McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1974

210 N.L.R.B. 280 (N.L.R.B. 1974)

280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonnell Douglas Corporation and Milford M.
Morris. Case 14-CA-7046
April 29, 1974
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
conditions, and that that activity, namely, the
distribution of handbills on company premises
during their nonworking time and in nonworking
areas, was protected by Section 7 of the Act.
The collective-bargaining agreement between Re-
spondent and the Union cannot diminish these
Section 7 rights. Paragraph XV of the agreement
states:
On April 30, 1973, Administrative Law Judge John
G. Gregg issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge, as
modified herein, and to adopt his recommended
Order.
As in any case which concerns an employer's
restraint of employees' efforts to distribute literature
upon their employer's plant premises, the first
question we must answer is whether the distribution
is pertinent to a matter which is encompassed by
Section 7 of the Act. For the reasons set forth below,
we agree with the Administrative Law Judge that the
"Fight Dues Raise" pamphlet describing the status of
the FDR's suit to set aside the Union's dues increase
was part of an activity protected by Section 7.
The Administrative Law Judge found that the
distribution of handbills by the "Fight Dues Raise"
group of employees was an activity sufficiently
related to their working conditions and bore such a
reasonable connection to matters affecting the
interests of the employees as to come within the
protection of Section 7 of the Act. We agree.
We note that those activities directly related to the
employees' working conditions, inasmuch as article
XVIII, section 1, of the Respondent's collective-
bargaining agreement with the Machinists (the dues
of which were the target of FDR's activities) provides
in part that as a condition of employment all
employees subject to the provisions of the contract
shall become and remain members of the Union in
good standing. Unlike G & W Electric Specialty
Company, 154 NLRB 1136, where a majority of the
Board found certain activity indirectly, albeit suffi-
ciently, related to the employment relationship as to
be protected by Section 7, we conclude here that the
employees were acting in concert for mutual aid or
protection with respect to matters directly related to
their employment relationship and their working
210 NLRB No. 29
Section 1
The Union shall have the right to use designat-
ed bulletin boards on the Company property for
the purpose of posting notices of Union meetings
and other activities which are officially approved
by the Union and the Company prior to posting.
The Company will act promptly on such notices
sent to the Labor Relations Department by the
Union.
Section 2
No other notices or distribution of pamphlets,
advertising matter or any kind of literature will be
permitted in the plant or on the employer's
property. Violators of this rule shall be subject to
immediate disciplinary action up to and including
discharge.
But the parties to the contract cannot thus waive an
employee's Section 7 rights. The Supreme Court has
recently so held in N. L. R. B. v. Magnavox Company of
Tennessee, 415 U.S. 322 (1974). In that case the Court
reversed the Court of Appeals for the Sixth Circuit's
denial of enforcement of the Board's finding that the
company's maintenance of a similar contract clause
was unlawful. The Court distinguished a union's
power to waive the right to strike, because such
waivers "rest on `the premise of fair representation'
and presuppose that the selection of the bargaining
representative `remains free,' " as contrasted with a
situation where the employees' right to choose or
reject a bargaining representative is involved. The
Court stated:
When the right to such a choice is at issue, it is
difficult to assume that the incumbent union has
no self-interest of its own to serve by perpetuating
itself as the bargaining representative. [Labor
Board v. Mid-States Metal Products, Inc., ] 403
F.2d at 705. The place of work is a place uniquely
appropriate for dissemination of views concern-
ing the bargaining 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. For Congress declared in § 1 of
the Act that it was the policy of the United States
MCDONNELL DOUGLAS CORP. 281
to protect "the exercise by the workers of full
freedom of association , self-organization and
designation of representatives of their own choos-
ing." 29 U.S. § 151.
It is argued that the use of the bulletin board is
a fair substitute. But as the Fifth Circuit said in
the Mid-States case the bulletin board may be an
adequate medium for "preserving the status quo"
and yet not give a union's adversaries "equal
access to and communications with their fellow
employees." 403 F.2d at 705.
The FDR group of employees were here acting in
concerted opposition to the incumbent Union on a
matter directly affecting their employment condi-
tions . Consequently, their Section 7 right to distri-
bute literature to their fellow employees in order to
solicit their support cannot be waived by the Union
or the Respondent Company. The Union may be
permitted to silence its own voice, but the Supreme
Court ruled that it may not silence that of the
employees.
Furthermore, we agree with the Administrative
Law Judge that Respondent's security and/or pro-
duction needs do not justify its restraint of employees
seeking to distribute Section 7 matter during their
nonworking time and in nonworking areas, as it did
in the instant case . Unlike McDonnell Douglas
Corporation, 194 NLRB 514, reversed and remanded
472 F.2d 539 (C.A. 8), Supplemental Decision and
Order, 204 NLRB No. 156, the employees here were
seeking to enter the plant with the protected
literature shortly before the start of their work shifts,
and were in fact allowed to enter the plant after the
literature was summarily confiscated by its guards.
Respondent has advanced no tenable reason as to
why the literature should not have been admitted to
nonworking areas of the plant, as the employees
themselves indeed were.
Accordingly, we find in agreement with the
Administrative Law Judge that Respondent violated
Section 8(a)(1) of the Act by its conduct herein.
complaint herein was issued by the Regional Director for
Region 14 on January 8, 1973, and amended on January
10, 1973, based on charges duly filed on September 7, 1972,
by Milford M. Morris hereinafter referred to as the
Charging Party . The complaint alleges that McDonnell
Douglas Corporation , herein referred to as the Respon-
dent, has engaged in and is engaging in certain unfair labor
practices in violation of Section 8(a)(l) of the Act. In its
answer the Respondent denies the commission of unfair
labor practices.
A trial was held on March 6, 1973 , at St. Louis, Missouri,
at which all parties were given full opportunity to examine
and cross-examine witnesses and to introduce evidence.
Briefs were duly filed by the parties.
In addition to the testimony and exhibits of record
herein, there was introduced into evidence by stipulation of
the parties certain material included in the "Joint Appen-
dix" to McDonnell Douglas Corporation, Petitioner v.
National Labor Relations Board Respondent, Case 11-1720,
472 F.2d 539 (C.A. 8).
It was stipulated by the parties that the testimony of
Richard S. McConnell appearing on pages 87 to 95 of the
said joint appendix ; the testimony of Warren Flynn
appearing on pages 122 to 160 of said joint appendix; the
testimony of Ivan Rutherford appearing on pages 202
through 219 of said joint appendix would be deemed to be
testimony on behalf of the Employer herein . It was also
stipulated that General Counsel's Exhibit 2, General
Counsel 's Exhibit 8, and Respondent's Exhibits I through
7 appearing in the same joint appendix would be deemed
to be exhibits of the Respondent herein.
It was also stipulated that pages % through 100 would be
included with the understanding that the witnesses would
testify again in this manner if they were permitted to do so
and with the understanding that the General Counsel did
not waive his right to contend that the aforesaid evidence is
irrelevant and immaterial.
The foregoing evidence was admitted under stipulation
for the sole purpose of establishing the security require-
ments of the Federal government and of McDonnell
Douglas Corporation in its highly sensitive area as a
manufacturer of military aircraft.
Upon the entire record herein , careful consideration of
the briefs , and from my observation of the demeanor of the
witnesses as they testified, I make the following:
FINDINGS AND CONCLUSIONS
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, McDonnell Douglas
Corporation, St. Louis, Missouri, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
JOHN G. GREGG , Administrative Law Judge: The
1. JURISDICTION
The complaint alleges, the answer duly admits, and I
find that McDonnell Douglas Corporation, the Respon-
dent herein, is a corporation duly organized and existing
under the laws of the State of Maryland with principal
office and place of business at Lambert, St. Louis Airport
in the State of Missouri, and is now and has been at all
times material herein an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 837, International Association of
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinists and Aerospace Workers, AFL-CIO, is and has
been at all times material herein a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that the Respondent
and the incumbent Union have been parties to and
maintained a bargaining agreement which provides as
follows at paragraph XV thereof:
Section 1
The Union shall have the right to use designated
bulletin boards on the Company property for the
purpose of posting notices of Union meetings and other
activities which are officially approved by the Union
and the Company prior to posting . The Company will
act promptly on such notices sent to the Labor
Relations Department by the Union.
Section 2
No other notices or distribution of pamphlets,
advertising matter or any kind of literature will be
permitted in the plant or on the employer's property.
Violators of this rule shall be subject to immediate
disciplinary action up to and including discharge.
The complaint alleges that since on or about August 29,
1972, the Respondent by its security force has refused to
allow employees to bring into its Lambert Airport plant
premises for distribution to employees literature printed by
a group of employees known as "Fight the Dues Raise" or
"FDR," a group which was taking a position opposed to
the financial need expressed by the incumbent Union and
that such literature was organizational literature. By the
foregoing, it is alleged that the Respondent interfered with,
restrained, and coerced its employees in the exercise of
their Section 7 rights in violation of Section 8(a)(1) of the
Act.
There is little dispute as to the background facts in this
case. The case appears to be an extension of a running
controversy involving the Respondent Company, the
incumbent Union, the "perennial" insurgent Union, and
now an insurgent group, "Fight The Dues Raise" or
"FDR." At issue is the adoption by the Respondent
pm suant to its collective-bargaining agreement with the
incumbent Union of rules and regulations which provide
that certain practices will not be tolerated and will be cause
for disciplinary action up to and including discharge. Rule
32 prohibits "distribution of notices, pamphlets, advertis-
ing matter or any kind of literature on company property
without permission of management."
There was testimony of record herein by Everett Lucas,
an employee of the Respondent for 17 years, which was
uncontradicted and which I credit establishing that in the
period July through September 1972 he participated with a
group opposing a dues increase which had been put into
effect by the incumbent Union. On his return to work after
Labor Day in 1972 he brought with him between 50 and
100 pieces of mimeographed literature in letter form,
parked his car in the parking and lot, went to the east entrance
of building 2 carrying the literature in his hand. At the
entrance to the building he was stopped by the guard who
asked what he had. He showed the guard one of the items
and the guard said that he could not take them in. Lucas
stated that the guard did not query him as to what he
intended to do with the literature and testified that he had
intended to give this literature to employees going into the
cafeteria . Lucas stated that while he was familiar with the
Respondent's rules and regulations which are posted on
the bulletin board in and about his work area, and that the
rule required prior approval of management before
distribution of literature, he did not submit the literature to
the Respondent's labor relations department prior to
attempting to take the material in building 2.
There was also testimony of record by Milford Morris,
an employee of the Respondent for 20 years and a member
of the Union, whose testimony I credit and whose
testimony was uncontradicted. Morris stated he worked in
building 45 which can be entered off Banshee Road
through the parking lot gate and also from another parking
lot east from building 2, going through building 2 then into
building 45 . Morris testified credibly that in the spring of
1972 there was posted on the bulletin board a notice of
union dues increase and bylaws elections to be held on
June 6, 1972. The election was held on that date, Morris
heard that the dues increase passed by a vote of 1,448 to
1,031. He did not believe that this was correct so he
contacted some friends and solicited their reactions.
According to Morris it was decided that the group which
designated itself as Fight Dues Raise would find out more
about the election. Information type slips were printed and
distributed around the plant to be read and returned to the
group. The group first contacted the International Associa-
tion of Machinists which indicated it would not hold a new
election, then the group contacted the Labor Department
which would not take action. The record establishes that
following this the group hired an attorney, Gerald
Tockman, to represent them. Tockman notified the
Respondent by letter that the group was seeking a court
determination that the union dues increase was illegal and
that the group intended to distribute this information on
the company premises in accordance with standing
company rules. By letter the Respondent's Attorney
George S. Hecker , Esq., answered for the Respondent
advising that the Respondent would not permit the group
to distribute its informative matter in the manner described
in Tockman's letter and that the Respondent's security
officers and other personnel had been instructed to take
action in the event Tockman 's clients engaged in such
distribution. The Respondent's attorney indicated that the
Respondent took the position that the material was
representative of an intraunion dispute and was not
protected within the meaning of the Act.
Morris , continuing his testimony , stated that he helped to
compose the FDR literature , that on September 6, 1972, he
went to work carrying with him about 100 copies thereof.
At the entrance of building 2 he was stopped by the guard
who wanted to know what he had in his hand. The guard
then informed him that no FDR literature was permissable
in the plant and on the premises which included the
parking lots. Morris stated that the guard did not ask what
MCDONNELL DOUGLAS CORP. 283
he intended to do with the literature. He stated that his
intention at the time was to distribute the literature in
nonwork areas in building 45. Morris testified he did not
attempt to pass out the FDR literature at public roads
access to the parking lots, as that would be a hazard to
traffic and the people who would pass it out. Morris
testified that normally the literature would have been
passed out at the plant's outer gates but they were advised
by their attorney that they could not do that. Morris
testified that prior to the attempt to distribute the FDR
literature he did not seek or secure prior approval of
management.
There was testimony of record by Warren Flynn,
director of labor relations for the Respondent for 16 years.
Flynn testified that after the charge herein had been filed
he, Flynn, received a report that the guards had been orally
instructed not to let FDR literature in the plant. He stated
that he had seen both Speed Facts and FDR literature in
the plant. According to Flynn at the time of the election
both Speed Facts and TEAM literature which was
published by the opposition group were permitted to be
distributed under the regulations as protected literature in
an organizational campaign. According to Flynn the
guards were instructed at that time to permit this
organizational literature to come into the plant. According
to Flynn, prior to September 6, 1972, the instruction to
permit the distribution of Speed Facts was revoked. Flynn
stated that he was informed by several people that some
Speed Facts were getting into the plant so the Union was
reminded that the invitation to bring Speed Facts into the
plant had been revoked and they were not supposed to be
bringing it in.
Flynn testified that pursuant to article 15 of the
bargaining agreement distribution of material on company
property is limited and that this limitation has been
enforced except for literature which is deemed by Flynn to
be protected literature. In this connection, according to
Flynn, plant rule 32 was introduced.
Flynn testified that the Respondent's policy was that,
subject to company approval, distribution of material by
employees would be permitted during the employees' shift
or a reasonable period before or after at the entrance gates
of the plant, that is the entranceway from the public street
into the plant.
Referring to distribution of literature at the entrance-
ways at the outer perimeter from the public road into the
plant, Flynn testified "We would have no control over
that ." He stated that the Respondent has never issued
instructions that distribution is not permitted at such
entranceways and that specifically no such ins«uctions
were issued to Morris. Flynn stated that the Respondent
does have a plan for handling traffic of people entering
and leaving the premises, and that the matter of traffic
moving in and out of its gates is a matter of major concern
to the Respondent.
Q. Isn't it true that it is very apparent that if
anyone did stand there and hand out literature, it
would back up traffic for blocks at the change of shift
time?
A. Well, there are traffic lights. If they did it at a
light change time, it wouldn't have any effect.
As for the distribution of material on the parking lots,
Flynn stated that the parking lots being company premises,
if the literature were protected literature the employees
ould distribute it, otherwise not. In any event it would
require prior approval of management.
In the course of his testimony Flynn was asked whether
he had required the incumbent union to submit to the
Company for approval prior to distribution its campaign
literature during the election campaign . Flynn said no, and
explained that "if there is an organizing campaign going on
and we know the protagonists I suppose that we would not
ask for a prior look at it . But when nothing is going on and
there is literature and we have an interest in not being
flooded with all kinds of literature that an organization like
this does get flooded with we would want to get a look at it
to see if it is advertising automobiles or candidates or
whether it is in fact for or against a union ...."
Flynn testified that since the time the incumbent union
was certified the Respondent had no knowledge of any
organizational activity going on in the unit involved.
Analysis, Discussion , Findings, and Conclusions
The Respondent takes the position that the FDR
literature involved herein is not organizational literature,
and that any refusal by the Respondent to allow its
employees to bring into its Lambert Airport Plant facilities
such literature sponsored by FDR was reasonable and
necessary to maintain production , discipline, and the
security of the Respondent ; and that further the incumbent
Union represents all plant employees (with exceptions not
significant herein) at the Respondent's Lambert Airport
Plant premises and that such unit included all employees
alleged to be members of the FDR group, under which
circumstances and under Section 9(cX3) of the Act no
election for a collective-bargaining agent other than the
incumbent Union or for any deauthorization election
could be directed and held for a period of 12 months from
the date of certification of the incumbent Union.
Turning first to Respondent's contention that the FDR
literature involved herein was not organizational literature
within the protection of the Act , the record testimony by
Flynn includes his statement that subsequent to the
certification of the incumbent Union a collective -bargain-
ing agreement was entered into . Flynn stated that he knew
of no organizational campaign being conducted on the
company premises since the date of the certification.
In my view it is not germane that no election for a
collective-bargaining agent other than the incumbent, nor
any deauthorization election could be directed and held for
a period of 12 months from the date of certification. What
is dispositive of this question is the fact that the employees
involved in the FDR group were clearly acting in concert
for the purpose of collective bargaining or other mutual aid
or protection. As the Board stated in G & W Electric
Speciality Company, 154 NLRB 1136, 1137, in pertinent
part, "Our decision herein is based on the facts of this case,
and is not to be construed .. as holding that any employee
activity which in any way involves other employees is
protected by Section 7. However, we are convinced that the
protection afforded by Section 7 is not strictly confined to
activities which are immediately related to the employment
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship or working conditions but extends to the type
of indirectly related activity involved herein." The indirect-
ly related activity therein involved the distribution of
literature relative to the establishment and operation of a
credit union. The Board stated essentially that the benefits
of credit unions are close enough in kind and character and
bear such a reasonable connection to matters affecting the
interests of employees as to come within the general reach
of the "mutual aid and protection" the statute is concerned
to protect. Here, in my view the distribution of FDR
literature involving the matter of both an election and the
quantum of dues payable to the bargaining representative
is an activity if not directly related at least indirectly
related to the employment relationship or working condi-
tions and bear such a reasonable connection to matters
affecting the interests of the Respondent's employees as to
come within the protection of Section 7 of the Act.
We turn next to the contention of the Respondent that
any refusal by the Respondent to allow its employees to
bring the FDR literature into its plant was reasonable and
necessary to maintain production, discipline, and the
security of the Respondent.
It is settled law that, absent special circumstances, the
Act guarantees employees the right to distribute union
literature on their employer's premises during nonwork
time in nonwork areas. Republic Aviation Company v.
N.L.R.B., 324 U.S. 793, 803-804 (1945); N.L.R.B. v.
Babcock & Wilcox Co., 351 U.S. 105, 110-111 (1956);
Central Hardware Co. v. N.L.R.B., 407 U.S. 539, 543
(1972). Accordingly the Board has long held that a rule
which, on its face or by application, interferes with the
exercise of these protected employee rights is presumptive-
ly invalid. Peyton Packing Co., 49 NLRB 828, 843-844
(1943); LeTourneau Company of Georgia, 54 NLRB 1253,
1259-60 (1944). The presumption may be overcome by
evidence of unusual circumstances necessitating the pro-
mulgation and application of the particular rule. Ibid.
Thus, employees' Section 7 organizational rights do not
exist in a vacuum; an employer's managerial and property
rights must also be given careful consideration. And an
"accommodation between the two must be obtained with
as little destruction of one as is consistent with the
maintenance of the other." N.L.R.B. v. Babcock & Wilcox
Co., supra at 113. Accord: Diamond Shamrock Co. v.
N.L.R.B., 443 F.2d 52, 56 (C.A. 3, 1971).
It is clear to me that a reading of the current collective-
bargaining agreement at paragraph 15, section 2„ together
with rule 32 which the record discloses was published in
connection therewith discloses the existence of a rule which
is so broad on its face as to interfere with the exercise of
statutorily protected employee rights end accordingly
presumptively invalid. While the Respondent contends
that the current effectiveness of paragraph 15, section 2, is
nullified inasmuch as the referenced paragraph was found
invalid in a prior legal proceeding, the record discloses
through testimony by the Respondent's director of labor
relations, Flynn, that the collective-bargaining agreement
containing article 15, limiting the distribution of literature
on company property, was furnished by the Employer to
the employees and article 15 has been enforced by the
Respondent except for protected literature. Even consider-
ing rule 32 independently of article 15, section 2, it would
be my view and I find it to be so broad on its face as to be
presumptively invalid.
I am persuaded by the argument of counsel for General
Counsel that if the Respondent cannot bar protected
literature from nonwork areas on nonwork time it is no less
an interference with employees ' Section 7 rights to require
that such literature be submitted to it for approval prior to
distribution. I am convinced and I find that the rules
limiting distribution as published and applied by the
Respondent are on their face presumptively invalid. There
remains for consideration then the question of whether or
not such presumption has been overcome herein by
evidence of unusual circumstances necessitating the pro-
mulgation and application of the particular rule.
The Respondent urges that "special circumstances"
shown to exist in the Respondents plant operations due to
the all pervasive requirements for security compels the
conclusion that plant rule 32 is a reasonable rule. I am not
so persuaded . A careful reading of all the material of
record relating to the matter of security in the Respon-
dent's plant does establish that the Respondent was in fact
operating under contracts with the Department of Defense
and others in the manufacture of classified material in
strict adherence to security regulations . In this regard the
Respondent shares this responsibility with most major
producers of classified material in the nation. The
argument has not heretofore successfully been advanced
that the mere existence of security requirements compels a
finding of the existence of "special circumstances ." As very
recently stated by the court in McDonnell Douglas
Corporation v. N.LR.B., 472 F.2d 539 (C.A. 8, 1973):
We do not mean to say that the Board cannot
pursuant to Republic Aviation hold that a rule
infringing Section 7 rights is presumptively invalid and
must be justified. We do hold, however, that when in
attempting to rebut that presumption an employer
makes a creditable showing of special justifying
circumstances as was done in this case , the Board in
weighing that evidence must responsibly and in a
meaningful way consider the importance of the proper
justification and thereby determine whether the actual
impact of the contested rule upon Section 7 rights
mandates the invalidation of the rule... .
In the case at hand a careful consideration of the
material of record relating to the security requirements
placed on the Respondent under its government contracts
and the recitation of the problems and complicated
procedures involved in executing such responsibility do not
in my view provide a "creditable showing of special
justifying circumstances" such as to overcome the pre-
sumption of invalidity of the rule. At best the Respondent's
evidence tends to establish that the Respondent had in
effect a sophisticated system of security control in
accordance with the requirements of the Department of
Defense, requiring certain precautions and specific safe-
guards to be taken by the Respondent and the government
in order to preserve and maintain the security of the
'United States through the prevention of improper disclo-
MCDONNELL DOUGLAS CORP. 285
sure of classified information derived from matters
affecting the national defense; sabotage ; or any other act
detrimental to the security of the United States. As part of
these security requirements the Respondent and the
government have agreed that designated representatives of
the government responsible for inspection pertaining to
industrial plant security shall have the right to inspect at
reasonable intervals the procedures , methods , and facilities
utilized by the contractor in complying with the require-
ments of the terms and conditions of the security
requirements imposed by the government . Should the
government through its authorized representative deter-
mine that the contractors' security methods, procedures, or
facilities do not comply with such requirements , it shall
submit a written report to the contractor advising hun of
the deficiency. In this regard it is significant that nowhere
in this record has it been indicated that in the course of the
inspections made by the government under these provi-
sions has the government advised the Respondent that a
limitation on the distribution of literature by employees in
the plant on nonworking time in nonwork areas was
necessary in order for the Respondent to achieve compli-
ance with such security requirements.
Additionally , while the Respondent went to some length
to establish on the record numerous incidents of security
violations in the Respondent 's plant there was no evidence
of probative value linking such incidents to the distribution
of protected literature.
In this regard, Ivan Rutherford, director of security for
the Respondent, stated that he was concerned with "these
people" because of the internal and the external theft
problems , and the fact that there are times when the
Respondent's employees fail to safeguard material prior to
their going home , where they have left material out, left
their security containers unlocked, and where a closed,
restricted, or proprietary area in which government
accompanying material is being stored has not been
properly secured for the night. Rutherford indicated that
under these circumstances there is a possibility of a
compromise of classified information.
Rutherford testified that during the course of last year
the Respondent incurred somewhere in the neighborhood
of "what we call security violations" representing approxi-
mately 1,000 incidents . When this occurs, Rutherford is
responsible to investigate that incident and the investiga-
tion has to be detailed to the point of determining every
employee who was on the floor or had access to that
building to determine whether or not they could have had
access to the material which had not been properly
safeguarded . That investigation upon completion has to go
forward to a government agency for their review and they
may in turn report that to the contracting officer for that
contract and he must decide whether or not he wishes to
cancel the contract or have that particular portion of work
redone . While these are telling points in establishing the
difficulty of meeting security requirements they do not
establish any significant relationship between security
violations and the distribution of protected literature.
In this regard , as pointed out by counsel for the General
Counsel, employees Morris and Lucas on September 5 and
6 went to work at their usual time and it is clear that had
they not apparently carried FDR literature they would
have been admitted to the premises without question.
There is no evidence herein that the Respondent 's security
would be adversely affected by permitting these employees,
who have already been subjected to the security screening
process, and badged for access to the premises, to exercise
their Section 7 rights in the distribution of literature which
clearly does not extend to areas specially designated secure
and classified by the Respondent.
While in no way minimizing the importance of security
to the national defense in the manufacture of classified
material , it is my view that there has been little if any
showing by the Respondent on this record that the security
violations adverted to in the testimony are substantially
other than those arising from inadvertent negligence on the
part of employees, with this giving rise to a concern on the
part of the Respondent that such inadvertence might be
compounded through a peculiar set of circumstances
bringing together an employee passing out literature and a
resulting compromise of classified material already negli-
gently or inadvertently exposed . I find while there is some
speculation in the record there is no direct linkage between
the security violations adverted to by Rutherford and the
passing out of literature by employees . The Respondent
has not made "a creditable showing" of special circum-
stances justifying the limitation on the employees ' right to
distribute organizational literature on the Employer's
premises during nonwork time and in nonwork areas.
Finally, the Respondent contends that alternate means
of communication were available to the employees herein.
The Respondent suggests that the FDR group could have
freely distributed its literature at the entrances to the outer
perimeter from the public road . The record discloses that
the Respondent has a traffic problem common to most
other large industrial operations where thousands of
employees are disgorged from the plant contemporaneous-
ly with a large scale influx of those employees reporting to
work. Peaks occur at change of shift time . Indeed, Morris
testified that the literature could have been distributed at
these points but that this would have resulted in a traffic
jam which would undoubtedly adversely affect the shift
change operation while at the same time creating a safety
problem for those passing out the literature.
In this regard, Ivan Rutherford testified concerning the
distribution of literature on the parking lot, that he was
concerned about employees distributing union literature
only to the point where the employees would disturb the
movement of the employees or traffic from the Respon-
dent's lots. This would indicate that the Respondent was
concerned with the flow of traffic and that no carte blanche
was available for distribution at these points . It would
appear to me that to utilize this method of communication
with the resultant traffic jam and delay to employees
leaving and coming to work would undoubtedly defeat the
purpose of the communication which is to elicit support for
the position of the group , thereby rendering such distri-
bution futile. Under these circumstances I am convinced
that such distribution does not qualify as a bona fide
alternate means of distribution.
Similarly the record establishes that the size of the FDR
group involved herein in relation to the estimated cost of
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
communicating by mail would clearly be prohibitive and
bar mailing as a bona fide alternate approach. Accordingly
I find that in the peculiar circumstances of this case no
alternate means of communication were available to the
employees involved.
Accordingly I am convinced and I find that, as alleged in
the complaint, the Respondent by promulgating and
maintaining an invalid no-distribution rule and by imple-
menting such rule so as to refuse to allow employees to
bring into its Lambert Airport plant premises for distri-
bution to employees literature printed by a , group of
employees known as "Fight the Dues Raise" or "FDR,"
has interfered with the Section 7 rights of its employees
and thereby violated Section 8(axl) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is and has been at all times material
herein a corporation duly organized under and existing by
virtue of the laws of the State of Maryland and is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. District Lodge No. 837, International Association of
Machinists and Aerospace Workers , AFL-CIO, is and has
been at all times material herein a labor organization
within the meaning of Section 2 (5) of the Act.
3. By promulgating and maintaining an invalid no-
distribution rule and pursuant thereto refusing to allow
employees to bring into its Lambert Airport plant premises
literature printed by a group of employees known as "Fight
the Dues Raise" or "FDR" the Respondent did interfere
with, restrain , and coerce its employees in the exercise of
rights guaranteed in Section 7 of the Act and did thereby
engage in unfair labor practices affecting commerce within
the meaning of Section 8(axl) and Section 2(6) and (7) of
the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices it should be ordered to cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
The order should also provide for the Respondent to
revoke and withdraw its no-distribution rules to the extent
that they limit or prevent the distribution by employees of
protected literature on company premises on nonworking
time in nonwork areas, and should require the Respondent
to inform the employees of their right to engage in such
protected activity.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, I hereby issue the following
recommended:
las Corporation , St. Louis, Missouri, its officers , agents,
successors , and assigns, shall:
1. Cease and desist , except as Respondent can establish
it is necessary to maintain production , discipline, or
security, from:
(a) Interfering with the rights of its employees to
distribute literature on behalf of an employee group known
as "Fight the Dues Raise" or "FDR" on company premises
in nonwork areas on nonworking time.
(b) Promulgating , maintaining, and giving effect to any
rules which limit its employees ' rights to distribute
literature on its premises during nonworking time in
nonwork areas unless the limitations imposed on such
activity can be justified by the Respondent as necessary to
maintain production, discipline , or security.
(c) In any like or related manner interfering with,
restraining, and coercing its employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Rescind and withdraw its existing no-distribution
rules to the extent that they infringe upon employee rights
with respect to distribution of union literature to any
greater extent than the Respondent can establish is
required in order to maintain production , discipline, or
security.
(b) Inform its employees that they are free to engage in
the distribution of union literature in nonwork areas of its
premises during nonworking time except to the extent such
activities violate published rules justified by considerations
of production, discipline, or security.
(c) Post at its Lambert Airport plant in St. Louis,
Missouri, copies of the attached notice marked as
"Appendix." 2 Copies of said notice , on forms provided by
the Regional Director for Region 14, 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 to insure that said notices are not altered, defaced,
or covered by any other matenal.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
1 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
2 In the event that the Board's 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."
ORDER1
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent, McDonnell Doug-
MCDONNELL DOUGLAS CORP.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, except as it is necessary to maintain
production, discipline, or security, interfere with the
rights of our employees to distribute literature on
behalf of the employee group known as "Fight The
Dues Raise" or "FDR," on company premises in
nonworking areas during nonworking time.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights guaranteed by Section 7 of the Act.
WE WILL rescind and withdraw our no-distribution
rules to the extent that they infringe on employee rights
with respect to distribution of union literature and to
the extent that they require prior permission of
management.
287
All our employees are free to distribute union literature
in nonwork areas during nonworking time except to the
extent such activities violate published rules justified by
considerations of production, discipline , or security.
MCDONNELL DOUGLAS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 210
North 12th Boulevard, Room 448, St. Louis, Missouri
63101, Telephone 314-622-4167.