Massey-Ferguson, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1974

211 N.L.R.B. 487 (N.L.R.B. 1974)

MASSEY-FERGUSON, INC. 487
Massey-Ferguson , Inc. and Arthur H. Rosen. Case
7-CA-10732
June 12, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 27, 1974, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 record and the
attached 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 his recommended Order, to the extent consis-
tent herewith.
We agree with the Administrative Law Judge that
the instant case is controlled by the recent decision of
the United States Supreme Court in N.L.R.B. v. The
Magnavox Company of Tennessee, 415 U.S. 322'(1974).
Also pertinent to the issues herein is our later
decision in McDonnell Douglas Corporation, 210
NLRB No. 29, which issued subsequent to the
Administrative Law Judge's Decision in this case.
As we pointed out in McDonnell, the first question
is whether the attempted distribution here is related
to Section 7 activity. Respondent contends the
negative, asserting that the newspaper "United
National Caucus" made no direct reference to
Respondent, Respondent's employees, or the em-
ployees' bargaining representative, Local 174, United
Auto Workers. We do not agree. The particular
edition of the newspaper which Rosen sought to
distribute primarily addresses itself to the 1973
collective-bargaining agreement negotiated by
Chrysler and the International UAW. The newspa-
per criticizes the character of the negotiations and
the terms of the contract. The headlined article
points out, inter alia, that "UAW members through-
out the union should b aware of what the Chrysler
contract actually conta ns. The same basic pattern is
going to be presented throughout the other sets of
negotiations yet to be conducted." The newspaper
contains articles analyzing various provisions of that
contract. Another article, "Which Side Are You
On?", analyzes the role of the leadership of the UAW
locals, as that role affects the union members'
relationship to the International. We think that these
matters do concern the conditions of employment of
Respondent's employees, particularly since the Inter-
national Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW,
was itself a party to the agreement, expiring October
31, 1973, with Respondent which covered Respon-
dent's employees.
Respondent also advances various contentions that
the Supreme Court's decision in Magnavox does not
warrant a finding of a violation of Section 8(a)(1) in
this case. Without setting forth those contentions in
detail, we think it clear as we said in McDonnell, that
the Supreme Court held that the parties to a
collective-bargaining contract cannot by agreement
waive an employee's Section 7 right to distribute
literature to his fellow employees concerning their
Section 7 interests. In this case Rosen, an employee,
sought to distribute to his fellow employees matter
adverse to the Union. He was denied permission
to do so by Respondent because of the Union's
contractual waiver of all employee rights to distrib-
ute literature in the plant. While the Union might
waive the distribution by it of its own institutional
literature, it cannot thus waive these Section 7 rights
of the employees.' McDonnell Douglas Corporation,
supra.
Finally, Respondent argues that Rosen sought to
distribute the newspaper in a working area of the
plant, and therefore Respondent properly denied him
permission to distribute his material. We find no
evidence to support this argument. In the first place,
this was not the reason Respondent gave to Rosen
when it denied Rosen permission to distribute his
literature. Rosen asked Cicero, the hourly personnel
supervisor, if he could distribute the newspaper in
the plant. Rosen did not specify the exact location of
his intended distribution. Cicero, having glanced at
the newspaper, told Rosen no. Cicero testified that
he did so because article 17 of the bargaining
agreement prohibited the distribution of this materi-
al. However, what Cicero told Rosen was that Rosen
could not distribute the newspaper with negotiations
going on.2 There was no discussion of the intended
location. Secondly, the timeclock area, where Rosen
testified he would have distributed the newspaper, is
separated by racks from the rest of the plant floor
and is 15 to 20 feet from the door exiting onto the
parking lot. Respondent's Hi-Lo trucks, while ob-
taining parts from the vicinity of the timeclocks,
I Respondent also claims that reasonable and suitable alternative means 843-844. Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793.
of communication are available to Rosen . Inasmuch as Rosen is an 2 Referring to negotiations between Respondent and one of the UAW
employee who intended to distribute his literature at the conclusion of his locals representing its employees.
workshift , that argument is not relevant . Peyton Packing Co., 49 NLRB 829,
211 NLRB No. 64
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admittedly do not drive through the timeclock area
itself. There is no machinery in this described area.
When employees clock out, this area is traversed by
the employees leaving the plant . Therefore , assuming
that such was Respondent's ground for preventing
Rosen from distributing the newspaper, we find that
the timeclock area is not part of the working area of
the plant.
Accordingly, we find in agreement with the
Administrative Law Judge that Respondent has
violated Section 8(a)(1) of the Act.
ORDER
ized distribution of literature , written or printed matter of
any description on Company premises." The rules provid-
ed "violations will be sufficient grounds for disciplinary
action or discharge depending upon the seriousness of the
offense." Finally, the complaint alleged that on or about
October 30, the Respondent through its agent, Thomas
Cicero, denied Rosen the right to distribute literature
involving employee concerns on his own nonworktime in
nonwork areas . In its answer, the Respondent denied the
commission of any unfair labor practices.
Upon the basis of the entire record in the case and my
observation of the witnesses as they testified, and consider-
ation of the brief filed by the Respondent on March 19, I
make the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Massey-Ferguson,
Inc., Detroit, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
DECISION
STATEMENT OF THE CASE
IVAR H . PETERSON , Administrative Law Judge : I heard
this case in Detroit , Michigan, on February 12, 1974, based
upon charges filed by Arthur H. Rosen, an individual, on
November 14, alleging that the Respondent , Massey-
Ferguson, Inc., herein called the Respondent , had violated
Sections 8(a)(l) and 2(6) and (7) of the Act in that it
maintained and enforced, at all times since July 1, 1971, at
its Southfield Road plant and at other facilities and places
of business , the following rule concerning bulletin boards:
ARTICLE XVII BULLETIN BOARDS
17.01 The company shall provide a suitable number
of bulletin boards for the exclusive use of the union at
each appropriate unit . The use of these bulletin boards
shall be confined to the following notices:
1. recreational and social affairs of the union
2. union meetings;
3. union appointments;
4. union elections , including those required in the
union constitution , and the results of such elections.
There shall be no distribution or posting by employees
of pamphlets , advertising or political matters, notices,
or any other kind of literature upon company property,
other than as herein provided . Notice shall be posted
by a committeeman only after approval of the local
Personnel and Industrial Relations Department.
In addition , the Respondent , in a pamphlet entitled "Rules
of Personal Conduct," prohibited , among other things,
"unauthorized soliciting or collecting contributions for any
purpose whatever on Company premises" and "unauthor-
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Maryland corporation, has at all time
material maintained an office and place of business at
12601 Southfield Road in Detroit, where it has been
engaged in the manufacture , sale, and distribution of farm
machinery and related products . The Respondent admits
and I find that it is an employer engaged in commerce
within the meaning of the Act and the jurisdictional
requirements of the Board . It also admits that the Union is
s labor organization within the meaning of Section 2(5) of
,the Act. R. J. Coghlan is personnel and industrial relations
(supervisor and Thomas Cicero is an hourly personnel
supervisor.
II. THE ALLEGED UNFAIR LABOR PRACTICE
On or about June 28, 1968 , the Regional Director for
Region 7 certified the Union as the exclusive bargaining
representative within the meaning of Section 9(a) of the
Act of certain of the Respondent's employees at its North
American Tractor Plant , its engineering experimental shop,
and its engineering laboratory, all located at the Southfield
Road Plant and, since July 1971, the Respondent has
continued to recognize and bargain with the Union as the
exclusive collective-bargaining representative of the fore-
going employees . On or about July 1, 1971, the Respondent
and the Union entered into a contract establishing certain
wages, hours, and other terms and conditions of employ-
ment for the employees of the Respondent at various
locations, including those employed at the Southfield Road
Plant . This agreement became effective on July 1, 1971,
and was to remain and did remain in full force and effect
until October 31 , 1973. At all times since the latter date, the
agreement has remained in effect pending the negotiation
of a successor contract.
At all times since July 1, 1971, the Respondent and the
Union have maintained and enforced at the Southfield
Road Plant and at other facilities of the Respondent an
agreement which, among other things , contains the
provisions in article 17 set forth above , and the "Rules of
Personal Conduct," also quoted above. On or about
October 30 , 1973, Respondent's Agent Cicero denied
employee Rosen the right to distribute literature involving
'employee concerns on his own nonworktime in nonwork
areas . The complaint alleged that by maintaining these
provisions and by denying Rosen the right to distribute
MASSEY-FERGUSON, INC. 489
literature, the Respondent "unlawfully restricted the right
of certain of its employees . . . to engage in lawful
solicitation and lawful distribution of literature on behalf
of or in opposition to the Union or any other labor
organization or on behalf of or in opposition to any
candidates or issues in the Union or any other labor
organization or concerning any other concerted activity for
the purpose of collective bargaining or other mutual aid or
protection." In its answer, the Respondent denied that it
denied Rosen "the right to distribute literature involving
employee concerns, on his own nonworktime in non-work
areas ." It asserts that Cicero , in conformance with the
provisions of the collective-bargaining agreement set forth
above, denied Rosen "the right to distribute literature
which did not refer to the Respondent Employer, its
employees, or to the local union representing the employ-
ees of the Respondent on his own non-worktime in a work
area , rather than a non-work area."
Rosen, employed since November 1968, holds the
classification of line inspector . He is a member of Local
174 of the Union and is also a member of an organization
called United National Caucus, which he described as "a
group of UAW members who feel that the International is
not responsive to the needs of the membership which
would like to restructure the UAW so that it's more
democratic." The Caucus also publishes a newspaper. On
October 26, 1973, during the afternoon, Rosen went to the
personnel office to speak to Cicero but found he was not
there. He asked a Mrs. Grant, the secretary, if she would
find out for him if he could distribute the Caucus
newspaper in the plant. The following Tuesday, October
30, Rosen went back to personnel after working hours and
spoke to Cicero. Rosen asked Cicero if he had found out
whether he could get permission to distribute the paper
and, according to Rosen, Cicero "said that there was no
way I could distribute it especially with negotiations going
on and I had asked him if he had had a chance to read it.
He said he had only glanced at it but he felt that it was well
written, he said however, Mr. Coghlan had read it and then
mailed it on to Des Moines ." As he was leaving, Rosen
remarked to Cicero that he had heard that the Company
"was on weak ground because NLRB had made some
decisions in some cases that allowed us to distribute
literature in non-working areas at non-working times."
Rosen further testified that in October 1972, he and other
employees published a paper called the Third Ear, which
contained his name and that of the Chairman, Norman
Przybylowicz. He passed out this publication at the plant
entrance shortly after working hours.
As hourly employment supervisor, Cicero recruits new
employees , handles the benefits agreements , and adminis-
ters labor contracts. Cicero testified that Rosen on or
about October 30 "approached me in my office asking if he
could distribute a paper which was entitled the United
National Caucus and at that point I told him no."
According to Cicero, employees are "permitted their own
general discussions as long as it doesn't disrupt their
work." Cicero described the location of the timeclocks as
being approximately in the middle of the plant. There are
four timeclocks, one on each side of a double corridor that
has an exit entrance there that goes out to the parking lot.
The timeclock area also is the storage area for parts used
on the assembly line, and thus the work would include
locating and placing the parts from that area and removing
them. In addition, Hi-Lo drivers are engaged in stacking,
unstacking, counting parts , locating parts , and filling out
tickets . Approximately 30 to 35 drivers go off work at 3:30.
Coghlan , the plant manager, in October 1973 was
personnel industrial relations supervisor . Coghlan related
that in November of 1973 he was approached by a union
chairman who asked permission to post on the bulletin
board a notice relating to the Union's community action
program which stated that the UAW was endorsing certain
candidates and listed them . He asked for permission to
distribute the literature and it was granted . Coghlan related
that within 30 days before he testified the plant had
received an inspection from the Michigan Department of
Labor Occupational Safety and Health Division. It
contained a substantial list of violations of the code.
The Respondent introduced into evidence three con-
tracts which contained provisions concerning the use of
bulletin boards . The first agreement , between Chrysler
Corporation and the UAW, effective February 1971,
provided that "the bulletin boards shall not be used by the
Union for disseminating progaganda of any kind whatso-
ever ; and among other things shall not be used by the
Union for posting or distributing pamphlets or political
matter of any kind whatsoever , or for advertising." The
second agreement, between the Budd Company and the
International UAW, provided: "The Company will pro-
vide adequate bulletin boards for Union Notices which
have been approved by the president of the Union and the
Labor Relations Manager." The third agreement effective
January 29, 1971, between International Harvester Compa-
ny and the International UAW, provided as follows:
Section 2
The Union agrees that it will limit the use of these
bulletin boards for the following Union notices:
(a) Recreational and social affairs of the Union
(b) Union meetings
(c) Union appointments
(d) Union elections
(e) Announcement of the issues over which the
Union has the right to strike under this Contract
together with the time and place at which such strike
vote will be taken.
(f) Results of Union elections or strike votes
(g) Reports of standing Union committees
(h) Ruling or policies of the International Union
(i) Any other material authorized by the Company
Concludi Findings
The decision in this case is clearly covered by the
decision of the United States Supreme Court in N.L.R.B. v.
The Magnavox Company of Tennessee, 415 U.S. 322 (1974).
In that case, the majority of the Court found as follows:
We agree that a ban on the distribution of union
literature or the solicitation of union support by
employees at the plant during nonworking time may
constitute an interference with §7 rights... .
It is argued that the use of the bulletin board is a fair
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substitute. But as the Fifth Circuit said in the Mid-
States case the bulletin board may be an adequate
medium for "preserving the status quo" and yet not
give a union's adversaries "equal access to and
communications with their fellow employees." 403 F.2d
at 705.
Moreover, a limitation of the right of in-plant distribu-
tion of literature to employees opposing the union does
not give a fair balance to §7 rights, as the Board ruled
in the present case . For employees supporting the
union have as secure §7 rights as those in opposition.
The Board's position, as noted, has not always been
consistent . But its present ruling is, we think, quite
consistent with §7 rights of employees. It is the Board's
function to strike a balance among "conflicting
legitimate interests" which will "effectuate national
labor policy," including those who support versus those
who oppose the union. Labor Board v. Truck Division
Union, 353 U.S. 87, 96. Moreover, as respects employ-
ers, the rights of solicitation of employees by employees
concerning §7 rights are not absolute. As we noted in
Republic Aviation Corp. the Board may well conclude
that considerations of production or discipline may
make controls necessary. No such evidence existed here
and the trial examiner so found. Accordingly, this is
not the occasion to balance the availability of alterna-
tive channels of communications against a legitimate
employer business justification for barring or limiting
inplant communications.
ORDERI
Massey-Ferguson, Inc., of Detroit, Michigan, its officers,
agents , successors, and assigns, shall:
1. Cease and desist from maintaining, giving effect to,
or enforcing any rule which prohibits employees from
distributing literature in nonworking areas on nonworking
time on behalf of any labor organization relating to the
selection or rejection of a labor organization as the
exclusive bargaining agent of the employees in a unit
appropriate for collective bargaining, or other matters
related to the exercise of their Section 7 rights.
2. Take the following affirmative action which is
necessary to effectuate the policy of the Act:
(a) Post at its plant and office in Detroit, Michigan, at its
Southfield Road plant and at any other facilities and
places of business where the rule pertaining to bulletin
boards is posted, copies of the attached notice marked
"Appendix." 2 Copies of the notice, on forms provided by
the Regional Director for Region 7, after being duly signed
by an authorized representative of the Respondent, shall
be posted by the 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. Reasonable
steps shall be taken by the Respondent to insure that said
notices are not altered, defaced or covered by any other
material.
(b) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of receipt of this Decision,
what steps the Respondent has taken to comply herewith.
Accordingly, I find that the Respondent, by maintaining
and enforcing the rules relating to distribution of literature
and by denying Rosen the right to distribute literature,
violated Section 8(a)(1) of the Act.
III. THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice violative of Section 8(axl) of the Act,
I shall recommend that it cease and desist therefrom and
that it take certain affirmative action designed to effectuate
the policies of the Act.
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. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing the rule which
prohibits employees from distributing literature on non-
working time in nonwork areas, Respondent has violated
Section 8(ax 1) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
On the foregoing findings of fact , conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
I In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 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.
2 In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to 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
WE WILL NOT maintain, give effect to, or enforce any
rule which prohibits our employees from distributing
literature in nonworking areas on nonworking time on
behalf of any labor organization relating to the
selection or rejection of a labor organization as the
exclusive bargaining agent of the employees in a unit
appropriate for collective bargaining, or pertaining to
other matters related to the exercise by employees of
the rights guaranteed to them by the National Labor
Relations Act, as amended, to form, join, or assist labor
organizations, to bargain collectively through repre-
sentatives of their own choosing, to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid and protection, or to
MASSEY-FERGUSON, INC. 491
refrain from any or all of such activities, except to the This is an official notice and must not be defaced by
extent that such right may be affected by an agreement anyone.
requiring membership in a labor organization as a This notice must remain posted for 60 consecutive days
condition of employment as authorized in Section from the date of posting and must not be altered, defaced,
8(a)(3) of the Act . or covered by any other material.
Any questions concerning this notice or compliance with
MASSEY-FERGUSON , INC. its provisions may be directed to the Board 's Office, 500
(Employer) Book Building , 1249 Washington Boulevard, Detroit,
Michigan 48226, Telephone, 313-226-3210.
Dated By
(Representative) (Title)