the Act. The collective-bargaining agreement between Re- spondent and the Union cannot diminish these Section 7 rights. Paragraph XV of the agreement states: On April 30, 1973, Administrative Law Judge John G. Gregg issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. As in any case which concerns an employer's restraint of employees' efforts to distribute literature upon their employer's plant premises, the first question we must answer is whether the distribution is pertinent to a matter which is encompassed by Section 7 of the Act. For the reasons set forth below, we agree with the Administrative Law Judge that the "Fight Dues Raise" pamphlet describing the status of the FDR's suit to set aside the Union's dues increase was part of an activity protected by Section 7. The Administrative Law Judge found that the distribution of handbills by the "Fight Dues Raise" group of employees was an activity sufficiently related to their working conditions and bore such a reasonable connection to matters affecting the interests of the employees as to come within the protection of Section 7 of the Act. We agree. We note that those activities directly related to the employees' working conditions, inasmuch as article XVIII, section 1, of the Respondent's collective- bargaining agreement with the Machinists (the dues of which were the target of FDR's activities) provides in part that as a condition of employment all employees subject to the provisions of the contract shall become and remain members of the Union in good standing. Unlike G & W Electric Specialty Company, 154 NLRB 1136, where a majority of the Board found certain activity indirectly, albeit suffi- ciently, related to the employment relationship as to be protected by Section 7, we conclude here that the employees were acting in concert for mutual aid or protection with respect to matters directly related to their employment relationship and their working 210 NLRB No. 29 Section 1 The Union shall have the right to use designat- ed bulletin boards on the Company property for the purpose of posting notices of Union meetings and other activities which are officially approved by the Union and the Company prior to posting. The Company will act promptly on such notices sent to the Labor Relations Department by the Union. Section 2 No other notices or distribution of pamphlets, advertising matter or any kind of literature will be permitted in the plant or on the employer's property. Violators of this rule shall be subject to immediate disciplinary action up to and including discharge. But the parties to the contract cannot thus waive an employee's Section 7 rights. The Supreme Court has recently so held in N. L. R. B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974). In that case the Court reversed the Court of Appeals for the Sixth Circuit's denial of enforcement of the Board's finding that the company's maintenance of a similar contract clause was unlawful. The Court distinguished a union's power to waive the right to strike, because such waivers "rest on `the premise of fair representation' and presuppose that the selection of the bargaining representative `remains free,' " as contrasted with a situation where the employees' right to choose or reject a bargaining representative is involved. The Court stated: When the right to such a choice is at issue, it is difficult to assume that the incumbent union has no self-interest of its own to serve by perpetuating itself as the bargaining representative. [Labor Board v. Mid-States Metal Products, Inc., ] 403 F.2d at 705. The place of work is a place uniquely appropriate for dissemination of views concern- ing the bargaining representative and the various options open to the employees. So long as the distribution is by employees to employees and so long as the in-plant solicitation is on nonworking time, banning of that solicitation might seriously dilute §7 rights. For Congress declared in § 1 of the Act that it was the policy of the United States MCDONNELL DOUGLAS CORP. 281 to protect "the exercise by the workers of full freedom of association, self-organization and designation of representatives of their own choos- ing." 29 U.S. § 151. It is argued that the use of the bulletin board is a fair substitute. But as the Fifth Circuit said in the Mid-States case the bulletin board may be an adequate medium for "preserving the status quo" and yet not give a union's adversaries "equal access to and communications with their fellow employees." 403 F.2d at 705. The FDR group of employees were here acting in concerted opposition to the incumbent Union on a matter directly affecting their employment condi- tions. Consequently, their Section 7 right to distri- bute literature to their fellow employees in order to solicit their support cannot be waived by the Union or the Respondent Company. The Union may be permitted to silence its own voice, but the Supreme Court ruled that it may not silence that of the employees. Furthermore, we agree with the Administrative Law Judge that Respondent's security and/or pro- duction needs do not justify its restraint of employees seeking to distribute Section 7 matter during their nonworking time and in nonworking areas, as it did in the instant case. Unlike McDonnell Douglas Corporation, 194 NLRB 514, reversed and remanded 472 F.2d 539 (C.A. 8), Supplemental Decision and Order, 204 NLRB No. 156, the employees here were seeking to enter the plant with the protected literature shortly before the start of their work shifts, and were in fact allowed to enter the plant after the literature was summarily confiscated by its guards. Respondent has advanced no tenable reason as to why the literature should not have been admitted to nonworking areas of the plant, as the employees themselves indeed were. Accordingly, we find in agreement with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by its conduct herein. complaint herein was issued by the Regional Director for Region 14 on January 8, 1973, and amended on January 10, 1973, based on charges duly filed on September 7, 1972, by Milford M. Morris hereinafter referred to as the Charging Party. The complaint alleges that McDonnell Douglas Corporation, herein referred to as the Respon- dent, has engaged in and is engaging in certain unfair labor practices in violation of Section 8(a)(l) of the Act. In its answer the Respondent denies the commission of unfair labor practices. A trial was held on March 6, 1973 , at St. Louis, Missouri, at which all parties were given full opportunity to examine and cross-examine witnesses and to introduce evidence. Briefs were duly filed by the parties. In addition to the testimony and exhibits of record herein, there was introduced into evidence by stipulation of the parties certain material included in the "Joint Appen- dix" to McDonnell Douglas Corporation, Petitioner v. National Labor Relations Board Respondent, Case 11-1720, 472 F.2d 539 (C.A. 8). It was stipulated by the parties that the testimony of Richard S. McConnell appearing on pages 87 to 95 of the said joint appendix ; the testimony of Warren Flynn appearing on pages 122 to 160 of said joint appendix; the testimony of Ivan Rutherford appearing on pages 202 through 219 of said joint appendix would be deemed to be testimony on behalf of the Employer herein . It was also stipulated that General Counsel's Exhibit 2, General Counsel's Exhibit 8, and Respondent's Exhibits I through 7 appearing in the same joint appendix would be deemed to be exhibits of the Respondent herein. It was also stipulated that pages % through 100 would be included with the understanding that the witnesses would testify again in this manner if they were permitted to do so and with the understanding that the General Counsel did not waive his right to contend that the aforesaid evidence is irrelevant and immaterial. The foregoing evidence was admitted under stipulation for the sole purpose of establishing the security require- ments of the Federal government and of McDonnell Douglas Corporation in its highly sensitive area as a manufacturer of military aircraft. Upon the entire record herein, careful consideration of the briefs, and from my observation of the demeanor of the witnesses as they testified, I make the following: FINDINGS AND CONCLUSIONS ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, McDonnell Douglas Corporation, St. Louis, Missouri, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION JOHN G. GREGG, Administrative Law Judge: The 1. JURISDICTION The complaint alleges, the answer duly admits, and I find that McDonnell Douglas Corporation, the Respon- dent herein, is a corporation duly organized and existing under the laws of the State of Maryland with principal office and place of business at Lambert, St. Louis Airport in the State of Missouri, and is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED District Lodge No. 837, International Association of 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Machinists and Aerospace Workers, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges essentially that the Respondent and the incumbent Union have been parties to and maintained a bargaining agreement which provides as follows at paragraph XV thereof: Section 1 The Union shall have the right to use designated bulletin boards on the Company property for the purpose of posting notices of Union meetings and other activities which are officially approved by the Union and the Company prior to posting. The Company will act promptly on such notices sent to the Labor Relations Department by the Union. Section 2 No other notices or distribution of pamphlets, advertising matter or any kind of literature will be permitted in the plant or on the employer's property. Violators of this rule shall be subject to immediate disciplinary action up to and including discharge. The complaint alleges that since on or about August 29, 1972, the Respondent by its security force has refused to allow employees to bring into its Lambert Airport plant premises for distribution to employees literature printed by a group of employees known as "Fight the Dues Raise" or "FDR," a group which was taking a position opposed to the financial need expressed by the incumbent Union and that such literature was organizational literature. By the foregoing, it is alleged that the Respondent interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. There is little dispute as to the background facts in this case. The case appears to be an extension of a running controversy involving the Respondent Company, the incumbent Union, the "perennial" insurgent Union, and now an insurgent group, "Fight The Dues Raise" or "FDR." At issue is the adoption by the Respondent pm suant to its collective-bargaining agreement with the incumbent Union of rules and regulations which provide that certain practices will not be tolerated and will be cause for disciplinary action up to and including discharge. Rule 32 prohibits "distribution of notices, pamphlets, advertis- ing matter or any kind of literature on company property without permission of management." There was testimony of record herein by Everett Lucas, an employee of the Respondent for 17 years, which was uncontradicted and which I credit establishing that in the period July through September 1972 he participated with a group opposing a dues increase which had been put into effect by the incumbent Union. On his return to work after Labor Day in 1972 he brought with him between 50 and 100 pieces of mimeographed literature in letter form, parked his car in the parking and lot, went to the east entrance of building 2 carrying the literature in his hand. At the entrance to the building he was stopped by the guard who asked what he had. He showed the guard one of the items and the guard said that he could not take them in. Lucas stated that the guard did not query him as to what he intended to do with the literature and testified that he had intended to give this literature to employees going into the cafeteria. Lucas stated that while he was familiar with the Respondent's rules and regulations which are posted on the bulletin board in and about his work area, and that the rule required prior approval of management before distribution of literature, he did not submit the literature to the Respondent's labor relations department prior to attempting to take the material in building 2. There was also testimony of record by Milford Morris, an employee of the Respondent for 20 years and a member of the Union, whose testimony I credit and whose testimony was uncontradicted. Morris stated he worked in building 45 which can be entered off Banshee Road through the parking lot gate and also from another parking lot east from building 2, going through building 2 then into building 45 . Morris testified credibly that in the spring of 1972 there was posted on the bulletin board a notice of union dues increase and bylaws elections to be held on June 6, 1972. The election was held on that date, Morris heard that the dues increase passed by a vote of 1,448 to 1,031. He did not believe that this was correct so he contacted some friends and solicited their reactions. According to Morris it was decided that the group which designated itself as Fight Dues Raise would find out more about the election. Information type slips were printed and distributed around the plant to be read and returned to the group. The group first contacted the International Associa- tion of Machinists which indicated it would not hold a new election, then the group contacted the Labor Department which would not take action. The record establishes that following this the group hired an attorney, Gerald Tockman, to represent them. Tockman notified the Respondent by letter that the group was seeking a court determination that the union dues increase was illegal and that the group intended to distribute this information on the company premises in accordance with standing company rules. By letter the Respondent's Attorney George S. Hecker, Esq., answered for the Respondent advising that the Respondent would not permit the group to distribute its informative matter in the manner described in Tockman's letter and that the Respondent's security officers and other personnel had been instructed to take action in the event Tockman's clients engaged in such distribution. The Respondent's attorney indicated that the Respondent took the position that the material was representative of an intraunion dispute and was not protected within the meaning of the Act. Morris, continuing his testimony, stated that he helped to compose the FDR literature, that on September 6, 1972, he went to work carrying with him about 100 copies thereof. At the entrance of building 2 he was stopped by the guard who wanted to know what he had in his hand. The guard then informed him that no FDR literature was permissable in the plant and on the premises which included the parking lots. Morris stated that the guard did not ask what MCDONNELL DOUGLAS CORP. 283 he intended to do with the literature. He stated that his intention at the time was to distribute the literature in nonwork areas in building 45. Morris testified he did not attempt to pass out the FDR literature at public roads access to the parking lots, as that would be a hazard to traffic and the people who would pass it out. Morris testified that normally the literature would have been passed out at the plant's outer gates but they were advised by their attorney that they could not do that. Morris testified that prior to the attempt to distribute the FDR literature he did not seek or secure prior approval of management. There was testimony of record by Warren Flynn, director of labor relations for the Respondent for 16 years. Flynn testified that after the charge herein had been filed he, Flynn, received a report that the guards had been orally instructed not to let FDR literature in the plant. He stated that he had seen both Speed Facts and FDR literature in the plant. According to Flynn at the time of the election both Speed Facts and TEAM literature which was published by the opposition group were permitted to be distributed under the regulations as protected literature in an organizational campaign. According to Flynn the guards were instructed at that time to permit this organizational literature to come into the plant. According to Flynn, prior to September 6, 1972, the instruction to permit the distribution of Speed Facts was revoked. Flynn stated that he was informed by several people that some Speed Facts were getting into the plant so the Union was reminded that the invitation to bring Speed Facts into the plant had been revoked and they were not supposed to be bringing it in. Flynn testified that pursuant to article 15 of the bargaining agreement distribution of material on company property is limited and that this limitation has been enforced except for literature which is deemed by Flynn to be protected literature. In this connection, according to Flynn, plant rule 32 was introduced. Flynn testified that the Respondent's policy was that, subject to company approval, distribution of material by employees would be permitted during the employees' shift or a reasonable period before or after at the entrance gates of the plant, that is the entranceway from the public street into the plant. Referring to distribution of literature at the entrance- ways at the outer perimeter from the public road into the plant, Flynn testified "We would have no control over that." He stated that the Respondent has never issued instructions that distribution is not permitted at such entranceways and that specifically no such ins«uctions were issued to Morris. Flynn stated that the Respondent does have a plan for handling traffic of people entering and leaving the premises, and that the matter of traffic moving in and out of its gates is a matter of major concern to the Respondent. Q. Isn't it true that it is very apparent that if anyone did stand there and hand out literature, it would back up traffic for blocks at the change of shift time? A. Well, there are traffic lights. If they did it at a light change time, it wouldn't have any effect. As for the distribution of material on the parking lots, Flynn stated that the parking lots being company premises, if the literature were protected literature the employees ould distribute it, otherwise not. In any event it would require prior approval of management. In the course of his testimony Flynn was asked whether he had required the incumbent union to submit to the Company for approval prior to distribution its campaign literature during the election campaign. Flynn said no, and explained that "if there is an organizing campaign going on and we know the protagonists I suppose that we would not ask for a prior look at it. But when nothing is going on and there is literature and we have an interest in not being flooded with all kinds of literature that an organization like this does get flooded with we would want to get a look at it to see if it is advertising automobiles or candidates or whether it is in fact for or against a union ...." Flynn testified that since the time the incumbent union was certified the Respondent had no knowledge of any organizational activity going on in the unit involved. Analysis, Discussion, Findings, and Conclusions The Respondent takes the position that the FDR literature involved herein is not organizational literature, and that any refusal by the Respondent to allow its employees to bring into its Lambert Airport Plant facilities such literature sponsored by FDR was reasonable and necessary to maintain production , discipline, and the security of the Respondent; and that further the incumbent Union represents all plant employees (with exceptions not significant herein) at the Respondent's Lambert Airport Plant premises and that such unit included all employees alleged to be members of the FDR group, under which circumstances and under Section 9(cX3) of the Act no election for a collective-bargaining agent other than the incumbent Union or for any deauthorization election could be directed and held for a period of 12 months from the date of certification of the incumbent Union. Turning first to Respondent's contention that the FDR literature involved herein was not organizational literature within the protection of the Act , the record testimony by Flynn includes his statement that subsequent to the certification of the incumbent Union a collective -bargain- ing agreement was entered into . Flynn stated that he knew of no organizational campaign being conducted on the company premises since the date of the certification. In my view it is not germane that no election for a collective-bargaining agent other than the incumbent, nor any deauthorization election could be directed and held for a period of 12 months from the date of certification. What is dispositive of this question is the fact that the employees involved in the FDR group were clearly acting in concert for the purpose of collective bargaining or other mutual aid or protection. As the Board stated in G & W Electric Speciality Company, 154 NLRB 1136, 1137, in pertinent part, "Our decision herein is based on the facts of this case, and is not to be construed .. as holding that any employee activity which in any way involves other employees is protected by Section 7. However, we are convinced that the protection afforded by Section 7 is not strictly confined to activities which are immediately related to the employment 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relationship or working conditions but extends to the type of indirectly related activity involved herein." The indirect- ly related activity therein involved the distribution of literature relative to the establishment and operation of a credit union. The Board stated essentially that the benefits of credit unions are close enough in kind and character and bear such a reasonable connection to matters affecting the interests of employees as to come within the general reach of the "mutual aid and protection" the statute is concerned to protect. Here, in my view the distribution of FDR literature involving the matter of both an election and the quantum of dues payable to the bargaining representative is an activity if not directly related at least indirectly related to the employment relationship or working condi- tions and bear such a reasonable connection to matters affecting the interests of the Respondent's employees as to come within the protection of Section 7 of the Act. We turn next to the contention of the Respondent that any refusal by the Respondent to allow its employees to bring the FDR literature into its plant was reasonable and necessary to maintain production, discipline, and the security of the Respondent. It is settled law that, absent special circumstances, the Act guarantees employees the right to distribute union literature on their employer's premises during nonwork time in nonwork areas. Republic Aviation Company v. N.L.R.B., 324 U.S. 793, 803-804 (1945); N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105, 110-111 (1956); Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 543 (1972). Accordingly the Board has long held that a rule which, on its face or by application, interferes with the exercise of these protected employee rights is presumptive- ly invalid. Peyton Packing Co., 49 NLRB 828, 843-844 (1943); LeTourneau Company of Georgia, 54 NLRB 1253, 1259-60 (1944). The presumption may be overcome by evidence of unusual circumstances necessitating the pro- mulgation and application of the particular rule. Ibid. Thus, employees' Section 7 organizational rights do not exist in a vacuum; an employer's managerial and property rights must also be given careful consideration. And an "accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other." N.L.R.B. v. Babcock & Wilcox Co., supra at 113. Accord: Diamond Shamrock Co. v. N.L.R.B., 443 F.2d 52, 56 (C.A. 3, 1971). It is clear to me that a reading of the current collective- bargaining agreement at paragraph 15, section 2„ together with rule 32 which the record discloses was published in connection therewith discloses the existence of a rule which is so broad on its face as to interfere with the exercise of statutorily protected employee rights end accordingly presumptively invalid. While the Respondent contends that the current effectiveness of paragraph 15, section 2, is nullified inasmuch as the referenced paragraph was found invalid in a prior legal proceeding, the record discloses through testimony by the Respondent's director of labor relations, Flynn, that the collective-bargaining agreement containing article 15, limiting the distribution of literature on company property, was furnished by the Employer to the employees and article 15 has been enforced by the Respondent except for protected literature. Even consider- ing rule 32 independently of article 15, section 2, it would be my view and I find it to be so broad on its face as to be presumptively invalid. I am persuaded by the argument of counsel for General Counsel that if the Respondent cannot bar protected literature from nonwork areas on nonwork time it is no less an interference with employees' Section 7 rights to require that such literature be submitted to it for approval prior to distribution. I am convinced and I find that the rules limiting distribution as published and applied by the Respondent are on their face presumptively invalid. There remains for consideration then the question of whether or not such presumption has been overcome herein by evidence of unusual circumstances necessitating the pro- mulgation and application of the particular rule. The Respondent urges that "special circumstances" shown to exist in the Respondents plant operations due to the all pervasive requirements for security compels the conclusion that plant rule 32 is a reasonable rule. I am not so persuaded. A careful reading of all the material of record relating to the matter of security in the Respon- dent's plant does establish that the Respondent was in fact operating under contracts with the Department of Defense and others in the manufacture of classified material in strict adherence to security regulations. In this regard the Respondent shares this responsibility with most major producers of classified material in the nation. The argument has not heretofore successfully been advanced that the mere existence of security requirements compels a finding of the existence of "special circumstances ." As very recently stated by the court in McDonnell Douglas Corporation v. N.LR.B., 472 F.2d 539 (C.A. 8, 1973): We do not mean to say that the Board cannot pursuant to Republic Aviation hold that a rule infringing Section 7 rights is presumptively invalid and must be justified. We do hold, however, that when in attempting to rebut that presumption an employer makes a creditable showing of special justifying circumstances as was done in this case , the Board in weighing that evidence must responsibly and in a meaningful way consider the importance of the proper justification and thereby determine whether the actual impact of the contested rule upon Section 7 rights mandates the invalidation of the rule... . In the case at hand a careful consideration of the material of record relating to the security requirements placed on the Respondent under its government contracts and the recitation of the problems and complicated procedures involved in executing such responsibility do not in my view provide a "creditable showing of special justifying circumstances" such as to overcome the pre- sumption of invalidity of the rule. At best the Respondent's evidence tends to establish that the Respondent had in effect a sophisticated system of security control in accordance with the requirements of the Department of Defense, requiring certain precautions and specific safe- guards to be taken by the Respondent and the government in order to preserve and maintain the security of the 'United States through the prevention of improper disclo- MCDONNELL DOUGLAS CORP. 285 sure of classified information derived from matters affecting the national defense; sabotage ; or any other act detrimental to the security of the United States. As part of these security requirements the Respondent and the government have agreed that designated representatives of the government responsible for inspection pertaining to industrial plant security shall have the right to inspect at reasonable intervals the procedures, methods, and facilities utilized by the contractor in complying with the require- ments of the terms and conditions of the security requirements imposed by the government. Should the government through its authorized representative deter- mine that the contractors' security methods, procedures, or facilities do not comply with such requirements, it shall submit a written report to the contractor advising hun of the deficiency. In this regard it is significant that nowhere in this record has it been indicated that in the course of the inspections made by the government under these provi- sions has the government advised the Respondent that a limitation on the distribution of literature by employees in the plant on nonworking time in nonwork areas was necessary in order for the Respondent to achieve compli- ance with such security requirements. Additionally, while the Respondent went to some length to establish on the record numerous incidents of security violations in the Respondent's plant there was no evidence of probative value linking such incidents to the distribution of protected literature. In this regard, Ivan Rutherford, director of security for the Respondent, stated that he was concerned with "these people" because of the internal and the external theft problems, and the fact that there are times when the Respondent's employees fail to safeguard material prior to their going home, where they have left material out, left their security containers unlocked, and where a closed, restricted, or proprietary area in which government accompanying material is being stored has not been properly secured for the night. Rutherford indicated that under these circumstances there is a possibility of a compromise of classified information. Rutherford testified that during the course of last year the Respondent incurred somewhere in the neighborhood of "what we call security violations" representing approxi- mately 1,000 incidents . When this occurs, Rutherford is responsible to investigate that incident and the investiga- tion has to be detailed to the point of determining every employee who was on the floor or had access to that building to determine whether or not they could have had access to the material which had not been properly safeguarded. That investigation upon completion has to go forward to a government agency for their review and they may in turn report that to the contracting officer for that contract and he must decide whether or not he wishes to cancel the contract or have that particular portion of work redone. While these are telling points in establishing the difficulty of meeting security requirements they do not establish any significant relationship between security violations and the distribution of protected literature. In this regard, as pointed out by counsel for the General Counsel, employees Morris and Lucas on September 5 and 6 went to work at their usual time and it is clear that had they not apparently carried FDR literature they would have been admitted to the premises without question. There is no evidence herein that the Respondent 's security would be adversely affected by permitting these employees, who have already been subjected to the security screening process, and badged for access to the premises, to exercise their Section 7 rights in the distribution of literature which clearly does not extend to areas specially designated secure and classified by the Respondent. While in no way minimizing the importance of security to the national defense in the manufacture of classified material, it is my view that there has been little if any showing by the Respondent on this record that the security violations adverted to in the testimony are substantially other than those arising from inadvertent negligence on the part of employees, with this giving rise to a concern on the part of the Respondent that such inadvertence might be compounded through a peculiar set of circumstances bringing together an employee passing out literature and a resulting compromise of classified material already negli- gently or inadvertently exposed. I find while there is some speculation in the record there is no direct linkage between the security violations adverted to by Rutherford and the passing out of literature by employees . The Respondent has not made "a creditable showing" of special circum- stances justifying the limitation on the employees ' right to distribute organizational literature on the Employer's premises during nonwork time and in nonwork areas. Finally, the Respondent contends that alternate means of communication were available to the employees herein. The Respondent suggests that the FDR group could have freely distributed its literature at the entrances to the outer perimeter from the public road. The record discloses that the Respondent has a traffic problem common to most other large industrial operations where thousands of employees are disgorged from the plant contemporaneous- ly with a large scale influx of those employees reporting to work. Peaks occur at change of shift time . Indeed, Morris testified that the literature could have been distributed at these points but that this would have resulted in a traffic jam which would undoubtedly adversely affect the shift change operation while at the same time creating a safety problem for those passing out the literature. In this regard, Ivan Rutherford testified concerning the distribution of literature on the parking lot, that he was concerned about employees distributing union literature only to the point where the employees would disturb the movement of the employees or traffic from the Respon- dent's lots. This would indicate that the Respondent was concerned with the flow of traffic and that no carte blanche was available for distribution at these points. It would appear to me that to utilize this method of communication with the resultant traffic jam and delay to employees leaving and coming to work would undoubtedly defeat the purpose of the communication which is to elicit support for the position of the group, thereby rendering such distri- bution futile. Under these circumstances I am convinced that such distribution does not qualify as a bona fide alternate means of distribution. Similarly the record establishes that the size of the FDR group involved herein in relation to the estimated cost of 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD communicating by mail would clearly be prohibitive and bar mailing as a bona fide alternate approach. Accordingly I find that in the peculiar circumstances of this case no alternate means of communication were available to the employees involved. Accordingly I am convinced and I find that, as alleged in the complaint, the Respondent by promulgating and maintaining an invalid no-distribution rule and by imple- menting such rule so as to refuse to allow employees to bring into its Lambert Airport plant premises for distri- bution to employees literature printed by a , group of employees known as "Fight the Dues Raise" or "FDR," has interfered with the Section 7 rights of its employees and thereby violated Section 8(axl) of the Act. CONCLUSIONS OF LAW 1. The Respondent is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the State of Maryland and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. District Lodge No. 837, International Association of Machinists and Aerospace Workers, AFL-CIO, is and has been at all times material herein a labor organization within the meaning of Section 2 (5) of the Act. 3. By promulgating and maintaining an invalid no- distribution rule and pursuant thereto refusing to allow employees to bring into its Lambert Airport plant premises literature printed by a group of employees known as "Fight the Dues Raise" or "FDR" the Respondent did interfere with, restrain, and coerce its employees in the exercise of rights guaranteed in Section 7 of the Act and did thereby engage in unfair labor practices affecting commerce within the meaning of Section 8(axl) and Section 2(6) and (7) 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 REMEDY Having found that the Respondent has engaged in certain unfair labor practices it should be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The order should also provide for the Respondent to revoke and withdraw its no-distribution rules to the extent that they limit or prevent the distribution by employees of protected literature on company premises on nonworking time in nonwork areas, and should require the Respondent to inform the employees of their right to engage in such protected activity. Upon the foregoing findings of fact, conclusions of law, and the entire record, I hereby issue the following recommended: las 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 an employee group known as "Fight the Dues Raise" or "FDR" on company premises in nonwork areas on nonworking time. (b) Promulgating, maintaining, and giving effect to any rules which limit its employees' rights to distribute literature on its premises during nonworking time in nonwork areas unless the limitations imposed on such activity can be justified by the 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) Rescind and withdraw its existing no-distribution rules to the extent that they infringe upon employee rights with respect to distribution of union literature to any greater extent than the 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 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 as "Appendix." 2 Copies of said notice , on forms provided by the Regional Director for Region 14, shall be posted by Respondent 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 to insure that said notices are not altered, defaced, or covered by any other matenal. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 1 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 2 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ORDER1 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, McDonnell Doug- MCDONNELL DOUGLAS CORP. 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, interfere with the rights of our employees to distribute literature on behalf of the employee group known as "Fight The Dues Raise" or "FDR," on company premises in nonworking areas 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-distribution rules to the extent that they infringe on employee rights with respect to distribution of union literature and to the extent that they require prior permission of management. 287 All our employees are free to distribute union literature in nonwork areas during nonworking time except to the extent such activities violate published rules justified by considerations of production, 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 314-622-4167.