Massey-Ferguson, Inc.

MASSEY-FERGUSON, INC. 487 Massey-Ferguson, Inc. and Arthur H. Rosen. Case 7-CA-10732 June 12, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On March 27, 1974, Administrative Law Judge Ivar H. Peterson 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 and to adopt his recommended Order, to the extent consis- tent herewith. We agree with the Administrative Law Judge that the instant case is controlled by the recent decision of the United States Supreme Court in N.L.R.B. v. The Magnavox Company of Tennessee, 415 U.S. 322'(1974). Also pertinent to the issues herein is our later decision in McDonnell Douglas Corporation, 210 NLRB No. 29, which issued subsequent to the Administrative Law Judge's Decision in this case. As we pointed out in McDonnell, the first question is whether the attempted distribution here is related to Section 7 activity. Respondent contends the negative, asserting that the newspaper "United National Caucus" made no direct reference to Respondent, Respondent's employees, or the em- ployees' bargaining representative, Local 174, United Auto Workers. We do not agree. The particular edition of the newspaper which Rosen sought to distribute primarily addresses itself to the 1973 collective-bargaining agreement negotiated by Chrysler and the International UAW. The newspa- per criticizes the character of the negotiations and the terms of the contract. The headlined article points out, inter alia, that "UAW members through- out the union should b aware of what the Chrysler contract actually conta ns. The same basic pattern is going to be presented throughout the other sets of negotiations yet to be conducted." The newspaper contains articles analyzing various provisions of that contract. Another article, "Which Side Are You On?", analyzes the role of the leadership of the UAW locals, as that role affects the union members' relationship to the International. We think that these matters do concern the conditions of employment of Respondent's employees, particularly since the Inter- national Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, was itself a party to the agreement, expiring October 31, 1973, with Respondent which covered Respon- dent's employees. Respondent also advances various contentions that the Supreme Court's decision in Magnavox does not warrant a finding of a violation of Section 8(a)(1) in this case. Without setting forth those contentions in detail, we think it clear as we said in McDonnell, that the Supreme Court held that the parties to a collective-bargaining contract cannot by agreement waive an employee's Section 7 right to distribute literature to his fellow employees concerning their Section 7 interests. In this case Rosen, an employee, sought to distribute to his fellow employees matter adverse to the Union. He was denied permission to do so by Respondent because of the Union's contractual waiver of all employee rights to distrib- ute literature in the plant. While the Union might waive the distribution by it of its own institutional literature, it cannot thus waive these Section 7 rights of the employees.' McDonnell Douglas Corporation, supra. Finally, Respondent argues that Rosen sought to distribute the newspaper in a working area of the plant, and therefore Respondent properly denied him permission to distribute his material. We find no evidence to support this argument. In the first place, this was not the reason Respondent gave to Rosen when it denied Rosen permission to distribute his literature. Rosen asked Cicero, the hourly personnel supervisor, if he could distribute the newspaper in the plant. Rosen did not specify the exact location of his intended distribution. Cicero, having glanced at the newspaper, told Rosen no. Cicero testified that he did so because article 17 of the bargaining agreement prohibited the distribution of this materi- al. However, what Cicero told Rosen was that Rosen could not distribute the newspaper with negotiations going on.2 There was no discussion of the intended location. Secondly, the timeclock area, where Rosen testified he would have distributed the newspaper, is separated by racks from the rest of the plant floor and is 15 to 20 feet from the door exiting onto the parking lot. Respondent's Hi-Lo trucks, while ob- taining parts from the vicinity of the timeclocks, I Respondent also claims that reasonable and suitable alternative means 843-844. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793. of communication are available to Rosen . Inasmuch as Rosen is an 2 Referring to negotiations between Respondent and one of the UAW employee who intended to distribute his literature at the conclusion of his locals representing its employees. workshift, that argument is not relevant . Peyton Packing Co., 49 NLRB 829, 211 NLRB No. 64 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admittedly do not drive through the timeclock area itself. There is no machinery in this described area. When employees clock out, this area is traversed by the employees leaving the plant. Therefore, assuming that such was Respondent's ground for preventing Rosen from distributing the newspaper, we find that the timeclock area is not part of the working area of the plant. Accordingly, we find in agreement with the Administrative Law Judge that Respondent has violated Section 8(a)(1) of the Act. ORDER ized distribution of literature, written or printed matter of any description on Company premises." The rules provid- ed "violations will be sufficient grounds for disciplinary action or discharge depending upon the seriousness of the offense." Finally, the complaint alleged that on or about October 30, the Respondent through its agent, Thomas Cicero, denied Rosen the right to distribute literature involving employee concerns on his own nonworktime in nonwork areas. In its answer, the Respondent denied the commission of any unfair labor practices. Upon the basis of the entire record in the case and my observation of the witnesses as they testified, and consider- ation of the brief filed by the Respondent on March 19, I make the following: 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, Massey-Ferguson, Inc., Detroit, Michigan, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge : I heard this case in Detroit, Michigan, on February 12, 1974, based upon charges filed by Arthur H. Rosen, an individual, on November 14, alleging that the Respondent , Massey- Ferguson, Inc., herein called the Respondent , had violated Sections 8(a)(l) and 2(6) and (7) of the Act in that it maintained and enforced, at all times since July 1, 1971, at its Southfield Road plant and at other facilities and places of business, the following rule concerning bulletin boards: ARTICLE XVII BULLETIN BOARDS 17.01 The company shall provide a suitable number of bulletin boards for the exclusive use of the union at each appropriate unit. The use of these bulletin boards shall be confined to the following notices: 1. recreational and social affairs of the union 2. union meetings; 3. union appointments; 4. union elections, including those required in the union constitution, and the results of such elections. There shall be no distribution or posting by employees of pamphlets, advertising or political matters, notices, or any other kind of literature upon company property, other than as herein provided . Notice shall be posted by a committeeman only after approval of the local Personnel and Industrial Relations Department. In addition, the Respondent, in a pamphlet entitled "Rules of Personal Conduct," prohibited, among other things, "unauthorized soliciting or collecting contributions for any purpose whatever on Company premises" and "unauthor- FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Maryland corporation, has at all time material maintained an office and place of business at 12601 Southfield Road in Detroit, where it has been engaged in the manufacture, sale, and distribution of farm machinery and related products . The Respondent admits and I find that it is an employer engaged in commerce within the meaning of the Act and the jurisdictional requirements of the Board . It also admits that the Union is s labor organization within the meaning of Section 2(5) of ,the Act. R. J. Coghlan is personnel and industrial relations (supervisor and Thomas Cicero is an hourly personnel supervisor. II. THE ALLEGED UNFAIR LABOR PRACTICE On or about June 28, 1968, the Regional Director for Region 7 certified the Union as the exclusive bargaining representative within the meaning of Section 9(a) of the Act of certain of the Respondent's employees at its North American Tractor Plant, its engineering experimental shop, and its engineering laboratory, all located at the Southfield Road Plant and, since July 1971, the Respondent has continued to recognize and bargain with the Union as the exclusive collective-bargaining representative of the fore- going employees. On or about July 1, 1971, the Respondent and the Union entered into a contract establishing certain wages, hours, and other terms and conditions of employ- ment for the employees of the Respondent at various locations, including those employed at the Southfield Road Plant. This agreement became effective on July 1, 1971, and was to remain and did remain in full force and effect until October 31 , 1973. At all times since the latter date, the agreement has remained in effect pending the negotiation of a successor contract. At all times since July 1, 1971, the Respondent and the Union have maintained and enforced at the Southfield Road Plant and at other facilities of the Respondent an agreement which, among other things, contains the provisions in article 17 set forth above , and the "Rules of Personal Conduct," also quoted above. On or about October 30, 1973, Respondent's Agent Cicero denied employee Rosen the right to distribute literature involving 'employee concerns on his own nonworktime in nonwork areas. The complaint alleged that by maintaining these provisions and by denying Rosen the right to distribute MASSEY-FERGUSON, INC. 489 literature, the Respondent "unlawfully restricted the right of certain of its employees . . . to engage in lawful solicitation and lawful distribution of literature on behalf of or in opposition to the Union or any other labor organization or on behalf of or in opposition to any candidates or issues in the Union or any other labor organization or concerning any other concerted activity for the purpose of collective bargaining or other mutual aid or protection." In its answer, the Respondent denied that it denied Rosen "the right to distribute literature involving employee concerns, on his own nonworktime in non-work areas." It asserts that Cicero, in conformance with the provisions of the collective-bargaining agreement set forth above, denied Rosen "the right to distribute literature which did not refer to the Respondent Employer, its employees, or to the local union representing the employ- ees of the Respondent on his own non-worktime in a work area, rather than a non-work area." Rosen, employed since November 1968, holds the classification of line inspector . He is a member of Local 174 of the Union and is also a member of an organization called United National Caucus, which he described as "a group of UAW members who feel that the International is not responsive to the needs of the membership which would like to restructure the UAW so that it's more democratic." The Caucus also publishes a newspaper. On October 26, 1973, during the afternoon, Rosen went to the personnel office to speak to Cicero but found he was not there. He asked a Mrs. Grant, the secretary, if she would find out for him if he could distribute the Caucus newspaper in the plant. The following Tuesday, October 30, Rosen went back to personnel after working hours and spoke to Cicero. Rosen asked Cicero if he had found out whether he could get permission to distribute the paper and, according to Rosen, Cicero "said that there was no way I could distribute it especially with negotiations going on and I had asked him if he had had a chance to read it. He said he had only glanced at it but he felt that it was well written, he said however, Mr. Coghlan had read it and then mailed it on to Des Moines." As he was leaving, Rosen remarked to Cicero that he had heard that the Company "was on weak ground because NLRB had made some decisions in some cases that allowed us to distribute literature in non-working areas at non-working times." Rosen further testified that in October 1972, he and other employees published a paper called the Third Ear, which contained his name and that of the Chairman, Norman Przybylowicz. He passed out this publication at the plant entrance shortly after working hours. As hourly employment supervisor, Cicero recruits new employees, handles the benefits agreements , and adminis- ters labor contracts. Cicero testified that Rosen on or about October 30 "approached me in my office asking if he could distribute a paper which was entitled the United National Caucus and at that point I told him no." According to Cicero, employees are "permitted their own general discussions as long as it doesn't disrupt their work." Cicero described the location of the timeclocks as being approximately in the middle of the plant. There are four timeclocks, one on each side of a double corridor that has an exit entrance there that goes out to the parking lot. The timeclock area also is the storage area for parts used on the assembly line, and thus the work would include locating and placing the parts from that area and removing them. In addition, Hi-Lo drivers are engaged in stacking, unstacking, counting parts, locating parts, and filling out tickets. Approximately 30 to 35 drivers go off work at 3:30. Coghlan, the plant manager, in October 1973 was personnel industrial relations supervisor . Coghlan related that in November of 1973 he was approached by a union chairman who asked permission to post on the bulletin board a notice relating to the Union's community action program which stated that the UAW was endorsing certain candidates and listed them. He asked for permission to distribute the literature and it was granted. Coghlan related that within 30 days before he testified the plant had received an inspection from the Michigan Department of Labor Occupational Safety and Health Division. It contained a substantial list of violations of the code. The Respondent introduced into evidence three con- tracts which contained provisions concerning the use of bulletin boards . The first agreement, between Chrysler Corporation and the UAW, effective February 1971, provided that "the bulletin boards shall not be used by the Union for disseminating progaganda of any kind whatso- ever ; and among other things shall not be used by the Union for posting or distributing pamphlets or political matter of any kind whatsoever, or for advertising." The second agreement, between the Budd Company and the International UAW, provided: "The Company will pro- vide adequate bulletin boards for Union Notices which have been approved by the president of the Union and the Labor Relations Manager." The third agreement effective January 29, 1971, between International Harvester Compa- ny and the International UAW, provided as follows: Section 2 The Union agrees that it will limit the use of these bulletin boards for the following Union notices: (a) Recreational and social affairs of the Union (b) Union meetings (c) Union appointments (d) Union elections (e) Announcement of the issues over which the Union has the right to strike under this Contract together with the time and place at which such strike vote will be taken. (f) Results of Union elections or strike votes (g) Reports of standing Union committees (h) Ruling or policies of the International Union (i) Any other material authorized by the Company Concludi Findings The decision in this case is clearly covered by the decision of the United States Supreme Court in N.L.R.B. v. The Magnavox Company of Tennessee, 415 U.S. 322 (1974). In that case, the majority of the Court found as follows: We agree that a ban on the distribution of union literature or the solicitation of union support by employees at the plant during nonworking time may constitute an interference with §7 rights... . It is argued that the use of the bulletin board is a fair 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Moreover, a limitation of the right of in-plant distribu- tion of literature to employees opposing the union does not give a fair balance to §7 rights, as the Board ruled in the present case. For employees supporting the union have as secure §7 rights as those in opposition. The Board's position, as noted, has not always been consistent. But its present ruling is, we think, quite consistent with §7 rights of employees. It is the Board's function to strike a balance among "conflicting legitimate interests" which will "effectuate national labor policy," including those who support versus those who oppose the union. Labor Board v. Truck Division Union, 353 U.S. 87, 96. Moreover, as respects employ- ers, the rights of solicitation of employees by employees concerning §7 rights are not absolute. As we noted in Republic Aviation Corp. the Board may well conclude that considerations of production or discipline may make controls necessary. No such evidence existed here and the trial examiner so found. Accordingly, this is not the occasion to balance the availability of alterna- tive channels of communications against a legitimate employer business justification for barring or limiting inplant communications. ORDERI Massey-Ferguson, Inc., of Detroit, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from maintaining, giving effect to, or enforcing any rule which prohibits employees from distributing literature in nonworking areas on nonworking time on behalf of any labor organization 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 other matters related to the exercise of their Section 7 rights. 2. Take the following affirmative action which is necessary to effectuate the policy of the Act: (a) Post at its plant and office in Detroit, Michigan, at its Southfield Road plant and at any other facilities and places of business where the rule pertaining to bulletin boards is posted, copies of the attached notice marked "Appendix." 2 Copies of the notice, on forms provided by the Regional Director for Region 7, after being duly signed by an authorized representative of the Respondent, shall be posted by the 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 by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 7, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith. Accordingly, I find that the Respondent, by maintaining and enforcing the rules relating to distribution of literature and by denying Rosen the right to distribute literature, violated Section 8(a)(1) of the Act. III. THE REMEDY Having found that the Respondent has engaged in an unfair labor practice violative of Section 8(axl) 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 Section 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 the rule which prohibits employees from distributing literature on non- working time in nonwork areas, Respondent has violated Section 8(ax 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. On 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: I 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, 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. 2 In the event that the Board's Order is enforced by a Judgment of the 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 "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 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 enforce any rule which prohibits our employees from distributing literature in nonworking areas on nonworking time on behalf of any labor organization 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 to the exercise by employees of the rights guaranteed to them by the National Labor Relations Act, as amended, to form, join, or assist labor organizations, to bargain collectively through repre- sentatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection, or to MASSEY-FERGUSON, INC. 491 refrain from any or all of such activities, except to the This is an official notice and must not be defaced by extent that such right may be affected by an agreement anyone. requiring membership in a labor organization as a This notice must remain posted for 60 consecutive days condition of employment as authorized in Section from the date of posting and must not be altered, defaced, 8(a)(3) of the Act . or covered by any other material. Any questions concerning this notice or compliance with MASSEY-FERGUSON, INC. its provisions may be directed to the Board's Office, 500 (Employer) Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Telephone, 313-226-3210. Dated By (Representative) (Title)