Armco Employees Independent Federation, Inc.

National Labor Relations Board - Board DecisionsNov 4, 1965

155 N.L.R.B. 551 (N.L.R.B. 1965)

ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 551 The employees in voting group (a) shall choose between the Peti- tioner, the Machinists, and neither; the employees in voting group (b) shall choose between the Petitioner, Milk and Ice Cream Drivers, and neither. If a majority of the employees in voting group (a) and a majority of the employees in voting group (b) select the Petitioner, the Regional Director is instructed to issue a certification of representative to such labor organization for a unit of production and maintenance employees which the Board in these circumstances finds appropriate. If, on the other hand, a majority of the employees in voting group (a) select the Machinists, these employees will be taken to have indicated their desire to become a, part of the multipl ant maintenance unit histori- cally represented by the Machinists; the Regional Director is in such circumstances instructed to issue an appropriate certification to the labor organization which may bargain for them as part of that unit. In such circumstances the Board finds that a separate production unit is appropriate; and :in any other circumstance in which the Petitioner is not selected by a majority in both voting groups, the Board finds that separate production and maintenance units are appropriate. The Regional Director is instructed to issue such certification of represent- atives or certifications of results of election as may in the circum- stances be appropriate. [Text of Direction of Elections omitted from publication.] I\IEMBER FANNING took no part in the consideration of the above Decision and Direction of Elections. Armco Employees Independent Federation , Inc. [Armco Steel Corporation ] and United Steelworkers of America, AFL-CIO. Case No. 9-CB-1103. November 4,196,5 DECISION AND ORDER On 1l-larch 1.8, 1965, Trial Examiner William J. Brown issued his Decision .in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the 1\ ational Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed a motion for, dismissal and a let- ter also seeking dismissal was filed by Armco Steel Corporation. Oppo- sition to dismissal has been filed by the Charging Party. 155 NLRB No. 58. 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Exam- iner's Decision, the motion for dismissal and opposition thereto, and the entire record in this case, and as set out below, finds merit in the Respondent's motion for dismissal. Accordingly, the Board hereby adopts the Trial Examiner's findings and conclusions only to the extent consistent herewith. The complaint alleged that the Respondent violated Section 8(b) (1) (A) of the Act by maintaining a collective-bargaining agreement with Armco Steel Corporation, herein referred to as Armco or the Company, which permits the posting of certain business of the Respondent on company bulletin boards, but prohibits the distribution of all other literature on company property except as approved by Armco. Subsequent to the issuance o f the complaint herein, the Board issued its Decision in Armco Steel Corporation, 148 NLRB 1179, find- ing that the Company, a party to the instant contract, violated Section 8(a) (1) of the Act by maintaining and enforcing the contract clause in question. Following this decision and existing decisions of the Board which find that such clauses are an undue restraint upon rights guaranteed employees under Section 7 of the Act, the Trial Examiner concluded, based on his finding that the Respondent herein has main- tained the contract clause in question, that Respondent violated Sec- tion 8 (b) (1) (A) by maintaining the clause, as alleged in the complaint. Subsequent to the issuance of the Trial Examiner's Decision in the instant case, the United States Court of Appeals for the Sixth Circuit handed down its decision in Armco Steel Corporation v. N.L.R.B., 344 F. 2d 621, denying enforcement of the Board's Order in that case and holding that the no distribution clause in the contract between the Company and the Respondent herein was a condition of employment and a proper subject for collective bargaining. The Board, for rea- sons it deems sufficient, has not filed a petition for certiorari to review the court's decision. Since the instant case involves the identical clause in the same contract between identical parties and falls within the geo- graphical jurisdiction of the Sixth Circuit, the Board acquiesces in the court's decision and will here apply the court's view, respectfully reserving for future cases our position that such contract provisions interfere with employees in exercising their basic rights under the Act. Accordingly, we find, for the purposes of this Decision only and in accord with the court's decision, but contrary to the Trial Examiner, ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 553 that the Respondent has not violated the Act by maintaining the no- distribution clause in question. In view of the foregoing, we shall dismiss the complaint. [The Board dismissed the complaint.] TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter sometimes referred to as the Act, originated with a charge filed by the United Steelworkers of America, AFL-CIO, hereinafter sometimes referied to as the Steelworkers on July 9, 1964, with due service thereof on the following day. Thereafter on August 31, 1964, the General Counsel of the National Labor Relations Board, hereinafter sometimes respectively called the General Counsel and the Board, acting through the Board's Regional Director for Region 9, issued the complaint herein. The complaint alleged, in addition to jurisdictional matter, that since June 22, 1962, Respondent and Armco Steel Corporation, hereinafter sometimes called Armco, had maintained a collective-bargaining agreement covering employees in a bargaining unit for which Respondent is the certified representative which agreement contains certain allegedly illegal provisions, hereinafter more fully set out. Under these pro- visions the Company agreed to furnish bulletin boards for the posting of certain business of Respondent and prohibiting any other distribution or posting by employees of literature on company property except with company approval. Thereaftei the Respondent and Armco filed motions to dismiss the complaint in the instant proceed- ing on the ground, essentially, that the issue of the legality of the contract clause referred to above was already pending in other proceedings before the Board and the courts inasmuch as in Case No. 9-CA-2818, in which Armco was respondent and Respondent here appeared and participated as a party in interest, the validity of the clause in question had been adjudicated sub noin. Armco Steel Corporation, 148 NLRB 1179 decided September 21, 1964 These motions to dismiss were denied by order of Trial Examiner Frederick U. Reel on October 8, 1964. On October 14, 1964, the Board denied Armco's request for a special appeal from the aforementioned Trial Examiner's ruling, whereupon Respondent filed its answer on October 19 and Armco filed an answer on October 21. The answers admit the existence of the collective-bargaining agreement in question (Armco's answer, however, denying that Respondent "maintained" the agreement in question), both answers pieserve the respective parties' positions respecting the multi- plicity of suits referred to above, and assert that notwithstanding the collective- bargaining agreement in question there were ample opportunities for distribution of literature to employees and for their free exercise of their rights to self-organization. Hearing was held on issues raised by the complaint and answers before Trial Examiner William J. Brown at Middletown, Ohio, on October 22, 1964. The parties appeared as noted above and participated in the hearing with full opportunity to present evidence and argument on the issues Following the close of hearing the General Counsel, Respondent, and Armco filed briefs which have been fully con- sidered. On the entire record herein and on the basis of my observation of the wit- nesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER I find, in accordance with the pleadings and evidence, that Armco is an Ohio corpo- ration with its principal office at Middletown, Ohio, and with plants at Middletown and New Miami, Ohio, where it is engaged in the manufacture, fabrication, and sale of steel and related metal products. In the course of its business operations during the year preceding issuance of the complaint, admittedly a representative period. Respondent shipped from its Ohio plant directly to points outside the State of Ohio products valued in excess of $500,000. Armco is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and the volume of commerce affected warrants exercise of the Board's jurisdiction herein. II. THE RESPONDENT AS A LABOR ORGANIZATION The pleadings and evidence established and I find that Respondent is a labor orga- nization within the purview of Section 2(5) of the Act 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES Respondent was certified in 1944 as the collective-bargaining representative of pro- duction and maintenance employees at Armco's Middletown and New Miami (Hamil- ton) plants. There are approximately 5,900 employees in the bargaining unit which includes 1 steel plant and 2 fabricating plants at Middletown and a coke plant and blast furnaces at Hamilton which supplies pig iron for the steel plant at Middletown. The Hamilton operations are about 11 miles distant from those at Middletown. Following the initial certification of the Respondent in 1944 there have been three representation elections in 1947, 1962, and June 1964 in which the Steelworkers sought to oust Respondent as the bargaining representative. The percentage of eligible voters who actually voted in these elections has been relatively high, ranging from 88 to 94 percent. The agreements between Armco and Respondent from and after the initial con- tract of December 7, 1944, have contained clauses prohibiting distribution and posting by employees of literature on company property. The current agreement contains in article VI section F a clause reading as follows: Section F-Bulletin Boards 1. The Company agrees to furnish inclosed bulletin boards whereby notices of the following matters pertaining to the Union are to be posted: (a) Notice of Union recreational and social affairs (b) Notices of Union elections (c) Notices of Union election results and Union appointments (d) Notices of Union meetings 2. Such bulletin boards may also be used for the posting of such other notices as may be agreed upon by the Union and the Company. 3. The number and location of such bulletin boards in each plant under this Agreement shall be decided by the appropriate Union Vice President and the representative of the Management of the plant involved. 4. There shall be no other distribution or posting by employees of literature upon Company property except as approved by the Company. The validity under the Act of the clause quoted above was considered in Armco Steel Corporation, 148 NLRB 1179, where the Board found that Armco, by maintain- ing and enforcing the clause in question, insofar as it prohibited employees from distributing union literature on nonwork time in nonwork plant areas was an unfair labor practice under Section 8(a)(1) of the Act. It should be noted that the com- plaint in the instant case alleges an unfair labor practice within the scope of Section 8(b)(1) of the Act on the part of Respondent in maintaining the clause in question, and that the complaint does not allege enforcement. While the General Counsel's brief herein refers to the instant case as one involving "maintenance and exercise" of the contract provision in question and from that springboard proceeds to charge Respondent with "maintenance and enforcement," there has been no request for leave to amend the complaint. Thus the issue before me is whether or not the Respondent maintained the clause in question and, if so, whether its action in so doing constituted the unfair labor practice alleged in the complaint. In this connection, it is urged on behalf of Respondent that by virtue of the terms of the order entered by the Board in Armco Steel Corporation, 148 NLRB 1179, which excluded Respondent fiom the protection of the Board's cease-and-desist order, I am required to recognize that the Board has already ruled that the conduct of Respondent in maintaining the clause in question does not consttiute an unfair labor practice. This appears to me to be specious reasoning for the effect of the Board's order in question was no more than recognition that Respondent could waive its right to distribute literature on nonwork time and in nonwork areas on behalf of its own members and its own organizational interests; it is quite different when Respondent seeks to preclude such distribution by the Steelworkers or other labor organizations. The evidence clearly reveals that Respondent has maintained the clause in question in the sense that it has utilized the bulletin board facilities, indeed Respondent's brief recognizes as a fact that it has maintained the clause in question in the sense it entered into and adhered to the terms in question. It must also be concluded that Respondent has enjoyed the twofold effects of the clause by posting its own material while secured pro tanto from organizational inroads by the Steelworkers. ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 555 In defense of the contract clause here in question there was evidence adduced on behalf of Respondent tending to establish that (1) the prohibitions of the clause were necessary and appropriate safeguards against fire and accident, (2) the clause in ques- tion did not unduly restiain organizational activities of employees in view of ample alternate opportunities for distribution of literature, and (3) the clause in question is a normal and frequent result of collective bargaining and in fact is contained in agreements of the Steelworkers with other employers. In support of its contentions that safety factors motivated and justified the broad no-distribution prohibitions of the contract in question, Respondent points to evidence adduced through Armco's officials which is credited and which establishes that Arrnco has a firmly established safety program which places emphasis on plant cleanliness and housekeeping. The inference may be made that the safety program pays dividends at industrial average of major accidents in factory employment is 3.26 major accidents per million man-hours worked, the average at Armco is 1.19. The evidence Also indi- cates that almost every department of the works heie involved has some type of flame and some of the operations involve molten metal. In addition the evidence indicates that there is some amount of grease on the ground. The inference is further- more warranted that with the established high percentage of employee interest in the representation campaigns and the volume and frequency of distribution of literature there could be some threat to the housekeeping program from large-scale distribution in the plant area. This is of course minimized when such distribution is confined to nonwork areas. In addition to considerations of safety there was adduced on behalf of Respondent evidence indicating the existence of such a multiplicity of avenues of communication independently of bulletin board or other plant distribution of literature as to make the prohibitions of the clause in question amount to no substantial impediment to self-organization of employees. This evidence shows that at the Hamilton operation there are two plant gates immediately adjacent to the public highway while there are nine similar gates at the Middletown works immediately adjoining the public ways. There is some conflict in the evidence as to the practicality of distribution at these plant gates and it must be concluded that at some gates and at some times the opportunity to distribute literature to employees entering the premises is good and at other times either ineffective or dangerous to the distributor. Additionally, as an indication of the availability of ready means of communication as alternatives to in plant distribution, evidence was presented which establishes that in the case of the Hamilton plant some 97 percent of employees lived either in the town of Hamilton or within 10 miles thereof and in the case of the Middletown operation some 89 percent were so situated. Finally there was adduced on behalf of Respondent evidence consisting of excerpts from a number of collective-bargaining agreements, including two to which the Charging Party was signatory, containing prohibition against plant distribution of literature, in most cases conjoined with the grant to the incumbent union of the exclusive use of certain plant bulletin boards. With respect to the general question as to the legality of the clause here under consideration, the existing decisions of the Board require the conclusion that the clause in itself is an undue restraint upon self-oranization or rights guaranteed employees of Armco under Section 7 of the Act. In- Aimco Steel Corporation, 148 NLRB 1179, the Board found that the contract clause here under consideration was invalid insofar as it prohibited employee distribution of literature during nonwork time and in nonwork areas. The conclusion that the board prohibition against employee distribution of self-organization material does not comport with the pur- poses and policies of the Act was also supported by Stoddard-Quirk Manufactuirng Co., 138 NLRB 615; Gale Products, Division of Outboard Marine Corp., 142 NLRB 1246, enforcement denied 337 F. 2d 390 (C.A. 7); and General Motors Corporation Buick-Oldsmobile-Pontiac Assembly Division, 147 NLRB 509. The question thus is reduced to whether or not Respondent has, as alleged in the complaint, maintained the clause and thereby engaged in unfair labor practices within the purview of Section 8(b) (1) (A). In this connection I note that the only evidence in the record on the subject of enforcement by Respondent would warrant the finding that Respondent has nothing to do with enforcing those portions of the clause which prohibit distribution or posting of literature other than on Respondent's bulletin board notices. Thus the testimony of Robert Lehmkuhl, Respondent's secretary- treasurer, and James Sexton, Armco's supervisor of personnel relations, establishes that Respondent has had nothing to do with enforcing the prohibitory aspects of the clause and the matter of enforcement was apparently not a topic of discussion at Respondent's meetings. There is, assuming arguendo the subject of "enforcement" to have been fully litigated at the hearing, insufficient evidence to establish that Respond- ent enforced the clause in question. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The issue remains that alleged under the original and unamended complaint- whether or not Respondent maintained with Armco the clause in question. Respond- ent's brief concedes that the question is whether or not it may be concluded that unfair labor practices exist from the fact that Respondent has maintained the agreement with the no-distribution clause in question. The evidence indisputably indicates that the bulletin boards were in existence at the plant at the time of the hearing and that Respondent posted notices thereon In addition it appeais fiom the credited testimony of Weller Dalton, an employee of Armco's inspection depait- ment, that during the campaign preceding the 1964 election when he sought to dis- tribute Steelworker literature on company property he was told he would have to move to the curb. The evidence in the present case thus establishes that Respondent has niaintamed the contract clause in question within the 6-month period preceding filing of the charge in the instant case in the sense that it has continued to be a pasty to and enjoyed the fruits of the clause in question. I conclude and find that Respondent's action in thus maintaining the clause con- stituted the unfair labor practice within the scope of Section 8(b)(1)(A) alleged in the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices found to have occurred and set forth above, occui i ing in connection with the operations of Armco, as described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commeice among the several States and tend to lead to labor disputes burdening and obstructing commei cc and the free flow thereof. V. THE REMEDY In view of my findings set forth above that Respondent has engaged in unfau labor practices defined in Section 8 (b) (1) (A) of the Act, I shall recommend that it be required to cease and desist therefrom and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is a labor organization within the meaning of the Act. 2. Armco is an employer engaged in commerce within the meaning of the Act. 3. By maintaining the clause in its collective-bargaining agreement with Armco which prohibits employees from distributing self-organizational literature on behalf of the Steelworkers on nonwork time in nonwork areas of the Armco plant premises, Respondent has engaged in unfair labor practices defined in Section 8(b)(1)(A) of the Act. [Recommended Order omitted from publication.] United States Rubber Company and United Rubber, Cork, Lino- leum and Plastic Workers of America, AFL-CIO. Cases Nos. ,3-CA-1922 and 23-C<1-1944. November 5,1965 DECISION AND ORDER On August 20, 1965, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. She also found that Respondent had not engaged in certain other 155 NLRB No. 61.