Minneapolis-Honeywell Regulator Co.

National Labor Relations Board - Board Decisions

Nov 9, 1962

139 N.L.R.B. 849 (N.L.R.B. 1962)

MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 849
Unit A. All employees in the Employer's maintenance department,
including janitors and housemen, but excluding all other employees,
guards, and all supervisors as defined in the Act."
Unit B. All employees in the Employer's kitchen and food service
departments, including cleaners, dishwashers, cooks, salad women,
pantry women, food checkers, receiving clerks, bartenders, bar porters,
room service captains and waiters, hostesses, waitresses, waiters, bus-
boys, and coffee shop and kitchen cashiers, excluding all other em-
ployees, guards, and all supervisors as defined in the Act.12
[Text of Direction of Elections omitted from publication.]
MEMBER RODGERS took no part in the consideration of the above
Decision and Direction of Elections.
n The parties stipulated and we find that the superintendent of maintenance is a super-
visor within the meaning of the Act. We therefore exclude him.
12 The parties stipulated that the executive chef, the food and beverage director, head
bartender, the head waiter (captain) for room service , and the assistant q otel manage,
are supervisors . We so find and exclude them . There is disagreement as to the super-
visory status of the soup chef and kitchen stewards As these individuals possess authority
to discharge employees under them , we find they are supervisors and we exclude them.
Minneapolis-Honeywell Regulator Company and Regulator Em-
ployees' Association, affiliated with IUE-AFL-CIO, Local No.
908. Case No. 25-CA-1371. November 9, 1962
DECISION AND ORDER
On August 7, 1961, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, both the General Counsel and the Respondent
filed exceptions to the Intermediate Report, and Respondent filed a
supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
the case, and it hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner except as modified below.
The facts in this case are not in dispute. As detailed in the Inter-
mediate Report, Respondent has more than 600 employees at its manu-
facturing establishment in Wabash, Indiana, which consists of 5 sep-
arate buildings located on separate plots of land within the city limits.
139 NLRB No. 65.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union has been recognized for many years as the collective-
bargaining representative of the employees at all these locations, and
a 2-year contract between the parties, executed in April 1960, was in
force at the time of the transactions involved here. In January 1961,
when the parties were preparing for mid-term wage negotiations pur-
suant to a "reopener" clause of the contract, the Union began pub-
lishing a series of mimeographed newsletters designed to keep the
employees informed of the issues involved in the forthcoming nego
tiations, as well as current grievances, time studies, and like matters.
During the next 3 months, about 12 issues of these bulletins were
distributed by employees on Respondent's property, near the plant
doorways used by most of the employees on their way to or from
work. None of the employees concerned with this distribution, either
those who were giving out the union papers or those who received
them, was on working time. Nor, so far as appears, did the union
handbilling cause any littering of the premises or crowding or dis-
order. In April, however, Respondent revived and posted on the plant
bulletin boards an old rule which prohibits any and all persons from
distributing any and all "literature, leaflets, cards or other material
for the purpose of donations, contributions, or any other reason . . .
on Company property at any time." The employees who had been
passing out the union papers were then ordered to stand off "Company
property" whenever they had such papers to pass out in the future.
The Trial Examiner concluded that the foregoing rule is unlawful
under Section 8 (a) (1) of the Act insofar as it prohibits Respondent's
employees from passing out union handbills on the plant premises,
wherever and whenever they are not on working time. In holding
that the rule constitutes, pro tanto, an "unreasonable," and therefore
unlawful, impediment to the employees' exercise of their statutory
rights, the Trial Examiner applied the tests enunciated in the Walton
case, where the Board stated that such broad "no-distribution" rules
are "presumptively an unreasonable impediment to self-organization,
and . . . therefore presumptively invalid," as applied to employees
distributing union literature outside working time, although the pre-
sumption may be overcome by "evidence that special circumstances
made the rule necessary in order to maintain production or discipline."
1Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C.A 5). There,
the Board reviewed and restated certain general principles with respect to no-solicitation,
and no-distribution rules which it regarded as being established by three prior decisions
of the Supreme Court:
(1) Republic Aviation Corporation v. NLR.B., 324 U.S 793, upholding the Board's
decisions in Republic Aviation Corporation, 51 NLRB 1186, and Le Tourneau Company
of Georgia, 54 NLRB 1253;
(2) N.L R.B. v. The Babcock if Wilcox Company, 351 U.S. 105, reversing The Babcock
if Wilcox Company, 109 NLRB 485, Banco, Inc., 109 NLRB 998, and Seamprufe, Inc.
(Holdenvolle Plant ), 109 NLRB 24; and
(3) N L R.B v. United Steelworkers of America (Nutone Inc.), 357 US. 357, uphold-
ing Nutone, Incorporated, 112 NLRB 1153, but reversing Avondale Mills, 115 NLRB 840.
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 851
In this case, the Trial Examiner found, no such "special circum-
stances" are present; hence the Walton presumption of invalidity
stands unrebutted, and it makes no difference whether or not the
Union, as Respondent contends, could easily distribute its handbills
or otherwise communicate with the employees somewhere off the plant
premises.
We agree with and adopt the foregoing conclusions, as qualified
below.
1. For the reasons discussed in Stoddard-Quirk Manufacturing Co.,'
where the Board majority reconsidered the formulation of principles
set forth in Walton Manufacturing Company, supra, we do not find
that Respondent's no-distribution rule would be invalid if its appli-
cation were limited to the areas of the Wabash plants where the em-
ployees have their work stations; and the Trial Examiner's Recom-
mended Order will be limited accordingly.
2. On the other hand, as both the majority and dissenting opinions
in Stoddard-Quirk emphasized, the Board unanimously adheres to
the Walton view that a ban on distribution of literature is presump-
tively invalid, in normal circumstances , if and insofar as it precludes
employees from distributing union literature when they are on non-
working time and also in nonworking areas of the employer's estab-
lishment. This presumption can be rebutted, of course, but only by
evidence showing that, because of some special circumstances, the Em-
ployer actually needs to ban such union activity in order to protect
the business interests which the Supreme Court referred to in The
Babcock & Wilcox Company, 351 U.S. 105, 113, in stating that :
No restrictions may be placed upon the employees' right to dis-
cuss self-organization among themselves unless the employer can
demonstrate that a restriction is necessary to maintain produc-
tion or discipline.3
We therefore adopt the Trial Examiner's conclusion that the "re-
striction" embodied in the no-distribution rule in issue here is invalid,
since it concededly applies to employees who may wish to distribute
union literature at any time in nonworking areas of Respondent's
manufacturing establishment, and there is no proof that a prohibition
of such employee activity-manifestly protected as it is under See-
2138 NLRB 615.
S Respondent argues that the Court must have referred only to oral " discussion " in this
passage. We disagree. The Babcock & Wslcoo, case itself, as well as the companion Ranco
and Seampruje cases ( supra, footnote 1), had to do with distribution of union literature
by "outside" organizers , and the Court 's whole point was that , while an employer may
"post his property against [such ] nonemployee distribution ." ( 351 U.S . at 112), his
naked property rights will not suffice to justify a comparable restriction upon employees.
To underscore the latter principle , moreover , the Court cited a passage in its earlier
Republic Aviation opinion ( 324 U.S. at 803 ), where it had discussed and approved the
Board's findings as to both the no-solicitation rule involved in Republic Aviation itself
and the no - distribution rule involved in the companion Le Tourneau case.
672010-63-vol. 139-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion 7 of the Act-is actually "necessary to maintain production or
discipline" (The Babcock d Wilcox Company, supra).
Several of Respondent's supervisory officials testified, to be sure,
that the purpose of the premiseswide ban on distribution is to foster
"discipline" and "production" by maintaining "good housekeeping"
standards, i.e., preventing litter. We may credit this testimony de-
spite its argumentative character, and, indeed, we do not dispute its
underlying premise that maintenance of cleanliness and order is an
essential aspect of "production" and "discipline" in Respondent's
Wabash plants.4 But we do not regard such testimony as proof
that it is actually "necessary," within the meaning of Babcock & Wil-
cox, Walton, and Stoddard-Quirk, supra, for Respondent to interdict
distribution of union handbills by its own employees (even on non-
working time and in nonworking areas) in order to prevent littering of
the plant premises or otherwise maintain "production or discipline."'
On the contrary, what the record shows in this regard, if anything,
is that Respondent's employees can be trusted not to litter the premises
when they are passing out and receiving union handbills in nonwork-
ing areas of the plant premises. For Respondent does not even sug-
gest that any such violation of its "good housekeeping" standards oc-
curred when various employees actually did distribute union handbills
at the plant entrances during the period from January to April 1961,
when the no-distribution rule was in abeyance.
Apart from its asserted apprehension of littering, Respondent has
not shown that it has been, or reasonably may expect to be, harmed
by its own employees distributing union literature on its premises.
Instead, it contends that it has a fundamental privilege to ban such
on-the-premises distribution, even in nonworking areas, because there
are public sidewalks and similar places outside the plant boundary
lines where handbills can be distributed. We reject this contention on
4 Thus, we do not adopt the Trial Examiner's discussion of Respondent's "littering"
contention insofar as it implies that abatement of littering is necessarily unrelated to
the maintenance of "production" or "discipline."
5 Citing Tabin-Picker & Co , 50 NLRB 928, and several other comparatively early Board
decisions, Respondent argues, in effect, that the mere possibility of apprehension of litter-
ing is sufficient to justify a broad no-distribution rule, even in the absence of any evi-
dence that employees distributing union handbills have ever caused the employer's premises
to be littered. We reject this argument. So far as employees distributing union handbills
outside "the plant proper" were concerned, the Tabin-Picker doctrine was modified by
the Board at an early date (see the cases cited and discussed in paragraph 3 of the
majority opinion in Stoddard-Quirk Manufacturing Co., supra), and was abandoned by
1957, in view of the Supreme Court's intervening opinion in Babcock & Wilcox, supra
See Cranston Print Works Company, 117 NLRB 1834, 1842, 1861-1862, enforcement
denied on other grounds 258 F. 2d 206 (CA. 4). Respondent is mistaken in its assertion
that this "littering" doctrine was revived, either by the Board itself or by the Supreme
Court, in NLRB. v. United Steelworkers of America (Nutone, Inc.), supra From the
very start, the litigation in that case proceeded on the premise that the employer's no-
distribution rule was valid on its face. See 112 NLRB 1153, 1154, footnote 2, and 1165,
footnote 5 We also note that the Steelworkers case was decided by the Board in June
1955, nearly a year before the Supreme Court's opinion in Babcock & Wilcox was handed
down.
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 853
the grounds stated by the Trial Examiner in section III, 4, of the
Intermediate Report.'
3. Referring to the particular incidents which led to the filing of
the charge in this case, Respondent contends that in any event it was
entitled to stop distribution on its premises of the "newspapers" which
the Union was publishing in the early months of 1961, because the
statutory right of employees to "organize" is not involved in the
circulation of this type of literature. We agree with the Trial Ex-
aminer that this contention is without merit, since the employee rights
and communications protected in Section 7 of the Act are not limited
to what Respondent conceives of as "organizational" subject matter.
As mentioned above, the so-called "newspapers" which the Union
began publishing in January 1961 were devoted mainly to discussion
of wages, hours, working conditions, grievances, and the forthcoming
contract negotiations at Respondent's plants. Such publications are
manifestly within the protection of Section T. Furthermore, we note
that Respondent's no-distribution rule applies to all "literature, leaf-
lets, etc." This blankets out the type of handbills which are custom-
arily distributed in behalf of unions engaged in organizing campaigns,
along with everything else.
4. Finally, we agree with and adopt the Trial Examiner's conclusion
that the employees' right to distribute union handbills on Respond-
ent's property v: as not suspended by a provision in the parties' 1960
contract stating that the Union could post certain specific announce-
ments on bulletin boards in the plants. In addition to the reasons
relied upon by the Trial Examiner, we note, again, that the no-
distribution rule covers everything, not merely the kind of announce-
ments referred to in this contract provision. Moreover, the 1960 con-
tract has presumably expired by this time.
5. In framing our order, we will permit Respondent to maintain its
round-the-clock ban on handbilling in the actual working areas of
its plants, if it so desires, for the reasons stated in Stoddard-Quirk.
We will also delete that part of the Trial Examiner's Recommended
Order which specifically enjoins Respondent from promulgating or
enforcing a rule against employees' "soliciting membership in" any
labor organization.? It is true, as stated in the Intermediate Report,
that the formal rule which was posted on the plant bulletin boards in
April 1961 actually purports to ban all "solicitations" as well as all
"distributions." It is also true that the "solicitation" aspect of the
posted rule is palpably unlawful on its face, as Respondent, in effect,
concedes. However, Respondent claims that it has not, in fact, en-
0 In addition , we note that Respondent 's interpretation of the Supreme Court's opinion
in NLRB. v United Steelworkers of America ( Nutone , Inc.), supra , was rejected in
Time-O-Matic , Inc v. N L R.B., 264 F 2d 96 , 100 (CA 7)
T The same phraseology is hereby deleted from the Trial Examiner's Conclusion of
Law No. 2.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forced its rule against employees engaged in mere "solicitation .. .
related to union activity . . . during nonworking time," and neither
the Union nor the General Counsel disputes this assertion. On the
contrary, the complaint alleges only that Respondent has violated the
Act by "forbidding its employees to distribute union literature on
[its] premises . .. ;" and there is no evidence indicating that the rule
has ever been invoked to stop any other type of union "solicitation"
conducted by employees outside working hours. In any event, our
Order here will require Respondent, if it has not already done so, to
rescind or revise its posted rule with respect to such other "solicita-
tion," for we are enjoining all conduct which is "like or related" to
that alleged in the complaint and herein found to be unlawful.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Minneapolis-
Iloneywell Regulator Company, Wabash, Indiana, its officers, agents,
successors, and assigns, shall :
1. Cease and desist from :
(a) Promulgating, maintaining, or enforcing any rule which pro-
hibits its employees, during nonworking time, from distributing hand-
bills on behalf of Regulator Employees' Association, affiliated with
IUE-AFL-CIO, Local No. 008, or any other labor organization, in
nonworking areas of respondent's plant properties.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-organization,
to join or assist the aforementioned or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in or refrain from engaging in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post in its warehouse and plants in Wabash, Indiana, copies
of the attached notice marked "Appendix." 8 Copies of said notice,
to be furnished by the Regional Director for the Twenty-fifth Region,
shall, after being duly signed by Respondent's representatives, be
posted by Respondent immediately upon receipt thereof, and be main-
tained for at least 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
8 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 855
(b) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
MEMBERS FANNING and BRowN, concurring in part and dissenting
in part :
We concur in the majority's decision to the extent of finding that
Respondent violated Section 8(a) (1) of the Act by promulgation of
the rule against solicitation and distribution during nonworking time
for the reasons stated in our dissenting opinion in Stoddard-Quirk
Manufacturing Co., 138 NLRB 615. For reasons there stated, we
dissent from that portion of the Order herein permitting the Re-
spondent to prohibit its employees from distributing union literature
in working areas during the employees' nonworking time.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT promulgate, maintain, or enforce any rule which
prohibits our employees, during nonworking time, from distribut-
ing handbills on behalf of Regulator Employees' Association, af-
filiated with IUE-AFL-CIO, Local No. 908, or any other labor
organization, in nonworking areas of our plant properties.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights to
self-organization, to join or assist the aforementioned or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in or refrain from en-
gaging in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis 4, In-
diana, Telephone Number, Melrose 3-8921, if they have any question
concerning this notice or compliance with its provisions.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Thomas A. Ricci in Wabash, Indiana, on June 28 and 29, 1961, on complaint of
the General Counsel and answer by Minneapolis-Honeywell Regulator Company,
herein called the Company or the Respondent. The sole issue litigated was whether
the Respondent had violated Section 8(a)(1) of the Act. The Respondent filed a
brief with the Trial Examiner after the close of the hearing.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Minneapolis-Honeywell Regulator Company, a Delaware corporation, has a place
of business at Wabash, Indiana, where it is engaged in the manufacture and sale
of regulators and related products. During the past 12 months, a representative
period, the Respondent manufactured, sold, and shipped from its Wabash, Indiana,
plants finished products valued in excess of $50,000 to points outside Indiana. I
find that the Respondent is engaged in commerce within the meaning of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
Regulator Employees' Association, affiliated with IUE-AFL-CIO, Local No.
908, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
There is no dispute on the record as to the pertinent and material facts which
the complaint alleges constitute an unfair labor practice by the Respondent Com-
pany. The complaint alleges that from October 1960 on the Respondent prohibited
its employees from soliciting or distributing union literature on the company premises
outside of working time. The Respondent's answer expressly concedes this fact.
Paragraph V of the answer reads as follows:
Admits that part of paragraph 5 which alleges that it maintained and en-
forced a rule forbidding the distribution of literature on its premises, but
denies that part of paragraph 5 which indicates that the rule is limited to union
literature or to its employees and that it has interfered with, restrained, coerced,
or is interfering with, restraining, or coercing employees in the exercise of
their rights under Section 7 of the Act.
Several employee witnesses testified, without contradiction, that about the begin-
ning of April 1961, they started to distribute union handbills on the premises, near
various timeclocks and at the employee entrances, but were told by supervisors to
discontinue the practice and to get off the company property if they wished to
continue the distribution. On April 13, several union officers conferred with
management representatives to clarify the problem and were told company policy
prohibited such activities. On April 18, the Respondent posted a printed notice on
the bulletin boards of each of its five plant locations in the city of Wabash and
mailed a copy of the notice to the Union. The notice reads as follows:
Rules for Solicitations and Literature Distribution
In the interest of good housekeeping, and to add some semblance of order
to the subject, it is necessary to restate certain rules pertaining to solicitations
and distribution of various materials.
Solicitations and the posting or distribution of literature, leaflets, cards or
other material for the purpose of donations, contributions or any other reason,
will not be allowed on Company property at any time without the full sanc-
tion of the Personnel Manager.
On several occasions thereafter employees were again told to remove themselves
from company premises while distributing union handbills, and advised that further
violations of the rule could result in dismissal.
Apart from some further facts, discussed below in connection with specific de-
fenses advanced, I think it clear the foregoing facts, entirely conceded by the Re-
spondent, prove the commission of an unfair labor practice upon long-established
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 857
and accepted principles of law . The directly applicable rule of law in the situation
was only recently restated by the Board as follows:
No solicitation or no distribution rules which prohibit union solicitation or
distribution of union literature on company property by employees during
their nonworking time are presumptively an unreasonable impediment to self-
organization , and are therefore presumptively invalid both as to their promulga-
tion and enforcement; however, such rules may be validated by evidence that
special circumstances make the rule necessary in order to maintain production
or discipline.'
On this authority, and on the facts thus far set out, I find that the General Counsel
has proved a prima facie case in support of the complaint.
The true issues of the case are raised by the Respondent's defenses, some based
on asserted factual grounds, and some predicated on contentions of law. As the
Respondent would have it, any one of four separate defenses urged suffices to pre-
clude any finding that "promulgation and enforcement" of this particular rule in the
circumstances of this case, illegally restrains or coerces the employees in violation
of Section 8(a)(1) of the Act. Essentially, the defenses appear as follows: (1) the
rule was announced and enforced "for housekeeping purposes" and "to maintain
production or discipline"; (2) the Union waived its statutory right to solicit union
membership and to distribute union literature on company premises; (3) because
the Respondent has long recognized the Union as the exclusive majority representa-
tive for the employees involved, and because there was a collective-bargaining agree-
ment in effect during the period in question, there was no occasion for the Union
to "solicit" membership in the Union, the employees' statutory right to "self-
organization" had been fully satisfied, and consequently the prohibiting rule in ques-
tion cannot be said to have impeded any rights guaranteed by Section 7 of the
statute; and (4) the employees could easily have distributed union literature off the
company premises and therefore the Company was not obligated, under the statute,
to suffer such activities on its private property.
1. The record evidence does not support the Respondent's factual assertion that
the rule against distribution was promulgated and enforced "to maintain production
or discipline." In 1957 an insurance company distributed advertising pamphlets in
the parking lot of one of the Company's five plants in Wabash. The then-assistant
personnel manager called the insurance company to clean up the littered lot, and a
man was sent to do so. There is also the testimony of one of the plant supervisors
that in that same year, 1957, two local gasoline filling stations advertised their
openings by distributing advertising literature among the employees on the parking
lots. Again the resultant littering had to be cleaned up, this time by company em-
ployees so assigned. At that time the Company posted, on its plant bulletin boards,
a notice worded exactly like the April 18, 1961, notice set out above How long
the 1957 notice remained posted does not appear. This is the total extent of the
factual evidence relating either to production or discipline problems which the
Respondent now claims made "restatement" of the rule 4 years later necessary.
In the course of his testimony, Rooney, the present personnel manager, said that
during an April 1961 supervisory meeting he explained the purpose of the company
policy to be "good housekeeping," " maintaining our production," and "to avoid
disciplinary problems." These were purely conclusionary statements, couched pre-
cisely in the language of the rule of law set out in the Board's Walton decision. As
stated by Rooney, his words amounted to no more than a contention that the
exemption to the presumption of invalidity of the rule, as announced in the lead
decisions, should apply here. In no sense did his testimony constitute evidence,
or factual proof in support of the contention. To the contrary, instead, the record
shows, as will appear below, that during the several months before April 1961 a
number of employees distributed union handbills, on their free time, to arriving or
departing employees in the various plants, that supervisors were aware of the activity
and even accepted copies of the handbills, and that they raised no criticism. Indeed
there is no indication, nor is it claimed, that any of the distribution in any manner
interfered with production or created disciplinary problems. I find no merit in the
Respondent's defense that matters of production requirements or employee discipline
justified the rule in question in this case and removed it from the presumptive
illegality under established Board law.
2. I find the Respondent's waiver defense equally without merit. At the time of
the events here involved, there was in effect a written collective-bargaining agree-
ment between the Respondent and the Union covering the period 1960 through 1962.
"Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F. 2d 177 (C.A. 5)
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contract covers all production and maintenance employees at all five of the
company's locations in Wabash. Among its provisions is one pertaining to the
Union's privilege to post union notices on the bulletin board at each of the locations.
It reads as follows:
The Company agrees that the Association may have bulletin boards adjoining
each company bulletin board in those departments having employees covered
by the terms of this agreement. Notices shall be restricted to the following
types:
(A) Notices of the Association's recreational and social affairs.
(B) Notices of Association's actions.
(C) Notices of Association meetings.
All such notices shall be submitted to the Company before they are posted.
Additional material other than that specified above may be posted with the
Company's consent.
The Respondent's principal argument on this point is that by agreeing with the
Company that it would post notices to the employees on the bulletin boards in the
plants, the Union must be deemed as having also agreed there would be no other
distribution of union literature on the premises. The sole other evidence pertaining
to this defense is passing and indirect testimony by Supervisor Lawrence Booher,
who had been a member and sergeant-at-arms of the Union until November 1960.
Booher was called by the Respondent to help prove that the no-solicitation and no-
distribution rule had long been enforced. To support this assertion he said he knew
this was so because "it was discussed in all union meetings at that time and when we
have negotiations it was negotiated with the Company at the same time " It is
also true that in 1957 the Company did post the very same rule. Whether or not
in the intervening period between 1957 and 1961 the Company enforced such a
rule against distribution of union literature, however, is by no means clear on the
record. Company witnesses testified there had been no such distribution and that
the rule was always in effect. Five employees testified to the contrary, and said
that during the few months before April 1961 they passed out great numbers of
handbills in the plants. They named eight supervisors, dispersed among the various
plant locations, as having stood by watching them as they made the distribution, and
they said six of these supervisors even accepted copies of the union handbills. Not-
withstanding the personnel manager's insistence the rule had always been in effect,
none of these named supervisors was produced as a witness. I credit the employees.
The right of employees to solicit in favor of a union among other workmen, and
to distribute literature about the Union on their own time in the plant, derives
directly from the statute itself. It is also now clear that a union, acting as majority
representative on behalf of the employees, may, in regularly negotiated and fairly
bargained collective-bargaining agreement, relinquish such a statutory right 2 How-
ever, because such a right is conferred by the Act, and because its free exercise by
the employees goes to the heart of the rights guaranteed them by Section 7 of this
statute, a clear principle of law has come into being, requiring that a waiver will only
be found to have been given when it appears in "clear and unmistakable" or "clear
and unequivocal" language.3 Measured against this high standard of proof, the
Respondent's waiver defense falls short of the requisite clear and unmistakable proof
of intent to surrender the statutory right.
Booher's passing remark that during negotiations the subject of distribution of
literature "was discussed" sheds no substantive light on the factual question of
whether or not the Union, on behalf of the employees, bargained away so substan-
tial, affirmative and necessary a statutory privilege. The contract itself is com-
pletely silent on the question of solicitation or distribution of literature by the
employees among themselves. In the absence of extrinsic evidence it can hardly be
said that an express agreement to permit posting of union notices on the bulletin
boards necessarily carries with it also an agreement that neither the Union nor the
employees would otherwise attempt to communicate with one another in their place
of work or to pass out handbills related to union affairs. And of course, the fact
that even during the life of the agreement itself distribution was carried on, with the
a Wooster Division of Borg-Warner Corporation, 113 NLRB 1288, enfd in pertinent
part 356 US 342
sTide Water Associated Otii Company, 85 NLRB 1090: "We are reluctant to deprive
employees of any of the rights guaranteed them by the Act in the absence of a clear and
unmistakable showing of a waiver of such rights " Hekman Furniture Company, 101
NLRB 631: " . the Board will not, in any event, give effect to any purported waiver
of such right, unless it is expressed in clear and unmistakable terms"
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 859
supervisors accepting the practice without protest, indicates forcefully that there
was no implied or tacit agreement to the contrary in the contract language. As a
minimum I would have to say that if such a waiver is to rest upon the contract
language, it would have to be by way of "inference ," as distinguished from "un-
equivocal" indication arising from the terms of the agreement . I think the language
of the Second Circuit Court of Appeals in N.L.R.B. v. Otis Elevator Co., 208 F. 2d
176 (C.A. 2), is particularly apt here. "Respondent . . . contends that this [the
specific contract provision] sets forth this entire obligation . . . and constitutes a
waiver of any additional union rights. We cannot agree. In the atmosphere of
collective bargaining in labor relations it is reasonable to require that the parties set
forth the terms on which they have agreed. But the drawing of broad inferences
of a waiver from their silence would be disruptive rather than fostering of amicable
relations.. ..
3. The third and fourth defenses go to the heart language of Section 7 of the
statute, which sets out those fundamental rights of employees with which the Act
as a whole is concerned. For many years the Respondent has recognized this Union
as exclusive representative of its production and maintenance employees, totaling
now over 600. It has executed consecutive collective-bargaining agreements with
it; the contract in effect at the time of the hearing contains no provision requiring
employees to join the Union and the president of the local union testified, without
contradiction, that there are employees who are not now members. Is the fact
that the Employer has recognized the Union and that the handbills sought to be
distributed are not outright solicitations for employees to join the Union, sufficient
reason to permit the Employer to deprive them of any right to carry on union
activities at their place of work, including the distribution of union literature, dur-
ing nonworking time, as the Respondent now contends? I think not.
Basically, the Respondent's theory of defense grounded on the existence of the
exclusive recognition agreement, is that because Section 7 of the Act guarantees to
employees the right to "self-organization," once successful majority representation
has been achieved, there are no further rights or privileges granted the employees
which they may choose to exercise in an employer's plant.
On its face the argument is too broad if only because there are employees who
are not members of the Union; if the word "organize" be limited in meaning to
"enlisting into membership," a right which the Respondent apparently concedes to
the employees, it has not been exhausted here. But even if "to organize" means
only to bring into membership, the strongest union-security type contract would
not serve to assure membership of all employees.4
Apart from the Respondent's too restrictive reading of the phrase "self-organiza-
tion," this entire defense seeks to isolate a single phrase out of Section 7 and to
ignore other, perhaps more significant, statements of employee rights set out there.
The section reads:
Employees shall have the right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, ... .
Thus, the very language of the section itself shows that its clear intent was not
only to assure the right to form labor organizations, but also to "assist" them, and
"to bargain collectively" when self-organization has been achieved and recognition
obtained from the employer. If the section contained nothing more, the Respond-
ent's defense at this point must fall. Implicit in the defense argument is the con-
tention that all that was contemplated by Section 7 was that employees should form
unions and be recognized by their employer, but that what happens thereafter is
of no concern to the scheme of the statute. Such a limited reading of Section 7
would effectively emasculate the language as a whole; the section must necessarily be
read in its entirety If it could be said that any particular phrase is to be ac-
corded paramount importance, instead of "self-organization," I believe it would
have to be "to bargain collectively." Indeed, that the emphasis should rest on the
latter phrase, rather than on any of the other subordinate ones preceding and fol-
lowing it, is clearly indicated by the statement of congressional policy appearing in
Section 1 of the Act: "It is hereby declared to be the policy of the United States
to eliminate . . . obstructions to the free flow of commerce . . . by encouraging the
practice and procedure of collective bargaining ..." It would be a futile gesture
indeed to assure employees the right to form unions, and even to prevail upon their
d Compare Union Starch and Refining Company, 87 NLRB 779, enfd. 186 F. 2d 1008
(C.A 7), cert. dented 342 U S. 815
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer to admit their existence , but to deny them equal privilege to carry on
that collective bargaining which the statute as a whole without question was in-
tended to foster and to protect . It is only by full fruition of this right "to bargain
collectively," that the industrial peace which the statute envisions in its entirety may
be achieved . And the very union handbills which the employees sought to pass
around among their fellow workers , received in evidence , and which the Respondent
here attempted to suppress in the plant , related in part to the current contract negotia-
tions then going on between the Union and the Company.
I deem it too late in the development of the law of labor-management relations
to accord extensive consideration in words to this particular defense. I find it with-
out merit.
4. The Respondent 's final , and, I believe, primary defense, is that in this plant,
in this town , among these employees , the right to distribute union literature during
nonworking time on company premises does not exist . To remove this case from
the broad and all-inclusive ambit of the lead Board and court decisions in this area,
the Respondent relies upon its assertion that the union representatives-officers and
stewards-among its employees could as well , or with greater facility , distribute
union literature to other employees off the company premises . To prove what its
counsel referred to as adequate or easy accessibility to fellow workers, the Respond-
ent offered to prove a number of facts which it deemed pertinent to this defense.
Among these were the following : ( 1) The Union represents about 600 employees
and the total population of the city of Wabash is only about 12,000; ( 2) the union
hall is located but a short distance from the Respondent 's main plant ; ( 3) the Union
has 30 stewards and 9 officers , all employees working in these plants ; (4) the
entrances to the various plants are located immediately adjoining the public side-
walks near the piemises ; and (5 ) there are "Stop" signs placed at the entries to the
Respondent 's parking lots used by employees who drive to work by automobile I
believe the decisional precedent on the issue raised by this defense argument is so
clearly adverse to the Respondent that this last contention , making the validity of
a no-solicitation or no-distribution rule turn upon the particular facts of a given
case on an ad hoc basis , can in no circumstances prevail. I therefore rejected the
Respondent 's offer to prove the facts set out here, and certain others of like kind 5
It is important at the outset to make clear that all that was involved in this no-
solicitation and no-distribution rule was the conduct of employees , as distinguished
from any solicitation or distribution activities on company premises by strangers
to the plant , or outside organizers and union representatives .6 We are dealing there-
fore literally with the statutory right of employees to engage in concerted activities
where they work, where they are most likely to have a common meeting ground with
respect to that common denominator which joins them as to those interests which are
the sole concern of this statute . It was precisely this right , of the employees them-
selves , that was considered by the Supreme Court in the first cases in which it had
occasion to speak on the subject . In Republic Aviation Corporation v. N L.R B.,
and in N.L.R B. v. LeTourneau Company of Georgia, both reported at 324 U.S.
793, employees were disciplined in their employment because they persisted in
distributing union literature on company premises outside of working time. In
holding , as did the Board, that an employer cannot lawfully impede such union
activities by the employees during their time in the plant, the Court considered and
rejected the defense that an unfair labor practice finding against the employers could
only be made if there was direct evidence that the prohibiting rule in fact interfered
with and discouraged union activities among the employees . On this point the
Court said:
The contention is that there must be evidence before the Board to show that
the rules and orders of the employers interfered with and discouraged union
organization in the circumstances and situation of each company . Neither in
the Republic nor in the LeTourneau cases can it be properly said that there was
evidence or a finding that the plant 's physical location made solicitation away
from company property ineffective to reach prospective union members. [Em-
phasis supplied.]
I read this language to mean, in the least, that the proscriptive rule once shown
to have been promulgated and/or enforced , the employer 's illegal interference with
5 Consistent with my ruling rejecting the Respondent 's various offers of proof, I also
rejected offers by the General Counsel to prove that distribution of union literature by
employees among fellow workers could not adequately and safely be cariied on off the
Respondent 's premises
6 Cf. N. E, R B . v The Babcock & Wilcox Company , 351 US 105.
MINNEAPOLIS-HONEYWELL REGULATOR COMPANY 831
the statutory right of the employees has been established without more. Indeed, it
was this language which started the line of decisions referring to the rule of law as
"the presumptive invalidity of a no-distribution rule on company premises during
nonworking time."
The Respondent here goes further and offers to prove affirmatively that there was
easy access elsewhere and that therefore, since there could be effective solicitation or
distribution outside the plant premises, no finding of illegal interference by the
Respondent can be made. The reasoning here is that even if illegality can be found
in a vacuum, as it were, where there is no evidence at all as to facility or difficulty
of access among employees off the company premises, where there is proof of easy
accessibility elsewhere the presumption of illegality in the rule is rebutted. I
believe a fair reading of the Supreme Court decision in the Republic Aviation case
supports a conclusion that the Court meant thereby also to hold that regardless of
whether or not employees could effectively solicit among others outside the plant or
effectively distribute union literature, their right to do so in the plant on their time
is nevertheless protected, and that facts relating to accessibility or inaccessibility out-
side the plant are immaterial to the question of the validity or invalidity of the no-
solicitation rule. However that may be, I think the Supreme Court's later com-
ment with respect to this same early decision dispels any ambiguity appearing in
its wording. In N.L.R.B. v. The Babcock & Wilcox Company, supra, the Court
addressed itself to an employer's privilege to keep outsiders, nonemployee solicitors
or distributors, away from its parking lots. On this more limited question, the
Court made other conclusions as to validity or invalidity of exclusion rules by em-
ployers, but it made clear that whatever rules might apply to strangers, there is a
substantial distinction between the rights of employees and those of outsiders In
reiterating the point of law enunciated earlier in Republic Aviation, the Court said,
in The Babcock & Wilcox Company: "No restriction may be placed on the employ-
ees' right to discuss self-organization among themselves, unless the employer can
demonstrate that a restriction is necessary to maintain production or discipline." 7
Here, the Court's reference back to its own earlier decision, removes all doubt that
where the right of employees is concerned, the rule of presumptive illegality is a
flat one, applicable regardless of the situation outside the plant itself, and that
promulgation or enforcement of the rule is in all instances a violation of Section
8(a)(1), except for the specific situations enumerated by the Court itself.
In essence, the Respondent's affirmative defense here is really an attempt to
carve out a further exception to the blanket rule of presumptive invalidity of the
rule it put into effect at least in April 1961. To date, the decisions have explicated
that the presumption is rebutted by evidence that the proscriptive rule "is necessary
to maintain production or discipline." As has been shown, neither of these two
exceptions can apply in the instant situation. A necessary effect of the Respondent's
affirmative defense here is that, wherever it can be shown by a respondent that there
can be effective solicitation or distribution elsewhere, a third exception to the
presumption of illegality stands. I think it clear that by enumerating two exceptions
to the point of law, and only two, the Court in Babcock & Wilcox intended the literal
meaning of its words. If the language of Republic Aviation permits a reading that
beyond the two exceptions all that exists is a "presumption" of illegality in a no-
distribution rule, the Court's later opinion in Babcock & Wilcox, also written by Mr.
Justice Reed, removes that ambiguity with the flat statement: "No restriction may
be placed on the employee's right...." More important, however, and more clearly
indicative that the Court intended not to permit the type of exception now urged
by the Respondent, is the fact that the degree of accessibility among employees out-
side the plant bears no relationship to any question of balancing conflicting rights
between the statutory one of employees to self-organization and the private property
right of employers. The very reason that underlay the two exceptions to the rule
of law was that distribution in the plant could present a discipline problem or in-
terfere with production. If we bear in mind that all that is involved here is the
activities of employees on their own time, it must necessarily follow that whether
they engage in such union activity on their own time in the plant or outside the
plant their conduct in no way conflicts with the employer's production process or
interest in discipline. Moreover, this fact itself warrants the inference that, absent
interference with production or a question of discipline, the only effect of a proscrip-
tive rule of this kind is to curtail the statutory right with which the act is con-
cerned. But this is the very point which makes such a rule constitute a violation
of Section 8(a)(1). The Respondent relies strongly upon the court decision in
N.L.R.B. V. Rockwell Manufacturing Company, in which the Third Circuit Court
of Appeals denied enforcement of a Board order, and held that evidence of easy
7 351 U S. 105, 113.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
access among employees off the company premises should be considered in this type
of case.8 I do not think that decision is controlling here because the Board did not
itself follow that view in its later decision in the Walton Manufacturing Company,
case, supra. Moreover, I believe the Rockwell decision rests upon only collateral
language in an earlier Supreme Court decision which did not concern itself with
the legality or illegality of any no-distribution rule. In N.L.R.B. v. United Steel-
workers of America (Nutone, Inc.), 357 U.S. 357, the limited question presented
and decided was whether an employer may itself violate its own no-solicitation or no-
distribution rule while enforcing it against the employees. As Mr. Justice Frank-
furter made clear in that opinion : "In neither of the cases before us (Nutone,
Incorporated, 112 NLRB 1153, and Avondale Mills, 115 NLRB 840) did the party
attacking the enforcement of the no-solicitation rule contest its validity."
Finally, I believe intelligent administration of the statute as a whole also dictates
rejection of this defense by the Respondent. It is only with clarity in the ground
rules and a high degree of predictability in the administrative construction of the
language of the statute, that industrial peace and stability in labor relations can
be achieved. If the unequivocal fiat of the courts with respect to employee self-
organizational rights where they work is to be further confused by an ad hoc con-
sideration in every instance of the manifold and ever-varying situations surrounding
a particular plant, no employee would ever be secure in the knowledge that his exer-
cise of such rights during his nonworking time is truly protected and no employer
could know in advance whether promulgation and enforcement of its no-distribution
rule is a proper exercise of property right. Each and every situation would depend,
in the end, upon an ultimate Board or court conclusion in the particular case as
to whether the multitudinous and detailed factual situation in a given instance makes
the rule legal or invalid. In short, every case in which employees should attempt
to solicit among themselves or pass about union handbills during their lunch hour
or coffee breaks, would require the taking of detailed testimony of the type offered
by the Respondent in this instance. Absent any evidence of interference with
the proper concern of an employer-production and maintenance of discipline-
absent any balancing of conflicting rights between employees and employers, the
proper interest of the collective-bargaining process are better served by elimination
of unending litigation, than by announcement, so many years after enactment of
Section 7 of the statute, of a new rule of law which would virtually preclude any
earlier decision from serving as precedent for subsequent proceedings.
On the entire record, and for the reasons set out above, I conclude that by
promulgating a rule against solicitation and distribution of union literature by em-
ployees during nonworking time on company premises on and after April 13, 1961,
the Respondent restrained and coerced the employees in the exercise of the rights
guaranteed them by Section 7 of the Act, and thereby violated Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
thereof
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Minneapolis-Honeywell Regulator Company is an employer within the mean-
ing of Section 2(2) of the Act.
2. By promulgating a rule prohibiting employees from soliciting membership in,
or circulating circulars and handbills on behalf of, Regulator Employees' Associa-
tion, affiliated with IUE-AFL-CIO. Local No. 908, or any other labor organiza-
tion, on company property during nonworking time, the Respondent has interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act, and has thereby committed unfair labor practices within the
meaning of Section 8(a) (1) of the Act
3. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.].
8 271 F. 2d 109 (C A. 3)