Ford Motor Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ford Motor Company (Rouge Complex) and Robert Parsons and John Ellis. Cases 7-CA-13069 and 7- CA-13220 November 21, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On May 17, 1977, Administrative Law Judge Morton D. Friedman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in opposition thereto. 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 briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The facts, as more fully set forth by the Adminis- trative Law Judge, are as follows: The International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW) and its Local No. 600, herein called the Union or Local 600, and Ford Motor Company (Rouge Complex), herein called Respondent, have been parties to successive collective-bargaining agreements for many years covering employees at its Dearborn, Michigan, plant. The most recent contract was effective by its terms until September 14, 1976.1 Although the contract contains no clause specifically prohibiting or limiting the employees' right to distribute literature on company premises, Respondent concedes it has had a longstanding prohibition on the distribution of literature on company property. At the time of the events herein, negotiations for a new contract were imminent. Some time before April 1, Respondent was con- templating an increase in its rate of production. The Union, concerned about the possibility of some 1,500 employees being laid off in July if Respondent in fact increased its rate of production, discussed the matter on various occasions with the employees. On April 4, the Union held a rally at which it informed the employees of the steps it was taking to avert the possible layoffs, including its conducting of a "Henry Have A Heart" campaign. A number of employees, among them Parsons, Ellis, Abbott, and Fuqua, however, felt that the Union's position with respect to the possible layoffs and its campaign were not sufficiently militant and formed an organization known as "Time to Unite" for the purpose of persuading the Union to take a more aggressive position. The organization, in an effort to win the support of other union members, printed circulars and distributed them among the employees of the Rouge Complex. On April 28, Parsons was in the bathroom on breaktime during the work shift. Parsons left his lunchbag at the door of the bathroom. The lunchbag contained several copies of four different documents. One document, entitled "Time to Unite, No. 14" published by the "Time to Unite" organization, sought to inform the employees about the UAW's reluctance to call a strike to prevent the possible layoffs and encouraged other workers to contact the organization to start a petition directing the Union to set a date for a strike vote. The remaining documents were a tabloid size newspaper entitled "The Work- er," and two one-page documents entitled "Interna- tional Workers Day" and "On to May Day." These latter documents were published by the Revolution- ary Communist Party. While Parsons was in the bathroom, Giacino, Respondent's labor relations representative, discovered the documents in his lunchbag, picked up the bag, and told Parsons to come with him. Parsons inquired as to Giacino's identity, grabbed the lunchbag out of his hand, and protested Giacino's actions. Both men then went to the labor relations office where Giacino told Parsons he "had literature in there that he couldn't have." Parsons said he "could have any kind of literature he wanted." Giacino responded, "that is not right, you can't have any literature on you on company property. We can tell you what you can and can't do." Giacino then said, "I am going to call plant security and I am demanding that you give me the literature in your lunch bag." Parsons told Giacino that the literature in the bag was "none of his business" and he "could have any kind of literature he wanted." Giacino then summoned two security guards and a security supervisor. Soon after their arrival, the security guards informed Parsons they would call the police and have him arrested if he did not give them his lunchbag. Parsons then relin- quished the literature. Giacino instructed Parsons to return to work and told him that he would later be informed of the discipline he was to receive. The following day, Parsons was summoned to Giacino's office and was given a 3-day disciplinary suspension. Subsequently, a grievance was filed by the Union on behalf of Parsons, which resulted in the rescission of the 3-day suspension with backpay. A I All dates herein are in 1976 unless otherwise indicated. 233 NLRB No. 102 698 FORD MOTOR COMPANY record of the discipline, however, remained in Parsons' personnel file. On May 4, employee Abbott solicited signatures on a petition calling for the Union to set a date for a strike vote by Local 600 members to avoid the possible layoffs. Abbott solicited the signatures on his nonworking time in Respondent's parking lot. Shortly after commencing the solicitation, Abbott was prevented from continuing to solicit the signa- tures by Respondent's security guards. On May 27, prior to the commencement of his shift, Abbott distributed at the same location a newsletter entitled "76 Auto Contracts-A Time To Fight," which was published by the Auto Workers United to Fight in 76, a national group of UAW members concerned about working conditions and other matters seeking to get their demands and points of view incorporated into the negotiations for a new contract. As on the previous occasion, Abbott was prevented from distributing the newspaper by Respondent's security guards. Thereafter, on June 8 and 9, Parsons, Ellis, Abbott, and Fuqua attempted to distribute in Respondent's parking lot another publication by the Time to Unite group entitled "Time to Unite, No. 17." The literature was addressed to rank-and-file members of the Union and demanded a strike vote concerning the layoffs and generally derided the efforts of the UAW in distributing "Henry Have A Heart" buttons. Respondent's plant guards, however, stopped them, confiscated their employee identifica- tion badges, and took photographs of them. The following day each was separately summoned to the labor relations office and suspended for the remain- der of the shift and for the next day. Subsequently, the Union grieved the matter on behalf of the employees. Ellis, Abbott, and Fuqua were given backpay for their suspensions conditioned on their promises that they would not repeat the alleged offense. It was further agreed that a record of their suspensions would be kept in their personnel files. Parsons, however, was not given any backpay because of his previous suspension on April 28. Subsequently, on August 2, Fuqua was called to Giacino's office. During their conversation, Giacino told Fuqua that "this literature you guys are passing out is not true. Not a word of it is true, and it is unauthorized literature, and you guys will get fired if you keep passing this kind of literature out." He further added, "If you have any influence over the guys that are passing it out, if I was you, I would tell them to stop." Although Giacino did not specifically indicate to which literature he was referring, it is clear that at that time the "Time to Unite" group, 2 195 NLRB 265 (1972). 3 415 U.S. at 325-326 (1974). including Fuqua, was continuing to distribute leaflets similar in content to those it previously had distribut- ed. The Administrative Law Judge concluded that, under usual circumstances, the employees' solicita- tion and distribution of the union literature would constitute protected activities within the meaning of Section 7 of the Act. He found, however, that the Union had waived the rights of employees to solicit and distribute union literature and that, inasmuch as the employees' activities were not directly related to the selection or rejection of the collective-bargaining representative, the Union's waiver was effective under N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974). He therefore concluded that Respondent's rule itself and its enforcement of that rule by its actions with respect to the employees involved herein were lawful and, accordingly, he dismissed the complaint in its entirety. We disagree, for the reasons set forth below. The Supreme Court in Magnavox, in adopting the Board's decision,2 stated as follows: The place of work is a place uniquely appropriate for dissemination of views concerning the bar- gaining 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. .... 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.3 In balancing these interests, the Board, in its Magnavox decision and subsequent cases, has distin- guished between the distribution of union institution- al literature and literature which pertains to the employees' selection or rejection of a labor organiza- tion as their collective-bargaining representative, or other matters related to the exercise by employees of their Section 7 rights. The Board has consistently held that an incumbent union may silence its own voice by waiving the right to distribute its own institutional literature, but that it is powerless to waive the employees' right to distribute literature pertaining to matters concerning their working conditions and other conditions of employment.4 Thus, the Board has held that an incumbent union cannot waive the rights of employees to distribute 4 See, e.g., Yellow Cab, Inc., 210 NLRB 568 (1974); McDonnell Douglas Corporation. 210 NLRB 280(1974). 699 DECISIONS OF NATIONAL LABOR RELATIONS BOARD literature which promoted a demonstration by employees which was not sponsored by the union, 5 opposed an increase in union dues, 6 criticized the character of negotiations and the terms of a contract,7 and opposed reelection of incumbent officers.8 We find that the literature herein, involving the employees' concerns over the possibility of layoffs and the Union's efforts to avert that possibili- ty, clearly falls within the category of other condi- tions of employment. It is therefore clear that the employees' solicitation and distribution of literature in the instant case was protected concerted and/or union activity within the meaning of Section 7 and that the Union could not effectively waive the employees' rights to engage in such activities under the principles of Magnavox.9 Based on the foregoing, we conclude, contrary to the Administrative Law Judge, that the Union's purported waiver of the employees' rights is unavail- ing to Respondent and that, by admittedly maintain- ing a no-solicitation and no-distribution rule prohi- biting such activities with respect to union matters by employees on company premises, Respondent has maintained an invalid rule in violation of Section 8(a)(1) of the Act. 0° We further find that Respondent through the enforcement of that rule by suspending Parsons on April 2911 for possessing literature and by suspending Parsons, Ellis, Abbott, and Fuqua on June 10 for having distributed or having attempted to distribute literature violated Section 8(a)(3) and (1).12 Finally, we conclude that Respondent additionally violated Section 8(a)(l) by Giacino's threat to Fuqua on August 2 that the employees distributing the literature either cease their activities or suffer discharge. Upon the foregoing findings of fact, and upon the entire record in this proceeding, the Board makes the following: I Yellow Cab, supra. a McDonnell Douglas, supra. 7 Massey-Ferguson, Inc., 211 NLRB 487 (1974). 8 General Motors Corporation, 211 NLRB 986 (1974), enfd. in relevant part 512 F.2d 447 (C.A. 6, 1975). 9 Member Murphy believes that the employees' rights to possess or distribute literature on nonworking time and in nonworking areas and to discuss their working conditions during nonworking time are also protected by the first amendment to the Constitution. See her separate position as stated in fn. 4 of United ParcelServices, Inc., 230 NLRB 1197 (1977). 10 We note that Respondent does not contend that its broad prohibition on solicitation and distribution is necessary for the maintenance of production or plant discipline. See Republic Aviation Corporation v. N.LR.B., 324 U.S. 793 (1945); Stoddard-Quirk Manufacturing Co., 138 NLRB 615 (1962). "i With respect to Parsons' suspension on April 29, the Administrative Law Judge found no violation based, in part, on the General Counsel's concession at the hearing that the publications of the Revolutionary Communist Party contained in Parsons' lunchbag did not constitute protected literature. It is clear, however, that additional literature, which we have found to be protected, was also contained in Parsons' lunchbag and CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce 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 giving effect to an invalid no-solicitation and no-distribution rule which pro- hibits employees from possessing literature or distrib- uting literature on company premises in nonworking areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX 1) of the Act. 4. By enforcing its invalid no-solicitation and no- distribution rule by suspending Robert Parsons, John Ellis, John Abbott, and Jerry Fuqua because they possessed and/or distributed or attempted to distrib- ute literature pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By threatening its employees with discharge for distributing on company premises in nonworking areas during nonworking time literature pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to their exercise of Section 7 rights, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. that Giacino indicated to him that he could not have any literature "on him" on company property. We find, without passing on the issue of whether the Communist Party literature in itself was protected, that Respondent's suspension of Parsons for the mere possession of the protected literature in his lunchbag was unlawful. See Federal-Mogul Corporation, 224 NLRB 325, 336 (1976). 12 In its brief to the Board, Respondent urges that the Board, under Spielberg Manufacturing Company, 112 NLRB 1080 (1955), give final and binding effect to the resolution by it and the Union of the grievances arising from its suspension of the employees involved herein. The Spielberg doctrine, however, is inapplicable to the circumstances here, inasmuch as the grievances were adjusted during the early stages of the grievance procedure and were not submitted to arbitration or to any other impartial tribunal. See, e.g., Whirlpool Corporation, Evansville Division, 216 NLRB 183, 185-186 (1975); Pontiac Motors Division, General Motors Corporation, 132 NLRB 413, 415 (1961). Furthermore, since the adjustments of the grievances were contingent on the employees' promises not to engage in such conduct in the future and on records of the discipline being maintained in their personnel files, we find in any event that the resolutions of the grievances were repugnant to the purposes of the Act. 700 FORD MOTOR COMPANY THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action necessary to effectuate the purposes of the Act. Such affirmative action shall include an order that Respondent expunge from the personnel records of Robert Parsons, John Ellis, John Abbott, and Jerry Fuqua any entry concerning their suspensions for their possession and/or distri- bution of literature pertaining to the selection or rejection of the Union, or other matters relating to the exercise of their Section 7 rights. We also shall order that Respondent make the above-named employees whole for any losses of pay 13 they may have suffered by payment to each of the sums they would have earned but for the discrimination against them, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).14 We shall also require that Respondent post appropriate notices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Ford Motor Company (Rouge Complex), Dearborn, Michigan, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Maintaining, giving effect to, or enforcing an invalid no-solicitation and no-distribution rule which prohibits employees from possessing literature or distributing literature on company premises in nonworking areas during nonworking time, pertain- ing to the selection or rejection of a collective- bargaining representative, or other matters relating to the exercise of their Section 7 rights. (b) Suspending or otherwise discriminating against employees because they possess literature and distribute or attempt to distribute literature on company premises in nonworking areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights. (c) Threatening employees with discharge or other discipline because they distribute literature on company premises in nonworking areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Expunge from the personnel records of Robert Parsons, John Ellis, John Abbott, and Jerry Fuqua any entry concerning their suspensions for possessing literature and/or distributing or attempting to distribute literature on company premises in non- working areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights. (b) Make whole the above-named employees for any loss of pay they may have suffered by reason of Respondent's discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its facility in Dearborn, Michigan, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms provided by the Regional Director for Region 7, after being duly signed by Respondent's representative, 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 by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. 13 As indicated previously, it appears from the record that some of the discriminatees may have received backpay for the periods they were suspended. These matters are more appropriately left to the compliance stage of this proceeding. 14 See, generally. Isis Plumbing A Heating Co.. 138 NLRB 716 (1962). '1 In the event that this 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." 701 DECISIONS OF 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 possessing literature or distributing litera- ture on company premises in nonworking areas during nonworking time, pertaining to the selec- tion or rejection of a collective-bargaining repre- sentative, or other matters relating to the exercise of their Section 7 rights. WE WILL NOT suspend or otherwise discrimi- nate against our employees because they possess literature and/or distribute or attempt to distrib- ute literature on company premises in nonwork- ing areas during nonworking time, pertaining to the selection or rejection of a collective-bargain- ing representative, or other matters relating to the exercise of their Section 7 rights. WE WILL NOT threaten employees with dis- charge or other discipline because they distribute literature on company premises in nonworking areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other matters relating to the exercise of their Section 7 rights. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. WE WILL expunge from the personnel records of Robert Parsons, John Ellis, John Abbott, and Jerry Fuqua any entry concerning their suspen- sions for possessing literature and/or distributing or attempting to distribute literature on company premises in nonworking areas during nonworking time, pertaining to the selection or rejection of a collective-bargaining representative, or other mat- ters relating to the exercise of their Section 7 rights. WE WILL make whole the above-named em- ployees for any loss of pay they may have suffered by reason of the discrimination against them, with interest. FORD MOTOR COMPANY (ROUGE COMPLEX) DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Administrative Law Judge: This case was heard at Detroit, Michigan, upon the consolidated amended complaint of the General Counsel issued August 31, 1976, which complaint was based upon a charge filed in Case 7-CA-13069 on June 9, 1976, by Robert Parsons, herein called Parsons, and a charge filed on July 28, 1976, by John Ellis, herein called Ellis. The complaint alleges, in substance, that the Ford Motor Company, herein called Respondent or the Company, maintained, applied, and enforced an overly broad no-solicitation, no-distribution rule by refusing to permit union-connected material to be distributed on company premises on nonworking time in nonworking areas, thereby violating Section 8(a)(I) of the Act and disciplining employees for such solicitation and distribution, thereby violating Section 8(a)(3) and (1) of the Act. In its duly filed answer, Respondent admits that it did refuse to permit the solicitation and distribution and also did discipline the employees involved, but affirmatively alleges that it has had a longstanding unwritten waiver from International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and its Local No. 600, of employee-members' rights to solicit or distribute union matter on company property. Respondent also alleges that the material for which distribution was prohibited in this instance was not protected union literature. Additionally, Respondent alleges that the entire matter of disciplinary measures was disposed of through contractual grievance procedures. Thus, the issues are joined. Subsequent to the hearing, counsel for the General Counsel and counsel for Respondent filed briefs. Upon the entire record in the case, and upon due consideration given to the contentions and arguments set forth in the parties' briefs, and upon my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent, a Delaware corporation, maintains its principal office and place of business in the city of Dearborn, Michigan, where it is engaged in the manufac- ture, sale, and distribution of automobiles, trucks, automo- tive parts, and related products. During the year ending December 31, 1975, the Respondent's manufacturing plant known as the Rouge Plant Complex, in Dearborn, Michigan, purchased, and caused to be delivered and transported to the said plant, automobile parts and accessories and other goods and materials of a value in excess of $500,000 directly from points outside the State of Michigan. During the same period of time, which is a representative period, Respondent, from its Rouge Com- plex Plant, manufactured, sold, and distributed products of a value in excess of $500,000 which were shipped from the said plant directly to points outside the State of Michigan. It is admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and its Local 702 FORD MOTOR COMPANY No. 600, herein called the Union or the UAW, is a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts UAW and Respondent have been parties to successive collective-bargaining agreements for many years. The agreement in effect at the time of the events herein contained no specific waiver of employees' right to distribute literature in nonworking areas on nonworking time. However, the agreement did contain a strikes, stoppages, and lockout section' which contained a clause prohibiting strikes during the contract period "except with respect to disputes which are to be referred to the procedure provided for in Article VII, Section 23 of this agreement, and then only after such procedure has been exhausted." Article VII is part of the grievance procedure article, which, in section 23, sets forth the procedures for grievance processing in instances involving production standards, job security and outside contracting, health and safety, and new job rate grievances. Subsection (e) of the said section 23 gives the Union the right to strike during the term of the agreement if the parties fail to reach agreement over any of these aforenamed matters. In addition to the foregoing, article IV of the said bargaining agreement reserves to Respondent a broad spectrum of management rights. Section 5 of that article retains for Respondent broad rule-making powers subject to the Union's right to question the reasonableness of Respondent's rules and regulations through the agree- ment's grievance and arbitration procedures. It was in the context of the foregoing that the events occurred with which this case is involved. It should be noted that there is little or no dispute with regard to the events; 2 the disagreement is with their legal effect. It is evident from the record that some time before April 1, 1976,3 Respondent was contemplating an increase in production which some of the employees, at least, at the Rouge Complex were concerned would result in a speedup which, in turn, would result in July 1976 of a layoff of about 1,500 employees. The UAW had discussed this matter with the employees and had, in fact, on April 4, held a rally in which they informed the employees of what was being done, and informed the employees with regard to a campaign which had been started some time before by the UAW called a "Henry Have A Heart" campaign. How- ever, a number of the employees, among them those involved in the instant proceeding, felt that the Union had not been militant enough with regard to the campaign and with regard to the matter of the possible layoff of employees contemplated in July 1976. They therefore formed an organization known as "Time to Unite" to seek to force the union officials to take a more militant stand against the possible layoff. In connection therewith, from time to time, circulars were printed and circulated among the employees of the Rouge Complex by members of Time I Art. V. pp. 24-26, of agreement dated October 31., 1973, with expiration date ofSeptember 14, 1976. 2 Respondent offered no testimony or evidence of any nature. Much of the factual matter was stipulated. To Unite, among them the four employees involved in this proceeding. On April 28, Robert Parsons had in his possession in his lunchbag four different documents. One document entitled "Time To Unite No. 14," dated April 12, 1976, was a one- sheet document which sought to inform the Rouge Complex employees about the UAW officials' reluctance to carry the fight against the contemplated layoff to the point of striking to avoid the same. The document referred to a petition drive by the "Time To Unite" group of a "Rouge-wide strike vote." The second document in Parsons' lunch bag on that date was a tabloid size newspaper entitled "The Worker." In addition thereto was a third document, a one-page sheet entitled "International Workers Day-May Day" and "On to May Day," which sheet announced a May Day celebration sponsored by the Revolutionary Communist Party, United May Day Com- mittee. It should be noted that the tabloid newspaper called "The Worker" was also a publication of the Revolutionary Communist Party. The fourth and last document in Parsons' lunchbag that day was a one-page sheet, very similar to the other one, which was also an encouragement of employees to attend the May Day rally sponsored by the Revolutionary Communist Party, United May Day Com- mittee. It should be noted there were a number of copies of each document in the bag. During the work shift, at breaktime, Parsons went to the bathroom and left his lunchbag at the door. While Parsons was in the bathroom, about 6:30 p.m., Mr. Giacino, a labor relations representative of Respondent, picked up Parsons' lunchbag. When Parsons protested, Giacino informed Parsons he was a labor relations representative. Parsons took the lunchbag out of Giacino's hand at which point the latter ordered Parsons to come with him to the labor relations office. They then proceeded to the labor relations office. When they arrived, Giacino told Parsons that the latter had literature in the lunchbag that he could not have. Parsons asked Giacino how the latter knew and Giacino answered that he had looked into it while it was sitting on the floor of the bathroom. Parsons then told Giacino that the literature in the bag was none of his business and that Parsons could have any kind of literature he wanted. Giacino told Parsons that was not right, that the latter could not have any literature with him on company property. Giacino added that the Company could tell Parsons what the latter could do or could not do. After Parsons again protested, Giacino told Parsons that the Company was going to take the literature from him. Parsons answered that they could not. After a few minutes argument, during which Parsons refused to give up the literature, Giacino called plant security. Between the call and the time that the security people arrived, Parsons and Giacino continued their argument in much the same vein. Soon two security guards arrived together with their supervisor who asked Parsons to hand over the lunchbag with the literature. Again Parsons protested and an argument ensued. However, when Parsons was informed 3 All dates herein are in 1976 unless otherwise specified. 703 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the security people were going to call the Dearborn police, Parsons finally gave in and gave up the literature. After the literature was taken by the guards, Parsons went back to work and finished his shift. It should be noted that, during the conversation or argument between Parsons and Giacino, Giacino never discussed what the literature was about but merely stated as a positive position that Parsons could not have any literature on him in the plant. All Giacino informed Parsons was that Respondent could tell the employees what they could or could not do on Respondent's property. As noted above, Parsons finished his shift on that day. The next day, April 29, when Parsons reported for work, he was called to the labor relations office. Again Giacino informed Parsons that the latter was being given 3 days off as a disciplinary measure for possession of the literature. Thereafter, the Union filed a grievance on his behalf with regard to the said disciplinary layoff and, as a result thereof, Parsons was given backpay for the 3-day layoff and his employment record was cleared of any matter with regard to the discipline or the reason therefore. On May 4, John Abbott, a fellow employee of Parsons, before the beginning of the shift which commenced at 4 p.m., solicited signatures on a petition calling for the strike vote mentioned above in contemplation of preventing the layoff as set forth in the literature retained by Respondent from Parsons' lunchbag. Abbott was soliciting signatures for the petition at Gate 9 in Respondent's parking lot and was prevented from continuing by one of Respondent's security guards. The petition constituted a demand upon Local 600 to stop the engine plant layoffs before the renewal negotiations which were due in September 1976. The petition stated in part, "The time to strike is now before the layoffs hit. We will not be told simply to wait till September contract expiration. Set a date for a strike vote!" Again, on May 27, at the same place and before his shift began, Abbott attempted to distribute copies of a tabloid- size paper with a headline which read, "'76 Auto Con- tracts-A Time To Fight!" which was published by Auto Workers United To Fight In '76 and was dated May 19, 1976, and was known also as "National Newsletter No. I." Although this was a national paper published by a group which evidently had membership among UAW members in most of the Ford Company plants throughout the country, it was being circulated and sold by the Time To Unite group in Local 600 at the Rouge Complex, which group was evidently a subgroup of Auto Workers United To Fight in '76. As on the previous occasion, Abbott was prevented by Respondent's security guard from distrib- uting the material. Once again, on approximately June 9, Parsons, Abbott, John Ellis, and Jerry Fuqua attempted to distribute another one-page document which was entitled "Time To Unite No. 17," dated June 7, 1976. The attempt to distribute on this occasion was made in the parking lot at the Rouge Complex outside Gate 10. The leaflet in question was addressed to the rank-and-file members of the Union and again directed to the request on their part to demand a strike vote in protest of the contemplated layoff of the approximately 1,500 members of the Union at the Rouge Complex. The leaflet again urged that a plantwide strike against the layoffs would be the most effective action. It derided the means taken by the UAW, which was to distribute 10,000 "Henry Have A Heart" buttons to be worn by the employees who were members of the Union. The leaflet insinuated that the UAW was making only half- hearted attempts to prevent the layoff and, as noted, urged that a strike was the most effective means of stopping the said layoff. At the time the four above-named employees attempted distribution of the aforesaid leaflet, Respondent's plant guards stopped them, confiscated their employee identifi- cation badges, and took photographs of them. When the shift began, these employees went into work at their normal worktimes at their normal work stations. However, the following day each was called into the labor relations office and given the balance of that day and the following day off without pay as reprimand for his distribution activities. However, when a grievance was filed on behalf of each of them by the UAW, Respondent consented to delete the reprimand from the employees' records and give them the pay for the time they were laid off with the employees' promise, however, that they would not repeat the same alleged offense. In fact, the UAW representatives present at the grievance proceedings on these matters did not prevent or tell Respondent that such promises could not be made and, in effect, consented thereto. In a final incident, which occurred on approximately August 2, employee Fuqua was engaged in a conversation with labor relations representative Giacino wherein Giaci- no requested of Fuqua that the latter use whatever influence he might have with his coworkers in the Time To Unite organization to cease distributing certain literature in order to prevent these employees from being discharged. Although Giacino did not specifically mention what literature he had in mind, at approximately the same time during July 1976, leaflets 17, 18, and 19 of "Time To Unite" were evidently being distributed by the Time To Unite group. In fact, Fuqua had passed out leaflets 18 and 19 himself. It should be noted in connection therewith that Fuqua was not called to the labor relations office regarding the literature but with regard to his possible knowledge of a fire that had evidently occurred in the plant and was being investigated. A number of the employees in Fuqua's department had also been called in. In addition to the "Time To Unite" issues 17, 18, and 19, at approximately the same time a second petition was being circulated with regard to a request to seek to stop harassment in the department and to oust the general foreman, Jim Tortevant. Tortevant, in the heading of the petition, was accused of a number of acts, among them, racial slurs, threats to discharge employees without reason, refusing to honor doctors' notes as excuse for absences, and other matters. The heading of the petition ended with the words "We demand general foreman, Jim Tortevant to be removed. We demand this harassment stop." B. Discussion and Conclusions The basic issue here is whether, under all the circum- stances presented, the employees involved engaged in protected activity, or conversely stated, whether the 704 FORD MOTOR COMPANY limitations placed on employees' solicitation and distribu- tion by the Respondent are lawful. Respondent concedes that under Board and Supreme Court decisions, 4 absent unusual circumstances, an employer may not promulgate, maintain, or enforce a rule which prohibits employees from union solicitation or distribution of union literature on company property in nonworking areas on nonworking time. However, Respondent maintains that, in the instant case, UAW, the bargaining representative of the employees herein, waived the employees' right to solicit and distribute with regard to union matters. Respondent argues that such waiver is within the purview of the case of N.L.R.B. v. Magnavox Co., 415 U.S. 322 (1974), adopting the Board's views in 195 NLRB 265 (1972). Respondent maintains, therefore, that the activities engaged in by the employees involved herein were proscribed by Respondent's long- standing no-solicitation, no-distribution rule which pre- vented solicitation and distribution of union matter on company premises, and, certainly, with regard to distribu- tion on Respondent's parking lot outside the entrance gates to Respondent's plant proper. Counsel for the General Counsel contends, on the other hand, without discussing the issue of waiver that the activity engaged in by the employees involved was protected activity and that the employees had an absolute right to solicit signatures for the petitions, above-men- tioned, and to distribute the material, above-described, on the parking lot and within the nonworking areas of Respondent's plant inasmuch as the matter concerned the working conditions and the possible layoff of the individu- als involved and of other employees in the plant and also were activities which could have led to a legitimate strike within the confines of the above-cited sections of the then effective collective-bargaining agreement. By reason of these cross-contentions, it becomes neces- sary, first, to determine whether in the absence of waiver, the activities engaged in by the employees involved were, indeed, protected and therefore permissible pursuant to the contract and under Board law and, if the answer to that is in the positive, then, secondly, whether there was a waiver by the UAW and, if there was a waiver, whether it applied to such activity. With regard to the first issue, whether the activity of the employees involved, absent waiver, can be considered as protected activity which would be permissible if conducted on company property in nonworking areas on nonworking time, counsel for the General Counsel concedes that the matter which was found in the lunchbag of employee Parsons entitled "The Worker" or the "May Day" literature, both of which were publications of the Revolu- tionary Communist Party, is not protected. However, even conceding that, it is questionable whether the seizure of the material by the Respondent's representative, Giacino, was proper, or an interference with the employees' Section 7 rights under the circumstances. This is so, because the facts reveal that Parsons was told by Giacino in the labor relations office on February 28 that he was not allowed to N.L. R.B. v. Republic Aviation Corporation, 324 U.S. 793 (1945); Babcock and Wilcox Companv, 351 U.S. 105 (1965); National Steel Corporation, Great Lakes Steel Division, 173 NLRB 401 (1968), enfd. 415 F.2d 1231 (C.A. 6, 1969). have any literature at any time in his possession. With regard to any of the other pamphlets, either the material other than the Communist-inspired material in Parsons' lunchbag on April 28, or the material sought to be distributed at the gates in the parking lot by the various employees on May 4, May 27, and June 9, the conclusion must be reached that this matter referred to employees' working conditions. The concern was basically that the employees could suffer a layoff to the extent that 1,500 of them might temporarily or permanently lose their jobs. Certainly, it cannot be contended that this was not a legitimate concern for which the employees, whether rightly or wrongly, were convinced that their bargaining representative, the Union herein, was not representing them to its fullest capacity. It is clear from the leaflets that the employees behind the Time To Unite movement were convinced that the mere wearing of buttons which stated "Henry Have A Heart" was not sufficient to prevent the massive threatened layoff which was to occur in July 1976. Thus, it is clear that the employees involved herein, through the distribution of the literature, and the solicita- tion of signatures on the petitions, were engaged in activities undertaken to force their bargaining representa- tive to take what the employees felt were proper means to seek to prevent a situation which could lead to mass layoffs. The mere fact that the circulars and the petition called for a strike vote was not necessarily in derogation of the bargaining agreement in force at the time. The Board has held, in any number of instances, that activity of this type is protected by Section 7 of the Act in that the literature sought to be distributed and the petition for which signatures were being sought were in the form of criticism of the Respondent's alleged speedup program which the employees, rightly or wrongly, thought could lead to layoffs.5 Thus, it is apparent that both the literature and the activity of circulating the same would, under ordinary circumstances, be protected and the enforcement of a rule against such literature and the distribution of the same would constitute a violation of employees' Section 7 rights and would therefore be violative of Section 8(a)(1) of the Act. Additionally, disciplinary measures taken against employees for such activity would be violative of Section 8(a)(3) of the Act. Moreover, a reading of the sections of the collective- bargaining agreement in effect at the time of the above- discussed activity could readily lead to the conclusion that an ultimate strike over the contemplated layoffs after the exhaustion of grievance procedures which the bargaining representative of these employees had not undertaken could readily be considered a permissible strike under the contract inasmuch as the job speedup alleged by the employees in their literature could be considered an item grievable as a production standard. It makes no difference whether this interpretation by the employees and the activity taken with regard thereto might be considered 5 See Dreis Krump Manufacturing, Inc., 221 NLRB 309 (1975); Leslie Metal Arts Company, Inc., 208 NLRB 323 (1974); The Singer Company, 220 NLRB 1179 (1975); NLR.B. v. Guernsey-Muskingum Electric Co-Operative. Inc., 285 F.2d 8 (C.A. 6, 1960). 705 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unwise or, possibly, a misinterpretation of their contract rights. 6 In view of the foregoing conclusions, the question remains whether the UAW, by its actions, waived the rights of these employees to distribute the literature in question and solicit signatures on the petitions, for which activities the employees were disciplined. For consideration first in answer to this issue is whether there was, in fact, a waiver by the Union. Although there is nothing in the contract in effect at the time of the events herein which would indicate that the Union was agreeable to waive any of the employees' rights to distribute literature and solicit union membership or other union matters on company property in nonworking areas on nonworking time, there is some indication in the record that this broad prohibition did exist for some period of time. There is also no indication that the Union had protested or sought to have the Respondent eliminate the rule or amend it so that it conformed to Board and court decisions with regard to distributions of union material generally. However, in disposing of the disciplinary measures taken against the employees here involved, through the grievance procedures, although the Union was successful in obtain- ing the wages lost by the employees as a result of the disciplinary layoffs, the ultimate outcome of these griev- ances was the admonition by the Respondent to the effect that the employees had better not indulge in such activity again and the employees involved had to promise that they would not again engage in such activity. The UAW representatives consented to the admonition and the promises and stood by and permitted the same to be made. Thus, it would seem that the UAW's stance would necessarily constitute some sort of consensual agreement on its part to the otherwise overly broad no-solicitation, no-distribution rule. This, together with the fact that the rule had existed for some time with no protest on the part of the Union, leads to the conclusion that a waiver did, indeed, exist. The question remains, however, even assuming waiver, whether such waiver was applicable to the conduct engaged in by the employees involved herein. In N.L.R.B. v. Magnavox Company of Tennessee, 415 U.S. 322 (1974), which adopted the Board's views in 195 NLRB 265 (1972), the Supreme Court held that a waiver with regard to otherwise overly broad no-solicitation rules could not be given effect to deny employees the right to distribute union literature which involved, in any way, the selection or rejection of bargaining representatives. To quote the Board in the Magnavox of Tennessee case,7 the Board will not permit waivers of "distribution of literature by or on behalf of members of an incumbent labor organization which pertains to: (1) The employees' selection or rejection of a labor organization as the bargaining representative of the employees...." In the case at bar the waiver by the UAW, as spelled out above, is similar to the waiver found by the Board and the Court in the above-quoted Magnavox case. In the Magnavox case, there was no written agree- 6 See N. LR.B. v. Washington Aluminum Co., 370 U.S. 9 (1962); Dreis & Krump Manufacturing, Inc., 221 NLRB 309 (1975). 7 195 NLRB 265, 266 (1972). 8 195 NLRB 265 266, fn. 9. ment with the union that waived employees' distribution rights but, rather, the waiver was spelled out from the union's acquiescence in the maintenance and enforcement of a broad no-solicitation rule. Additionally important, there is a second statement by the Board in the Magnavox of Tennessee case, supra, which states that a union cannot acquiesce or waive with regard to distribution rules "other matters related to the exercise by employees of their Section 7 rights." However, in a footnote following that statement, the Board said that this holding 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 mainte- nance of a broad no-distribution rule." 8 The Board has followed the Magnavox rule in the General Motors Corporation case,9 which was enforced by the Court of Appeals for the Sixth Circuit on March 25, 1975,10 in which the court of appeals held that, pursuant to Magnavox, a waiver with regard to a broad no-solicitation rule cannot be applicable to the distribution of literature on company premises in nonworking areas on nonworking time where the said literature pertains to the selection of officers of a union which is the employees' bargaining representative. This was in agreement with the Board's decision in that case.1' Careful reading of the literature involved in the case at bar reveals no instance of the advocacy of the selection or rejection of any labor organization as bargaining represen- tative of the employees of the Rouge Plant Complex. Nor does any of the literature apply to the extension of Magnavox as set forth by the Board and the court of appeals in the General Motors case, supra. There is nothing in this literature which pertains to the election of officers of the UAW. While it is true that the literature is critical of these officers and officials and while it is true that, perhaps, in the long run, the literature could effect the outcome of some future election with regard to these individuals, officers, or representatives, the literature does not directly advert or even indirectly advert to any protected matter within the meaning of the Magnavox or General Motors cases. Therefore, I am constrained to conclude that insofar as the distribution of the literature by the individuals herein is concerned, the waiver, as spelled out by the action or inaction of their bargaining representative, leaves them unprotected. Therefore, the action taken against them by the Respondent was not violative of the Act. This conclusion applies equally to the threat of discharge made to employee Fuqua on or about August 2, 1976, by Labor Relations Representative Giacino. The only possible violation which can be found in the entire record could possibly be the statement by Giacino to the effect that no distribution of any literature could be made by any employee anywhere on the Respondent's premises at any time. Such a statement would be a policy statement which would indicate an overly broad no-distribution, no-solicita- 9 General Motors Corporation (Chevrolet Engineering Center), 212 NLRB 133 (1974). l0 512 F.2d 447 (C.A. 6, 1975). "1 212 NLRB 133. 706 FORD MOTOR COMPANY tion rule even in view of Magnavox. However, inasmuch as this was merely an isolated statement, I cannot conclude that the statement was violative of the Act in view of the type of literature which was, indeed, contained in Parsons' lunchbag.'2 CONCLUSIONS OF LAW I. Ford Motor Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, and its 12 I am somewhat troubled by the opening of Parsons' lunchbag by Giacino without Parsons' permission. However, although the morality of this action on Giacino's part may be questionable and although Parsons' personal nghts may have been violated under some law other than the Act Local 600, are labor organizations within the meaning of Section 2(5) of the Act. 3. By the promulgation, maintaining, and enforcement of the broad no-solicitation rule which prohibited solicita- tion and distribution of union material on company property during nonworking time in nonworking areas, the Respondent did not violate Section 8(aX1) of the Act in view of the waiver by the employees' bargaining represen- tative herein named above in Conclusion of Law 2. 4. The disciplining of the employees herein did not constitute violations of Section 8(a)(3) and (1) of the Act. [Recommended Order for dismissal omitted from publi- cation.] herein. I am constrained to find that the mere discovery and opening of the bag cannot be found to be a violation of the Act. Nor can I completely ignore the inference that such literature had been pasted on the plant walls before the Parsons-Giacino incident. 707