McDonnell Douglass Corp.,

National Labor Relations Board - Board Decisions

Feb 16, 1979

240 N.L.R.B. 794 (N.L.R.B. 1979)

794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonnell Douglas Corporation and Miscellaneous
Drivers and Helpers Union, Local No. 610, affiliat-
ed with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case 14-CA-1 1541
February 16, 1979
DECISION AND ORDER
BY MEMBERS JENKINS. MURPIY. AND TRUtSI)AI.E
On November 15, 1978, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Coun-
sel filed an answering brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, McDonnell Douglas
Corporation, Lambert-St. Louis International Air-
port, Hazelwood, Missouri, its officers, agents. suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, except that the at-
tached notice is substituted for that of the Adminis-
trative Law Judge.
APPENDIX
NOrTIcE To EMPLOYEES
POSTED BY ORDER OF [rHF
NATIONAI LABOR RELAIIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportu-
nity to present their evidence, it has been decided
that we violated the law in certain ways. We have
been ordered to post this notice. We intend to carry
out the order of the Board and abide by the follow-
ing:
The National Labor Relations Act gives em-
240 NLRB No. 108
ployees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from any such activities.
WE. wilE Nor forbid our employees, by rule or
otherwise, to exercise these rights by distributing
literature on company property in nonwork ar-
eas, during nonworking time, and within a rea-
sonable time before or after their shifts, without
management's permission. However, we may re-
quire employees to show such material to the
guard on duty, in order to let him see that the
material is not classified, before they begin such
distribution.
WE wilU NO1 in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WiI L rescind any rule which forbids em-
ployees to engage in such conduct or reasonably
tends to cause them to refrain from such con-
duct.
WE Wt.l. excise from our records the Hazard-
Incident Report from one of our guards describ-
ing the efforts of employees Gregory McGowan
and Donald Klaven to distribute protected
union literature in our employee parking lot a
reasonable time before the beginning of their
shift on June 3, 1978.
Our employees are free to exercise any or all of
their rights under the Act, including the right to join
or assist Miscellaneous Drivers and Helpers Union,
Local No. 610, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union.
Our employees are also free to refrain from any or all
such activities, except to the extent that their bar-
gaining representative has a collective-bargaining
agreement which lawfully requires employees to be-
come union members, and we will not infringe on
those rights.
M( DoNNILL DOUG;lAS CORPORA ION
DECISION
SIA1EMENT OF THE CASE
NAN(CY M SERMAN Administrative Law Judge: This
case was heard in St. Louis, Missouri, on August 21, 1978,
McDONNELL DOUGLAS CORPORATION 795
pursuant to a charge filed on June 6, 1978, and amended
on July 12, 1978, and a complaint issued on July 17, 1978.
The issue presented is whether Respondent McDonnell
Douglas Corporation violated Section 8(a)(I) of the Na-
tional Labor Relations Act, as amended (the Act), by
maintaining and posting rules regarding the distribution on
Company premises of literature protected by Section 7 of
the Act and by refusing to permit employees to distribute,
during nonworking time and in nonwork areas, cards and
literature on behalf of Miscellaneous Drivers and Helpers
Union, Local No. 610. affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union or the Teamsters).
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
Respondent and by counsel for the General Counsel (the
General Counsel)., I hereby make the following:
FINDINGS OF FA('I
I JURISDICTION
Respondent is a Maryland corporation which maintains
its principal office and place of business at Lambert-St.
Louis International Airport in Hazelwood. Missouri. Re-
spondent manufactures and sells aircraft, space vehicles.
computer services, and related products and services. Dur-
ing the year ending June 30, 1978, a representative period.
Respondent shipped, from its Hazelwood facility to points
outside Missouri, products valued in excess of $50,000. 1
find that, as Respondent concedes. Respondent is engaged
in commerce within the meaning of the Act and that exer-
cise of jurisdiction over its operations will effectuate the
policies of the Act.
The Union is a labor organization within the meaning of
the Act.
11. THE ALLEGED NFAIR ABOR PRACTICES
A. The History and Contents of Respondent's
No-Solicitation Rules and Related Written Instructions
Regarding Enforcement
I. McDonnell I
Respondent's Hazelwood facility employs about 31,000
people. The facility occupies about 400 acres and includes
about 5.6 million square feet of floor space. The facility
manufactures defense materials whose production, in some
cases, may be classified. Respondent is a Government con-
tractor and is subjected to levels of secured clearance.
On September 21. 1970, Respondent promulgated, in the
form of a memorandum to its security guards, the follow-
ing rule (emphasis in original):
DISTRIBUIION OF LITERATURE
By Employes: Employes are permitted to distribute
literature only in non-Awork areas (parking lots, plant
entrances, exits, and cafeterias) and only during non-
working time (during lunch or break periods and for a
reasonable time before or after their shifts). They may
not distribute literature in work areas (places of actual
work) at any time. Nor may they distribute literature
anywhere during their wvorking time.
By Non-Employes:* Non-employes are not allowed
to distribute literature anlywhere on Company premises
at an)y time.
Type of Literature: The only sort of literature which
may be distributed is literature on behalf of any labor
organization or in opposition to any labor organiza-
tion and which contains nothing scurrilous, reckless,
libelous, defamatory, or provocative nor any inflam-
matory appeals to racism or the like.
SOLICITATION
By Emploves: Employes are permitted to engage in
word of mouth solicitation (for membership, signa-
tures. etc.), either in or outside their work areas, so
long as this is done during non-worktng time.
By Non-Employes:* Non-employes are not allowed
to engage in solicitation anywhere on company prem-
ises at ant time.
* NOTF Employes are not allowed on company prem-
ises except during their scheduled working hours and
a reasonable period before and after those hours. At
other times, they are to be treated as non-employes.
McDonnell Douglas Corp. v. N.L.R.B.. 472 F.2d 539, 542
(8th Cir. 1973).
In December 1971. the Board issued a decision and or-
der finding that the foregoing no-distribution and no-solic-
itation rules, "as interpreted and applied in the context of
this case, unlawfully interfered with employee rights in vio-
lation of Section 8(a)( )." The Board relied partly on its
conclusion that the language "for a reasonable time before
or after their shifts" was unduly vague and partly on the
fact that before promulgating this rule Respondent had at-
tempted to make employee Masterson stop distributing
protected union literature in the employee parking lot an
hour or less before beginning his shift. The Board's order
required Respondent, inter alia. to cease and desist. "ex-
cept as Respondent can establish it is necessary to main-
tain production, discipline, or security," from interfering
with its employees' rights to distribute literature on any
union's behalf on Respondent's parking lots during non-
working time and from promulgating, maintaining, or en-
forcing any rules which limit its employees' rights to dis-
tribute literature on its premises during nonworking time in
nonwork areas. Also, Respondent was required to "Revoke
and withdraw its existing no-distribution and no-solicita-
tion rules to the extent that they purport to classify em-
ployees as nonemployees for the purposes of applying and
enforcing such rules, or infringe upon employee rights with
respect to union solicitation or distribution of union litera-
ture to any greater extent than Respondent can establish is
required in order to maintain production. discipline, or se-
curity." McDonnell Douglas Corporation. 194 NLRB 514,
515 (1971) (Case 14-CA 5823). In January 1973, the court
of appeals denied enforcement of the Board's Order and
remanded the case to the Board for further proceedings not
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inconsistent with the views expressed in the court's opin-
ion. The court concluded that the term "reasonable time"
waa not improperly vague, that there was no evidence the
rule had even been applied (the Masterson incident having
occurred before the rule was promulgated), and that the
Board had failed to balance the employees' interest in exer-
cising their Section 7 rights regarding solicitation and dis-
tribution on Respondent's premises against the interest of
the Respondent-as the manufacturer of highly sophisti-
cated aircraft, missiles, and space vehicles, much of whose
production is militarily sensitive and classified as secret by
the United States Government-in maintaining discipline
and security. McDonnell Douglas v. N.L.R.B., supra. On
remand, the Board found in July 1973 that Respondent
had shown sufficient need to maintain security to justify
the rules in question and concluded that the Masterson
incident was "isolated and sufficiently lacking in signifi-
cance to warrant a remedial order." Accordingly, the
Board dismissed the complaint. McDonnell Douglas Corpo-
ration, 204 NLRB 1110 (1973) (Case 14-CA-5823). Case
14-CA-5823 is sometimes referred to herein as McDonnell
1.
2. McDonnell II (Milford Morris)
On an undisclosed date before September 1972, Respon-
dent promulgated a rule (Rule 32) which called for discipli-
nary action, up to and including discharge, for "distribu-
tion of notices, pamphlets, advertising matter or any kind
of literature on company property without permission of
management." Rule 32 was reissued by Respondent on
April 1, 1973. On April 29, 1974, the Board issued a deci-
sion finding that Respondent had violated the Act by pro-
mulgating and enforcing the rule effective in September
1972 so as to forbid employees who were entering Respon-
dent's premises shortly before the start of their shift to
bring with them, for distribution to other employees in
nonwork areas during nonworking time, literature printed
by a group of employee members of District Lodge No.
837, International Association of Machinists and Aero-
space Workers, AFL-CIO (the IAM), who were opposing a
dues increase which the IAM had put into effect. McDon-
nell Douglas Corporation, 210 NLRB 280 (1974) (Case 14-
CA-7046). This case is sometimes referred to in the record
as Milford Morris, and is herein sometimes called McDon-
nell II1. The Board ordered Respondent to, inter alia, cease
and desist from interfering with its employees' right to dis-
tribute the foregoing literature and from "[p]romulgating
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 limi-
tations imposed on such activity can be justified by the
Respondent as necessary to maintain production, disci-
pline, or security." In addition, the Board ordered Respon-
dent to post for 60 days at its "Lambert Airport plant in St.
Louis, Missouri," notices to employees which stated, inter
alia:
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 be-
half of the employee group known as "Fight The
Dues Raise" or "FDR," on company premises in non-
working 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.
All our employees are free to distribute union litera-
ture in nonwork areas during nonworking time except
to the extent such activities violate published rules
justified by considerations of production, discipline,
or security.
3. Events after the McDonnell II decision
Thereafter, on August 19, 1974, Respondent distributed
to all supervision and to its security department a memo-
randum (No. 61-309) from Charles J. O'Toole, Respon-
dent's director of labor relations, which was received in
evidence as Respondent's Exhibit 4 (see fn. 3, infra). This
memorandum substantially tracked the September 21,
1970, memorandum involved in McDonnell I but added the
following:
Inspection: In accordance with national security reg-
ulations [see infra], all literature being brought onto
the premises is to be inspected by a plant guard. Any
questions regarding the nature of the literature are
to be directed to the Director-Labor Relations
[O'Toole].
By a October 28, 1974, letter to Board agent Robert
King in connection with the McDonnell II case, Respon-
dent's then director of personnel operations, Paul L. Fultz,
stated that the notices provided by the Board had been
posted "throughout the plant during the period 6 August
1974 through 7 October 1974." The General Counsel and
Teamster counsel accepted the representation of Respon-
dent's counsel that Respondent had posted the notices
called for by the Board order.' Fultz' letter further stated
that rule 32 had been amended on August 1, 1974, "in the
manner agreed upon" (see infra) and that copies of the
amended rule "were posted permanently throughout the
plant on 13 August 1974" (see infra). Also, the letter en-
closed a copy of the revised rule 32, which calls for "disci-
plinary action up to and including discharge" for "Distri-
bution of notices, pamphlets, advertising matter or any
kind of literature on Company property without permis-
sion of management excepting matter the distribution of
which is protected by Section 7 of the National Labor Re-
lations Act as amended." In addition, Fultz' letter stated
that Respondent had removed from its bulletin boards a
memorandum (see infra) which referred to rule 32 in its
original form and had replaced it with an interoffice memo
memorandum which reads as follows (emphasis in origi-
nal):
These notices were signed bh Robert C. Krone. Respondent's vice presi-
dent of personnel.
McDONNELL DOUGLAS CORPORATION 797
Memo No: 1708
Date: 27 November 1964
Revised: 22 October 1974
To: ALL PERSONNEL
CC: All Bulletin Boards
SUBJECT: Violations of MDC St. Louis Rules and
Regulations, Nos. 31 and 32, and MCAIR Control
Procedure 14.305. D.7 and D.8, Referenced Below
REFERENCE: (a) MDC Rule and Regulation No.
31-Prohibiting. Posting or removing notices, signs, or
writing in any form on bulletin boards or Company
property without specific authorization of manage-
ment.
MDC Rule and Regulation No. 32-Prohibiting: Distri-
bution of notices, pamphlets, advertising matter, or
any kind of literature on Company property without
permission of management excepting matter the distri-
bution of which is protected by Section 7 of the Na-
tional Labor Relations Act as amended.
(b) MCAIR Control Procedure 14.305-Regulation
D. 7. Department supervision directly responsible for
duplicating and printing equipment will assure that
only authorized material having to do with Company
business is duplicated or printed. Duplicating and
printing services requested for other than Company
business activities must be approved by the cognizant
division head.
MCAIR Control Procedure 14.305-Regulation D.8.
All duplicating and/or printing equipment will be ren-
dered inoperable to the extent practical during non-
working hours except for equipment located within se-
curity classified closed area protected by electronic
equipment.
MDC's Rules and Regulations, Reference (a) and
(b) above, clearly prohibit the distribution of unauthor-
ized unprotected literature and the posting of unau-
thorized notices on MDC premises. The unauthorized
use of MDC duplicating equipment and raw materials
for reproduction of any material is also prohibited.
In view of this, ALL PERSONNEL, with this an-
nouncement, are once again reminded that violators
of these easily understood Rules will be subjecting
themselves to extreme disciplinary action.
You are urged to familiarize yourselves again with
these Rules and Regulations to avoid an unintentional
violation of them.
Cooperation from everyone in the observance of all
Company Rules and Regulations is expected and ap-
preciated.
R. C. Krone
Corporate Vice President-Personnel2
The memorandum quoted above was like the one it re-
placed, except for the addition of the language "excepting
matter the distribution of which is protected by Section 7
of the National Labor Relations Act as amended." Also.
Fultz' letter stated:
2This memorandum has been reproduced in full fr reason., appearing
infra.
Written instructions clarifying Respondent's poli-
cies regarding distribution of protected literature were
issued to plant guards and appropriate supervisors on
5 September 1974, in the form of an updated and
amended copy (Attachment 3) of Respondent's Memo
No. 70-298 dated 21 September 1970 which, as you
know, was approved by the Board in its Supplemental
Decision and Order in Case No. 14-CA 5823. The
amendment concerns necessary Department of De-
fense national security requirements calling for inspec-
tion of all incoming packages and materials.
"Attachment 3" is not in the instant record.'
By letter dated October 30, 1974, to the Charging Party
in McDonnell 11, with courtesy copies to Respondent and
its counsel, the Regional Director for Region 14 stated:
The Respondent having satisfactorily complied with
the affirmative requirements of the Order in the
above-entitled case, and the undersigned having de-
termined that Respondent is also in compliance with
the negative provisions of the Order, the case is hereby
closed. Please note that the closing is conditional upon
continued observance of said Order and does not pre-
clude further proceedings should subsequent viola-
tions occur.
Meanwhile, on September 5, 1974, Respondent sent
a memorandum (No. 74-1-402) to "All Guard Force
Supervisors" which enclosed O'Toole's August 19,
1974, memorandum and specifically referred to the
portion stating that "all literature being brought onto
the premises is to be inspected by a plant guard." The
September 1974 memorandum further stated, inter
alia:
When notified by a guard that [union] literature is
being or attempted to be distributed, the supervisor
will order the distribution delayed until a Labor Rela-
tions Representative rules on the legality of the distri-
bution. In all cases, a Labor Relations Representative,
as listed in paragraph two, will be contacted for ap-
proval or denial of distribution. Five copies will be
confiscated and forwarded to the Director of Security.
Paragraph 2 named certain "Personnel to be called to de-
termine if literature is legitimate," with the office and home
telephone numbers of each. The memorandum further stat-
ed:
In the event individuals question why names and
clock numbers are taken, the guard must answer in
such a way as to indicate it is done to determine
whether or not the distributor is an employee ....
Should the distributor state it is illegal for the guard
to stop the distribution, the guard must inform the
distributor that distribution is only being delayed until
Standing alone. oo)le's estimony suggests that "Attachment 3" .as
Resp tsh 4 toweser. neither the date (Aurust 1 1974) nor the memo-
randum nlumber (h61 309) of Resp. Exh. 4 conforms to those ascribed to
"Attachment 3" Nor does he number (74- 1 402) of the September 5. 1974.
nlemor.ndunl to "All Guard Force Supervlsors" (dlscussed infir and re-
celsed in eidence as Resp Esh 81 conform to to hat acrlhbed to "Attach-
fmllt '"
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the legality of the distribution is determined by Labor
Relations under the National Labor Relations Board
Agreement.
Also, the memorandum states, "By agreement with the Na-
tional Labor Relations Board, the attached memo has been
distributed to each guard."
On December 6, 1976, and again on April 29, 1977, Re-
spondent distributed to "All Guard Force Supervisors" a
memorandum and enclosures like those distributed on Sep-
tember 5, 1974, except for alterations in the number and
identity of the "Personnel to be called to determine if liter-
ature is legitimate."
On an undisclosed date after September 5, 1974, Re-
spondent inserted in the manual for its guards certain pro-
visions to the following effect (emphasis in original):
Union Activities
A. (.NERAL [The Company] conforms with an-
nounced policies of the National Labor Relations
Board regarding the distribution of union literature,
solicitations (word of mouth discussions by union rep-
resentatives and members), the wearing of specially
marked T-shirts or other such garments or union but-
tons, and similar activities at contract negotiation
time. When stationed at an entry/exit point, or when
on motorized patrol or special assignment, Security
Guards must take appropriate action according to
Company policy when observing any one or more of
these acts or incidents. Actions to be taken by Security
Guards regarding these acts or incidents are indicated
below.
B. DIlSIRIBIJllON Oi L.E RAHl R[i The only sort of liter-
ature which may be distributed is literature on behalf
of any labor organization or in opposition to any labor
organization and which contains nothing scurrilous
(low, vulgar or base language; humorous or serious),
reckless, libelous, defamatory, or provocative lan-
guage, nor any inflammatory appeals to racism or the
like. ALL LITERATURE BEING BROUGHT
ONTO [COMPANY] PREMISES WILL BE IN-
SPECTED BY A SECURITY GUARD. Any ques-
tions concerning whether literature is authorized will
be reported immediately to a Security Guard Super-
visor.
I. Distribution by [Company] Employes: Employes
are permitted to distribute literature only in non-work
areas (parking lots, plant entrances, exits, and cafete-
rias) and only during non-working time (during lunch
or break periods and for a reasonable time before or
after their shifts). They may not distribute literature in
work areas (places of actual work) at any time. Nor
may they distribute literature anywhere during their
working time. If observed distributing literature in
work areas or during working time, Security Guards
are required to confiscate the literature and forward it
with a Hazard-Incident Report to Security Guard
Supervisor. The employe will be told not to continue
such distribution ([Company] Rule 32).
$ * * * *
3. Other Restrictions: Any distribution or solicita-
tion which would result in littering of Company prem-
ises, traffic problems, delay of food services, or any
other true interference with business operations or
plant discipline, is not permitted.
* * * * *
[C] 3. Action by Security Guards when Solicitation
Occurs
a. When notified by a Guard that literature is
being or attempted to be distributed, the Supervisor
will order the distribution delayed until a Labor Re-
lations Representative rules on the legality of the
distribution. In all cases a Labor Relations Repre-
sentative will be contacted for approval or denial of
distribution. Five copies will be confiscated and for-
warded by the Security Guard to the Guard Super-
visor.
b. In the event individuals question why names
and clock numbers are taken, the Guard must an-
swer in such a way as to indicate it is done to de-
termine whether or not the distributor is an em-
ploye.
c. Should the distributor state it is illegal for the
Security Guard to stop the distribution, the Guard
must inform the distributor that distribution is only
being delayed until the legality of the literature is
determined by Labor Relations under the National
Labor Relations Board Agreement.
As to the status for distribution purposes of employees
during periods outside their shift, the manual substantially
tracked the September 1970 memorandum quoted supra.
In connection with the August 1974 version of rule 32,
which rule the General Counsel contends is unlawful on its
face (see sec. II,C, infra), Respondent's brief states that as a
result of the McDonnell 11 litigation "Respondent's counsel
met with attorneys of the Board's Region 14 and agreed
upon acceptably amended language for use in Rule 32." As
supporting evidence, Respondent's brief relies on Fultz'
October 1974 letter and on testimony by Charles J.
O'Toole, who has been Respondent's director of labor rela-
tions since 1973. On cross-examination. O'Toole testified
that he was not present when the wording of rule 32 was
designed and written. He went on to testify without objec-
tion that Fultz and Vice President of Personnel Nate Moli-
narro had told him that "those words were written in a
meeting somewhere between Board attorneys and our at-
torneys and Mr. Fultz." On direct examination, O'Toole
testified without objection that in October 1974, "the
Board" and Respondent agreed to change "Attachment 3"
to Respondent's Exhibit 6 (see fn. 3, supra) "so that the rule
quoted thereon reflected the new words of Rule 32 as ver-
sus the old words." At the outset of the hearing and again
at its close, Respondent's counsel stated that he wished to
call as witnesses certain members of management who par-
ticipated in 1974 negotiations with members of the Region-
al Director's staff regarding the language in the August
1974 version of rule 32.4 Respondent's counsel was afford-
4A the rime f the h.lril r il St. louis, Nfisouri. one of these wi tnesses
McDONNELL DOUGLAS CORPORATION 799
ed the opportunity to provide a post-hearing written state-
ment about what they would testify to if called, but he did
not do so. The foregoing letters from Fultz and the Region-
al Director and the foregoing testimony by O'Toole are the
only evidence relating to whether the August 1974 rule 32
was ever approved by the Regional Office. I accept Re-
spondent's contention that this rule was so approved, but I
see nothing in the record which shows that the Regional
Office agreed to the distribution of any memorandum to
the guard service or agreed to any arrangement under
which Respondent could delay distribution of protected
material pending a determination by Respondent's labor
relations department as to the "legality of the distribution."
B. Respondent's Practices in Connection with Emfillvees'
Literature Distrihution
1. The practices generally
At all relevant times. Charles J. O'Toole has been Re-
spondent's "Director, Labor Relations," with a staff of six
to eight labor relations representatives. His responsibilities
are to negotiate and administer collective-bargaining
agreements. including enforcing Respondent's rules and
regulations. O'Toole testified on August 21, 1978, that Re-
spondent does not allow the distribution of commercial
literature of any kind anywhere on company property. He
further testified that as to the distribution of "literature
that does have to do with unionization and union activities
of any kind, 'protected literature' under the Act, the prac-
tice is as stated in" his memorandum of August 19, 1974.
O'Toole testified that during the 4-year period since the
issuance of this August 1974 memorandum he had received
four or five calls at home regarding whether a guard should
permit an employee to distribute literature. Also, he testi-
fied that on these occasions he prohibited the distribution
of commercial literature, but 'if in my judgment, it was
protected literature, II said] yes. For lack of better words, I
let it go, yes." Still according to O'Toole, when he decided
to permit the literature distribution, he asked the guard to
put the employee on the line and told him, "Yes, that liter-
ature that guard just read me, in my judgment, is protected
by the Act and, yes, you may distribute it, but I would like
to just give you a few cautions, non-work area, non-work
place."
Ivan H. Rutherford, who at all material times has been
Respondent's director of security, testified that, as to the
distribution on Respondent's premises of literature other
than union literature, the guard has to determine what the
material is, check with the guard supervisor about whether
to "curtail" the material, and, if the material is to be cur-
tailed, ask the person to remove it from the cars or to stop
distributing it on company premises. Rutherford testified
that the guards forbid the distribution of commercial litera-
ture, literature seeking to sell things to support various or-
,as In C(alifornia and one was tenmp raril 1 in Mleic. Resprondenit' coiiislc
stated that he had not expected io call then a itnleses he.lu.c he hd nl
reahlied. until the da iof the hc.ariig. that the (icner.ll ( ,unlel .is cilclld
ing thlt the August 1974 ersnm of rule 2 ,ai urilaful or t, fac.
ganizations. and literature opposing "the establishment" or
munitions manufacturing. As to "union literature." Ruth-
erford testified that the guard brings it to the attention of
his supervisor as quickly as possible, and the supervisor
calls one of the labor relations representatives listed on the
currently effective memorandum and gets his approval.
Rutherford testified that obtaining such approval might
take "moments" and, on the other hand, might take 20 to
30 minutes "because we may have to get somebody out of
bed." Still according to Rutherford, the employee who
wants to distribute the material must stand by the guard
who is making the requisite telephone calls and "just wait
until [the guard] could clear it if he wants to continue to
distribute it." Although there is no evidence that
Rutherford's name has ever been listed among the person-
nel to call to determine whether literature is "legitimate,"
he testified that he has received telephone calls at home
and at work related specifically to attempts to distribute
union-related literature; that if the material had been "pre-
viously approved" and he was "knowledgeable of that" he
just passed it as approved; and that if it had not been
previously approved he asked "labor relations" to "review
and approve."
Employee Nick J. Grana. Sr., who has worked since
1969 under director of security Rutherford as a member of
Respondent's security force and who was a sergeant in
charge at the time he testified, testified that throughout his
experience as a guard for Respondent an employee needed
management's permission, at least through the guard, to
distribute anything. There is no evidence that a nonsuper-
visorv guard is permitted to allow, or ever has in fact al-
lowed, the distribution of any literature without consulting
his supervisor. Nor is there any evidence that a supervisory
guard is permitted to allow, or ever has in fact allowed,
distribution of anN "union literature" without the approval
of either Rutherford or a labor relations representative.
O'Toole testified that when a labor relations representative
must approve literature to be distributed the guard super-
visor is to telephone the representative for such approval.
Among the forms used by Respondent's guards is a
printed "Hazard-Incident Report." which states that it is
"provided for the reporting of incidents or conditions seen
or heard which might be detrimental to the welfare of the
Company, its property or personnel." The form lists,
among various possible subjects which can be check-
marked. "Trespasser." "Theft." "Arrest Made," "Suspi-
cious Action," "Disorderly Conduct," "Traffic Violations."
"Altercation." "Complaint," "Dangerous or Unsatisfac-
tory Condition," and "Damage to [Companyl/Govern-
ment Property." Respondent's guards fill out, and forward
to Director of Security Rutherford, a "Hazard-Incident"
form describing each incident which they are aware of and
have been involved in where efforts are made to distribute
union literature on Company property. Respondent of-
fered into evidence four such forms regarding incidents
which occurred prior to the June 3, 1978, incident directly
involved in this case and three forms regarding subsequent
incidents. These seven forms involved incidents occurring
between April 27. 1977. and July 19, 1978. One of these.
dated June 12, 1978. states that two employees were re-
fused permission to pass out literature which one of them
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had picked up from the IAM union hall and which urged
use of a wholesale buying service. All the other forms state
that an employee was granted permission to distribute
union-related literature, including literature urging em-
ployees not to buy products from a food manufacturer
which (inferentially) was having a labor dispute with its
employees.5 Two of these forms state that the literature had
already been approved by O'Toole and had then been
made the subject of a "Hazard-Incident Report." The re-
maining four incidents where such permission was granted
occurred in midafternoon on weekdays. Each of the "Haz-
ard-Incident Reports" of employee distribution efforts
contains the full name, clock number, and department of
each employee involved and copies of the material distrib-
uted or sought to be distributed.
2. The Klaven-McGowan incident
All of Respondent's Hazelwood employees are union-
represented except for the Automation Company person-
nel and the Hospital Services Division personnel. About
May 1978, the Teamsters began a campaign to organize
Respondent's Automation Company personnel. At or after
a union meeting on May 25, 1978, Automation Company
employee Donald Klaven picked up, for distribution to his
fellow employees, blank Teamsters authorization cards and
mimeographed bulletins urging employees to sign such
cards and attend forthcoming union meetings.
Klaven and Gregory McGowan, also an Automation
Company employee, work the 1:30 a.m. to 8:30 a.m. shift,
Monday through Friday. They were scheduled to work on
an overtime shift to begin at 1:30 a.m. on Saturday, June 3.
At about 12:30 a.m. that day, June 3, McGowan and Kla-
ven met on Parking Lot 18, a company parking lot which
can accommodate 1,032 cars, where all of Respondent's
employees (including Automation Company employees)
are permitted to park, and in which Klaven, at least, cus-
tomarily did park. Klaven went up to the guard shack,
where nonsupervisory guard Proveaux was on duty, and
asked him if it would be all right to pass out union litera-
ture on the automobiles that were on the parking lot. Pro-
veaux said that he would have to contact the sergeant in
charge. Klaven said all right and returned to McGowan's
car. Sergeant in Charge Grana happened to be driving
through the area about 5 minutes later. Proveaux told Gra-
na that Klaven and McGowan wanted to pass out "union
literature." Klaven went back up to the guard shack and
asked Grana if Klaven and McGowan could pass out
"union literature." Grana asked to see it. Klaven called
over at McGowan, who was still in the car, to bring copies
of each document to the guard shack for examination. Mc-
Other literature whose distribution was permitted sought votes for par-
ticular candidates for IAM office, accused the Charging Part) in Ma Donnell
II of causing an improper diversion of dues funds. consisted of an IAM
officer's bulletins to be delivered by an employee to the IAM shop steward
about the progress of company negotiations with the IAM at Ha7elwood
and with the IAM and another union elsewhere, and consisted of literature
to be given to employees by a nonemploNee representative of the incumbent
union (Local 74, Hotel. Motel. Restaurant. Food Services and Bartenders)
representing Respondent's canteen workers. regarding fringe benefits aail-
able under that union's current bargaining agreement with Respondent.
Gowan brought them up. Grana looked them over and told
the employees that "they would have to get permission
from Labor Relations prior to distributing" these docu-
ments. The employees asked how to get such permission.
Grana told them that they could get such permission by
calling guard headquarters on the next workday and by
then calling "Labor Relations." The employees asked
whether they could telephone "tomorrow." Grana replied,
"No, tomorrow is Saturday. It's not a workday," and that
they would have to wait until Monday. Klaven and Mc-
Gowan then returned to their cars, waited until shortly be-
fore their shift began, and then entered the building.
When asked why Grana had not himself immediately
satisfied Respondent's rules requiring a telephone call to
appropriate labor relations personnel upon being ap-
proached by Klaven and McGowan, Grana replied, "Well,
my idea was that it was an unearthly hour and I didn't
make the call for that reason, because of the time in-
volved." Aside from his "workday" reference, he did not
explain and was not asked to explain why he did not offer
to make, or suggest that the employees make, a call at a
more conventional hour later that same Saturday. This in-
cident was Grana's only encounter with an attempt to dis-
tribute union literature.6 Klaven never thereafter distrib-
uted any union literature in nonwork areas or during
nonwork time. He brought union literature and cards onto
company premises, told employees on company premises
where to pick up this material when they requested it, and
on company premises gave a card to one employee who
asked for it. McGowan thereafter handed out Teamsters
literature and talked to other employees about the benefits
of union membership on company premises. No supervisor
ever saw McGowan engage in such activity; nor did any
supervisor see such activity by Klaven, so far as he knew.
That same day, June 3, Grana prepared, and submitted
to Chief of Guard Services O. E. Roberts, a "Hazard-Inci-
dent Report" in connection with this incident. The report
stated that the incident had occurred in Lot 18; specified
Klaven's full name, his clock number, and his department
(K290); and attached copies of the material which the em-
ployees had sought to distribute. The report read, in part:
On the above time, and date Guard Proveaux at
Station 101-D called Guard Services and reported
that the above employe asked permission to place
Union Notices from Teamsters Local #610 (See at-
tached) on vehicles in Lot #18. Unit 5 (Sgt Grana)
was dispatched to Station 101-D and obtained two (2)
copies of the literature, name and clock number which
is the subject of this report. There was also another
employee with subject named Gregory (NMN) Mc-
Gowan, C/N181033, Dept. K290.
The above employees were informed by Sgt Grana
that they could not pass out any type of Union Litera-
ture, without prior permission from Labor Relation.
Employes Klaven and McGowan then put their litera-
' My findings as to the contents of the June 3 Grana-Klaven-McGowan
conversation are based on a composite of credible portions of their testi-
mony. I believe Klaven and McGowan were mistaken in testifying that
(irana said they would have to get permission from the "Labor Relations
Board" to pass out the literature. Nor do I accept Klaven's uncorroborated
testimonyll credibly denied by Grana. that he specified "written" permission.
McDONNELL DOUGLAS CORPORATION 801
ture into their vehicles and entered Station 101 D to
report to work at 0130 hours. They did not bring any
of the literature into the plant.
ACTION TAKEN: Reported submitted and Union Liter-
ature attached.
Neither O'Toole, Rutherford, nor any other mem-
ber of management ever talked to Grana about the
contents of this report. O'Toole testified that shortly
after June 28 or 29, he strongly suggested to Ruther-
ford that he discuss the June 3 incident with the guard
on duty. Rutherford was not asked why he had not
discussed the matter with Grana. After June 3, no
member of management ever said anything to Klaven
or McGowan about the incident. O'Toole testified
that Rutherford did not advise him during this late
June conversation of the names of the employees who
were trying to pass out union literature and that
O'Toole did not ask.
Respondent maintains more than 160 bulletin
boards at its Hazelwood facility. Each of these bulletin
boards is about 3 feet by 5 feet and at any given time
holds 7 to 10 notices. Three or four days after the June
3 incident, Klaven and McGowan, who both work on
the first level of Building 105, saw posted on the bulle-
tin board in their area the 1973 version of rule 32,
which, as previously noted, forbade "Distribution of
notices, pamphlets, advertising matter or any kind of
literature on Company property' without specific au-
thorization of management." That same day Klaven
saw a similar notice on the second level of that build-
ing.7 Klaven and McGowan did not know whether
this rule had been previously posted. Many of the em-
ployees who work on Levels I and 2 of Building 105
work for the Automation Company, which the Team-
sters was trying to organize. Some Automation Com-
pany employees are among the 5,000 employees who
work in Building 101, where work is performed on the
F-4, Phantom, and Harpoon programs, and other Au-
tomation Company employees work in Building 107.
Some Automation Company employees may be regu-
larly assigned to buildings other than these, and Auto-
mation Company employee Donald Klaven, at least,
performs some work in Building 78.8 By July, 7, 1978,
MN findings in the last two sentences are based on Kl;iaven's nd Mc-
Gowan's credited testimon,. O'loole testified that he observed the August
1974 rules posted in 1974 in "those buildings where I had occasion o
pass through. Not all buildings. no." When asked to enumerate those
buildings," he testified that "they would be Buildings I and 2 most frequent-
ly. However I had reason to go to what we call Iract 2 and I'll explain
that's building 101. 105, 106, 107. 102 3. and 4. which are the engineering
laboratories. In the investigation of grievances. I do lsit, at some I1tien.
most of the buildings." The buildings named bh O'loole contain about 38
bulletin boards. In the face of specific testimony by to employees regard-
ing what rules were posted on two particular bulletin hoards as of June
1978. I do not regard O'Toole's August 1978 testimon' in this repecl as
sufficient to warrant a finding that in June 1978 the August 1974 rules were
posted on these two particular bulletin boards in Building 105. which alone
has six bulletin boards. Klaven's prehearing affidavit that he was not .aware
of an) notices "eliminating employees' right to distribute union Ihteralure" i,
not inconsistent with his testimnons that he saw notices requiring rnianage-
ment authorizatiln for such activlts.
The record fails to show the total number of Automation ('ornpan
this 1973 document was removed from the l.evel 2
bulletin board and the August 1974 version was post-
ed instead. By late July 1978, the same change was
made on the Level I bulletin board.
About June 7, 1978, Respondent received the initial
charge herein, which alleged, "Since on or about June
1, 1978 [Respondent has imposed] an unlawful and
overbroad no-distribution rule during an employee or-
ganizing campaign." About June 9, Respondent's
counsel told O'Toole that the charge might involve
distribution of union literature in Parking Lot 18. On
an undisclosed subsequent date, but before June 23.
Respondent's counsel met with O'Toole, Rutherford,
Vice President of Personnel Molinarro, and director of
personnel Ralph Tandowsky. Rutherford testified that
he received Grana's June 3 "Hazard-Incident Report"
about the Klaven-McGowan incident but did not be-
come aware until July that a charge had been filed.
O'Toole, with some support from Rutherford, testified
that during this meeting management decided to
"check the postings" and whether "we were" comply-
ing with the "fall of '74 memo" (inferentially the Au-
gust 19, 1974, memorandum received as Resp. Exh. 4)
instructions regarding distribution and to issue a
memorandum to the guards altering the list of persons
whom they were supposed to contact when faced with
the question of whether to allow distribution. As a
result of this meeting. Rutherford sent a memorandum
to the chief of guard services, Roberts, dated June 23,
1978. stating that current instructions in the security
guard supervisor's handbook "indicate that prior to
permitting the distribution of literature to employees
a representative of the Labor Relations Department is
contacted to rule on the legality of the distribution
. . .one of the [31 following persons shall be contacted
to obtain a ruling and approval. The remainder of the
instructions therein [sic] this paragraph of the Supervi-
sor's Manual shall remain as is." The previous list had
named I persons. Also, Rutherford spoke to Roberts
"to refortify the instructions to his supervision and re-
mind him of the responsibility." In response to this
conversation and, inferentially, Rutherford's June 23
memorandum, on June 26, Roberts issued to all guard
force supervisors a memorandum which contained in-
structions identical to the April 29, 1977, memoran-
dum except that, in accordance with Rutherford's
June 23 memorandum, the list of persons "to be called
to determine if literature is legitimate" was reduced
from II to 3. O'Toole, but nobody else, was on both
lists.
On July 5. 6, or 7. O'Toole instructed Victor Wilke.
a member of O'Toole's staff with the job title of "ad-
ministrative labor relations," to check the company
bulletin boards to determine whether the rules and
regulations thereon bore an August 1974 date. Wilke
was given a list of about 55 bulletin boards in about 9
buildings, inspected all the bulletin boards so listed,
and ascertained that the August 1974 rules were post-
ed on all of them. His list included one bulletin board
employees. or how mans work in ain, particular building oir particular level,
thereof
AA .
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Building 105 on Level 2, where as of early June
1978 the 1973 rules had been posted, but no bulletin
board in that building on Level 1, where as of early
June 1978 the 1973 rules had been posted. On August
17, 1978, 4 days before the hearing, mailroom employ-
ee David McCandless was given a list of bulletin
boards and instructed to check the dates of the bulle-
tins thereon which bore dates. All such bulletins were
dated 1974. The record does not contain the list given
McCandless. On the basis of this list, he testified that
Building 105 had five bulletin boards, the number cov-
ered by Wilke's inspection. I infer that McCandless'
list did not refer to the bulletin board on Level I of
building 105.
After the close of the hearing, counsel for Repson-
dent sent me the following letter, dated October 3,
1978:
Please be advised that effective September 30, 1978,
McDonnell Douglas Corporation has rescinded Rule
32, the subject of the instant action, and will, within
the next thirty days, not later than October 31. 1978,
effectively substitute for the previous Rule 32 the fol-
lowing words:
Distribution of notices, pamphlets, advertising mat-
ter, or any other kind of literature during work time
or in any work area.
The company has taken this action without respect
to the outcome of the instant proceeding. Neverthe-
less, I cannot help but observe that this action effec-
tively renders moot the thrust of the matter under con-
sideration.
C. A nasis and Conclusions
For an undisclosed length of time which began no later
than June 7. 1978, and ended about July 1978, Respondent
displayed on two of its employee bulletin boards a rule
which called on its face for disciplinary action, up to and
including discharge, for "distribution of notices, pam-
phlets, advertising matter or any kind of literature on com-
pany property without permission of management." Re-
spondent does not appear to dispute the facial invalidity of
this rule to the extent that it requires employees to obtain
management's permission to exercise employees' Section 7
rights by distributing such material in nonworking areas
during nonworking time. McDonnell 11, 210 NLRB 280. I
find unmeritorious Respondent's contention that the inhib-
itory force of this rule's invalid prohibitions was cured by the
October 22, 1974, memorandum, which is reproduced in full
supra (see text attached to fn. 2, supra). Respondent con-
tends that this memorandum was posted on both of the
bulletin boards which also contained the 42-item April
1973 employee rules, including the unlawful no-distribu-
tion rule 32. Assuming that the October 1974 memoran-
dum was so posted,9 I regard it as highly unlikely that the
the only eidence that it was so posled F-ultz' October 1974 leller lt
the Board compliance officer and O'loole's testimon l. receiued ulithiout
objection, that the memorandum had been posted on "all of our lsome 163
or 4 bulletin boards. right next to the compan' rules and regulatis."'' After
employees would trouble to construe the 1973-reissued rule
32 in light of the memorandum. This memorandum bears
two dates (the 1964 issuance date and the 1974 revision
date); is relatively long and complicated; discusses both
rule 31 and rule 32, and also two "Control Procedures"
regulations unrelated to rule 32; and, when compared to
the memorandum current when the 1973 rule 32 was ad-
mittedly effective, differs only in the addition of the lan-
guage "Revised: 22 October 1974" and the language, at the
end of the first full paragraph, "excepting matter the distri-
bution of which is protected by Section 7 of the National
Labor Relations Act as amended." Cf. Chrysler Corpora-
tion, Eight Mile Road Stamping Plant, 227 NLRB 1256
(1977). Moreover, this memorandum is one of 7 to 10 no-
tices ordinarily posted on a bulletin board about 3 feet
wide and 5 feet long.
Between August 1974 and at least September 1978, Re-
spondent has maintained on employee bulletin boards a
rule which calls on its face for disciplinary action, up to
and including discharge, for "Distribution of notices, pam-
phlets. advertising matter or any kind of literature on Com-
pany property without permission of management except-
ing matter the distribution of which is protected by Section
7 of the National Labor Relations Act." Respondent does
not appear to dispute that, to the extent this rule applies to
employees' exercise of their Section 7 rights by distributing
such material in nonworking areas during nonworking
time, current Board decisions point to a determination that
this rule is invalid on its face because it can reasonably be
foreseen that employees would not know what conduct is
protected by the National Labor Relations Act and, rather
than take the trouble to get reliable information on the
subject, would elect to refrain from engaging in conduct
that is in fact protected by the Act. Chry.sler Corp., supra:
see also Trailmobile, Division of Pullman, Inc., 221 NLRB
1088, 1089 (19 75 ).'
° Respondent's post-hearing assertion
that by November 1978 rule 32 will on its face permit dis-
tribution of written material outside of worktime and work
areas, without regard to subject matter, undermines Re-
spondent's contention in its September 1978 brief that na-
tional defense considerations justified Respondent in
maintaining an ambiguous rule. Furthermore, assuming
so testifll g, ()'I oole wcnl on t testify that, in the investigation oIf griev-
a1< s, '1 do s Isi it S.I) si t l es. Ilmo t f Ihe buildings."
I iuld hae n powe to oerrule the Board's decislon in ('hriissr
eenll if I were persuaded hb Respondent's attacks thereon. In any event. I
behevs Respondent mnsreads ( hrilier n stating that "under the (hrrler
r.atioale. if an emploser posts a rule on nonprittected literature, he cannot
noLif eiplosees that he is not proshlbiling distribution of protected union
materil, L nider ( Ihrvier. the elploser must either state what specific con-
duct is protected. contrarv to the Act sic], or state nothing at all. certainly
a result least beneficial to the employees." Rather (hr-sler holds that if an
cmplo'yer posts a rule n nonprotected literature. he must not use language
which reasonabl tends to cause employees to refrain from distributing pro-
teted literature in nonworking areas during nonworking time. Respon-
dent's suggestion that the employees ask union leadership about their distri-
butiionl rights is wholly irrelecant where the protected literature is unrelated
ito Uilllon atclstir r is antiuniolln Further. an employee could not ask man-
agellenl aIbout his rights without revealing a probable intention to exercise
them Moreo'er. Respondent has at no tinle advised Klaven and McGowan
,if the fact. conceded in Respondent's brief. that they had a statutory right
to distribute the material which Sergeanlt i Charge (irana forbade them to
distribute wllhotll btaining permlislsin fronm Respondent's labor relations
deparillentl. which permission he sad they csould not request for 2 days.
McDONNELL DOUGLAS CORPORATION 803
that national defense considerations would justify Respon-
dent in maintaining a more restrictive rule than a nonde-
fense employer could impose (see intra), I see no basis for
any contention that national defense considerations justify
a vaguer rule.
Finally, the credited evidence shows that on Saturday.
June 3, 1978. when employees Klaven and McGowan tried
about an hour before the beginning of their shift to distrib-
ute on Respondent's emploee parking lot some blank
union authorization cards and some bulletins urging em-
ployees to sign these cards and to attend union meetings.
Sergeant in Charge Grana told them that they could not
distribute this material without first obtaining permission
from "Labor Relations" and that they could not request
such permission until Monday, June 5. Respondent con-
cedes that such evidence establishes, at least prima flteic. a
violation of Section 8(a)( ) of the Act. McDonnell 11, 210
NLRB 280. Although Respondent does contend that for
national security reasons it can lawfully condition distribu-
tion of protected material on management's permission. so
long as such permission is granted within a reasonable time
(see infra), Respondent does not appear to contend that 2
days is a reasonable time.
Respondent contends, however, that the complaint
herein should be dismissed because the conduct attached
therein is allegedly trivial and isolated, because to find that
Respondent violated the Act by maintaining the August
1974 version of rule 32 would allegedly be unfairly retroac-
tive, and because Respondent is allegedly willing volun-
tarily to comply with its statutory obligations regarding lit-
erature distribution. On the facts of this case, I regard
Respondent's position as lacking in merit.
The credited evidence shows that almost 4 years after
Respondent assured the Board's Regional Office that Re-
spondent had amended the April 1973 rule found unlawful
in McDonnell II copies of that very rule appeared on two
company bulletin boards. While Respondent maintains
more than 160 bulletin boards. the unorganized employees
who were the subject of the union drive usually work in a
limited number of buildings (perhaps as few as 3), one of
the bulletin boards bearing the April 1973 rule was the only
bulletin board on Level I of Building 105, and the record
fails to show the number or proportion of Automation em-
ployees who work in the area served by these 2 bulletin
boards. Furthermore, when checking in July and again in
August 1978 to determine which version of the rules was
posted on Respondent's bulletin boards. Respondent did
not check the one bulletin board on Level I of Building
105, the building where Klaven and McGowan both
worked, although by the time of the second inspection (and
probably by the time of the first one) Respondent was on
notice that these were the two employees involved in the
portion of the complaint alleging that about June 3. 1978.
Respondent had unlawfully refused to permit employees to
distribute union cards and literature. Furthermore, al-
It (Grana's June 3 llazard-lncident Reporl" pecified. wert-'r ,iil. he .illne
3 date, the Parking I.ot 18 Ioc.tiln. and the eniploxecs' namels ld depar. t
nlents Berfore lhe first ssilere aitil, O' ool c kne. l at least orlne ICt lh .houi
the June 3 ncident, and counsel had iadiset d him that the chalrre hlich
underla, the complaint night invols c distrihutlin of Iinio n hteraillre ii
though Respondent's brief concedes that Klaven and Mc-
Giowan had the statutory right to distribute this material at
the time and place they attempted to do so, Respondent
never so advised them and never rebuked Grana for deny-
ing them this right, even though Grana took this action
without complying with Respondent's written instructions
requiring him to check with Labor Relations personnel im-
mediately. The averment in Respondent's brief that Re-
spondent "has taken steps to prevent recurrence of the er-
ror" relies solely on Respondent's June 23 and 26 action in
issuing instructions to its guards which differed from prior
instructions only in that the list of those to be called to
determine whether literature was "legitimate" was short-
ened from 11 to 3 persons.' 2 Because Grana had failed to
call anyone on the longer list, I perceive no preventive ef-
fect in supplying the guards with a shorter one.
A more significant reason for rejecting Respondent's de-
fense is that its guards' compliance with Respondent's
post-August 1974 instructions regarding literature distribu-
tion will vitiate the provision in the August 1974 version of
rule 32 that permission of management need not be ob-
tained for Section 7 distribution of literature and will result
in less than full compliance b Respondent with at least
the spirit of its undertaking, in the August 1974-October
1974 McDonnell 11 notice, to "rescind and withdraw our
no-distribution rules to the extent that they infringe on em-
ployee rights with respect to distribution of union litera-
ture." Since September 5 1974. Respondent's guards have
been under standing written instructions to delay the distri-
bution of all union literature "until a Labor Relations Rep-
resentative rules on the legality of the distribution." Even
where the labor relations representative eventually con-
cludes that the employee does indeed have a statutory right
to distribute the literature. the employee may have had to
wait as long as 30 minutes before receiving such ap-
proval.' 3 Furthermore, the internal instructions issued to
the security guards flatly forbid the distribution of any lit-
erature other than literature for or against a union (al-
though Section 7 also protects the distribution of other
kinds of literature 14 and the August 1974 rule 32 on its face
permits such distribution without management's permis-
sion) and also flatly forbid the distribution of literature
which is "scurrilous. reckless, libelous, defamatory, or pro-
vocative or [contains] inflammatory appeals to racism or
the like." although this description may encompass certain
literature protected by Section 75 Nor has Respondent
Partkintg I l 18, Repondecil receied the complailnt i n Jul 17
In lonnictthin vlth the .Iinle 22. 1978, aclon In ranting permission
thruyh the gua rd er ice It distribute literature urging emplosees 1i engage
ii i. "lil lltrr bl.Lllt l-f 1lll her firIll becalUsC If ItS I lh r realllla l Ls IflCul-
tiC. ReLpondenI'I C.,l el p[ nllted out stilth sorile pride Ihlt tC .lh rt rella-
[Inis lepreseniltiiCe s ho granled such permisioin reached the same legal
,lonclusion is, did the Supreme (Court that samne da
x
iln Ew 'l. sn
I R.. 4731 S 5s6i 19781) On June 23. the name if that represenlttie.
I n-it. as dropped froit the list
Hecaisc rule 32 tlates that managemenl's permission i. not required.
and hec.auue Respondentl' tcDirlnnell I position implies thatu ff-dumi enl-
plo,,ees are permeitted -n Respondent's propert for only limited periods
before and after teir ler ift. 1I1 cmplotee might have to use all his permlsl-
hie iolf-duit, time .on the premises Io, satist .an unantilcipated need fr per-
[i-i')IOII I, dis L hinti
1ismc, Incu v. VN.RB. 437 U.S 556.
O 1()1.1 Imtlnl-il Brtlt `6 4J 6, 5 1a m lOl/1 mina> .t.f i, 1-.t'er ( utriCrs.
C ,imm'mzlmeIt
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
averred that its plans to modify rule 32, permitting distri-
bution of "literature" (Section 7 and otherwise) during
nonwork time and in nonwork areas, include plans to mod-
ify Respondent's internal instructions to its guards. Absent
changes in such instructions as well as in rule 32, employ-
ees will still be unable to distribute certain kinds of Section
7 literature on company premises and will still be unable to
distribute the remaining kinds of Section 7-type literature
there without the prior consent of Respondent's labor rela-
tions department. In view of these still-effective instruc-
tions to Respondent's guards in September 1974 and there-
after, Respondent is in a poor position to rely on its alleged
October 1978 modification of rule 32 as rendering a Board
order unnecessary to protection of employees' Section 7
rights. For similar reasons, Respondent is estopped from
relying on the Regional Office's approval of the August
1974 rule 32 by Respondent's encroachment, through inter-
nal instructions issued to its guards in September 1974 and
thereafter, on its employees' power to exercise the employ-
ee rights purportedly left untouched by the August 1974
rule 32.?6 In any event, such approval is not binding on the
Board. Chrysler Corp., 227 NLRB 1256, fn. I: see also
N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251, 264-267
(1975). Moreover, the remedial order based on my determi-
nation that the August 1974 rule 32 is unlawful on its face
imposes no monetary loss on Respondent but merely re-
quires it to make clear to the employees that Respondent
will follow as to protected literature the same policy which
Respondent contends is already set forth in that rule. See
N.L.R.B. v. Bell Aerospace Company, Division of Textron,
Inc., 416 U.S. 267, 269-272, 295 (1974); Peter J. Schweitzer,
Incorporated v. N.L.R.B., 144 F.2d 520, 522 (D.C. Cir.
1944).
Respondent contends that the balancing of
Respondent's security obligations against the employees'
"organizational interests" calls for the conclusion that so
long as the no-distribution rule included in Respondent's
posted employee rules and regulations is lawful on its face,
Respondent is free to require its guards to comply with
Respondent's existing instructions regarding literature dis-
tribution notwithstanding the practical impact of such
guard action on the employee rights purportedly un-
touched by the posted employee rule. In this connection,
Respondent requests me, in effect, to take judicial notice of
certain factual representations made in the dissenting opin-
ion of Board member Ralph E. Kennedy in McDonnell 1,
194 NLRB at 516-517. 1 assume, without deciding, that
factual representations in a dissenting opinion are suscepti-
ble of judicial notice, at least where, as here, they are not
AFL-CIO v Austin. 418 U.S. 264 (1974); William C Linn . United Plant
Guard Workers of Amerwia. Local 114. 383 I,.S. 53 ( 1966): Great l, I.(ks S/eel.
Division of National Steel ('orporation. 236 NI.RB 1033 (1978): .4lnierlcan
(l'st Iron Pipe Compoan, 234 NLRB 1126 (1978).
See N.L.R.B. v. International Brotherhood of ieaunter. (haulfluart.
Warehousemen & Helpers of Anerica. Over-the-Road and ('it Transfer Dri-
ers, Helpers, Dockmen & Warehousemen, Local No. 41. AFL Pacific Inter-
mountain Express Co.], 225 F.2d 343 (8th Cir. 1955)., on which Respondent
strongly relies. The court there enforced an order requiring the respondent
union to cease observing a contractual senioritk clause which the Board's
decision found unlawful on its face, where that clause was lawful under
Board precedent prior to the Board's decision but had heen abused so as to
effect unlawful discrinmination in asvor of union members.
attacked as erroneous in the majority opinion or in subse-
quent opinions issued in the same case. In deciding the
instant case, I shall assume that the following representa-
tions in Member Kennedy's dissent accurately reflected the
situation in 1971, when the McDonnell I hearing was held,
and that they continued to be true in 1978, at the time of
the events and hearing in the instant case:
As a contractor for the U.S. Department of De-
fense, Respondent manufactures fighter planes and
various types of missiles and is responsible for other
special projects for various defense agencies. Respon-
dent also undertakes projects for the National Aero-
nautics & Space Administration, the Defense Intelli-
gence Agency, the National Security Agency, and
various intelligence agencies within the three military
service branches. By the nature of its work, Respon-
dent is subject to and is required to comply with the
provisions of the Department of Defense Industrial
Security Manual. Respondent's security problems run
the spectrum of espionage, property protection, people
control, robbery, vandalism, and others. Approxi-
mately every 90 days, Respondent is inspected by the
Defense Contract Administrative Services Region to
determine whether Respondent is performing in ac-
cordance with the regulations prescribed in the De-
partment of Defense Industrial Security Manual. Sim-
ilar inspections are made by the C.I.A., the Defense
Intelligence Agency, and the Air Force Intelligence
unit. Occasionally, representatives from these agencies
will, without advance notice to Respondent, attempt
to penetrate the security perimeter to Respondent's fa-
cility to test the effectiveness of the security measures
taken by Respondent.
. . .Respondent's Director of Security Rutherford
testified that Respondent's business-manufacture
and development of weapons, weapons systems, and
special projects for the intelligence gathering agencies
of the government-considered in the light of the
"present day environment" was fraught with security
problems. Considered particularly significant were
numerous bomb threats, acts of violence, and civil dis-
orders, which were deemed a source of particular con-
cern in terms of the need for Respondent to protect
itself against such eventualities.
As previously noted, the practical effect of Respondent's
current instructions to its guards is that, irrespective of the
facial terms of rule 32, employees cannot distribute certain
kinds of protected literature on company premises at all
and cannot distribute the other kinds without first obtain-
ing the permission of Respondent's labor relations repre-
sentatives. Moreover, in consequence of such instructions
to its guards, Respondent includes in its records of inci-
dents "which might be detrimental to the welfare of the
Company" a record of the name, clock number, and de-
partment of every employee who wishes to distribute pro-
tected literature (whether or not he has been permitted to
distribute it), copies of the literature in question, and de-
tails which include the date, hour, and location, when and
by whom any permission to distribute it was given or de-
nied, and the names of the guards who handled the request.
McDONNELL DOUGLAS CORPORATION 805
There is a distinct possibility that these records appear in
the employees' personnel folders.l 7 Respondent contends
that such adverse impact of the instructions to its guard
force on employees' protected rights is outweighed by the
contribution of such instructions to security considera-
tions.
Respondent relies upon a subsisting contract with the
Defense Contract Administration, Defense Supply Agency.
Department of Defense, which contract was entered into in
May 1967. This contract provides, inter alia (emphasis in
original):
WHEREAS, it is essential that certain security measures
be taken by the Contractor prior to and after his being
accorded access to classified information: and
WHEREAS, the parties desire to define and set forth
the precautions and specific safeguards to be taken by
the Contractor and the Government in order to pre-
serve and maintain the secunty of the United States
through the prevention of improper disclosure of clas-
sified information derived from matters affecting the
national defense; sabotage: or any other act detrimen-
tal to the security of the United States:
NOW. THEREFORE, in consideration of the foregoing
and of the mutual promises herein contained, the par-
ties hereto agree as follows:
Section I--SECURITY CONTROLS
(A) The Contractor agrees to provide and maintain a
system of security controls within its or his own orga-
nization in accordance with the requirements of the
Department of Defense Industrial Security Manual
for Safeguarding Classified Information attached hereto
and made a part of this agreement.. . .In order to place
in effect such security controls, the Contractor further
agrees to prepare Standard Practice Procedures for its
or his own use, such procedures to be consistent with
the Department of Defense Industrial Security Manu-
al for Safeguarding Classified Information....
(B) The Government agrees that it shall indicate
when necessary by security classification (Top Secret,
Secret or Confidential), the degree of importance to the
national defense of information pertaining to supplies,
services, and other matters to be furnished by the
Contractor to the Government or the Government to
the Contractor, and the Government shall give written
notice of such security classification to the Contractor
and of any subsequent changes thereof: . . . Further,
the Government agrees that when Atomic Energy in-
formation is involved it will when necessary indicate
by a marking additional to the classification marking
7 O'Toole, Respondent's director of labor relations since 1973. testified
that he had seen in individual personnel folders some "ltazard-lncident
Reports" reporting such matters as speeding and unauthorized parking tie
testified that he did not know whether It is Respondent's general polic to
insert a "Hazard-lncident Report'" which specifies a particular emplo'.ee in
that employee's personnel folder. He further testified that he had never seen
Klaven's and McGowan's personnel folders and did not know , hether thes
contained copies of (;rana's report about the June 3 incident
that the information is "Restricted Data-Atomic En-
ergy Act, 1946." The Contractor is authorized to rely
on any letter or other written instrument signed by the
contracting officer changing the classification of mat-
ter.
Respondent further relies on the current version, issued
in October 1977 and revised in April 1978. of "DoD 5220
.22-M, Industrial Security Manual for Safeguarding Classi-
fied Information." the manual referred to in the foregoing
contract. This manual, which is issued under Department
of Defense Directive 5220.22, Department of Defense In-
dustrial Security Program, requires Respondent to main-
tain. "at one or more control stations, an accountability
record of all TOP SECRET and SECRET material, and
CRYPTO regardless of classification. The record shall in-
clude all such classified material received or produced by,
or in the possession or custody of, the contractor." Also,
Respondent must maintain a record of "all nonaccounta-
ble classified material received by or dispatched from the
facility." Further, when "classified material is received" at
the facility, it must be delivered unopened to the control
station personnel whom Respondent has designated to re-
ceive it, the package is to be checked for tampering, and
the classified contents are to be checked against the re-
ceipt. When classified material is to be dispatched from the
facility, the proposed transmittal is to be examined for
compliance with prescribed procedures regarding packag-
ing and marking, and removal of classified materials to
private dwellings for "after hours" work as a convenience
to Respondent's employees is not authorized.
Finally, Respondent relies on certain internal corporate
security regulations, inferentially prepared pursuant to Sec-
tion 1(A) of the contract. These regulations require its
Lambert Field operation to maintain records reflecting re-
ceipt and dispatch of "Top Secret, Secret, NATO Top Se-
cret and Secret, CRYPTO, designated COMSEC and for-
eign information classified Secret [and] all confidential
material and foreign information classified lower than Se-
cret, referred to hereafter as 'non-accountable' classified
material." Also, "all incoming classified material . . . will
be received and handled only by appropriately cleared and
authorized personnel," "delivered with the inner container
unopened to Control Station personnel," and "checked for
evidence of tampering, subjection to possible compromise,
or discrepancy in content." In addition, "Director/Manag-
er-Security" must be notified "whenever classified material
is received by other than an approved means."
I agree with Respondent that as a practical matter the
foregoing regulations may require it to instruct its guards
to inspect all literature which employees seek to distribute
on Respondent's property, in order to enable Respondent
to make sure that such literature is not classified material
subject to recordkeeping and control requirements. I fur-
ther agree with Respondent that the national security bene-
fits of such a requirement outweigh its possible adverse
effects on employees' exercise of the Section 7 rights. How-
ever, once the guard has ascertained that the material in
I These regulalions ere effective in September 1978 and superseded
regulations effective in June 1976 Respondenl has not supplied the regula-
ions effeciile during he eents In the instanl case
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
question is not classified, a determination which would
usually be easy to make,' 9 I see nothing in the material
cited by Respondent which would require, or even point to,
predistribution clearance by Respondent's labor relations
personnel of all literature or the preparation and retention.
in connection with all distribution efforts, of records like
Respondent's "Hazard-Incident Reports."
CONCLUSIONS OF LAW
I. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act
by:
a. Maintaining on employee bulletin boards the version
of rule 32 dated April 1973.
b. Maintaining on employee bulletin boards the version
of rule 32 dated August 1974.
c. Refusing to permit employees to distribute union
cards and literature on company property in nonworking
areas, during nonworking time, and within a reasonable
period before and after their shifts without first obtaining
management's consent. 20
4. The foregoing unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
certain respects, I shall recommend that Respondent be
required to cease and desist therefrom and from like or
related conduct. Affirmatively Respondent will be required
to rescind or clarify rule 32, if it has not already done so; to
excise from its records Grana's June 3, 1978, "Hazard-Inci-
dent Report" form regarding Klaven's and McGowan's
improperly frustrated efforts to exercise a protected right,
which form exists for the purpose of memorializing inci-
dents-such as theft, disorderly conduct, and property
damage-"which might be detrimental to the welfare of
the Company"; and to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record in the case, and pursuant to
Section 10(c) of the Act, I hereby issue the following rec-
ommended:
19 I infer from the Government contract and regulations. Respondent's
internal regulations, and the probabilities of the case that "classified" mate-
rial brought into the facility is ordinarily labeled as such. Moreover I find it
difficult to conceive of any protected literature which a reasonable person
would suspect might be "classified."
At least presumptively, an employer may not lawfully forbid an em-
ployee to solicit signatures on union authorization cards during nonworking
time on company property, including work areas. Stoddard-QirAk Atanifa(-
turing (o., 138 NLRB 615 (1962). However. because Respondent's opera-
tions may present special security problems in connection with card distrl-
bution because the employees sought to distribute cards in connection with
literature rather than in connection with oral solicitation, and because the
parties did not distinguish between cards and literature in litigating the
Klaven-McGowan incident where the) sought to distribute both I do not
consider here any right by Respondent's employees to distribute cards but
not literature.
ORDER 21
The Respondent, McDonnell Douglas Corporation,
Lambert-St. Louis International Airport, Hazelwood, Mis-
souri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining on employee bulletin boards any rule or
regulation which (1) forbids employees to exercise their
statutory rights by distributing literature on company
property in nonwork areas, during nonworking time, and
within a reaaonable time before or after their shifts, with-
out management permission, or (2) reasonably tends to
cause employees to refrain from such distribution: except
that, in either case, Respondent may condition such distri-
bution on showing such material to a designated individual
then physically on duty at the premises for the sole pur-
pose, which purpose must be volunteered to the employee
at the time, of ascertaining that the material is not classi-
fied.
(b) Refusing to permit employees to exercise their statu-
tory rights by distributing literature on company property
in nonwork areas, during nonworking time, and within a
reasonable period before or after their shifts, without ob-
taining management's permission; except that Respondent
may condition such distribution on showing such material
to a designated individual then physically on duty at the
premises for the sole purpose, which purpose must be vol-
unteered to the employee at the time, of ascertaining that
the material is not classified.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which will ef-
fectuate the policies of the Act:
(a) If Respondent has not already done so, rescind the
August 1974 version of Rule 32, or amend it so that it does
not reasonably tend to cause employees to refrain from
exercising their statutory rights by distributing literature on
company property in nonwork areas during nonworking
time.
(b) Excise from its records Sgt. Nick J. Grana, Sr.'s Haz-
ard-Incident Report of June 3, 1978, including attach-
ments, in connection with the distribution efforts that day
of Donald Klaven and Gregory McGowan.
(c) Post at its place of business in Hazelwood, Missouri,
copies of the attached notice marked "Appendix." 22 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 14, after being duly signed by Respon-
dent's authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
' In the event no exceptions are filed as provided b 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 atid Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
In the event that this 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 nited States Court of Appeals Enforcing an Order of the
National I.iabor Relations Board."
McDONNELL DOUGLAS CORPORATION 807
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced. or covered by any other material.
(d) Notify the Regional Director for Region 14. in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.