United Aircraft Corp.

National Labor Relations Board - Board Decisions

Apr 23, 1946

67 N.L.R.B. 594 (N.L.R.B. 1946)

In the Matter Of UNITED AIRCRAFT CORPORATION, PRATT & WHITNEY
AIRCRAFT DIVISION and INTERNATIONAL ASSOCIATION OF MACHIN-
ISTS
Case No. 1-C-2350.Decided April 23, 1946
DECISION
AND
ORDER
On June 20, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the 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 copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions to the
Intermediate Report and a supporting brief. On March 26, 1946,
the Board heard oral argument at Washington, D. C., in which the
respondent and the Union participated.
The Board has reviewed the Trial Examiner's rulings made 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 respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the additions and excep-
tions hereinafter set forth.
1. We agree with the Trial Examiner that the respondent's treat-
ment of Andrew G. Gaura was discriminatory and violative of the
Act. In reaching this conclusion, we rely on all the findings of the
Trial Examiner and all the circumstances revealed in the Intermediate
Report and in the record, especially the disparity of treatment between
Gaura and other employees with respect to proposed transfers. As
set forth in the Intermediate Report, the respondent discriminatorily
sought to compel Gaura to transfer to a Norton machine on penalty
of separation from the pay roll. Gaura informed the respondent that
he was afraid to operate that machine and refused to accept the trans-
fer. Whereupon, the respondent forced his termination of employ-
ment. In contrast to this treatment, the record reveals, as the Trial
Examiner points out, a number of instances in which other employees
67 N T. R. B, No 80
594
UNITED AIRCRAFT CORPORATION 595
refused, with impunity, to accept transfers to positions which they
deemed unacceptable. Thus, these employees were permitted to reject
the proposed transfers, and no disciplinary action was threatened or
taken by the respondent.
We also agree with and adopt the Trial Examiner's recommendation
that Gaura be reinstated with back pay?
2. We do not agree with the Trial Examiner's finding that the dis-
charge of Leona C. Rocheleau was discriminatory. The respondent
contends, and we agree, that Rocheleau was discharged because of her
penchant for sleeping on the job. The record shows, as set forth in
the Intermediate Report, that on two occasions prior to the day of her
discharge, Rocheleau was observed sleeping on the job by Group Leader
Arthur Maddock; that on the day of her discharge, both Maddock and
Foreman William Bergstrom observed Rocheleau again sleeping dur-
ing working hours; and that after Maddock had advised Bergstrom
that he had warned her on two earlier occasions, Bergstrom, in accord-
ance with an established policy of the respondent, discharged Roche-
leau? Accordingly, we find that the record fails to establish that
Rocheleau's discharge was violative of the Act and we shall dismiss the
complaint as to her.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, United Aircraft Corpora-
l ion, Pratt & Whixney Aircraft Division, East Hartford, Connecticut,
and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Association of
Machinists, or in any labor organization of its employees, by trans-
ferring, discharging or refusing to reinstate any of its employees, or by
discriminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment;
(b) In any other manner interfering with, restraining, or coercing
As employees in the exercise of the right to self-organization, to join
or assist International Association of Machinists, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
I See Matter of Theodore R Schmidt , 58 N L It. B 1342; Matter of Kopman -Woracek
Shoe Mfq. Co . 66 N. L. It. B. 789.
2 The record shows that Bergstrom had discharged several named employees who had
been found sleeping on the job The Trial Examiner's purported distinction between the
conduct of these employees and that of Rocheleau is neither convincing nor indicative of
diS(rinmlaIion
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Rescind immediately its rules against solicitation and distribu-
tion of literature insofar as they prohibit union activity and solicita-
tion on the employees ' non-working time, and prohibit distribution of
union literature outside the gates of the plant or in the parking lots;
(b) Offer to Andrew G. Gaura and Vernon S. Brown immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges;
(c) Make whole Andrew G. Gaura and Vernon S. Brown for any
loss of pay they have suffered by reason of the discrimination against
them, by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages during the
period from the date of the respondent's discrimination against him,
to the date of the respondent 's offer of reinstatement , less his net earn-
ings during said period;
(d) Post at its plant at East Hartford , Connecticut, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by the respondent 's representatives , be posted
by the respondent immediately upon receipt thereof, and maintained
by it for sixty (60) consecutive clays thereafter , in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that said
notices are not altered , defaced, or covered by any other material;
(e) Notify the Regional Director for the First Region in writing,
within ten ( 10) days from the date of this Order , what steps the re-
spondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint , insofar as it alleges that
the respondent has discriminated against Leona C. Rocheleau , within
the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed.
MR. GERARD D. REILLY, concurring in part, dissenting in part :
I concur with the findings and Order in this case except that portion
of the remedy which awards back pay to Andrew G. Gaura. Gaura
elected to refuse a transfer to other work which was not shown to have
been intolerable or actually more hazardous than his former work, and
thus forced his termination . Gaura's proper course of action in the
circumstances would have been to comply with the transfer order and
then to file charges invoking his administrative remedies under the
Act. I am of the opinion , therefore , that Gaura is entitled to no more
than reinstatement to his former position.a
' See my dissenting opinion in Matter of Naples-Platter Cornpanio, 49 N. L R B 1156,
at 1159-60, and the subsequent reversal of the majority be the Fifth Circuit in 140 F,
(2d) 228 See also, Matter of Kopman-Woraceh Shoe Mfq Co , 66 N L R B, 789
UNITED AIRCRAFT CORPORATION
APPENDIX A
NOTICE TO ALL EMPLOYERS
597
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, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist International Asso-
ciation of Machinists, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection.
We will offer to the employees named below immediate and full
reinstatement to their former or substantially equivalent positions
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make them whole for any loss of pay
suffered as a result of the discrimination.
Andrew G. Gaura
Vernon S. Brown
We hereby rescind General Shop Rules (22), Rules 1 and 2
of Rules and Regulations revised as of July 20, 1937, insofar as
they prohibit union activity and solicitation on the employees'
non-working time, and prohibit distribution of union literature
outside the gates of the plant or in the parking lots.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
UNITED AIRCRAFT CORPORATION, PRATT &
WIIITNEY AIRCRAFT DIVISION
Dated----------------- By---------------------- ------------
(Representative ) (Title)
NOTE.-Any of the above-named employees presently serving in the
armed forces of the United States will be offered full reinstatement
upon application in accordance with the Selective Service Act after
discharge from the armed forces.
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Messrs. Leo J . Halloran and Samuel G. Zack , for the Board.
Shipman & Goodwin, of Hartford , Conn., by Mi . Waif rid G . Lundborg , for the
respondent.
Mr. Harold F. Reardon , of Boston , Mass., Mr. David Clydesdale , of Hartford,
Conn., and Mr . Edmund J. Peresluha , of Manchester , Conn., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge duly filed on September 18, 1944, by Inter-
national Association of Machinists , affiliated with the American Federation of
Labor, herein called the Union, the National Labor Relations Board, herein
called the Board , by its Regional Director for the First Region ( Boston, Massa-
chusetts ), issued its complaint on September 19, 1944, against United Aircraft
Corporation , Pratt & Whitney Aircraft Division ' of East Hartford , Connecticut,
herein called the respondent , alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( 1) and ( 3) and Section 2 t6) and ( 7) of the National Labor Relations
Act, 49 Stat . 449, herein called the Act. Copies of the complaint accompanied
by notice of hearing thereon were duly served upon the respondent and the Union.
With respect to the unfair labor practices , the complaint alleged, in substance,
that : ( 1) from on or about December 23, 1943, by excluding union representatives
from a public highway adjacent to the respondent 's plant , as well as from a por-
tion of the respondent ' s premises known as the South Parking Lot, and pre-
venting the distribution of union literature upon the said highway and within
the said South Parking Lot ; by restraining its employees and members of the
Union from distributing union literature upon the said public highway , as well
as upon the said parking lot upon the employees ' own time ; by statements and
threats of economic reprisals to its employees calculated to discourage union
membership and activity , the respondent has interfered with, restrained and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the
Act; and ( 2) by discharging and refusing to reinstate ceitain named employees
because of their union activity ,' the respondent has discouraged membership in
the Union.
The respondent's answer admits the allegations of the complaint concerning
the nature of its business and its operations in interstate commerce , but denies
the commission of any unfair labor practices.
Pursuant to due notice a hearing was held at Hartford , Connecticut on divers
dates from October 16 , 1944 to and including November 21, 1944, before Irving
1 The name of the respondent as amended during the course of the hearing.
2 The dates of the discharges and the names of the employees involved are
December 23, 1943, Andrew G. Gaura
June 19, 1944 , Richard W . Leroux.
June 20 , 1944, Morris Davis *
June 23, 1944 , Vernon S. Brown.
July 15, 1944 , Leona C . Rocheleau.
*With respect to Morris Davis , counsel for the Board stated at the hearing that
neither the Board nor the Union had been able to locate Davis up to the time of the
bearing , and therefore moved to dismiss, without prejudice, the allegation in the
complaint that he was discriminatorily discharged . The motion was granted over
the objection of counsel for the respondent who contended that the complaint
should he dismissed as to Davis "with prejudice"
UNITED AIRCRAFT CORPORATION 599
'Rogosin, the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The Board and the respondent were represented by counsel and
the Union by representatives. All parties participated in the hearing and were af-
forded full opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues. At the conclusion of the Board's
case the respondent moved to dismiss the complaint with respect to certain
allegations. The motion was renewed at the close of the hearing. Ruling on
the motion was reserved in each instance. The motion is hereby denied. Mo-
tions by counsel for the Board and the respondent at the conclusion of the
evidence to conform the pleadings to the evidence adduced with respect to for-
mal matters were granted without objection. All parties were afforded an
opportunity to argue orally upon the record and to file briefs. Counsel for
the Board and the respondent argued upon the record and subsequently filed
briefs with the undersigned.
Upon the entire record in the case and from his observation of the witnesses
the undersigned makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE RESPONDENT i
United Aircraft Corporation, a Delaware corporation, with its principal office
and plant division at East Hartford, Connecticut, is engaged in the manufacture
of aircraft engines, accessories, propellers, and air frames at its plants in several
States. Pratt & Whitney Aircraft Division, involved in this proceeding, is
engaged in the manufacture of aircraft engines, parts and accessories. Re-
spondent's monthly purchases of raw materials at its several plants a are valued
in excess of $1,000,000, of which more than 90 percent is shipped to its plants
from points outside the State of Connecticut. The respondent manufactures
and ships from its plants finished products valued in excess of $1,000,000
monthly, of which 98 percent is shipped to points outside the State of Connec-
ticut. The respondent concedes that it is engaged in commerce within the
meaning of the Act.
H. THE ORGANIZATION INVOLVED
International Association of Machinists, affiliated with the American Federa-
tion of Labor, is a labor organization admitting to membership employees of the
respondent.
9 The devisions of United Aircraft Corporation are: Pratt & Whitney Aircraft Division,
Hamilton Standard Propellers Division, both located at East Hartford, Conn , Chance-
Vought Aircraft Division, located at Stratford, Conn , and The Sikorsky Aircraft Division
located at Bridgeport, Conn. In addition to the foregoing, the respondent operates Pratt
& Whitney Aircraft Corporation of Missouri, a wholly owned subsidiary. "Departments"
of Pratt & Whitney Aircraft Division are also located at East Longmeadow, Mass, Willi-
mantic, Buckland, and Southington, Conn , and at the Packard plant, so-called, located at
Hartford, Conn These "departments" as well as other subdivisions of Hamilton Standard
Propellers Division, located in Rhode Island, Norwich and West Hartford, Conn, not here
involved, are sometimes referred to as "satellite plants" of Pratt & Whitney Aircraft
Division and Hamilton Standard Propellers Division respectively. It is apparent from
the record that the satellite plants of Pratt & Whitney Aircraft Division are integrated
with the operations of the principal plant at East Hartford Personnel policies covering
all divisions of United Aircraft Corporation are under the direction of Personnel Director
Martin F Burke, and emanate from his office in the Pratt & Whitney Aircraft Division
at East Hartford
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A The plant site
Pratt & Whitney Aircraft Division, sometimes herenuifter referred to as the
plant, or the East Hartford plant, is situated in the town of East Hartford,
Connecticut. It covers an extensive area bounded on the west and southwest
by Main Street, a principal thoroughfare, on the north by Willow Street, noeth-
west and east in part by Mercer and Whitney Avenues, all public highways The
principal administration and office buildings are situated on Main Street and
are set back some distance from the public highway. The personnel and employ-
ment office is located in a building known as the "White Howe" situated at the
corner of Willow and Main Street The office paiking lot is situated about 100
feet from this corner. Access to the factory buildings, located beyond the admin-
istration and office buildings, is afforded by means of three gates in a fence on
the south side of Willow Street. The gate nearest the intersection of Main and
Willow Streets, designated as Gate No. 2, is located at a distance of approximately
150 yards from the intersection. Proceeding in an easterly direction, Gate No.
4 is located approximately 200 yards beyond Gate No 2; Gate No 5, some 300
yards beyond Gate No 4. On the northerly side of Willow Street at or near
its intersection with Mercer Avenue theee is situated a paikmg lot referred to
as the North Parking Lot, which is used, because of its proximity to the plant
gates, by Navy personnel and employees who are physically incapacitated. This
entire parking lot is surrounded by an "anchor" fence consisting of heavy wire
mesh in which there are three gates for the accommodation of "truck" travel
and one for pedestrian travel. There is no sidewalk adjacent to this fence which
is set back 12 feet from the street line.' Approximately 240 automobiles were
parked daily in this lot during the period in question Situated on the north
side of Willow Street, in addition to the North Parking Lot and medical and
personnel buildings belonging to the respondent, are a number of private dwellings,
a private parking lot referred to as "Tony's Parking Lot" and a restaurant known
as "Montit's Grill."
Located in the southerly portion of the respondent's premises and separated
by a driveway some hundred yards in length from Brewer Street, a public high-
way running east from Main Street, is another larger parking lot referred to
as the South Parking Lot which, during the spring of 1944, accommodated an
average of approximately 2300 to 2400 automobiles during the clay shift.'
B. Interference, restraint, and coercion
1. The Willow Street incidents
In October 1943, David Clydesdale, Grand Lodge Repiesentative of the Union,
arrived at Hartford to succeed a former union organizer in conducting the
organizational campaign which had been initiated several months earlier among
the respondent's employees at the Pratt & Whitney Aircraft Division.
At about 2 o'clock in the afternoon of November 8, 1943, Clydesdale, accom-
panied by Grand Lodge Representative William Howard, went to the southerly
4 The respondent contends that the 12 -foot strip of land between the street line and
the fence is part of the respondent ' s property. No evidence was adduced to establish title
to this strip of land, and the undersigned considers it unnecessary to make a finding with
respect to this contention in view of the findings hereinafter made.
' According to Chief Guard Reginald J. Meehan, a tabulation of the number of passen-
gers per car using the parking lots disclosed an average of 3 8 persons.
UNITED AIRCRAFT CORPORATION 601
corner of Main and Willow Streets for the purpose of distributing copies of the
Union's "Aircraft Bulletin " to employees entering the plant on the second shift.'
They observed a wooden barrier about 10 or 12 feet from the corner extending
half way across Willow Street. A metal sign suspended from the barrier indi-
cated that the street was closed to the public . Plant guards were stationed
at about that point on Willow Street. No attempt was made by the union repre-
sentatives to enter upon Willow Street at that time.`
During the latter part of January 1944 , Grand Lodge Representative Edmund
J Peresluha, in the presence of Clydesdale and Howard, telephoned Personnel
Director Burke, requested a conference regarding the closing of Willow Street
and informed him that his investigation disclosed that the street had been ille-
gally closed by reason of the fact that the Board of Street Commissioners rather
than the Town Council, in which such authority was lodged, had ordered the
closing of the street e Peresluha further informed him that neither the military
authorities nor the State Police Department had closed the street and that Chief
Kelleher had informed him that his department would not interfere with the
entry by union representatives upon Willow Street When Peresluha mentioned
that Chief Kelleher had also informed him that a pass might be obtained from
Burke to enter upon Willow Street inasmuch as Burke had been issuing passes
to persons having legitimate business on the street, Burke retorted that he did
not consider the Union 's business on the street "legitimate" and declined to issue
passes to its representatives. Burke further stated to Peresluha that he consid-
ered the street legally closed and saw no reason for meeting with the union rep-
resentatives. Peresluha thereupon informed Burke that the Union was asserting
its right to use the public highway for the purpose of distributing union litera-
ture at the plant gates, and urged that the controversy be resolved by a confer-
ence Burke concluded the conversation by announcing to Peresluha that if
the union representatives attempted to enter upon Willow Street they would be
ejected.
On or about January 26, 1944, Grand Lodge Representatives Clydesdale, Howard
and Peresluha drove into Tony's Parking Lot on the northerly side of Willow
Streets and, after parking the car, crossed diagonally to the Gate No. 2 entrance
to the respondent's- plant, each carrying about 500 copies of the union publication.
They were approached by a plant guard who asked for their identification When
they informed him that they had no "Pratt & Whitney identification," the guard
told them that they would not be permitted to distribute literature there unless
they were Pratt & Whitney employees. The organizers remonstrated that Wil-
]ow Street was a public highway, that the respondent had no right to order them
off the street, and refused to leave. The guard left and returned shortly afterward
reiterating his demand that they leave. About 5 or 10 minutes later a "cruising"
car appeared and Chief Guard Meehan attired in civilian clothes approached
them and identified himself. He asserted that the street had been legally closed
by virtue of a town ordinance ; that the respondent owned to the middle of the
way and that they were, in effect, on private property. The union representatives
refused to leave and Meehan informed them that if they did not leave peaceably
9 The first shift commenced at 7 o'clock a. in ., the second shift at 3 : 30 p. in , and the
-third shift, at 12 midnight.
?According to Clydesdale , however , approximately 1,000 copies of the Aircraft Bulletin
were distributed on this occasion at the intersection of Main and Willow Streets within
a period of about 2 hours.
8 Clydesdale and Peresluha had conferred earlier with Chief of Police Kelleher of the
A own of East Hartford and, at the latter's suggestion , Peresluha had communicated with
the secretary of the Board of Street Commissioners
9 Tony 's Parking Lot could apparently be entered from Main Street.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would remove them forcibly . When the men declined to leave, Meehan
"escorted" Clydesdale and Howard to the corner of the street 10 Peresluha
crossed to his car in the parking lot and the men left in his car.
Sometime in March 1944 , Field Examiner Knowlton informed Peresluha that
the respondent had agreed to permit him to distribute union literature on Willow
Street inasmuch as lie was still considered an employee of the respondent"
Thereafter , Pereslulia entered upon Willow Street and took up a position in
front of the gates to the North Parking Lot opposite the Gate 5 and 6 entrances
to the plant , distributing union literature to employees passing from the parking
lot to the plant gates on the opposite side This continued without interference
for a period of several weeks.
Early in April , however, at about 2:40 o'clock in the afternoon , while Pere-
sluha was distributing literature , Plant Guard Scott approached him and asked
for his Pratt & Whitney identification badge Peresluha informed Scott that
lie had none , but that lie understood that the respondent had agreed with Field
Examiner Knowlton that lie would be permitted to distribute union literature
because of his status as art employee on leave of absence from the Hamilton
Standard Propellers Division Scott left and returned several minutes later,
informing Peresluha thit he was under orders not to permit distribution of
literature on Willow Street, that Peresluha was not properly identified , that he
had no business on Willow Street and would have to leave. Peresluha pro-
tested , asserting his right under the Act to remain on the street Scott in-
formed Peresluha that he vas under orders to remove him forcibly if necessary
When Peresluha refused to leave , Scott left and returned with Chief Meehan
Meehan told Peresluha that he had communicated with Personnel Director
Burke and learned that Peresluha's statement regarding his permission to enter
upon Willow Street was untrue and ordered him to leave , threatening to eject
him forcibly if necessary . A discussion ensued regarding the legality of the
closing of Willow Street, during which , in response to a threat by Meehan to use
"State Police authority " to remove him, Peresluha reminded him that he was
not violating any municipal ordinance , as he had ascertained in the course of
his investigation . Meehan instructed Scott to remove Peresluha , arid as Scott
undertook to comply, Peresluha gripped the fence near which lie was standing
While Scott tugged at Peresluha, Meehan attempted to disengage Peresluha's
fingers from the fence . Meanwhile a small group of employees had congregated
during the change of shifts , and Peresluha remarked to Meehan that the latter
was "putting on a pretty good show." Meehan thereupon replied, "That's what
you want, is it?" With that , he instructed Scott to release Peresluha and left.
Shortly afterward Meehan returned and told Peresluha that Burke had in-
formed him that Peresluha would be permitted to distribute union literature
on Willow Street, inasmuch as he was an employee on leave of absence, but
that no one else would be permitted to do so. Meehan thereupon left and the
episode ended Peresluha was not subsequently hindered or interfered with in
the distribution of union literature on Willow Street."
10 Clydesdale testified, and the undersigned finds, that he showed Meehan his credentials
as Grand Lodge Representative during this encounter.
11 Prior to January 1, 1944, Peresluha had been an employee of the United Aircraft
Corporation at its Hamilton Standard Propellers Division and, as president and chairman
of the shop committee, had had occasion to confer with Burke. Since January 1,
Peresluha has been on leave of absence and has been active in organizing employees at
the Pratt & Whitney Aircraft Division
12 The findings in the foregoing section are based principally upon the credible testimony
of Pereslulia and Clydesdale. Howard did not testify, and the respondent's version did
not differ materially from that of the Board 's witnesses.
UNITED AIRCRAFT CORPORATION 603
Respondent's contentions regarding exclusion of union organizers from Willow
Street; conclusions
The respondent contends that the closing of Willow Street was necessitated
by reason of plant security following the attack on Pearl Harbor. According
to Chief Guard Meehan, he undertook to close Willow Street to public travel
on his own initiative on that night and "considered" that he had authority to
do so in his capacity as "Chief of the Guard of a vital war plant " and as a
"special State Police officer." On the following night, an anti-aircraft battery,
arrived at the respondent's plant which was billeted at the air field on the plant
premises . A military guard, augmenting the respondent's guards, was estab-
lished, and Chief Meehan thereafter conferred with Army and Navy officers
from time to time, receiving instructions relative to plant security. Rigid
inspection of employees and visitors, both pedestrian and those arriving in auto-
mobiles, was enforced ; employees were required to display identification badges
and other customary precautions were established. In September 1942, the
lespondent's guard force was inducted into the United States Coast Guard and
Chief Meehan was commissioned a lieutenant commander in the Coast Guard
Reserve.
On June 20, 1942, in response to a request by W. Y. Humphreys, director of
plant protection for United Aircraft Corporation, addressed to the chairman of
the Board of Street Commissioners for the town of East Hartford, the Director
cf Public Works notified Humphreys by letter that at a meeting of the said
Board held on the preceding day it had been voted to approve the respondent's
request that "Willow Street from its point of beginning at Main Street to
where Willow Street intersects Mercer Avenue and that Mercer Avenue be
formerly (sic) closed from the point where it intersects Willow Street to a
point just beyond the property line of the United Aircraft Corporation where
Mercer Avenue is joined by Whitney Street," and to allow the use of portable
barricades to accomplish the closing of those streets.
The respondent contended at the hearing, as well as in its brief, that the legality
of the closing of Willow Street, although challenged, has never been judicially
determined . However, Personnel Director Burke testified that, following one
of Field Examiner Knowlton 's visits in which Knowlton indicated that in his
opinion Willow Street had not been legally closed, Burke ascertained from the
respondent's "legal department" that Willow Street had not been legally closed
inasmuch as the Board of Street Commissioners did not have authority to close
the street.
In about May or June 1944, the anti-aircraft unit was withdrawn from the
respondent's premises, and the respondent's guard and plant protection employees
were demilitarized Inspection was considerably relaxed thereafter and the
respondent was instructed by the Navy Department that it might "assume calcu-
lated risks.'" Following the advice from its legal department respecting the
closing of Willow Street, instructions were issued by the respondent that union
organizers and other persons be permitted to enter upon Willow Street without
r nterference.
In sum, the respondent contends that the union organizers were excluded from
Willow Street between January and April 1944, as part of the general public, in
rue interest of plant security, and that it was fortified in this purpose by the
military authorities as well as by the ostensibly valid vote of the municipality
purporting to authorize the closing of Willow Street. Consequently, it is con-
"The complement of the respondent's guard was reduced from 420 as of January 1,
1944 to 315 as of the date of the hearing.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tended, such exclusion was not intended to interfere with the employees in their
light to self-organization, Moreover, the respondent urges that, following its
investigation into the authority for the closing of Willow Street, it permitted
representatives of the Union, as well as its employees, to distribute union litera-
ture upon Willow Street and has since permitted such distribution without
interference.
The record is too inconclusive to afford a basis for determining whether or not
Willow Street was legally closed, or to warrant a finding that the respondent
was not acting in good faith when it maintained that Willow Street had been
legally closed at the time it undertook to exclude the union organizers. In view
of the findings, hereinafter made, regarding the disparity of treatment between
union representatives and others who were permitted the use of the street, the
undersigned deems it unnecessary to make a finding respecting either the legality
of the closing of the street, or the respondent's good faith or lack of it, in main-
taining that the way had been legally closed. Finally, the respondent argues
that the matter of the exclusion of the union organizers from Willow Street has
become moot and that no order should be entered requiring it to cease and desist
from a course of conduct which it has since abandoned.
The credible evidence establishes that various tradesmen, venders and other
persons who, the respondent contended, had business with persons residing upon
Willow Street, as well as persons soliciting the custom of the respondent's
employees in connection with the sale of wares, were permitted to enter upon
Willow Street, either by virtue of written permits or permission granted by Chief
Guard Meehan, Director of Plant Protection Humphreys or Personnel Director
Burke. The respondent's contention, that it declined to grant permission to union
representatives on the ground that it would have been impossible to "grant per-
mission to certain individuals and refuse to grant it to others," and that it was
concerned about "outsiders coming in from outside the State [whom] we knew
nothing about," an ostensible attempt to put its denial to the union organizers
of access to Willow Street on the ground of plant security, is patently specious."
It is clear, therefore, and the undersigned finds, that by the foregoing conduct,
the respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by the Act. Respecting the respondent's con-
tention that it has voluntarily abandoned this unfair labor practice and that no
cease and desist order should enter as to this phase of the case, it is sufficient to
say that the abandonment by the respondent of the unlawful conduct does not
deprive the Board of the power to enter such an order?' Moreover, as will appear
hereinafter, the respondent's conduct in excluding the union organizers from
the public highway was an integral part of its conduct in interfering with the
organizational activities of its employees in other respects, and the undersigned
finds that the purposes of the Act will be best effectuated by requiring the re-
spondent to cease and desist from the acts of interference which it claims to have
abandoned.
2. South Parking Lot
South Parking Lot is situated in the southeasterly portion of the respondent's
plant premises. Access to this parking lot may be had from two directions ;
14 It will be recalled that Clydesdale exhibited his identification as Grand Lodge Repre-
sentative to Chief Guard Meehan on the occasion of his encounter with him. Moreover,
it would have been feasible for the respondent to investigate the citizenship and other
vital statistics concerning the union representatives if the respondent had been motivated,
in excluding the union organizers, solely by its concern for the security of the plant.
is See N. L. If. B. v. Burke Machine Tool Co., 133 F. (2d) 618 (C. C. A. 6).
UNITED AIRCRAFT CORPORATION 605
from the north by driving along Mercer Avenue or Whitney Street past guards
stationed at the entrance to a "ramp" located on the respondent's property,
thence continuing southerly along the ramp to an entrance situated at the north-
erly end of the parking lot adjacent to the respondent's airfield. The south en-
trance to this parking lot is approached by driving from Brewer Street, which
runs east from Main Street, to a private roadway approximately 100 yards in
length leading to the south entrance. Plant guards, whose duties generally
involved checking the identification of employees and inspecting automobiles
entering the plant premises, were stationed at each of the gates or entrances
to the South Parking Lot.
The respondent admits that prior to April 1944 it prohibited its employees
from distributing union literature in the South Parking Lot. Sometime in
March or April 1944, during the conference between Personnel Director Burke
and Field Examiner Knowlton, when the latter informed Burke that in Knowlton's
opinion Willow Street had been illegally closed, and the respondent finally agreed
to permit the distribution of union literature on Willow Street, Knowlton
furnished Burke with a copy of the Board's decision in the LeTourneau case.'
Thereafter, from April 1944 until July 11, 1944, the respondent permitted em-
ployees to distribute union literature at the gates leading from South Parking
Lot to the plant buildings" on days on which they were working, although
not on their days off. Following the decision of the United States Circuit Court
of Appeals in the LeTourneau case," however, and commencing on July 11, 1944,
the respondent revoked the permission theretofore granted to its employees,
and prohibited the distribution of literature in the South Parking Lot. The
respondent has since continued to prevent the distribution of literature in the
South Parking Lot.
The respondent relies, in part, on its right to exclude employees from the
parking lots, except when arriving at or leaving work, and to prohibit distribu-
tion of literature, upon a set of rules and regulations promulgated on July 20,
193718 In addition, the practice of excluding employees from the parking lots,
except as already indicated, was adopted, according to the respondent, as a
consequence of complaints of thefts of articles, tires and accessories from
parked automobiles. Furthermore, the respondent contends that regulation of
the use by employees of the parking lots, and prohibition of the unauthorized
distribution of literature were necessary and reasonable to prevent littering
Similar contentions, considered by the Board in the LeTourneau case, have been
rejected, and the Board's decision and rationale have since received the judicial
imprimatur of the Supreme Court."
1e Matter of LeTourneau Company of Georgia, 54 N. L. R B 1253, decided February 12,
1944.
14 There is some indication in the record that distribution was also accomplished by
placing literature in parked automobiles or in the door handles of parked automobiles
1s LeTourneau Company of Georgia v N. L. R. B, 143 F. (2d) 67 (C. C A 5) (decided
June 23, 1944), setting aside 54 N L. R B 1253.
19 The following are the pertinent provisions of the rules :
(22) GENERAL SHOP RULES
A factory employee shall not-
1. Gamble in any form, sell tickets, take orders, or solicit subscriptions, or engage
in any activity on the company's premises except company business without express
permission
2. Distribute or post unauthorized pictures or literature
w a s a » +
6. Enter the shop after his regular working hours, except by authorized pass
« e s s s
16. Loiter on the premises before or after regular working hours
"Republic Aviation Corporation v N. L. R B.; N. L. R B. v. LeTourneau Company of
Georgia, Nos. 226, 452 (decided April 23, 1945) 324 U. S. 793.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for the fact that the plant premises, in the instant case, abut the public
highways on several sides and are situated in a town only several miles distant
from Hartford , a metropolitan city, in contrast to the plant involved in the
LeTourneau case which was located in a relatively isolated community, the basic
conditions which prevailed with respect to the South Parking Lot are substantially
similar. Thus , of the approximately 24,000 employees of the plant , a very small
proportion arrive on foot or by buses which discharge passengers at the inter-
section of Main and Willow Streets. These employees enter the plant from the
gates on Willow Street and may be served by persons distributing literature at the
corner of Main and Willow Streets, or by persons stationed at the plant gates on
Willow Street. A somewhat larger group arrives by bus and automobile at the
North Parking Lot, stopping only long enough at the plant gates for a perfunctory
identification. These employees, after leaving the parking lot through the gate on
the north side of Willow Street, cross to the gates on the south side of Willow
Street, through which they enter the plant. They, too, may receive literature at
the gates on either side of Willow Street before entering the plant Approxi-
mately 50 percent, however, of the some 24,000 employees,` according to the re-
spondent's estimate, use the South Parking Lot. Access to these employees,
either upon arrival at or departure from the plant, can only be effectively accom-
plished at the gate entrances from the parking lot to the plant. Denied the right
to distribute union literature at these points, the Union was obliged to resort
to distribution at the Brewer Street entrance to the driveway. In view of the
fact that the employees utilizing South Parking Lot enter their automobiles after
passing through the gates from the plant to the parking lot, drive from the parking
lot some 100 yards down the driveway to Brewer Street, thence east and west
homeward without stopping except for the requirements of traffic conditions, and
proceed over the same route in arriving at the plant, distribution to these em-
ployees is virtually impossible i2 It will thus be seen that effective means of com-
munication have been denied to a large segment of the respondent's employees
and that self-organization has consequently been seriously impeded On this
aspect of the case it is clear, therefore, that the Supreme Court Decision in the
LeTourneau case is controlling.
Moreover, the record in the instant case establishes that the rules prohibiting
solicitation and the unauthorized distribution of literature were discriminatorily
enforced with respect to the Union. Thus, in addition to evidence that Company's
publications known as the "Power Plant," its predecessor, the "Aircraft Journal,"
and the "Bee Hive" which were formerly distributed by foremen's clerks to
employees at the close of their shifts in their departments, are now deposited in
Si This number includes approximately 5,000 office employees , who park their automobiles
in various areas, including South Parking Lot . A small group consisting of several hun-
dred employees , arriving on foot, enter at the power house from Main Street
z' Following the exclusion of union representatives and employees from Willow Street
and the South Parking Lot, the Union continued with its distribution of literature at the
corner of Main and Willow Streets to employees arriving on foot or in buses In about
March, employees were permitted to resume distribution at the gates on Willow Street
Among other means , resorted to for the distribution of literature , were attempts to dis-
tribute to persons hoarding buses at a terminal in Hartford and at 3 housing projects. 2
of which were located in E. Hartford and one in Manchester , Comm , at which a small
proportion of the respondent's employees resided and where "distribution centers" were
maintained by several members of the organizing committee In addition , the Union
compiled a mailing list of employees by making an alphabetical survey of the Hartford
City Directory for names of persons shown to be employed by the ref,pondent , to whom it
mailed some 7,000 membership application cards, as a result of which it obtained about
200 signed applications The record discloses , however, that less than half of the total
of the respondent 's employees were reached by these media . In any event , as the Board
pointed out in its decision in the LeTourneau case, "It is no answer to suggest that other
means of disseminating union literature are not foreclosed "
UNITED AIRCRAFT CORPORATION 607
wooden receptacles located near the plant gates for distribution to its employees,
the record discloses a number of examples of the discriminatory application of
the rules. For example, with respect to Willow Street, the respondent per-
mitted vendors and tradesmen to solicit the patronage of employees in connection
with the sale of various articles"while denying the Union the right to distribute
union literature It was further established that until shortly before the hearing
The respondent had permitted to be erected and maintained on the South Parking
Lot a booth for the servicing and repair of employees' cars This enterprise
was privately operated; circulars were distributed in the parked cars, and notices
posted on the respondent's bulletin board informing employees of the availability
of this service. 1 ands, outlining the types of services available, with appropri-
ate means for checking the service desired, were placed in parked automobries 2`
The respondent al'o psi mitted to be maintained on its parking lots from time to
time an automobile trailer, hearing appropriate signs and advertising matter,
from which employees might purchase various types of safety and "dress" shoes,
and afforded the facilities of its bulletin boards for the posting of notices indi-
cating when and where, i.e, at which parking lot, the trailer would be available,
and granted employees time off to enable them to avail themselves of the service '
In view of the respondent's position that it afforded the facilities of its parking
lots to private individuals for the purposes indicated, as an accommodation
to its employees, it is significant that the respondent was not disposed to regard
the distribution of esential information in connection with the organizational
rights of its employees by adequate means as a matter for the accommodation of
its employees 26
It is therefore, clear, and the undersigned finds, upon the basis of the foregoing
and the entire record, that the pronmlgation of the rules against solicitation,
and against the distribution of literature insofar as they prohibit solicitation of
union membership at the plant upon employees' owri time, and prohibit the dis-
tribution of union literature outside the gates of the plant and in its parking lots,
imposed an unreasonable impediment upon the freedom of communication essen-
tial to the exercise of the employees' right to self-organization ; that, by pro-
"Chief Guaid Meehan admitted that, prior to the attack on Pearl Harbor, various
vendors sold their wares on Willow Street particularly on the third shift ; that 400-500
copies of "The Boston Daily Record ", a newspaper , were sold drily ; that there was a
lunch wagon from which sandwiches and beverages were dispensed. However, he testified
that after the attack on Pearl Harbor be issued orders excluding vendors from Willow
Street Although it is not improbable that this activity was curtailed at about that
time , the preponderance of the credible evidence indicates that it continued thereafter in
somewhat lesser degree without interference by the respondent.
29 This service was discontinued shortly before the hearing due to the manpower
shortage.
28 This service was discontinued with the advent of shoe rationing
"The instances of discriminatory application of the rules against solicitation and dis-
tribution cited are illustrative rather than comprehensive Titus, there was undisputed
evidence that various types of solicitations for subscriptions or contributions for War Loan
drives. Community Chest, Red Cross, Hartford Hospital, Hartford Fighter Plane, Christmas
gifts for minor supervisory employees, and gifts for the personnel of the Anti-Aircraft
Battery stationed at the respondent's plant, and the like were conducted at the plant, many
of which were sponsored by the respondent Solicitations for membership in the Aircraft
Club, an employee's organization sponsored by the respondent and housed in one of the
respondent's buildings, were made openly in various departments of the plant, and meniber-
'hip applications nerve distributed to employees by foremen's clerks Solicitations of fiords
for gifts for minor supervisory eniploieec although discouraged by the respondent, were in
t.ut openly