Douglas Aircraft Company, Component of McDonnell Douglas Corporation

National Labor Relations Board - Board Decisions

Mar 31, 1982

260 N.L.R.B. 1354 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Douglas Aircraft Company, Component of McDon-
nell Douglas Corporation and Charles Rosas.
Case 21-CA-18865
March 31, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On July 17, 1981, Administrative Law Judge
James S. Jenson issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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, find-
ings, and conclusions' of the Administrative Law
I Respondent excepts to the Administrative Law Judge's determination
that Respondent violated Sec. 8(a)(l) of the Act by maintaining and en-
forcing unlawful no-distribution rules. Respondent asserts it was not
given proper notice that the validity of its no-distribution rules was at
issue. It also claims that it was not afforded the opportunity to present
evidence on how the rules were interpreted by employees or how the
rules were actually enforced. Respondent further argues that it never
relied on the rules in refusing to permit Charging Party Charles Rosas to
distribute his open letter and that the evidence on the rules entered at the
hearing was merely background information and only incidental to the
complaint allegations. Thus, Respondent contends that the Administrative
Law Judge's finding violated Respondent's due-process rights and the
Administrative Procedure Act, 5 U.S.C. § 551, et seq.
We believe that the Administrative Law Judge properly considered the
lawfulness of Respondent's rules. The complaint alleges that on or about
March 26, 1980, "and continuing to date," Respondent has refused to
permit employees to distribute protected matter to other employees
during nonwork times and in nonwork areas of Respondent's facility, and
thereby has violated the Act. At the hearing, Respondent introduced into
evidence its Exh. 6. This exhibit, entitled "Section 13-Distribution of
Literature," was a new section of the contract between Respondent and
UAW Local 148. It was dated October 15, 1980, and was apparently ap-
proved by the parties on October 23, 1980. When Respondent moved to
place the exhibit into evidence, the Administrative Law Judge questioned
Respondent's counsel: "Well this is sort of after the fact, isn't it?" Re-
spondent's counsel replied: "Yes, Your Honor. The Complaint. though.
also alleges continuing violations." (Emphasis supplied.) This passage indi-
cates that Respondent was aware of the complaint allegations, and that
such allegations encompassed Respondent's distribution rules. Earlier in
the hearing, Respondent questioned Rosas about his testimony on a Janu-
ary 30, 1980, memorandum, from its police services captain, regarding
distribution of union literature. The memorandum stated that Respondent
had changed its policy on distribution of union literature and now permit-
ted such distribution on company property or at gates without the prior
approval of the labor relations department. Again, Respondent cannot
claim surprise that its distribution rules were evaluated by the Adminis-
trative Law Judge since it was Respondent that put them into evidence
and brought them into consideration. The complaint clearly put Respond-
ent on notice that the way it permitted distribution at its plant swas at
issue. It is equally clear that Respondent's rules on the subject were relat-
ed to the issues involved in the particular incident of March 26, 1980, and
were therefore properly examined by the Administrative Law Judge.
260 NLRB No. 180
Judge and to adopt his recommended Order, as
modified herein.2
The relevant facts, as more fully stated by the
Administrative Law Judge, indicate that Respond-
ent, by a manager, placed a new time restriction on
employee use of vending machines in certain build-
ings. Employees were upset with the new limita-
tion. Charles Rosas, an employee affected by the
new rule, talked with other employees, including a
union steward, about the matter and told them he
would attempt "to help." Rosas wrote an open
letter to the manager who issued the changed rule.
During his nonwork hours on March 26, 1980,
Rosas stood outside the gate of Respondent's facili-
ty and attempted to pass out this literature to
fellow employees. Respondent refused to allow
Rosas to distribute the literature. The Administra-
tive Law Judge found that, by refusing to permit
employee Rosas to distribute this literature to em-
ployees during nonwork time and in nonwork areas
of Respondent's facility, Respondent violated Sec-
tion 8(a)(1) of the Act. We fully agree with the
Administrative Law Judge's conclusion.
In defense of its actions, Respondent asserts, inter
alia, that it lacked knowledge of the concerted
nature of Rosas' activity, and therefore could not
have violated the Act. Respondent claims that,
contrary to the findings of the Administrative Law
Judge, Rosas' comments to the guards at the gate
that his letter pertained to several hundred employ-
ees cannot be used to prove knowledge because
there is no evidence that these guards are agents or
supervisors of Respondent. Respondent also argues
that Rosas' letter could not be construed to have
put Respondent on notice of his concerted protect-
ed activity. Thus, Respondent contends the com-
plaint should be dismissed.
We reject Respondent's assertion. Respondent
was well aware that Rosas wanted to pass out his
literature to other employees. Respondent admits as
much. Thus, Respondent concedes that its admitted
supervisor, Olson, denied Rosas' request to distrib-
ute the literature to his fellow employees. More-
over, Olson, according to his own testimony, read
the literature. And a reading of Rosas' open letter
reveals displeasure and protest over a manager's in-
stitution of new rules which affected, and was the
concern of, Respondent's employees. In seeking to
distribute such literature, it is clear that Rosas, after
discussing the matter with other employees and a
union steward, was attempting, as he put it, "to get
something done." That is, Rosas was ensuring that
Respondent and employees were aware of the
The Administrative Law Judge inadvertently failed to include a
cease-and-desist paragraph concerning the employees' exercise of their
Sec 7 rights. We shall correct the Order and notice accordingly
1354
DOUGLAS AIRCRAFT COMPANY
nature and extent of the dissatisfaction over the
manager's action. The matter discussed in the open
letter-a change in the time for employee use of
the vending machines-was a matter of concern to
fellow employees. Rosas testified that it caused em-
ployees to be "upset" and "mad" because it
changed a previous practice at the plant. Activity
similar to the activity engaged in by Rosas here has
repeatedly been held by the Board to be both pro-
tected and concerted. 3
In sum, Respondent knew Rosas wanted to dis-
tribute the material described above to employees.
It prevented him from doing so. It therefore both
knew of Rosas' concerted activity-his attempt to
distribute literature pertinent to matters encom-
passed within Section 7 of the Act-and of the
protected nature of his activity. On this basis, and
for the other cogent reasons articulated by the Ad-
ministrative Law Judge in his Decision, we con-
clude Respondent violated Section 8(a)(1) of the
Act by refusing to permit employees to distribute
protected matter to the employees during nonwork
time and in nonwork areas.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Douglas Aircraft Company, Component of Mc-
Donnell Douglas Corporation, Long Beach, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
1. Insert the following as paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
' See, e g. Dreis d Krump Manufacturing. Inc., 221 NLRB 309 (1975).
enfd 544 F2d 320 (7th Cir. 1976); Ford iMotor Company, 221 N RB 663
(1975); Hoerner Waldorf Corporation, 227 NLRB 612 (1976): Yedllorw Cah,
Inc., 210 NLRB 568 (1974); Easrtex, Inc v .'L.R.B. 437 U S 556 (1978).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR REI ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
In recognition of these rights, we hereby
notify our employees that:
Wv WILL NOT maintain or enforce a rule or
contract provision which prohibits employees
from distributing literature concerning matters
relating to the exercise of their Section 7
rights on nonworking time in nonworking
areas.
WE WILL NOT prohibit employees from dis-
tributing literature on nonworking time in non-
working hours concerning matters relating to
the exercise of their Section 7 rights.
WE WIlL. NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them by Section 7 of the Act.
DOUGI.AS AIRCRAFtI COMPANY,
COMPONENT OF MCDONNEL DOU(G-
LAS CORPORATION
DECISION
STATFMENI OF THE CASE
JAMES S. JENSON, Administrative Law Judge: This
case was heard in Los Angeles, California, on December
2, 1980.' The complaint was issued on May 22, pursuant
to a charge filed on March 28, and alleges that on or
about, and since, March 26 Respondent has refused to
permit employees to distribute protected matter to other
employees during nonwork times and in nonwork areas
of Respondent's facility. Respondent contends (I) that
Rosas was not engaged in concerted activity; (2) Re-
spondent had no knowledge of the concerted nature of
Rosas' activity; (3) that by attempting to bypass his
union representatives and the collective-bargaining
agreement Rosas' actions were not protected under the
National Labor Relations Act, as amended, herein called
the Act; and (4) his open letter to management was
libelous/scurrilous and his attempt to distribute it was
disloyal to Respondent. All parties were afforded full op-
'All d:ilrs hereill ;Ir in 1)98) unlers olhcru l i .satedJ
1355
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
portunity to appear, to introduce evidence, and to exam-
ine and cross-examine witnesses. Briefs were filed by the
General Counsel and Respondent and have been careful-
ly considered.
Upon the entire record in the case, including the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FACT
1. JURISDICTION
It is admitted and found that Respondent manufactures
jet airliners in Long Beach, California, that it annually
sells and ships products valued in excess of $50,000 di-
rectly to customers located outside the State of Califor-
nia, and that it is an employer engaged in commerce and
in a business affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent employs approximately 18,000 employees
at its Long Beach, California, facility and has dealings
with more than nine labor organizations, including UAW
Local 148. Charles Rosas is employed by Respondent as
a drop hammer operator in building 6, is a member of
Local 148, but is not nor has he ever held a position in
the Local. On January 21, L. J. Schiavoni, Respondent's
fabrication manager, issued the following memorandum
to fabrication supervisors:
Effective immediately, the use of all vending ma-
chines in Buildings 3, 4, 5, 6, and 6A is restricted to
use only during lunch and break periods.
Corrective action by floor supervision is anticipated
to assure compliance of this policy.
While the record is vague as to the pre-memorandum
practice, it appears the employees had been permitted to
exercise some discretion regarding use of the vending
machines. Rosas testified that the employees were "very
upset" with the fact "they had 10 minutes to get coffee,
did not have enough time to drink the coffee in 10 min-
utes or to purchase from the vending machines." He tes-
tified that he told other employees "that I would try to
use [sic] something in order to help the situation if I
could." He testified that he had also talked to one of the
union stewards about the memorandum, and had been in-
formed that the bargaining committee had been involved
in the matter but that nothing had been done. Rosas
claims he told the concerned employees and the union
steward of his plans to draft a letter concerning the
matter in hopes of remedying the problem. Accordingly,
Rosas drafted the following letter:
Mr. Schiavoni:
In the past, you have put out questionable memo-
randums directed to personnel in Buildings 3, 4, 5, 6
and 6A. One of your memorandums ordered the
working forces in the buildings mentioned to stop
using vending machines unless lunch or a break
period was at hand. Although the working force
must abide by your directive, we find that twenty-
foot lines of partrons visiting the vending machines
on a ten minute break, disgustingly frustrating. To
leave the machine with a purchase and have a good
minute to consume said purchase, does not go very
far toward assisting or boosting the morale which, I
am sure you are aware, go hand-in-hand with any
unit of productivity.
Recently, you released a memorandum stating
that Buildings 3, 4, 5, 6, and 6A, of which you are
Acting Director, have shown an increase in eye in-
juries. If this is so, I am sure you realize that, with
the increase in the working force that M.D.C. has
enjoyed in the past year, you will also have an in-
crease in all types of injuries.
I am writing this letter, and am unrealistically
hoping, I might add, that in your haste to dissemi-
nate said memorandums, you will take into account
the morale factor and unwarranted pressures that
accompany such unrealistic memorandums-memo-
randums which are hastily drafted and tend to dis-
criminate by their distribution in the buildings of
which you are Acting Director. They are discrimi-
nating because of the fact that they show an unfair
correlation between the buildings in which you are
not in the position of acquiring the Directorship.
Respectfully,
/s/ Chuck Rosas
Chuck Rosas
Dept. 404
cc: ARA Services
Rosas worked the second shift on March 26, so was
not scheduled to work until the afternoon. At or about 6
a.m., he stationed himself outside the fence surrounding
Respondent's premises, at gate 2, and handed copies of
the above letter to employees as they entered. After
about 15 or 20 minutes, he asked an entering employee
to give a copy to the guard at the guard's hut located on
the inside of the gate. After a few minutes, Rosas noticed
the guard was using the phone, so he "approached the
guard's hut to see if there was some problem." The
guard informed Rosas that the letter "did not have a
union bug on it and it should not be passed through the
gate," and that he felt it was a "nasty letter" because "it
looks like you're attacking a supervisor...." According
to Rosas, he responded that the letter was an attempt to
"get something done" that "pertains to several hundred
people in this building over here." The guard did not
want the letter to pass through the gate but offered to let
Rosas talk to his commander. The commander was
called and, after examining the letter, told Rosas he
could not let it through the gate because it was "nasty."
Rosas claimed that "[lit pertains to several hundred
people in there and it's some action I'm trying to take to
pursue a situation. I'll hopefully remedy it." Still con-
fronted with a refusal to let the letter through the gate,
Rosas left. He returned shortly before lunchtime and
asked to talk to the captain of security, who was not
available. Rosas returned after the lunchbreak and was
met by Richard Olson, assistant foreman in labor rela-
1356
DOUGLAS AIRCRAFr COMPANY
tions, and the security captain.2 He testified that Olson
would not permit the letter through the gate because, if
he did, everybody "would want to put a letter like that
out." Rosas then left.
Olson testified that, pursuant to a call from his man-
ager, he and another company official went to gate 6,
where he met Rosas and asked to see a copy of the lit-
erature that Rosas wanted to pass out. After reading the
handbill, he informed Rosas that he could not pass it out
in the plant, that he could proceed through the grievance
procedure, but that, as the letter was "libelous," it could
not be passed out. He testified Rosas did not inform him
that he, Rosas, "was acting on behalf of anybody else."
Olson testified Rosas told him "that he had talked to the
Union and they weren't going to help him." Asked to
state the reasons for not permitting Rosas to pass out the
handbill, Olson testified that "an individual cannot just
arbitrarily pass out any type of literature that he wants
. . .he has a union to back him up"; that the handbill
was "really scurrilous in that it attacks a supervisor"; and
that "He must go through the Union if he wishes to file
this type of complaint."
The collective-bargaining agreement in effect between
Respondent and UAW from April 17, 1978, to October
12, 1980, provided in pertinent part as follows:
Restriction Against Pamphlets: There shall be no
distribution by employees or by the Union of no-
tices, pamphlets, advertisements, political matter, or
other literature of any kind on Company time.
There shall be no posting by employees or by the
Union of notices, pamphlets, advertisements, politi-
cal matter, or other literature of any kind on Com-
pany property other than as provided in this Sec-
tion. Additional regulations currently in effect at
certain plants will be continued in supplemental
agreements.
On January 30, Police Services Captain Brown issued
the following memorandum regarding "UNION LIT-
ERATURE, DISTRIBUTION" to all shift commanders:
The Company Policy on distribution of Union Lit-
erature has changed. It is now authorized for Union
Literature to be distributed on Company property
or at the various gates during lunch, before and
after work. It is no longer necessary for them to
obtain approval from Labor Relations. We in Secu-
rity will still obtain a copy of the material and for-
ward [it] to the Chief. We will not interfere with
the distribution of this type of literature.
The current collective-bargaining agreement, effective
from October 15, 1980, contains the following provision
regarding "Distribution of Literature":
There shall be no distribution by employees or by
the Union of Union literature during working time.
Distribution of Union literature shall be permitted only
so long as it does not disrupt production. Non-union
'Respondent admits that Olson is a supervisor within the meaning of
the Act.
literature, including but not limited to notices, pam-
phlets, advertisements, political matter, or other lit-
erature of any kind shall not be distributed on Com-
pany premises without prior authorization of the Man-
ager-Labor Relations. There shall be no posting by
employees or by the Union of notices, pamphlets,
advertisements, political matter, or other literature
of any kind on Company property other than as
provided in this Section. Additional regulations cur-
rently in effect at certain plants will be continued in
supplemental agreements.
Conclusions
The record establishes that employees working in
buildings 4 and 6 were upset with the time limitations
placed upon their use of the vending machines by Schia-
voni's memorandum of January 21. Having determined
that the bargaining committee for Local 148 had been
unable to do anything about the new restriction, Rosas,
with the union stewards' approval, and after having in-
formed other concerned employees of his intention,
drafted an open letter to Schiavoni, which he sought to
distribute during his nonworking time to employees lo-
cated in a nonworking area, i.e., outside Respondent's
gate. While the record does not show that Rosas request-
ed permission to distribute the leaflet inside the gate, he
was informed that he could not do so, nor could the leaf-
let be brought onto the plant premises. Respondent's rea-
sons for not permitting Rosas to distribute the open letter
were that: (1) it was a personal gripe and not a group
action; (2) Rosas' actions amounted to an attempt to
bypass the Union and the collective-bargaining agree-
ments; and (3) the letter was scurrilous in nature.
Section 7 of the Act guarantees that employees shall
have the right, inter alia, to engage in "concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection." (Emphasis supplied.) Section
8(a)(1) of the Act implements this guarantee by making it
an unfair labor practice for an employer to "interfere
with, restrain, or coerce employees" in the exercise of
their Section 7 rights.
The question presented here is whether, in passing out
the open letter, Rosas was acting primarily in his own
behalf, to achieve a personal objective, or on behalf of
other employees, with their prior knowledge and con-
sent, for their mutual aid and protection, and with Re-
spondent's knowledge that he was so acting.
In evaluating the entire record, it is clear to me that
Rosas was engaged in protected concerted activity when
he distributed the open letter, and that Respondent's cur-
rent rule governing distribution of literature at its facility
is unlawfully restrictive.
With respect to Respondent's argument that Rosas was
engaged in voicing an individual gripe as opposed to a
group action, the record shows that Schiavoni's memo-
randum of January 21 imposed new time restrictions on
the employees' use of the vending machines which, ac-
cording to Rosas, caused them to be "upset" and "very
mad." Rosas told employees that he "would try to use
[sic] something in order to help the situation if I could."
Rosas voiced his concern over the new restriction to
1 357
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Steward Hernandez of building 4' and learned
that the matter was a concern to the employees there,
that some had been reprimanded and that a bargaining
committee had taken up the matter but that nothing had
been done. Rosas informed the steward that he intended
to write a leaflet "hopefully to remedy the problem,"
and that the steward responded, "Great." Thus, it is seen
that his action in drafting and disseminating the leaflet or
open letter was in response to a group concern and had
the sanction of the union steward, who was also an em-
ployee. Its purpose, as is clear, was to advance their
common interest and concern over the new vending ma-
chine restriction and was for their mutual aid and protec-
tion. His conduct with relation to the leaflet would have
been concerted and protected irrespective of whether he
was overtly designated by other employees to act on
their behalf, or whether he outlined to them what he was
going to do. Diagnostic Center Hospital Corp. of Texas,
228 NLRB 1215 at 1217 (1977).
Respondent asserts it lacked knowledge of the concert-
ed nature of Rosas' activity, and, citing numerous Board
and court cases, argues that, in order for an employer to
be guilty of violating Section 8(a)(l), the employer must
have known of the concerted nature of the employee's
activity. While there is indeed authority to support Re-
spondent's argument, the fact that Respondent had
knowledge of the concerted nature of Rosas' activity has
been ignored by it. In this regard, Rosas testified without
contradiction that he informed the security guard at gate
2, and later the guard commander that the leaflet or
open letter "pertains to several hundred people." More-
over, the letter itself put Respondent on notice that
Rosas' activity was concerted where it states, "Although
the working force must abide by your directive, we find
that twenty-foot lines of patrons visiting the vending ma-
chines on a ten minute break, disgustingly frustrating."
(Emphasis supplied.) Accordingly, I find no merit to Re-
spondent's argument that it lacked knowledge of the
concerted nature of Rosas' activity.
Respondent argues that Rosas' conduct was, in effect,
an attempt to usurp and bypass his exclusive bargaining
representative, and, therefore, his conduct was not pro-
tected under Section 7 of the Act. Aside from the fact
Rosas' course of action had the approval of the union
steward, in McDonnell Douglas Corporation, 210 NLRB
280 (1974), the Board, citing N.L.R.B. v. Magnavox Com-
pany of Tennessee, 415 U.S. 322 (1974), as authority, held
that the parties to a contract cannot diminish or waive
employees' Section 7 rights. In Magnavox, the Court
pointed out that the working place is "uniquely appropri-
ate for dissemination of views concerning . . . the var-
ious options open to employees. So long as the distribu-
tion is by employees to employees and so long as the in-
plant solicitation is on nonworking time, banning of that
solicitation might seriously dilute Section 7 rights." The
court went on to point out that the rights of solicitation
of employees concerning Section 7 rights is not absolute
and that considerations of production or discipline may
make controls necessary. However, as in Magnavox, "no
such evidence existed here." Hence, Rosas was not re-
'Rosas worked in building 6.
quired to proceed through the grievance procedure in
the collective-bargaining agreement, nor to seek redress
only through the Union. Further, upon the above-men-
tioned authorities, it is clear (I) that Section 12(c) in the
April 17, 1978, to October 12, 1980, contract, which pro-
hibited distribution of any literature on "company time";
and (2) the present rule effective from October 15, 1980,
which prohibits the distribution of "literature of any kind
. . .on company premises" without prior authorization
from the manager of labor relations, are both overly
broad in that the former rule unlawfully restricted the
right of employees to distribute literature during non-
working time, e.g., lunch, breaks, and other periods
when employees were not actively at work; and the cur-
rent rule unlawfully restricts the distribution of all Sec-
tion 7 literature on company premises, not only on non-
working time, but also in nonwork areas. That the pres-
ent rule has been applied in an unlawful manner is evi-
dent from Respondent's refusal to permit Rosas to pass
out the literature both outside the gate and on company
premises within the gate, including nonwork areas and
during nonworking time.
Respondent argues that Rosas' open letter was either
"libelous" or "scurrilous" and that its distribution was
"disloyal," thereby making his activity unprotected. Ac-
cording to Respondent, "Rosas' letter to Schiavoni ac-
cused Schiavoni of discriminating against employees in
order to gain a directorship position. No evidence was
shown that Rosas had any foundation for this statement,
therefore, it was malicious because it was made with
reckless disregard of the truth. Therefore, Rosas' distri-
bution of this letter was unprotected. Moreover, Rosas'
attempt to distribute such a scurrilous letter concerning
Schiavoni amounted to unprotected disloyalty." I am not
persuaded by Respondent's argument that the allegedly
intemperate language of the open letter denied to Rosas
the protection of the Act. I do not find that the open
letter was "libelous" or "scurrilous" or contained state-
ments so "disloyal" as to forfeit the protection of the
Act.
Respondent relies principally on Texaco, Inc. v.
N.L.R.B., 462 F.2d 812 (3d Cir. 1972), cert. denied 409
U.S. 1008 (1972) (wherein the circuit court enforced the
Board's Order in 189 NLRB 343 (1971)); and N.L.R.B.
v. Local Union No. 1229. International Brotherhood of
Electrical Workers [Jefferson Standard], 346 U.S. 464
(1953), wherein the Supreme Court remanded the case to
the court of appeals with instructions to dismiss the re-
spondent's petition to modify the Order of the Board in
94 NLRB 1507. Neither case, in my view, nor the other
cases cited in its brief support the Respondent's position.
The Board in Jefferson Standard found a type of activity
unprotected because it was a disparagement of the em-
ployer's product made in the context of an appeal to the
general public which was entirely unrelated to the labor
dispute which the union had with the employer. In the
instant case, the open letter was not directed to or dis-
tributed to the general public, nor was it critical of Re-
spondent's products or services. Rather, it expresses dis-
pleasure with the new rules regarding use of the vending
machines. It is nothing more than an appeal to Schiavoni
135X
DOUGLAS AIRCRAFT COMPANY
in an effort to make him aware of the employees' dissat-
isfaction with the new policy, and, as such, was related
to Respondent's labor policy and was therefore protected
by Section 7. Both the Trial Examiner, whose findings,
conclusions, and recommendations were adopted by the
Board in Texaco, and the court, in enforcing the Board's
Order, distinguish JefJlrrson Standard, in that the appeal
in Texaco was made only to employees and was made in
the context of a labor dispute. Quoting the Trial Examin-
er, the court's opinion in Texaco states: "It is well settled
the misstatements made in the course of concerted activi-
ty which denounce an employer for his conduct in labor
relations . . . only forfeit the statutory protection when
it is evident that the statements are deliberately or mali-
ciously false." I find nothing in the open letter that could
be said to be deliberately or maliciously false. The third
paragraph, which Respondent apparently finds repug-
nant, expresses in a not too clear but sarcastic manner
that Rosas hopes Schiavoni will take into consideration
the employees' morale and the pressures placed upon
them when he drafts memorandums affecting them. and
that there should be some "correlation between the
building" so that there will be no discrimination with re-
spect to conditions between buildings in which Schiavoni
is and is not the director. Respondent's apparent hyper-
sensitivity does not convert otherwise protected activity
into unprotected activity.
In sum, I find that the distribution of the open letter
was protected concerted activity since it dealt with a
matter of employee concern in the context of the work-
place and that Respondent violated Section 8(a)(1) of the
Act by refusing to allow the distribution of protected
matter to employees during nonworking time and in non-
working areas of Respondent's facility. Eartex Inc. v.
N.L.R.B., 437 U.S. 556 (1978).
CONCLUSIONS OF LAW
1. Douglas Aircraft Company, Component of McDon-
nell Douglas Corporation, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. By maintaining or enforcing a rule or contract pro-
vision which prohibits employees from distributing litera-
ture concerning matters relating to the exercise of their
Section 7 rights on nonworking time in nonworking
areas, Respondent has violated Section 8(a)(1) of the
Act.
3. By prohibiting employees from distributing litera-
ture on nonworking time in nonworking areas concern-
ing matters relating to the exercise of their Section 7
rights. Respondent has violated Section 8(a)(I) of the
Act.
4. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of
las, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER4
The Respondent, Douglas Aircraft Company, Compo-
nent of McDonnell Douglas Corporation, Long Beach,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining or enforcing a rule or contract provi-
sion which prohibits employees from distributing litera-
ture concerning matters relating to the exercise of their
Section 7 rights on nonworking time in nonworking
areas.
(b) Prohibiting employees from distributing literature
on nonworking time in nonworking areas concerning
matters relating to the exercise of their Section 7 rights.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Post at its facility in Long Beach, California, copies
of the attached notice marked "Appendix."" Copies of
said notice, on forms provided by the Regional Director
for Region 21, after being duly signed by an authorized
representative of Respondent, shall be posted by Re-
spondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(b) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
'In the event no exceptions are filed as prosided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board. the find-
ings, 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 waised foir all purposes
s 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 Pursu-
ant to) a Judgment of the United States Court of Appeals E nforcing an
Order of the National .ahbor Relations Board."
1359