Yellow Cab, Inc.

National Labor Relations Board - Board Decisions

May 10, 1974

210 N.L.R.B. 568 (N.L.R.B. 1974)

568 DECISIONS OF NATIONAL
Yellow Cab, Inc. and Steven H. Johnson. Case
27-CA-3959
May 10, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
Upon a charge duly filed on October 23, 1973, by
Steven H. Johnson, an individual , against Yellow
Cab, Inc., herein called Respondent, the General
Counsel of the National Labor Relations Board, by
its Regional Director for Region 27, on November
21, 1973, issued and served on the parties a
complaint alleging that Respondent had engaged in
and was engaging in unfair labor practices within the
meaning of Section 8(a)(1) and Section 2(6) and (7)
of the National Labor Relations Act, as amended. In
substance, the complaint alleges that Respondent
promulgated and enforced a prohibition against
distributing literature on its premises, which prohi-
bition interfered with the exercise by its, employees of
their rights as guaranteed by Section 7 of the Act.
Thereafter, Respondent filed a timely answer deny-
ing the commission of any unfair labor practices.
Between January 14 and January 17, 1974, each of
the parties signed, and thereby entered into, a
stipulation wherein they agreed that certain docu-
ments , including the charge, complaint, answer, and
the "Stipulation of the Facts and of the Record,"
shall constitute the entire record herein, expressly
waived all proceedings before an Administrative Law
Judge, and submitted this case directly to the
National Labor Relations Board.
By order dated January 24, 1974, the Board
approved the stipulation, transferred the proceeding
to itself, and set a date for the filing of briefs.
Thereafter, briefs were filed by the General Counsel
and by Respondent.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the entire record herein
and the briefs, and makes the following findings:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges and the answer admits that
Respondent is a Colorado corporation engaged in
1 The "Stipulation of the Facts and of the Record" omits the fact that
the Union has posting rights, an omission which makes it difficult to
ascertain the meaning of the phrase "other general distribution or postings"
in the quoted excerpt which follows in the text. However, the General
LABOR RELATIONS BOARD
the business of providing taxicab customer service to
the public , with its principal place of business in
Denver, Colorado , and that it annually receives in
excess of $500,000 in the course and conduct of its
taxicab service , and annually receives goods and
materials in the course and conduct of its business
valued in excess of $50,000 directly or indirectly from
points outside the State of Colorado. The complaint
alleges , the answer admits, and we find that Respon-
dent is, and at all times material herein has been, an
employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and we
find that Independent Drivers Association, herein
called the Union , is, and at all material times has
been , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Stipulated Facts
Respondent and the Union are parties to a
collective-bargaining agreement in effect from June
1, 1973, to May 31, 1976. Article 25 of the contract is
entitled "Posting and Bulletin Boards," and provides
in pertinent part that the Union may post certain
notices on a bulletin board in the drivers' room 1 but
that:
There shall be no other general distribution or
postings by drivers of pamphlets, advertising, or
political matter, notices of [sic] any kind of
literature upon Company property without au-
thorization from the Company. Enforcement will
be the Company's responsibility.
On October 23, 1973, from about I to 3 p.m.,
employee Steven H. Johnson, on his own time,
passed out a leaflet to other drivers in the drivers'
room. The leaflet, entitled "Unite to Fight Union-
Busting," is reproduced and attached hereto as
"Appendix A." The drivers' room is used by the
drivers both for filling in trip sheets and for relaxing,
drinking cokes, eating candy, and chatting.
About 3 p.m., Respondent's general manager, a
supervisor, came in and told Johnson that the
Union's business agent had informed him that the
material Johnson was distributing was not union
literature, and therefore Johnson would have to stop
distributing it. Johnson stated that he had a right
Counsel quoted the entire art. 25 in his brief and Respondent 's brief states
that the General Counsel's statement of facts is substantially correct. We
accept these representations as part of the record.
210 NLRB No. 97
YELLOW CAB, INC. 569
under a Board Decision to pass out the literature in
nonworking areas during nonworking time. The
supervisor said that all areas were working areas and
that under the contract Johnson could not distribute
the material . He ordered Johnson, to stop. It being
clear that if Johnson persisted he would be disci-
plined, he stopped and filed, the instant charge.
powerless to waive their Section 7 right to participate
in the promotion of a demonstration not sponsored
by the Union and in no sense limited to the Union's
institutional interests.7
IV. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
B. Discussion and Conclusions
Respondent's no-distribution rule contained in the
collective-bargaining agreement, not being confined
either to working time or working areas, is invalidly
broad on its face.2 And the general right of
employees under Section 7 of the Act to distribute
literature in support of collective bargaining or other
mutual aid or protection was not within the power of
the Union and Respondent to take away by virtue of
their agreement that, while the Union may post
notices, drivers may neither post nor distribute
literature.3
The record does not tell us when the rule in
question was first promulgated, but it was, at the
least, renewed as of June 1, 1973, within 6 months
prior to the filing of the instant charge, and has been
maintained since then. We find that the promulga-
tion and maintenance of the no-distribution rule
violates Section 8(a)(1) of the Act.
Respondent's enforcement of the rule against
Johnson also violates Section 8(a)(1). Johnson was
peacefully seeking to enlist the aid of his fellow
employees to support employees of other employers
who were on strike and to oppose an alleged
antilabor combination. This is a protected concerted
activity for mutual aid and protection under Section
7.4 And, while the drivers' room where Johnson was
distributing is arguably a "working area," a point
which w- need not decide,5 the explanation he was
given for the order to desist convinces us that it was
the invalid no-distribution rule, not a decision by
management that this distribution was interfering
with legitimate business or property interests, that
was being enforced. Therefore a prima facie case of
further interference with employee rights in the
enforcement of the rule has been made out 6
Respondent asserts a right under ajticle 25 of the
collective-bargaining agreement to enforce the pro-
hibition against the distribution of Johnson' s leaflets.
But, just as the Union was powerless to waive the
employees' Section 7 rights in general, it was
2 Stoddard-Quirk Manufacturing Co, 138 NLRB 615,619-621
3 NLRB v. Magnavox Company of Tennessee, 415 U.S. 322 (1974),
Samsonite Corporation, 206 NLRB No. 91, at ALJD sec. III, B, 2(c).
4 Washington State Service Employees State Council No. 18 and Local 6,
Service Employees Union , 188 NLRB 957
5 Indeed , the instant record does not provide an adequate basis for
deciding this.
The activities of the Respondent set forth 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 of
commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing facts and upon the
entire record in this case, we make the following
conclusions of law:
1. Respondent is an employer within the meaning
of Section 2(2) of the Act and is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By promulgating, maintaining, and enforcing a
rule which prohibits employees from distributing
literature on nonworking time in nonworking areas,
Respondent has violated Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Yellow Cab, Inc., Denver, Colorado, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from promulgating , maintain-
ing, giving effect to, or enforcing any rule which
prohibits employees from distributing literature in
nonworking areas on nonworking time pertaining to
6 See Daylm Inc., Discount Division d/b/a Miller's Discount Dept. Stores,
198 NLRB No. 40; Stoddard-Quirk Manufacturing Co., supra, at fn. 8.
Member Kennedy dissented in part in Miller's Discount Dept. Stores, supra,
because he found in that case that the employees involved were neglecting
their own work and interfering with the work of other employees.
7 N.LR B v Magnavox, supra, Samsonite Corp., supra
570 DECISIONS OF NATIONAL
matters related to the exercise by employees of their
Section 7 rights.
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the Act:
(a) Post at its place of business in Denver,
Colorado, copies of the attached notice marked
"Appendix B."8 Copies of said notice, on forms
provided by the Regional Director for Region 27,
after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX A
March and Rally
UNITE TO FIGHT UNION-BUSTING
This Saturday, October 27, at 1 p.m. hundreds of
workers from the Denver-Boulder area will be
conducting a unity march and rally against union-
busting.
This demonstration, organized by the Denver-
Boulder Strike Support Committee, will be a peaceful
show of support for the Brewery Workers on strike at
Jeffco, the United Farm Workers organizing drives
in Colorado and California, and the Clothing
Workers strike at Farah Pants in El Paso.
It will also be a march in opposition to an anti-
labor combination which has hurt workers at one
company after another in recent months. Working
people in this region are being hurt constantly by the
combined attacks of court injunctions , pro-employer
labor laws, the Mountain States Employers Council,
and anti-union lawyers.
As cab drivers, we recently had a bitter taste of this
combination ourselves when we were socked with a
court injunction ending our radio boycott, in spite of
the fact our contract doesn't say we have to use the
radio.
LABOR RELATIONS BOARD
"Unite To Fight Union-Busting" is the slogan of
the march and rally because it is in the interest of all
workers, cab drivers, brewery workers, farm workers,
everyone, to fight back against this dangerous
combination.
THE UNITY MARCH AGAINST UNION-BUSTING BEGINS AT
I P.M. THIS SATURDAY, 13TH AND MARIPOSA. BE THERE
AND STICK UP FOR YOUR BROTHERS AND SISTERS.
This march and rally has been endorsed by the
brewery workers, clothing workers, OCAW, and
many other groups.
Steve Johnson
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promulgate , maintain , give effect
to, or enforce any rule which prohibits our
employees from distributing literature in non-
working areas on nonworking time , pertaining to
matters related to the exercise by employees of
the rights guaranteed to them by the National
Labor Relations Act, as amended. These include
the right to form , join, or assist labor organiza-
tions , to bargain collectively through representa-
tives of their own choosing, to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or
to refrain from any or all of such activities except
to the extent that such right may be affected by
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the Act.
YELLOW CAB, INC.
(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 compli-
ance with its provisions may be directed to the
Board's Office, U.S. Custom House, Room 260, 721
19th Street, Denver, Colorado 80202 , Telephone
303-837-3551.