General Motors Corp.

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 986 (N.L.R.B. 1974)

986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Motors Corporation and Donald E. Coatney
and International Union of Electrical, Radio &
Machine Workers, AFL-CIO-CLC, and its Locals
801, 755, 717, 509 and 416, Parties to the Contract.
Case 9-CA-7765
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Upon charges filed by Donald E. Coatney, the
General Counsel of the National Labor Relations
Board , by the Acting Regional Director for Region 9,
on October 30, 1973, issued a complaint against
Respondent General Motors Corporation. Copies of
the charge and the complaint and notice of hearing
before an Administrative Law Judge were duly
served on the Respondent, the Charging Party, and
the Parties to the Contract. In substance, the
complaint alleges that Respondent has violated, and
is violating , Section 8(a)(1) of the National Labor
Relations Act, as amended, by maintaining and
enforcing a collective-bargaining agreement with the
International Union of Electrical, Radio & Machine
Workers, AFL-CIO-CLC, and its Locals 801, 755,
717, 509, and 416, herein collectively called the
Union, containing a provision, which unlawfully
restricts the right of employees to distribute literature
involving union and other protected concerted
activities on Respondent's property. The complaint
also alleges that Respondent has unlawfully and
discriminatorily enforced said contract provision by
forbidding employees who were candidates for union
office in an upcoming election from distributing
literature pertaining to their candidacy, while permit-
ting the distribution of literature on behalf of the
incumbent officers. As a further separate violation
the complaint alleges that Respondent has enforced
an unlawful shop rule which prohibits employee
solicitation involving union activities and other
protected concerted activities in nonworking areas
during nonworking time . The amended answer duly
filed by Respondent substantially admits the jurisdic-
tional and factual allegations of the complaint, but
denies the commission of any unfair labor practices.
On or about December 12, 1973, the Charging
Party, the General Counsel, Respondent, and the
Union entered into a stipulation and motion to the
Board. The stipulation recited the jurisdictional facts,
the facts relevant to the complaint, and the agree-
ment of the parties that the charge, the complaint
and notice of hearing, the answer and amended
answer, and the stipulation and motion shall consti-
tute the entire record in the case, and that no oral
testimony is necessary or desired by the parties. The
parties further stipulated that they waived a hearing
before an Administrative Law Judge, the ruling upon
motions by an Administrative Law Judge, the
making of findings of fact and conclusions of law,
and the issuance of a decision by an Administrative
Law Judge and any exceptions thereto, and that they
desired to submit the case directly to the Board for a
Decision and Order. They further petitioned the
Board to transfer the case to the Board.
On February 3, 1974, the Board granted the
motion, approved the stipulation, and ordered the
proceedings to be transferred to the Board. Thereaft-
er, the General Counsel, the Respondent, and the
Union filed briefs which have been duly considered
by the Board.
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.
Upon the entire record in this case, the Board
hereby makes the following:
FINDINGS OF FACT
A. The Business of Respondent
General Motors Corporation is a Delaware corpo-
ration engaged in the manufacture and assembly of
automobiles, automotive products, and electrical
appliances at various plants located in several States
throughout the United States. Annually, in the
course and conduct of its business operations,
Respondent purchases goods and materials valued in
excess of $50,000, which it causes to be transported
to its various plants directly from States other than
those in which said plants are located, and sells and
ships products valued in excess of $50,000 directly to
firms located outside the States in which said goods
are manufactured or assembled. Respondent admits,
and we find, that it is now, and at all times material
herein has been, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. We
further find that it will effectuate the purposes of the
Act to assert jurisdiction in this proceeding.
B. The Labor Organization Involved
The parties stipulated, and we find, that the Union
is now, and at all times material herein has been, a
labor organization within the meaning of Section
2(5) of the Act.
C. The Unfair Labor Practices
The parties stipulated the following facts to be
true:
1. At all times material herein , the Union has
211 NLRB No. 123
GENERAL MOTORS CORP. 987
been certified by the Board as the exclusive repre-
sentative of the Respondent's production and main-
tenance employees at certain of Respondent's plants
located in Dayton and Warren Ohio; Rochester,
New York; and New Brunswick, New Jersey. During
this period of time, the Respondent and the Union
have maintained in effect a collective-bargaining
agreement covering the employees of these plants,
that in pertinent part provides as follows:
(57) The plants covered by this Agreement will
erect bulletin boards which may be used by the
Union for posting notices approved by the local
Managements [of Respondent] and restricted to:
(a) Notices of Union recreational and social
affairs,
(b) Notices of Union elections,
(c) Notices of Union appointments and
results of Union elections,
(d) Notices of Union meetings,
(e) Other notices concerning bona fide
Union activities such as cooperatives, credit
unions and unemployment compensation
information.
(58) The number, location and size of such
bulletin boards in each bargaining unit under this
Agreement shall be decided by the local Manage-
ment [of Respondent] and the Shop Committee
[of the Union].
(58a) There shall be no other general distribution,
or posting by employees, of pamphlets, advertis-
ing or political matter, notices, or any kind of
literature upon [Respondent's] property other
than herein provided.
2. At all times material herein Respondent has
enforced the above-described contract provisions to
prohibit the distribution of literature by employees,
other than on bulletin boards, in any area of its
plants at any time, thereby prohibiting distribution of
literature by employees in nonworking areas during
nonworking times. Respondent makes no contention
that considerations of production or discipline
require maintenance of the foregoing prohibition.
3. Also at all times since November 10, 1972,
Respondent has maintained and enforced at its
Dayton, Ohio, plants 1 and 2, the following rule in its
"Shop Rules, Safety Rules and Smoking Rules"
booklet: "Unauthorized soliciting or collecting con-
tributions for any purpose whatsoever during work-
ing time ," shall be grounds for disciplinary action.'
4. On or about May 2 , 3, and 4, 1973, persons
who were supervisory personnel and agents of the
Respondent within the meaning of Section 2 ( 11) and
2(13) of the Act , respectively, discriminatorily en-
forced paragraph (58a), described above, by orally
prohibiting the distribution by employees, at the
plant gates of its - Frigidaire Division at Dayton,
Ohio , of written literature pertaining to their candi-
dacy for offices of the Union , while permitting the
distribution of campaign literature by employees on
behalf of incumbent officers of the Union , and the
sale and/or distribution of newspapers , cookies, and
candy in furtherance of beneficient causes, as well as
other institutional union and company literature.
D. Discussion
The General Counsel and the Union contend, inter
alia, that the contractual provision designated as
(58a) is unlawful. They rely on previous Board
decisions 2 for the proposition that certain rights
granted employees by Section 7 of the Act may not
be waived by the bargaining representative, and
would include. among such rights the right to
distribute literature pertaining to candidacy for
union office. Respondent contends that the Board
should return to the policy followed in such cases as
The May Department Stores Company,3 and North
American Aviation, Inc.,4 of upholding contractual
no-distribution provisions on the grounds that a
bargaining representative is entitled to waive the
right of employees to distribute literature on compa-
ny property.
The leading Board decision in this area is Gale
Products, Division of Outboard Marine Corp., supra. In
that case, the Board held for the first time that an
unlimited contractual prohibition against employee
solicitation and distribution would unduly hamper
the employees in exercising their basic right under
Section 7 of the Act to select a bargaining representa-
tive. The Board was of the view that the validity of a
contractual waiver of employee rights depends on
whether the interference with statutory rights would
be so great as to override any legitimate reasons for
upholding the waiver.
The no-solicitation provision in Gale Products,
which was similar to that in the instant case, was
invoked against employees who distributed authori-
zation cards on behalf of a union other than the
t In its brief, Respondent claims that this shop rule was adopted
pursuant to contract provisions (57), (58), and (58a), quoted above.
Therefore, we shall consider the shop rule in that light, as well as the
question of its validity on its face , as raised by the allegations of the
complaint.
2 Gale Products, Division of Outboard Marine Corp., 142 NLRB 1246,
enforcement denied 337 F.2d 390 (C.A. 7); Armco Steel Corp., 148 NLRB
1179, enforcement denied 344 F.2d 621 (C.A. 6); General Motors
Corporation, 147 NLRB 509, enforcement denied 345 F.2d 516 (C.A. 6);
General Motors Corporation, 158 NLRB 1723.
3 59 NLRB 976.
4 56 NLRB 959.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incumbent bargaining representative. The Board
found that employee efforts to change the bargaining
representative could only be effectively pursued in
the place of work and that neither the employer nor
the representative was entitled, absent special cir-
cumstances which did not appear in that case, to
attempt to "freeze out" another union by infringing
on the statutory rights of employees.
The Board adhered to this view in several subse-
quent cases, including two proceedings involving the
General Motors Corporation .5 In each of the General
Motors decisions, the Board, relying on its Gale
Products rationale, found contractual provisions
virtually identical to that in the instant case to be
violative of Section 8(a)(1).
Thereafter, in International Association of Machin-
ists and Aerospace Workers District No. 9, AFL-CIO
[McDonnell Douglas] v. N.L.R.B.,6 the Court of
Appeals for the Eighth Circuit adopted the Board's
view that a contractual no-distribution provision
similar to that in the instant case was an invalid
infringement on the Section 7 rights of employees.
However, the court further held that such a provision
could not lawfully prohibit employees from distribut-
ing literature either on behalf of or in opposition to
any labor organization, thereby extending the Gale
Products rule to render unlawful any prohibition of
employees' distribution of literature in support of the
incumbent bargaining representative, as well as
opposition literature.
The Board followed this view in The Magnavox
Company of Tennessee,7 which was recently affirmed
by the Supreme Court.8 The Supreme Court held that
the employer's rule, promulgated pursuant to a
contract provision, which prohibited the in-plant
distribution by employees to other employees on
nonworking time and in nonworking areas, was
unlawful under Section 8(a)(1) of the Act, thus
adopting the Board's position that no-distribution
clauses may not be lawfully included in a collective-
bargaining agreement if such a clause unduly inhibits
the exercise of the employees' basic Section 7 rights.
The contract provision here involved is of the same
ilk as those which the Board, in the cases cited above,
has found to constitute unlawful infringement upon
the employees' right to select or reject a bargaining
representative. The Board's position that the parties
to a collective-bargaining agreement may not agree
to impose limitations upon these rights has now been
upheld by the Supreme Court in N.LR.B. v. The
Magnavox Company of Tennessee, supra. Accordingly,
See fn . 2, supra
415 F.2d 113 (C.A. 8), enfg. 171 NLRB 234.
195 NLRB 265.
N.L.RB. v. The Magnavox Company of Tennessee, 414 U.S. 1108
(February 27, 1974).
9 Chauffeur's Umon Local 923 (Yellow Cab Company), 172 NLRB 2137 at
insofar as the contract provision here clearly imping-
es upon the employees' overriding right under
Section 7 of the Act to select or reject a bargaining
representative, we find that it violates Section 8(a)(1)
of the Act for that reason.
In the instant case, however, the main issue is not
whether employees may be prohibited from distribut-
ing literature in opposition to, or in support of, the
incumbent bargaining representative, but whether
employees may be prohibited from distributing
literature on nonworking time and in nonworking
areas of the plant in support of, or in opposition to,
the reelection of incumbent union officers.
We have long held that the right to oppose the
reelection of incumbent union officials is protected
activity within the meaning of Section 7 of the Act -9
Furthermore, in a very real sense , the identity of the
officers of a labor organization substantially influ-
ence the nature of the organization as a bargaining
agent. Thus, the right of employees to distribute
literature pertaining to the selection of union officers
is intimately interwoven with the right to distribute
literature pertaining to the selection or retention of a
bargaining representative, and may not be waived by
the bargaining agent.
We find, therefore, that Respondent, by maintain-
ing and enforcing contract provision (58a) referred to
above so as to forbid employee distribution of
literature pertaining to the election of union officers,
has also violated Section 8(a)(1) of the Act.
We further find that Respondent's disparate
enforcement of paragraph (58a) of the collective-
bargaining agreement by permitting the distribution
of campaign literature by employees on behalf of
incumbent officers of the Union while prohibiting
the distribution of campaign literature by employees
opposed to incumbent officers is a further violation
of Section 8(a)(1).
However, contrary to General Counsel's conten-
tion, we do not find that the maintenance of the shop
rule referred to above, standing alone, violates
Section 8(a)(1). For the reasons stated in Essex
International, Inc., 211 NLRB No. 112, we find the
shop rule valid on its face because it is couched in
terms of prohibiting solicitation during "working
time" which in our view connotes the period of time
that is spent in the performance of actual job duties,
excluding time alloted for lunch and break periods.10
There is no evidence that the shop rule has been
construed more broadly than this.
2138; Falstaff Brewing Corporation, 128 NLRB 294.
10 Member Fanning, however, for the reasons expressed in his dissent in
Essex, would find the shop rule presumptively invalid on its face since he
views the term "working time " as ambiguous , and the nsk of ambiguity
must be borne by the promulgator of the rule. He would , therefore , find that
the rule itself, being invalid , violated Sec. 8(aXI).
GENERAL MOTORS CORP. 989
1. THE EFFECTS OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth above have a
close, intimate, and substantial relation to trade,
traffic, and commerce among and between the
several States , and tend to lead to industrial strife
burdening and obstructing commerce.
II. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices violative of- Section 8(a)(1) of
the Act, we shall order 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. General Motors Corporation 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 a contract
provision which prohibits employees from distribut-
ing literature pertaining to the selection or retention
of a labor organization as their bargaining represent-
ative or to their candidacy for union office or other
matters relating to the exercise of their Section 7
rights on nonworking time and in nonworking areas,
Respondent has violated Section 8(a)(1) of the Act.
4. By discriminatorily enforcing the above-de-
scribed contractual provision, Respondent has violat-
ed Section 8(a)(1) 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 the Respondent,
General Motors Corporation, Dayton, Ohio; War-
ren, Ohio; Rochester, New York; and New Bruns-
wick, New Jersey, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or enforcing any
rule or collective-bargaining provision which prohib-
its employees from distributing literature in non-
working areas on nonworking time in support of, or
in opposition to, any candidates for union office, or
relating to the selection or retention of a labor
organization as the exclusive collective-bargaining
representative of said employees, or other matters
related to the exercise by employees of their Section
7 rights.
(b) Disparately enforcing such a contractual
provision.
2. Take the following affirmative action which,
we find, will effectuate the policies of the Act:
(a) Post at its plants in the aforementioned
locations copies of the attached notice marked
"Appendix."" Copies of said notice, on forms
provided by the Regional Director for Region 9,
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 thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able 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 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
11 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
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 or provision of a collective-
bargaining agreement which prohibits any em-
ployee from distributing literature in nonworking
areas on nonworking time in support of, or in
opposition to, any candidate for union office, or
relating to the selection or retention of a labor
organization as the exclusive bargaining repre-
sentative of said employees, or other matters
related to the exercise by employees of their
Section 7 rights.
WE WILL NOT disparately enforce any rule
which prohibits the distribution of literature so as
to enforce such a rule against employees who
oppose the incumbency of candidates for union
office while permitting the distribution of litera-
ture by employees on behalf of incumbent
officers of the union.
GENERAL MOTORS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced Any questions concerning this notice or compli-
by anyone. ance with its provisions may be directed to the
This notice must remain posted for 60 consecutive Board's Office, Federal Office Building, Room 3003,
days from the date of posting and must not be 550 Main Street, Cincinnati, Ohio 45202, Telephone
altered, defaced, or covered by any other material. 513-684-3686.