United States Steel Corp.

National Labor Relations Board - Board Decisions

Oct 3, 1973

206 N.L.R.B. 265 (N.L.R.B. 1973)

AMERICAN BRIDGE DIV. U.S. STEEL CORP. 265
American Bridge Division, United States Steel Corpo-
ration and Carl C. Kessler. Case 21-CA-11394
October 3, 1973
DECISION AND ORDER
By MEMBERS FANNING, KENNEDY, AND PENELLO
_ On May 9, 1973, Administrative Law Judge Fannie
M. Boyls issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions' and
the General Counsel filed a brief in answer to the
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt her recommended Order.2
issue presented is whether Respondent maintained and en-
forced an unlawfully broad no-distribution rule , in violation
of Section 8(a)(1) of the Act. After the conclusion of the
hearing, counsel for the General Counsel and for Respon-
dent submitted helpful briefs.'
Upon the entire record in this case, upon my observation
of the witnesses, and after a careful consideration of the
briefs, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent is a corporation engaged at its Los Angeles
plant in the city of Commerce, California, is in the business
of fabricating structural steel. In the normal course and
conduct of its business, it annually sells and ships goods and
products valued in excess of $50,000 directly to customers
located outside the State of California and annually pur-
chases and receives goods and materials valued in excess of
$50,000 directly from outside the State. Upon the basis of
these admitted facts, I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, American Bridge Divi-
sion, United States Steel Corporation, Commerce,
California, its officers, agents successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544,
enfd 188 F.2d 362 (CA. 3, 1951) We have carefully examined the record
and find no basis for reversing her findings
2 Member Fanning disagrees with the Decision and Order here insofar as
they can be read to permit restrictions on the distribution of literature in
working areas during nonwork time- See his dissenting opinion in Stoddard-
Quirk Manufacturing Co., 138 NLRB 615, 625-631. Also, Member Fanning
would not defer to arbitration in this case in any event. See his opinion in
Collyer Insulated Wire, A Gulf and Western Systems Co., 192 NLRB 837.
DECISION
STATEMENT OF THE CASE
FANNIE M. BoyLs, Administrative Law Judge: This case,
initiated by a charge filed on November 17, 1972, and a
complaint issued on December 21, 1972, was tried before
me in Los Angeles, California, on March 15, 1973. The sole
Local 2058, United Steelworkers of America, AFL-CIO,
herein called the Union, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICE
A. Respondent's Threat of Disciplinary Action.
Against Employee Kessler for
Distributing Union Literature
Respondent's plant is located north of Slauson Avenue in
the city of Commerce. Two roads divided by a traffic island
lead off Slauson Avenue to the gatehouse about 80 yards
north of Slauson Avenue and beyond to the plant area. The
road to the east of the traffic island is the entrance road and
the other is the exit road. To the side of each road are
parking lots. At least 99 percent of Respondent's employees
drive to work and most of them park in the west parking lot,
then walk across the exit road near the gatehouse to obtain
their timecards from the guard on duty at the east side of
the gatehouse. They use the same route when returning to
the parking lot at the end of their work shifts. Distributions
of literature are customarily made at a point just southwest
of the gatehouse where the employees cross the exit road on
their way to the east side of the gatehouse. This area is a part
of Respondent's property.
On the night of November 15, 1972, employee Kessler, in
the company of two friends, stood in the area normally used
by union representatives and other persons for distributing
literature and distributed a newspaper called "Picket Line"
1 With his brief, the General Counsel filed a motion to correct the tran-
script of the testimony in several respects. This motion, being unopposed and
appearing appropriate, is hereby granted.
206 NLRB No. 48
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees leaving work between 12 midnight and 12:20
a.m 2 Kessler returned in the company of a fellow employee
to the same location early in the morning on November 16
and distributed the same publication between 6 and 6:55
a.m. to employees going to work on the first shift. On nei-
ther occasion were employees or vehicular traffic blocked or
interfered with in entering or leaving the plant.
As Kessler was distributing the publication, at least three
management representatives, including Superintendent Pol-
lard, drove into the plant but none of them at that time
sought to stop the distribution. '
Kessler worked in the inspection department on the first
shift. About 10:15 a.m. on November 16, Chief Inspector
Fawver approached Kessler at his work and told him:
"Carl, I have had a telephone call from Pollard. Pollard tells
me that you were distributing literature at the plant gate this
morning. Pollard says for me to tell you that if you do that
any more you're going to be subjected to disciplinary action
for violating a company rule."
As Kessler left the plant during the lunch period on the
following day, the plant guard, Peter Kunz, told him, "Carl,
you know I had a call from Pollard. He told me that if I saw
you distributing any literature I was supposed to stop you."
Kessler has been employed at the plant since 1957. Dur-
ing all of that time the employees have been represented by
the Union which has had successive collective-bargaining
agreements with Respondent and its predecessor, Consoli-
dated Western Steel Division, which went out of business
and was succeeded by Respondent, another division of Un-
ited States Steel Corporation, in 1964. There is no mention
in any of these contracts of a no-distribution rule.
When Respondent took over the operation of the plant,
there was posted at three prominent locations in the plant
and still remained posted at the time of the hearing in this
case, a "Notice to Employees" pertaining to certain plant
conduct rules, the violation of which "constitutes proper
cause for disciplinary action which may include suspension
or discharge." Among the rules is one which states:
EMPLOYEES WILL NOT:... Distribute or post
circulars, handbills , notices, or other printed matter on
Company property without proper authorization.
The "Notice to Employees," on its face, purports to have
been promulgated by Consolidated Western Division and is
dated April 1957. Respondent in 1965, and thereafter,
passed out to its employees its "American Bridge Plant
Safety Manual," the first two pages of which sets forth
"General Plant Conduct Rules and Regulations." Copies of
these rules and regulations are posted at the plant. Section
II of the rules and regulations lists 18 offenses "which may
be cause for summary dismissal or suspension preliminary
to discharge." The distribution of literature is not men-
tioned as one of these offenses.
Kessler was aware of the old Consolidated Western no-
2 The newspaper, "Picket Line," published by an independent union and
AFL-CIO members, including some Steelworker union members in the Los
Angeles area, has been extremely critical of the policies of incumbent as well
as past international and local union officials and the particular issue distri-
buted by Kessler on November 15 and 16 was no exception.
distribution rule which, as already noted, has remained
posted ever since Respondent took over the operation of the
plant in 1964. He was not aware of any other rule pertaining
to the distribution of literature. During the lunch period on
November 16 he met with the,local union officers and griev-
ance committee to protest what he considered an invasion
of his rights guaranteed under Section 7 of the National
Labor Relations Act. He requested the union officers and
committeemen to make an effort to prevent anything like
that from happening again. The Union's president, Doug-
las, stated that "'he didn't know what the law was-he didn't
care what the law was" and also that "It didn't sound to him
like it was any union business or any concern of the union."
On the following day Kessler asked Union Committeeman
Hickman whether Union President Douglas had done any-
thing about the trouble arising from his having distributed
the,publication "Picket Line" on the preceding day and
Hickman replied that "he didn't see what he or the commit-
tee could do to get this thing straightened out."
Union President Douglas had, on the morning of Novem-
ber 16, shown to Respondent's superintendent, Pollard, a
copy of the issue Kessler had distributed earlier that morn-
ing. Douglas was obviously not sympathetic to Kessler's
cause and he and other members of the grievance commit-
tee had on previous, occasions expressed their displeasure
over Kessler's connection with the "Picket Line" publica-
tion. Thus, Douglas in late September had warned Kessler,
"There is one thing you have to understand, Carl, and that
is that if you get into any trouble over the distribution of this
scandal sheet Picket Line that we will not lift a finger to help
you. If you get into trouble with the company you are going
to have to get yourself out." He reiterated this warning to
Kessler in October in connection with an inquiry as to when
the next issue would be out. Union Committeeman Hick-
man also warned Kessler in October that he had better be
careful when the next issue of "Picket Line" came out be-
cause if he got into trouble over it, "he didn't see where the
union was going to be able to help [Kessler] because of the
kind of newspaper that `Picket Line' is. " Union Committee-
man Castro also told Kessler about that time that if the
Company took any action against him for distributing the
"Picket Lines," the grievance committee was not going to
defend him.
Having been unsuccessful in obtaining his union support
in defending his right to distribute the "Picket Line," Kes-
sler filed a charge with the Board on November 17.
B. Respondent's Defenses
1. The Collyer contention
Respondent contended at the outset of the hearing and
still urges that the Board should decline to assert jurisdic-
tion over this case and, instead, under the principles enunci-
ated in Collyer Insulated Wire, 192 NLRB 837, defer the
matter to the grievance-and-arbitration process established
in the applicable collective-bargaining agreement. Except
for the fact that the Union, as already demonstrated, has
already shown in displeasure with Kessler for participating
in the distribution of the particular literature involved and
has announced its unwillingness "to lift a finger" to help
AMERICAN BRIDGE DIV. U.S. STEEL CORP. 1 267
him, Respondent's suggestion would appear to be appropri-
ate. The Board has made clear that it will not defer to the
grievance-and-arbitration provisions of a contract where
the interests of the union and the employee are not in "sub-
stantial harmony" for, in the absence of such harmony,
reasonable grounds exist for assuming that the employee's
interests may not be adequately represented in the arbitral
process. Kansas Meat Packers, a Division of Aristo Foods,
Inc. 198 NLRB No. 2; Fleet Carrier Corporation, 201 NLRB
No. 29; Anaconda Wire and Cable Company, 201 NLRB No.
125. I find that the interests of Kessler and the Union on the
issue giving rise to the complaint are not in substantial
harmony and that it would not effectuate the policies of the
Act to defer this matter to the grievance-and-arbitration
provisions of the collective-bargaining agreement.
2. Respondent's defenses on the merits
It is not clear from the testimony just what rule, if any,
Respondent was attempting to enforce on November 16.
The only statements made by management representatives
to Kessler about the distribution of literature appear to have
forbid outright the distribution by him of any literature on
company property and was not conditioned on any advance
approval by management. Respondent Superintendent Pol-
lard, whose decision it was to have Kessler warned, testified
that it was a company rule, in substance the same as that
posted by Respondent's predecessor, that'he meant to be
enforcing. I do not regard it as material whether Respon-
dent was on November 16 inaugurating a new rule or was
applying a longstanding no-distribution rule, for in any
event, I am convinced that Respondent's conduct was un-
lawful under long-established principles approved by the
Supreme Court in N.L.R.B. v. LeTourneau Company of
Georgia, 324 U.S. 793, 797 (1945).
Kessler's actions in distributing literature critical of cer-
tain officers and policies of his collective-bargaining repre-
sentative are, as Respondent concedes, the kind of conduct
which Section 7 of the Act was designed to protect 3 The
reasons why such conduct is protected union or concerted
activity is well stated by Respondent's counsel at the hear-
ing and will be repeated here:
...the right to distribute materials is a right of the
individual employee relating to his selection or choos-
ing not to select a collective bargaining representative.
The right gives also to an on-going duty to appraise
and reevaluate one's collective bargaining representa-
tive.
This the National Labor Relations Board has held in
numerous cases is among the rights protected by Sec-
tion 7 of the Act.
Now, part and parcel of this right is the right and
duty of an employee or a union member constantly to
reevaluate the leadership of one's collective bargaining
representative, its officers and grievance committee-
men. -
Certainly that is what the Charging Party in this case
Cooper Tire & Rubber Company, 185 NLRB 233.
was seeking to do in the very best of democratic fash-
ion.
This is one of the obligations of union membership,
to constantly reevaluate the leadership of the local
union to express opinions with respect to qualifica-
tions, to point outshortcomings thought to exist in one
of the officers who is running for re-election to his
fellow employees and to spread the word to other mem-
bers by way of handing out literature.
These activities we are the first to agree are the very
core of union membership.
It is well established that, in the absence of special cir-
cumstances, an employer may not lawfully promulgate,
maintain, or enforce a rule which prohibits the distribution
of such literature by employees on their nonworking time in
nonworking areas of the plant. Such a rule is presumptively
invalid even though, as here, it does not seek an outright
prohibition against distributions but only requires
management's permission to distribute. An unlawfully
broad no-distribution rule, as the Board stated in Stoddard-
Quirk Manufacturing Co., 138 NLRB 615, 642, "is not re-
deemed so far as it reaches distribution by employees during
nonworking time by the fact that it prohibits `unauthorized'
distribution." That was precisely the kind of rule held by the
Supreme Court in N.LR.B. v. LeTourneau Company of
Georgia, 324 U.S. 793, 797 (1945), to be presumptively inval-
id. An employer's requirement of advance permission to
distribute obviously encompasses not only the power to
prohibit distributions but also the power to prohibit discri-
minatorily 4
Superintendent Pollard at the hearing explained that
management felt its restrictions on distributions were neces-
sary to control littering of its premises, to prevent traffic
tie-ups and possibly to prevent the defamation of character
of some individual. However, no evidence was adduced to
show that any of these consequences had followed from the
distribution of literature in the area used by Kessler on
November 16, though approximately 150 distributions had
been made from that area since Kessler was employed in
1957 and Respondent had never denied permission to any-
one seeking permission to distribute. Moreover, all of these
possible consequences from the distribution of literature
could result at almost any plant. They are not the type of
"unusual" or "special" circumstances visualized by the Su-
preme Court in LeTourneau and by the Board in numerous
other cases, as justifying a broad no-distribution rule.5 I find
that "the rule was not justified by any extraordinary opera-
tional or disciplinary needs of Respondent." The Magnavox
Company of Tennessee, 195 NLRB 265.
Indeed, Respondent does not argue that Pollard's pur-
4 Predistnbution and prepublication censorship have long been condem-
ned in the strongest language by the Board and the courts. The Maryland
Drydock Company, 88 NLRB 1305; New York Times Co. v. United States, 403
U.S. 713; Near v. Mzssesota, 283 U.S. 697.
5 The Wile in LeTourneau was held invalid though adopted to control
littering and petty pilfering from parked automobiles (324 U.S. at 797); the
rule in Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 641, was held
invalid though adopted to prevent littering and to prevent an interference
with production caused by delaying employees who stopped to accept litera-
ture while going to work.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ported justifications for the rule are sufficient to overcome
the presumption of its invalidity. Rather, it contends that
there has been a valid waiver by the Union of the employ-
ees' right to distribute union-related literature in nonwork-
ing areas of the plant property during the employees'
nonworking time. Clearly the Union never expressly waived
any such employee rights. Nor, in my view, does a prepon-
derance of the evidence support any finding that there was
an implied waiver.
The waiver contention is based principally on the testi-
mony of Superintendent Pollard-whose employment at
the plant dates back to June 1970-that for over 20 years
it has been the practice of the employees and outsiders to
obtain permission from management before distributing lit-
erature on company property; that he has been informed of
this practice by the union president; that he has granted
permission to union officials and employees on 20 or 25
occasions since employed at the plant; and that no one has
ever objected to requesting permission. Respondent's plant
guard, Peter Kunz, who has held that position about 17
years, testified that he had always been instructed to make
sure that all distributors had prior permission from plant
management and that, although he has never asked any
distributor if he bad permission, he has always assumed that
such permission was granted because management has nev-
er told him to stop anyone prior to the instructions relating
to Kessler on November 16.
Respondent, while conceding that the old- Consolidated
Western no-distribution rule has remained posted since Re-
spondent took over the operations of the plant in 1964,
appears unwilling to acknowledge that its reprimand to
Kessler was based on its maintenance and application of the
Consolidated Western rule to him. It suggests, instead, that
an implied agreement with the Union for the adoption and
maintenance of such a rule arose from the Union's long
acquiescence in Respondent's practice of requiring permis-
sion for the distribution of literature. Thus, Respondent
states in its brief: "In effect, what in'1957 had been a unila-
teral Company rule became a bilateral, implied agreement
between the parties. The Union, by its conduct, assented to
the requirement of prior approval. The practice was as bind-
ing in all respects as a written agreement."
I cannot accept this thesis. The waiver of a statutorily
protected right "will not be readily inferred; there must be
a clear and unmistakable showing that the waiver oc-
curred." J. C. Penney Company, Store No. 1093, 161 NLRB
69, footnote 1. As aptly stated in Watkins v. Fly, 136 F.2d
578, 580 (C.A. 5), cert. denied 320 U.S. 769: "A waiver may
be defined as -the intentional relinquishment of a known
right with' both knowledge of its existence and an intention
to relinquish it." 6 Here, we have no evidence that the Union
knew that its employees had a legally protected right to
distribute union-related literature in nonproduction areas of
the plant property on nonworking time without
management's permission. Its president had expressly in-
formed Kessler on November 16 that he did not know what
6 To the same effect, see Bennecke v. Connecticut Mutual Life Insurance Co.,
105 U.S. 355, 359; Peterson v. S. S Wahcondah, 331 F.2d 44, 48 (C.A. 5);
'Clifton Precision Products Division, Litton Precision Products, Inc 156 NLRB
555, 563
the law was. But even if I were satisfied that the union
officials knew the law, I would not be persuaded that on the
basis of the evidence presented in this case the Union had
ever agreed to the invalidly broad no-distribution rule or
that it had intentionally waived the exercise by employees
of their important statutorily protected right' There is no
evidence that the rule, was ever discussed inc collective-bar-
gaining negotiations. The old Consolidated Western agree-
ment with the Union, which was in effect when Respondent
took over the plant operations, though requiring manage-
ment permission to engage in union activities on company
time and to post notices on bulletin boards, did not purport
to limit the distribution of literature. Likewise silent as to
any no-distribution rule were the memoranda- of under-
standing and agreements subsequently made between Re-
spondent and the Union, as well as the General Plant Rules
and Regulations posted by Respondent. It seems clear to me
that the union officials, in requesting permission to distrib-
ute literature, were merely continuing to follow the old Con-
solidated Western rule which had been unilaterally
promulgated and which was being unilaterally maintained
by Respondent. This rule, being unlawfully broad, its main-
tenance and enforcement by Respondent constituted a vio-
lation of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent, by maintaining and enforcing a plant
rule prohibiting the distribution of union-related literature
by employees on nonworking time in nonworking areas of
the plant without prior permission from management, has
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed under Section 7 of the
Act, in violation of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in an
unfair labor practice in violation of Section 8(a)(1) of the
Act, my recommended Order will require that it cease and
desist therefrom and/ take affirmative action of the nature
customarily required to remedy this type of unfair labor
practice.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, there is hereby issued the following recommend-
ed:
' Having reached this conclusion, I need not address myself to the further
question posed by the parties, whether there can be a valid waiver of such
a right insofar as it applies to distributions by dissident union members. It
would appear, however, on the basis of the Board's decision in The Magnavox
Company of Tennessee, 195 NLRB 265, that the Board would find such a
waiver invalid.
AMERICAN BRIDGE DIV. U.S. STEEL CORP.
ORDER8
American Bridge Division, United States Steel Corpora-
tion, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining or enforcing any rule requiring prior
management approval for employees, during nonworking
time and in nonworking areas of the plant, to distribute
literature for purposes protected by Section 7 of the Act.
(b) In any like or related manner interferring with, re-
straining, or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Rescind or modify its rule requiring prior manage-
ment permission for employees during nonworking time in
nonworking areas of the plant to distribute literature for
purposes protected by Section 7 of the Act.
(b) Post at its Los Angeles plant copies of the attached
notice marked "Appendix." 9 Copies of the notice on forms
provided by the Regional Director for Region 21, after
being duly signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for Region 21, in writ-
ing, within 20 -days from the date of this Order, what steps
Respondent has taken to comply herewith.
8 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
9 In the event that the Board's Order is enforced by a Judgment of a United
States court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
269
WE WILL NOT maintain or enforce any rule which re-
quires prior management approval for our employees,
during nonworking time in nonworking areas of our
plant property, to distribute literature for purposes pro-
tected by Section 7 of the National Labor Relations
Act. (Among those protected rights are the right to
criticize as well as to defend union policies and offi-
cials.)
WE WILL rescind any rules presently in effect which
require you to obtain management permission for the
distribution of such literature on your nonworking time
in nonworking areas of our plant property.
AMERICAN BRIDGE DivisioN,
UNITED STATES STEEL CORPO-
RATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may he direct-
ed to the Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014, Telephone
213-688-5200.