General Electric Co.

National Labor Relations Board - Board DecisionsFeb 28, 1968

169 N.L.R.B. 1101 (N.L.R.B. 1968)

GENERAL ELECTRIC COMPANY 1101 General Electric Company and International Union of Electrical , Radio and Machine Workers, AFL-CIO General Electric Company and International Union of Electrical, Radio and Machine Workers, Local 1507, AFL-CIO. Cases 20-CA-4158 and 20-CA,-4332 February 28, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN sisting of the charges , the complaints , as amended, the answers , the exhibits , and the stipulation of facts. On May 15, 1967, the Board approved the stipulation and ordered the proceedings transferred to the Board . Thereafter , the General Counsel, the Charging Parties, the Respondent , and the Amer- ican Federation of Labor, AFL-CIO, as amicus cu- riae, filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. Upon the basis of the stipulation , the briefs, and the entire record in this case , the Board makes the following: Upon charges filed on July 18 and December 7, 1966, by the International Union of Electrical, Radio and Machine Workers, AFL-CIO, and the International Union of Electrical, Radio and Machine Workers, Local 1507, AFL-CIO, respec- tively (the former is herein called the IUE, the latter the Local 1507, and collectively the Union), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 20, is- sued complaints dated October 18, 1966, and January 4, 1967, against General Electric Com- pany, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. An amendment to the complaint in Case 20-CA-4158 was also is- sued on January 4, 1967. The complaints allege in substance that the Respondent unlawfully prohibited the Union from soliciting funds from the Respondent's employees on Respondent's premises during nonworking hours, the money so collected to be used for the benefit of employees of other employers. On Oc- tober 25, 1966, and January 13, 1967, Respondent filed answers admitting certain allegations in the complaints but denying the commission of any un- fair labor practices. On January 4, 1967, the Re- gional Director, on behalf of the Board, issued an order consolidating cases and rescheduling hearing. Copies of the' charges, complaints, amendment to the colriplaint, order consolidating cases, and notices of hearing before a Trial Examiner were duly served upon the Respondent. On May 11, 1967, the Respondent, the Union, and the General Counsel entered into a stipulation by which they waived a hearing before a Trial Ex- aminer and the issuance of a Trial Examiner's Deci- sion and Recommended Order and agreed to submit the case to the Board for findings of fact, conclu- sions of law, and an order, based upon a record con- I The entire premises , including three parking lots, is fenced and posted "General Electric Property Line." FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a New York corporation with plants located throughout the United States, operates a motor plant in San Jose, California, where it is engaged in the manufacture and sale of electric motors and generators. During the past year, the Respondent, in the course and conduct of its business operations, purchased and received goods and materials valued in excess of $50,000 directly from outside the State of California and sold and shipped goods valued in excess of $50,000 directly to customers outside the State of Califor- nia. We find that the Respondent is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED The IUE and Local 1507 are labor organizations as defined in Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At all times material herein , Respondent em- ployed about 430 persons in its San Jose Motor Plant , which included a production and main- tenance unit of approximately 290 persons represented by Local 1507. Respondent's San Jose premises comprise some 57.4 acres ' and also en- compass operations in other buildings housing Respondent 's Nuclear Energy Division . None of the 2, 190 persons employed in this division were represented by Local 1507. Local 1507 has been a party to the nationwide 169 NLRB No. 155 1102 DECISIONS OF NATIONAL LABOR contracts (covering periods from 1963-1966 and 1966-1969) between the Respondent and the IUE.2 These contracts included a clause (art. IV, section 2) that provides: Neither the Union nor any Local, nor any Steward , Officer, or other agent or representa- tive of either , shall intimidate or coerce any employee , nor solicit members or funds in the plant during working hours . [ Emphasis suppli- ed.] In addition to this provision , the Respondent requires prior management approval for the collec- tion of money , at any time , on company property at the San Jose Motor Plant . In application of these restrictions , Respondent annually permits solicita- tions for the United Fund , the Constructive Citizenship Program,3 and the Santa 's Helpers Plan.4 All of these collections apparently have con- tinuing management approval . Respondent also permits collections within the department involved for the purchase of gifts, usually upon retirement, to honor fellow employees . Respondent does not per- mit employee collections for other similar public charities for the announced reason that health and welfare donations are handled through the United Fund . Although it appears that Respondent has never approved solicitation of any kind at the main gate , the record is silent as to whether any such request has ever been made to Respondent, and there is no evidence that such collections were ever attempted prior to June 1966 , other than the one noted below sponsored by the Union. The guard-posted main gate is situated on Respondent 's property and separates the southeast parking lot from the motor plant . This parking lot, used by all of the motor plant employees , has en- trances fronting on two public streets which have posted speed limits of 35 and 45 miles per hour, respectively. In the spring of 1965, without prior knowledge or approval of Respondent , the Union sponsored col- lections at the main gate for the support of a sister local. Thereafter , on or about June 9, 1965, Respondent ' s manager of shop operations , Robert Hagstrom , advised the Union that it must obtain permission in advance from Respondent before making collections on its property . Hagstrom further stated that Respondent would not have given the Union permission to make such collec- tions and that in the future , if the Union made a col- lection on the Respondent 's property without ob- taining prior permission , disciplinary action would be taken against the participating employees. 2 The 1963 contract expired October 2, 1966, and the 1966 contract, which presently is in effect, is dated October 28, 1966. 3 This is a political contribution program under which employees are urged to contribute to election campaign funds shortly prior to the biennial congressional elections by solicitations on the plant premises and in part during working hours. RELATIONS BOARD B. The Present Controversy About June 10, 1966, the Union decided to so- licit and collect funds at Respondent's main gate on June 17, 1966, during the three shift changes, to ob- tain money to support grape worker employee- strikers who were attempting to organize in the Delano, California, area. On June 16, 1966, the Union, without giving notice or requesting permis- sion, distributed leaflets to employees of the motor plant advising them of the scheduled collection. Without prior permission, on June 17, 1966, several union members began making collections at the main gate from motor plant day shift employees leaving work. A plant guard, after having contacted Davis, Respondent's manager of manufacturing en- gineering, notified the Union that Respondent would not grant permission to make the collection at the main gate and that employees should make their collection at the street gate located on the public street perimeter. The union members who were engaged in collecting then dispersed. Shortly thereafter, Nicoletta, president of the Union, requested permission from Davis and Vincent, Respondent's manager of manufacturing, to con- tinue the collection. The request was denied. On June 20, 1966, the Union's representatives renewed their request, which Vincent again denied. Later that day Nicoletta spoke to Emmons, Respondent's specialist in employee relations, con- cerning Vincent's denial of the request, whereupon Emmons stated that the denial was proper, under the practice of limiting solicitations at the plant. On June 22, 1966, the Union filed a "general grievance," pursuant to the contract, protesting Respondent's action and requesting permission to make the collection. On July 6, 1966, the relief requested was denied by Respondent. On November 18, 1966, representatives of the Union requested Emmons' permission to post a notice regarding another collection of funds for the Delano grape workers on the motor plant bulletin board, made available by Respondent for use by the Union. The proposed collection was also to be made at the main gate during nonworking hours. Emmons denied the request because the collection was to be made at the main gate, but suggested that the notice could be posted if the collection would be made at the Union's own office in San Jose, or any other location off Respondent's property. The Union has not at any time been permitted by the Respondent to make the proposed collection at the main gate. 4 About 7 years ago, Respondent approved this plan under which em- ployees agreed that instead of exchanging Christmas cards, they would pool the money it would have cost them to do this and send it to a charity of their mutual selection. C. GENERAL ELECTRIC COMPANY 1103 The Contentions of the Parties ployer's employees protesting that employer's ac- The Respondent contends, inter alia, that the donating or collecting of the contributions involved herein bears no relationship whatsoever to self-or- ganization or collective bargaining covering Respondent's employees, or to any concerted ac- tion in which they might participate or have an in- terest. Respondent notes that the Delano grape pickers are in no way related to the Union, to the Respondent, or to its employees, and are not even "employees" to whom the Act (Section 2(3) and Section 7) applies. It argues that such contributions do not constitute the exercise by Respondent's em- ployees of any right guaranteed to them under Sec- tion 7 of the Act, purportedly because that section was not intended to guarantee employees the right to assist in the organization of other employees, either directly or by assisting other labor organiza- tions in organizing such employees. The Charging Parties and General Counsel con- tend that there is no distinction between pre- and post-recognition employee rights, as Section 7 is not limited to self organization; that "mutual aid" includes financial support of employees of other employers; that by collecting and making contribu- tions for that purpose the employees were engaging in an activity for "mutual aid or protection;" that this case comes well within the law as laid down in Republic Aviation, I and subsequent Board and court cases involving restrictions upon in-plant col- lections for union purposes; that the Union did not acquiesce in Respondent's rule; that the application of the Respondent's restrictive practice and rule to the Union' 's collection of funds was discriminatory; that there is no justification present for Respondent to bar such activity from its property; and that, in any event,' the Union did not otherwise have availa- ble reasonably comparable means of reaching em- ployees. D. Discussion and Conclusions In response to Respondent's primary contention that the collection involved herein is too remote from the interests of the Union or its members to come within the guarantee of Section 7, and further that the Act does not protect activity aimed at benefitting employees excluded from the Act's definition of "employee,"6 we deem it appropriate to quote the observation of Judge Learned Hand in N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F.2d 503, 505 (C.A. 2). There, the court held that a resolution by a union of an em- 5 Republic Aviation Corp v N.L R.B., 324 U.S 793. s Section 2(3) of the Act specifically excludes agricultural laboreis from Lhe definition of "employee." ' See Redwing Carriers, Inc., 137 NLRB 1545, enfd sub nom. Team- sters Local 79 v N L R.B, 325 F 2d 1011 (C A.D C.), cert. denied 377 U S 905, where the Board said "Such activity is literally for `mutual aid tion in regard to a milk strike by a dairy farmer's union was a concerted activity for "mutual aid or protection" of employees within the ambit of the Act: ... as it [the resolution] was a "concerted ac- tivity for the purpose" of the "mutual aid or protection" of the members of the "P.C.K." [the Union] themselves, the section did cover it, though perhaps the more accurate word in that situation would have been "common" in- stead of "mutual." Certainly nothing elsewhere in the Act limits the scope of the language to "activities" designed to benefit other "em- ployees"; and its rationale forbids such a limitation. When all the other workmen in the shop make common cause with a fellow work- man over his separate grievance, and go out on strike in his support, they engage in "concerted activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid." The court further noted that the passage of the Union's resolution by the employees might gain support for them at some future time when they might have a dispute with their employer. In this re- gard, Judge Hand stated: [supra, 506] : If, therefore, the members of "The P.C.K." thought that the resolution might help to secure for them the favor of "The Union," it was no objection that "The' Union" was not made up of "employees" as Section 2(3) defined that word; it was as little an objection as though "The Union" had been made up of agricultural laborers who are equally excluded from the Act. "The P.C.K." might well believe that the support engendered by that favor might prove as important in future disputes with the choco- late company as the support of other unions in its own craft or in other crafts. [Emphasis supplied.] Judge Hand's rationale in Peter Cailler has been followed by the Board and the courts in other "mu- tual aid or protection" situations such as employee refusals to cross picket lines of unions other than one's own at other plants than that of his employer.7 We find, therefore, that the collection by the em- ployees herein was protected by Section 7, as "other concerted activities for the purpose of ... other mutual aid or protection ...." or protection ' within the meaning of Section 7"; see also Illinois Bell Telephone Co, 88 NLRB 1171, enforcement denied 189 F 2d 124 (C A. 7), cert denied 342 U S 885 , Eustace de Cordova, d/b)a Cyril de Cor- dova & Bro., 91 NLRB 1121, Rockaway News Supply Company, Inc, 95 NLRB 336, enforcement denied on other grounds 197 F 2d 111, 345 U.S 71, Cooper Thermometer Company, 154 NLRB 502 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In resolving the issues in this matter, we are, of course, mindful of Respondent's asserted right to the control of its property and of the need to balance in the scale of all attending circumstances the various rights of both employees and em- ployers. Thus, we observe that the time and place chosen for the collection afforded the Union an adequate means of communication with the em- ployees, yet minimized the infringement upon Respondent's property right. In this context the Respondent generally asserts in its brief that the collection "might interfere with its right to control the use of its property," but it does not contend, nor does the record show, how its property right has been specifically interfered with. Thus -there has been no showing that Respondent's production facilities or employees' work was being interfered with, that its property was being littered with leaflets or other material, or that the rule was neces- sary for employee discipline. Indeed, Respondent's practice of permitting certain other solicitations, in- cluding those for charities, for employee retirement gifts, and even for political contributions, on the plant premises and partly during working time, would seem to negate any reliance upon these fac- tors as special interests of Respondent in need of protection. Furthermore, the Respondent, as it states in its brief and as is supported by the record, has no other interest in the Union's collection. On the other hand, the Union under the circum- stances, had no reasonable alternative means available to it to make the collection. If the collec- tion was to be made outside the parking lots' public entrances and exits on the two main highways with speed limits of 35 and 45 miles per hour, respective- ly, the employees would have been required to flag down or halt moving cars leaving or entering Respondent's parking lots, thereby obstructing traf- fic, creating a serious public hazard, and jeopardiz- ing the employees' own safety. It should also be noted that the homes of a substantial majority of Respondent's employees are scattered throughout the surrounding four counties extending over a 20- mile radius from the San Jose premises, a factor en- larging the difficulties of having employees report to another location away from the Respondent's premises for the Union collection. It follows that Respondent's permission to the Union to post the announcement of the collection, in November, was granted only on a condition that did not afford the Union a practical opportunity to communicate with the employees it represented at Respondent's plant. In an earlier case involving the same Company, but at a different plant where another local union was bargaining representative, we recognized and gave weight to the consideration that "acquiescence ... is a factor of some significance in a situation such as this when the basic question to be resolved is whether in all the circumstances the Respond- ent's rule so trenches upon protected rights of the employees as to violate the Act."8 We find the in- stant case distinguishable from the earlier General Electric Company case in this significant respect. Here we cannot find, as we did in the earlier case, that the Union acquiesced in the Respondent's rule governing in-plant money solicitation. For it ap- pears that until the Union attempted an on-premises collection in the spring of 1965 without prior management approval, it had no knowledge of the existence of the rule. Obviously, where knowledge is lacking, acquiescence cannot be inferred. The matter did not again arise until the present collec- tion attempt. Here again, the Union proceeded without seeking management permission required by the rule. Such conduct is also wholly incon- sistent with the very concept of acquiescence. On the basis of the entire record in this case, we find that the employees' interest in using Respond- ent's premises for a union-approved collection in behalf of grape worker employee-strikers, at the specific place and in the manner described above -a collection, undertaken in the exercise of the statutory right to engage in activities for "mu- tual aid and protection" -was such as to outweigh the Respondent's asserted interest in exclusive con- trol of its property. As there are present in this case no countervailing considerations justifying Respond- ent's application of the rule herein involved, we hold that in the specific circumstances of this case Respondent's application of that rule was unlawful. Accordingly, we conclude that Respondent has interfered with, restrained, and coerced its em- ployees in the exercise of their rights guaranteed in Section 7 of the Act, and has committed an unfair labor practice within the meaning of Section 8(a)(1) of the Act, by enforcing at the San Jose Motor Plant a rule requiring prior management approval in all cases involving the employee-conducted collections of money in a manner which prevented employee- members of said Local 1507 from soliciting dona- tions for the Delano grape pickers at the main gate separating the motor plant from the southeast park- ing lot. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having found that the Respondent has engaged 8 General Electric Company, 163 NLRB 253; cf. Gale Products, Divi- sion of Outboard Marine Corp., 142 NLRB 1246, enforcement denied 337 F.2d 390 (C.A. 7, 1964). GENERAL ELECTRIC COMPANY 1105 in an unfair labor practice, we shall order that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the poli- cies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in this case, we make the following: CONCLUSIONS OF LAW cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. 1. The Respondent , General Electric Company, is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The IUE and Local 1507 are labor organiza- tions as defined in Section 2(5) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act, in the manner found herein, the Respondent has engaged in an unfair labor prac- tice within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respond- ent, General Electric Company, San Jose, Cali- fornia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from prohibiting or other- wise unlawfully interfering with its employees in the collection of funds at the main gate, separating the motor plant from the southeast parking lot, and in other nonworking areas, for mutual aid or protec- tion within Section 7 of the Act, or in any like or re- lated manner interfering with the rights of em- ployees guaranteed by the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Post at its motor plant, San Jose, California, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Re- gional Director for Region 20, after being duly signed by Respondent's representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- 9 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals En- forcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT prohibit or otherwise unlaw- fully interfere with our employees in the collec- tion of funds at the main gate, separating the motor plant from the southeast parking lot, and in other nonworking areas for mutual aid or protection within Section 7 of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in the Act. GENERAL ELECTRIC COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, San Francisco, California 94102, 556-3197.