United Technologies Corp.

UNITED TECHNOLOGIES CORP United Technologies Corporation and District Lodge 91, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 39-CA- 2157 19 May 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN Upon a charge filed 3 May 1984 by the Union, the General Counsel of the National Labor Rela- tions Board issued a complaint on 19 February 1985. The complaint alleges that the Respondent violated Section 8(a)(1) of the National Labor Re- lations Act by maintaining and enforcing a rule at its Southington, Connecticut facility which inter- feres with, restrains, and coerces employees in the excercise of their Section 7 rights. On 25 April 1985 the General Counsel, the Union, and the Respondent filed a motion to trans- fer the proceeding to the Board and a stipulation of facts. The parties waived a hearing and the issu- ance of a decision by an administrative law judge and submitted the case directly to the Board for findings of fact, conclusions of law, and decision. The parties also agreed that their formal stipulation of facts and the exhibits attached thereto would constitute the entire record before the Board. On 26 June 1985 the Board issued an order granting the parties' motion, approving the stipula- tion, and transferring the proceeding to the Board. Thereafter, the General Counsel and the Respond- ent each filed a brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. On the entire record and the briefs, the Board makes the following FINDINGS OF FACT 1. JURISDICTION The Respondent, a Delaware corporation with its main office in Hartford, Connecticut, and with an office and place of business in Southington, Connecticut, has been engaged in the manufacture and nonretail sale and distribution of aircraft en- gines and related products. During the 12-month period ending 31 December 1984, the Respondent, in the course and conduct of its business operations described above, sold and shipped from its South- ington facility products, goods, and materials valued in excess of $50,000 directly to sources out- side the State of Connecticut. We find that the Re- spondent is an employer engaged in commerce 973 within the meaning of Section 2(6) and (7) of the Act. The Union coordinates the activities of several local lodges within its jurisdiction including its Local Lodge 1746-A. We find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts At all material times, the Respondent has main- tained the following sign display rule for its South- ington plant employees: (1) Any employee who drives a vehicle onto company property with any type of large sign or banner, political or otherwise, should be no- tified by the Guard Department that company rules prohibit such practice, and he will not be permitted to bring his vehicle onto the prem- ises after that day until the sign has been re- moved. (2) Once an employee has been so notified, he shall not be permitted to bring the vehicle on the premises until the sign has been re- moved. (3) This rule is not intended to preclude em- ployees from parking on company property their vehicles bearing bumper stickers, window stickers, or similar ornamentation or devices commonly displayed on automobiles, but rather to preclude purposely conspicuous displays intended to attract attention to pro- mote a candidacy, organization or product. On 3 or 4 days during the first week in Decem- ber 19831 and on 8 December, employee Joseph Gallagher drove his van to the Respondent's Southington facility and parked it in an employee parking lot there. Affixed to one side of the van was a 4- by 6-foot sign reading "Shortell for Local 1746-A President." Machinists Local Lodge 1746- A (Local 1746-A) is within the Union's jurisdiction and is the exclusive collective-bargaining represent- ative for approximately 2200 production and main- tenance employees at the Respondent's Southing- ton facility. Employee William Shortell was one of the candidates in the internal union election held 13 December. On 8 December, pursuant to the Respondent's sign display rule, Foreman Clarence Mattice2 in- ' All dates are in 1983 unless otherwise indicated 2 Mattice admittedly was a supervisor of the Respondent within the meaning of Sec 2(11) of the Act and an agent of the Respondent within the meaning of Sec 2(13) of the Act 279 NLRB No. 135 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD structed Gallagher to either remove or cover the union election campaign sign on his van before en- tering company property. From 9 December until 14 December, Gallagher followed Mattice's in- structions. He parked his van, with the sign affixed, off the Respondent's property. But, on 14 and 16 December, Gallagher once again parked his van, with the sign affixed, on company property in one of the Southington plant's employee parking lots. On 16 December Mattice approached Gallagher at his work station and informed him that he had three options regarding his van: (1) remove the van from the Respondent's property; (2) cover the sign; or (3) remove the sign from the van. Again, Mat- tice's instructions were pursuant to the Respond- ent's sign display rule . Gallagher chose the first option and removed his van from the Respondent's property. In doing so, he lost 33 minutes of pay.3 Gallagher later grieved the Respondent's refusal to allow him to park his van, with the union elec- tion campaign sign attached, on company property. This grievance was denied at all the prearbitration steps of the applicable contractual grievance proce- dure. The Respondent has refused to submit this grievance to arbitration.4 B. Contentions of the Parties The General Counsel contends that the Respond- ent violated Section 8(a)(1) of the Act by maintain- ing and enforcing a rule which prohibited its em- ployees from engaging in protected union solicita- tion in nonwork areas on nonwork time. In support of her position, the General Counsel asserts that employee Gallagher was engaged in protected con- certed activity when he parked his van, with the union election campaign sign affixed, in one of the Respondent's employee parking lots. The General Counsel also points out that the stipulated record contains no evidence whatsoever about any special circumstances requiring the Respondent's sign dis- play rule, which permits "bumper stickers, window stickers, or similar ornamentation," but which pro- hibits "purposely conspicuous displays intended to attract attention to promote a candidacy, organiza- tion or product." The General Counsel further points out that the stipulated record does not con- tain any evidence that the Respondent's rule and its enforcement in Gallagher's situation was required to maintain production or discipline at the Re- spondent's facility. Accordingly, and relying on the a Mattice had told Gallagher that whatever option he chose , he would have to "clock out" immediately to take the appropriate action. Galla- gher filed a grievance concerning his pay loss for moving his van on 16 December. This grievance was resolved at step one of the applicable con- tractual grievance procedure. 4 None of the parties seek deferral of this matter to the contractual grievance procedure Board's rationale in Firestone Tire & Rubber Co.s and its progeny, the General Counsel argues that the Respondent violated Section 8(a)(1) by main- taining and enforcing this rule because Gallagher's interest in displaying the sign on his van outweighs the Respondent's interest in prohibiting the display of the sign on its property. The General Counsel takes the alternative posi- tion that the Respondent's rule does not satisfy the Board's well-established standards governing the oral solicitation of employees. According to the General Counsel's theory, the Respondent' s rule is overly broad because it prohibits oral solicitation in an employee parking lot, a nonwork area, while employees are on their own time. The General Counsel asserts that, inasmuch as there is no evi- dence in the stipulated record which would justify such an overly broad no-solicitation rule, the Re- spondent's rule is clearly violative of Section 8(a)(1). On the other hand, the Respondent contends that the General Counsel failed to establish a prima facie showing of a violation of Section 8(a)(1). The Respondent asserts that, contrary to the complaint allegations, the rule in question on its face does not restrict "union" posters, but rather is directed to any type of sign, union or nonunion, which is "large," the only restriction imposed by the rule. The Respondent denies that its action against Gal- lagher was directed at union activity. For this reason, the Respondent argues that Firestone, supra, is distinguishable and that, accordingly, unlike in Firestone, there is no need here to balance the em- ployer's property interests with an employee's Sec- tion 7 rights.6 The Respondent contends that the only issue which legitimately can be raised on the basis of the stipulated facts is whether or not its treatment of Gallagher was discriminatory. The Respondent claims that it should prevail on this issue because the most shown by the stipulated facts is that the rule was applied for the first time against an em- ployee who happened to be engaged in union ac- tivity at the time.7 The Respondent points out that this evidence is insufficient to establish a violation under the analysis of Westinghouse Electric Corp.8 Accordingly, the Respondent seeks dismissal of the complaint. ° 238 NLRB 1323 (1978) ° The Respondent disputes that Gallagher was engaged in any protect- ed activity on 16 December because the union election had already been held r Although the Respondent may be conceding in its brief that its rule was applied for the first time in Gallagher's situation, the stipulation of facts contains no information whether the rule had or had not ever been enforced previously 8 204 NLRB 78 (1973) UNITED TECHNOLOGIES CORP 975 C. Discussion It is well settled that the exercise of protected rights by employees must be balanced against the exercise of property and managerial rights by em- ployers. As the Supreme Court stated in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 797-798 (1945): [A]n adjustment [is required] between the un- disputed right of self-organization assured to employees . . . and the equally undisputed right of employers to maintain discipline in their establishments. Like so many others, these rights are not unlimited in the sense that they can be exercised without regard to any duty which the existence of rights in others may place upon employer or employee. Op- portunity to organize and proper discipline are both essential elements in a balanced society. Subsequently, in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), the Supreme Court stated: Organization rights are granted to workers by the same authority, the National Government, that preserves property rights. Accommoda- tion between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other.9 The instant case involves just such an adjustment or accommodation between employee and employ- er rights as suggested by the Supreme Court. We agree with the General Counsel that displaying union election campaign signs on a private vehicle parked on the employer's premises during the workday is protected concerted activity. See Swan Coal Co., 271 NLRB 862, 867 (1984); Coors Con- tainer Co., 238 NLRB 1312, 1319 (1978); Firestone, supra; Pet Inc., 229 NLRB 1241, 1242 (1977). Thus, we find that Gallagher was engaged in protected concerted activity when he parked his van, with the union election campaign sign attached, on the Respondent's premises both before and after the 13 December union election. However, we disagree with the General Counsel that the Respondent's sign display rule is overly broad and unduly in- fringes upon employees' Section 7 rights. We first observe that the Respondent's rule is not a complete prohibition against the display of union material on employees' vehicles parked on company premises. Rather, the rule by its express terms establishes only a very limited restriction on the display of signs, prohibiting only "large sign[s] or banner[s] . . . [to] preclude purposely conspicu- 9 Although Babcock & Wilcox, unlike Republic Aviation and the instant case, involved nonemployee organizational activity, the above-quoted passage is generally relevant to the instant issue ous displays intended to attract attention to pro- mote a candidacy, organization or product," while expressly permitting the display of "bumper stick- ers, window stickers, or similar ornamentation or devices commonly displayed on automobiles." The General Counsel does not dispute that Gallagher's union election campaign sign on his van constitutes a "large sign or banner" within the meaning of the Respondent's sign display rule. There is also no in- dication from the stipulated facts that, during the 13 December union election campaign, the Re- spondent restricted union election campaign signs or banners which would otherwise be expressly permitted by the rule as "bumper stickers, window stickers, or similar ornamentation or devices com- monly displayed on automobiles." Given the fact that the Respondent's rule is only a partial restriction on displaying union signs, we find Firestone, supra, and its progeny distinguish- able from the situation presented here. In Firestone, the employer had banned boycott signs on the em- ployee's car parked on the company premises, re- gardless of the signs' size, and without permitting alternative means to display the same message on the employee's private property. In light of this complete prohibition, the Board required a show- ing that the boycott signs displayed on private ve- hicles on company premises had interfered with production or otherwise threatened the disruption of the employer's operations. In the absence of such showing, the Board applied a balancing test, finding that the employer's managerial interests did not outweigh the employee's exercise of his Section 7 rights. Here, we find that the Respondent's rule is a rea- sonable accommodation between the Respondent's managerial interest and employees' Section 7 rights.10 The Respondent has simply taken reason- able measures to prevent its employee parking lots from being transformed into havens for distracting billboards for all causes imaginable . On balance, we find that the Respondent's attempt to establish some decorum, but still permitting the common dis- play of union materials on employee vehicles, is permissible. Accordingly, we shall dismiss the com- plaint in its entirety. I t 10 Contrary to the assertion of our dissenting colleague, we do not suggest that the Respondent 's property rights are at stake in the instant case i i Member Johansen finds Malta Construction Co, 276 NLRB 1495 (1985), relied on by the dissent, to be distinguishable, because that case involved a complete prohibition against the display of insignia on company hardhats, whereas the instant case involves only a very limited prohibi- tion against large signs or banners affixed to cars parked on the Respond- ent's property Chairman Dotson finds Malta Construction not to be con- trolling on the instant case, because, for the reasons set forth in his dis- senting opinion therein, he believes that case was wrongly decided. 976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSION OF LAW The Respondent did not violate Section 8(a)(1) of the Act. ORDER The complaint is dismissed. MEMBER DENNIS, dissenting. I disagree with my colleagues' dismissal of the complaint in this case and with the reasons they offer for their decision. In my opinion, they fail to apply the relevant legal principles and therefore reach an erroneous result. The majority concedes that employee Joseph Gallagher engaged in protected concerted activity when he parked his van bearing a union election campaign sign in an employee parking lot on the Respondent's property during the workday. Yet, with no evidence that the Respondent's managerial rights were threatened , they find that the Respond- ent acted lawfully in prohibiting the display of the union sign. Apparently they rely on the fact that the Respondent's rules regarding employee displays did not ban all displays, but permitted those which the Respondent considered acceptable as a means of employee expression. The Board's decision in Firestone Tire & Rubber Co.' plainly states the governing principles, formu- lated from Supreme Court decisions,2 as follows: [W]here an employee exercises his Section 7 rights while legally on an employer's property pursuant to the employment [relationship], the 238 NLRB 1323 (1978) z Eastex, Inc. v. NLRB, 437 US 556 ( 1978), Hudgens V. NLRB, 424 US 507 (1976), NLRB v Babcock & Wilcox Co, 351 U.S 105 (1956), Republic Aviation Corp. v NLRB, 324 U S. 793 (1945) balance to be struck is not vis-a-vis the employ- er's property rights, but only vis-a-vis the em- ployer's managerial rights. The difference is "one of substance," since in the latter situation Respondent's managerial rights prevail only where it can show that the restriction is neces- sary to maintain production or discipline or otherwise prevent the disruption of Respond- ent's operations. S Furthermore, "[i]t is well established that the avail- ability of other channels of communication does not justify employer restraint of employees ' Section 7 rights in nonwork areas at nonwork times."4 Here the Respondent has furnished no evidence of special circumstances that require restricting em- ployee displays in order to protect managerial rights. In the absence of such evidence, the Re- spondent may not impair employee exercise of Sec- tion 7 rights on its property in nonwork areas during nonwork time . The majority's view that the Respondent's display rules represent an attempt to establish "decorum" is not a substitute for such evi- dence. And, as stated above, it is irrelevant that the Respondent's display rules permit other forms of communication. Applying the correct legal principles , I would find that the Respondent violated Section 8(a)(l) by maintaining and enforcing its rules restricting the display of union material on employee vehicles. 8 The majority's suggestion that this case somehow involves an accom- modation with the Respondent's property rights is therefore erroneous 4 Helton v. NLRB, 656 F 2d 883, 896 (D C Cit. 1981). In Malta Con- struction Co, 276 NLRB 1494 (1985), the dissenting opinion, contrary to the majority, relied on the existence of alternative methods of communi- cation to uphold an employer's restriction on the display of union msig- ma