General Dynamics Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1963

145 N.L.R.B. 752 (N.L.R.B. 1963)

752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed them by Section 7 of the Act.
WE WILL offer Dominick F. Amedeo immediate and full reinstatement to his
former or substantially equivalent position , and make him whole for any loss
of pay he may have suffered by reason of our discrimination against him.
PIPE LINES, INC.,
RICHARDI CONSTRUCTION CO., INC.,
ASPHALT HOT MIX, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon application
in accordance with the Selective Service Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Boston
Five Cents Savings Bank Building, 24 School Street , Boston, Massachusetts, Tele-
phone No. 523-8100, if they have any question concerning this notice or compliance
with its provisions.
General Dynamics , Fort Worth, a Division of General Dynamics
Corp . and Aeronautical Industrial Lodge 776 , International
Association of Machinists, AFL-CIO. Case No. 16-CA-1810.
December 31, 1963
DECISION AND ORDER
On September 24, 1963, Trial Examiner Wellington A. Gillis issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in the unfair labor practices alleged in the
complaint but recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Trial Examiner's Decision and supporting briefs, and the Re-
spondent also filed a brief in answer to the exceptions and supporting
brief of the General Counsel.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
145 NLRB No. 81.
GENERAL DYNAMICS, FORT WORTH, ETC. 753
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 27, 1963, by Aeronautical Industrial Lodge 776,
International Association of Machinists, AFL-CIO, hereinafter referred to as the
Union, the General Counsel for the National Labor Relations Board, hereinafter
referred to as the Board, issued a complaint on May 13, 1963, against General Dy-
namics, Fort Worth, a Division of General Dynamics Corp., hereinafter referred
to as the Respondent or the Company, alleging that the Respondent, since October 15,
1962,1 has promulgated and maintained a rule prohibiting employees from engaging
in union activities on company property during their nonworking time in violation
of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act,
as amended (61 Stat. 136), hereinafter referred to as the Act. The Respondent there-
after filed a timely answer to the complaint denying the commission of any unfair
labor practices.
On July 8, 1963, pursuant to notice, a hearing was held in Fort Worth, Texas, be-
fore Trial Examiner Wellington A. Gillis, at which all parties were represented by
counsel and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, to introduce evidence pertinent to the issue, and to engage in argument.
Timely briefs were subsequently filed by the General Counsel and the Respondent.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation maintaining its principal office and
place of business in Fort Worth, Texas, is engaged in the manufacture, sale, and
distribution of airframes. During the calendar year 1962, the Respondent purchased
parts and equipment valued in excess of $50,000, which were shipped directly to its
Fort Worth plant from points located outside the State of Texas, and, during the
same period, the Respondent shipped directly from said plant to points located
outside the State of Texas goods valued in excess of $50,000. The parties agree, and
I find, that the Respondent is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
Aeronautical Industrial Lodge 776, International Association of Machinists, AFL-
CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The Issue
Whether, since October 8, 1962, the Respondent has promulgated and maintained
a rule prohibiting employees from engaging in union activities on company property
during their nonworking time.
The Facts
The stipulated record evidence reveals that, commencing in 1950 and continuing
to June 1963, the Respondent's employee handbook, entitled "Your Job at Convair,"
as revised from time to time, contained a set of disciplinary rules, one of which
prohibited the "Solicitation of employees for membership in organizations, circula-
tion of petitions, sale of tickets or merchandise, magazines, donations, etc., on com-
pany property without specific approval of the Personnel Manager." The record
evidence further discloses that, on October 15, 1962, the following notice was posted
by the Respondent on the plant bulletin boards, which notice remained posted for
about 10 days.
GENERAL DYNAMICS/FORT WORTH
DIVISION NOTICE #A-46
15 October 1962 (Time Clock Bulletin Boards)
To: All Employees.
From: Frank W. Davis.
Subject: Employee Conduct on Company Property.
'At the hearing the complaint was amended by changing this date to October 8, 1962.
734-070--64-vol. 145-49
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At this time of the year football betting cards are often distributed in the
community. Not only is gambling a violation of the State criminal laws, the
distribution of literature on Company property is contrary to General Dy-
namics/Fort Worth policy.
The purpose of this notice is to re-emphasize two of the regulations which
appear in your Employee Handbook.
The following are representative causes which may justify disciplinary action,
including discharge:
Gambling, lottery, or other games of chance on Company property at any
time.
(This includes, but is not limited to, football cards and check pools, etc.)
Solicitation of employees for membership in organizations, circulation of
petitions, sale of tickets or merchandise, magazines, donations, etc., on
Company property without specific approval of the Director of Industrial
Relations.
(Such requests, if any, will be made by the Department Head to the Director
of Industrial Relations.)
Through this notice, I am requesting that all employees refrain from the
above-mentioned activities and that each supervisor enforce the regulations.
FitANlc W. DAVIS, President.
In his attempt to show enforcement of the rule, counsel for the General Counsel,
through two employee witnesses, elicited testimony relating to two conversations be-
tween an employee and David Smith, an industrial relations analyst for the Re-
spondent.2 The first occurred on October 9, 1962, between 8 and 9 o'clock in the
morning, which was during working hours, when Smith approached Union Com-
mitteemen Herbert James, and J. F. Mulonax, who were engaged in a conversation
in the plant, and asked James if he had been passing out union literature. When
James replied that he had, Smith told James, "You know the company rules, you are
not supposed to be passing it out." In answer to Smith's question as to where em-
ployees obtained the cards, James told him that there was a stack of them in the
department when they arrived at work that morning.3 When Smith asked if he had
one in his pocket, James answered in the affirmative and offered one to him, which
Smith accepted. Upon Smith's telling James not to pass any more of them out,
James countered with the statement that he knew the company rules but that there
existed an NLRB ruling which, as explained to him, permitted the circulating of
union literature on company premises during nonworking hours. Smith thereupon
told James that the ruling did not apply to the Respondent Company.4
The other incident relied upon by the General Counsel to establish enforcement
of an unlawful rule occurred, according to the unrefuted rebuttal testimony of
Mulonax, about a week later when, during a morning 10-minute smoking period,
Smith walked up behind an employee who was reading a "progress of negotiations"
report. Upon noticing this, Mulonax walked over to Smith, who thereupon asked
Mulonax whether he had any of this literature. When Mulonax answered in the
affirmative, and Smith asked if he minded giving him a copy, Mulonax said, "Mr.
Smith, if I gave you one of these now, you know that last whistle has done blowed
to go back to work. Are you going to fire me for passing out literature on company
time?" Whereupon, Smith grinned and told him, "No."
2
While It is questionable that, based upon the record evidence, Smith fails within the
definition of supervisor as defined in the Act, I am of the opinion, and so find, that the
record does support the contention that Smith is an agent of the Company, for whose
remarks the Respondent is responsible.
3 The cards in question provided for employee signatures in support of the union nego-
tiating committee's attempt to secure contractual changes in the collective-bargaining
agreement.
'As Smith was not called as a witness, with the exception of James' noncredited testi-
monial denial that he told Smith that he had been passing out union literature, the find-
ings as to this conversation are based upon the testimony of James and Mulonax, the
quotation taken from that of the former. I find, based in part upon Mulonax' testimony
that he believed that James, In reply to Smith's inquiry, said that he had been passing
out cards, that James, in fact had engaged in such conduct, and so indicated to Smith.
GENERAL DYNAMICS, FORT WORTH, ETC. 755
Conclusions
The General Counsel contends that this rule, because it would prohibit union
solicitation during nonworking hours, is unlawful, and that, in repromulgating said
rule through its October 15 notice, together with its continued distribution of the
handbook containing such rule to new employees until March 26, 1963, the Respond-
ent violated Section 8 (a) (1) of the Act.. The Respondent, which admits the existence
of the rule, contends that its October "anti-gambling" notice was posted solely to
eliminate gambling in the plant among its employees, that, throughout its 12-year
existence of the rule, it was never applied to union activity during nonworking time,
nor intended to be so applied, and that, immediately upon being advised by a repre-
sentative of the Board as to the broad implications of the rule, upon which the instant
complaint had issued, the distribution of the handbook containing the rule was
stopped, and a new handbook, containing a lawful rule, was issued in June 1963.
Apart from the two isolated, and, in my opinion, inconsequential, incidents re-
ported above,5 the record bears out the Respondent's assertions. Thus, as to the
rule as repromulgated in October, (a) the credible and unrefuted testimony of
Carl Oles, Respondent's labor relations administrator, as well as certain documentary
evidence, discloses that the notice posted on October 15 was prompted by complaints
from employees pertaining to gambling on the premises, and was intended to ac-
complish that which its contents indicates ; 6 and (b ) there is no evidence to refute
the Respondent's testimonial assertion that no complaints as to the notice were
registered by any employee or by the Union during the 10-day period it was posted
(or at any time prior to March 26, 1963).7 As to the maintenance of the rule,
contrary to the assertions of the General Counsel, the credible evidence fails to
establish that, at any time during the 12-year period that the rule was published in
the employee handbook, the rule was applied so as to restrict union solicitation during
nonworking time.8 In fact, the testimony of Mulonax, one of two witnesses for
the General Counsel, to the effect that after October 9 he passed out union literature
` on the company property, but not on company time," corroborates Respondent's
witnesses as to the company practice of permitting the distribution of union literature
and solicitation of union members on company property during nonworking time.
Thus, this case boils down to the simple fact that over a period of years the Re-
spondent did have in existence a broad no-solicitation rule, one which, under the
Board's rationale in Walton Manufacturing Company,9 is, in the absence of special
s With respect to the first incident , because it occurred during working hours, it is
reasonable to assume that, based upon James ' reply that he had passed out union litera-
ture soliciting employee signatures , Smith, in admonishing James, believed that such
activity by James took place during working time . The second incident , apparently
elicited for the purpose of showing an attempt by a company official to bait an employee
into breaking a company rule , apart from being trivial , and pertaining to distribution
rather than to solicitation , could be interpreted to support the Company 's position that
the rule was not applied during nonworking time and that the employees were aware of
such application by the Company . Thus, the inference is warranted that Mulonax, by
his own testimony , knew that it was permissible to pass out union literature during non-
working time but not on company time.
6A similar notice was posted in November 1958.
'Had the Union felt that the reference to the rule in the October notice was being
interpreted as applying to the solicitation of union matters , it would seem strange in-
deed, in view of the fact that bargaining negotiations were then being conducted, that
the Union did raise objections at that time.
8 In a plant encompassing 11,000 employees , 4,800 of whom comprise the production and
maintenance unit represented by the Charging Union, the two incidents relied upon by the
General Counsel , involving but 2 of 130 union committeemen , do not, in my opinion, war-
rant a contrary finding.
6126 NLRB 697. See also Texas Aluminum Co., Inc., 131 NLRB 443. In the Walton
case, the Board, in interpreting decisions of the Supreme Court of the United States,
enunciated its doctrine that "No-solicitation or no -distribution rules which prohibit union
solicitation or distribution of union literature on company property by employees during
their nonworking time are presumptively an unreasonable impediment to self -organization,
and are therefore presumptively invalid both as to their promulgation and enforcement ;
however, such rules may be validated .by evidence that special circumstances make the rule
necessary in order to maintain production or discipline."
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances , not here present, unlawful . 1° At the same time , it is readily apparent
that the rule was not applied to union activity during nonworking time, nor so
intended.
Accordingly , I find , upon all of the credible evidence , that the Respondent 's broad
no-solicitation rule in effect until March 26, 1963, was, under Board law, unlawful,
and that its promulgation and maintenance ( as distinguished from enforcement)
constitutes a technical violation of Section &(a) (1) of the Act . However, under all
of the circumstances , including the fact that (a) immediately upon notification by
the Board as to the unlawful aspect of the rule, the Respondent stopped the dis-
tribution of the employee handbook , revised the rule accordingly , and at the time
of the hearing had distributed a new handbook to all of its employees, and (b) the
Respondent , in 20 years of contractual relations with a number of unions , including
the Charging Union , has no history of unfair labor practices , I am of the opinion,
and so find, that no further remedial action is necessary to effectuate the purposes
of the Act and that no useful purpose would be served in issuing the usual cease-
and-desist order ." Therefore , I shall recommend that the complaint herein be
dismissed.12
Upon the basis of the foregoing findings of fact , and upon the entire record in
this case , I make the following:
CONCLUSIONS OF LAW
1. General Dynamics , Fort Worth, a Division of General Dynamics Corp., is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Aeronautical Industrial Lodge 776, International Association of Machinists,
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
3. By promulgating and maintaining until March 26, 1963 , a broad no-solicitation
rule, the Respondent engaged in unfair labor practices in violation of Section 8 (a) (1)
of the Act.
RECOMMENDED ORDER
For the reasons above expressed, it is hereby recommended that the complaint
be dismissed in its entirety.
11 It Is not contended , nor does the record disclose , that the Respondent , in promulgating
the rule, was prompted by circumstances necessitating such a rule in order to maintain
production or discipline.
ll See The Crossett Company, 140 NLRB 667; see also Acro Division, Robertshaw -Fulton
Controls Company, 127 NLRB 64.
12 At the close of the hearing , I reserved ruling upon the Respondent 's motion to dismiss
the complaint . Consistent with my findings herein, said motion is hereby granted.
Swift & Company and National Brotherhood of Packinghouse
& Dairy Workers, Petitioner and Swift & Company, Petitioner
and United Packinghouse , Food & Allied Workers, AFL-CIO,
and its Local 457,1 Union. Cases Nos. 4-RC-5512 and 4-RM-155.
December 31, 1963
DECISION AND ORDER
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before Hearing Officer
Harold Bernard, Jr. The Hearing Officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
1 United Packinghouse , Food & Allied Workers , AFL-CIO, and its Local 457, herein-
after referred to as UPWA or the Intervenor, was also permitted to intervene in Case
No. 4-RC-5512 on the basis of its contractual interest.
145 NLRB No. 73.