National Steel Corp.

National Labor Relations Board - Board Decisions

Oct 28, 1968

173 N.L.R.B. 401 (N.L.R.B. 1968)

NATIONAL STEEL CORP 401
National Steel Corporation , Great Lakes Steel Divi-
sion and United Steelworkers of America, AFL-
CIO National Steel Corporation , Great Lakes
Steel Division and United Steelworkers of
America , AFL-CIO, Petitioner . Cases 7-CA-
6274 and 7-RC-8045
October 28, 1968
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On July 5, 1968, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled pro-
ceeding, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Ex-
aminer further found that the Respondent's unlawful
conduct had interfered with a Board election held on
June 28, 1967, and recommended that the election
be set aside. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a support-
ing brief,' and the General Counsel filed an answering
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
powers in connection with this proceeding to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as modified
below.'
ORDER
si',n, Ecorse and River Rouge, Michigan, its officers,
agents, successors, and assigns shall
1. Cease and desist from:
(a) Maintaining or attempting to enforce its rule
prohibiting employees, when they are on nonworking
time and in nonworking areas of its premises, from
distributing union literature on behalf of United
Steelworkers of America, AFL-CIO or any labor
organizations.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the exer-
cise of their right to self-organization, to form labor
organizations, to join or assist any labor organization,
to bargain collectively through representatives of
their own choosing, or to engage in concerted
activities for the purpose of collective bargaining or
other mutual aid of protection, or to refrain from any
or all such activities.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act.
(a) Notify United Steelworkers of America,
AFL-CIO, in writing, that it has rescinded its rule
prohibiting employees, when they are on nonworking
time and in nonworking areas of its premises, from
distributing union literature on behalf of the above-
named union, and that its employees may resume
such activities.
(b) Post at its plants in Ecorse and River Rouge,
Michigan, copies of the attached notice marked
"Appendix."3 Copies of said notice on forms to be
provided by the Regional Director for Region 7,
shall, after being duly signed by the Respondent's
representative, be posted by the Respondent im-
mediately upon receipt thereof, and be maintained by
it for a period of 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.
(c) Notify the Regional Director for Region 7, in
writing, within 10 days from the receipt of this
Decision, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the election4 conducted
at the Respondent's plants located at Ecorse and
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
National Steel Corporation, Great Lakes Steel Divi-
1The Respondent's request for oral argument is hereby denied, as
the record, exceptions, and briefs adequately present the issues and
positions of the parties.
2The Board finds it unnecessary to consider Petitioner's remaining
exceptions filed in Case 7-RC-8045 on February 9, 1968, in view of
its disposition of this consolidated proceeding on other grounds.
31n the event that this Order is enforced by a decree of a United
States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the
words "a Decision and Order."
4An election eligibility list, containing the names and addresses of
all the eligible voters, must be filed by the Employer with the Regional
Director for Region 7 within 7 days from the date of issuance of the
Notice of Second Election by the Regional Director. The Regional
Director shall make the list available to all parties to the election. No
extension of time to file this list shall be granted by the Regional
Director except in extraordinary circumstances. Failure to comply with
this requirement shall be grounds for setting aside the election
whenever proper objections are filed. Excelsior Underwear Inc., 156
NLRB 1236.
173 NLRB No. 65
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
River Rouge, Michigan on June 28, 1967, be, and it
hereby is, set aside, and that Case 7-RC-8045 be
remanded to the Regional Director for Region 7 for
the purpose of conducting a new election at such
time as he deems that circumstances permit the free
choice of a bargaining representative.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the
National Labor Relations Board and in order to
effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT maintain or attempt to enforce any
rule prohibiting our employees, when they are on
nonworking time and in nonworking areas of our
premises, from distributing union literature on behalf
of United Steelworkers of America, AFL-CIO, or
any other labor organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations,. to join or assist any labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL notify United Steelworkers of America,
AFL-CIO, in writing, that we have rescinded our rule
prohibiting employees, when they are on nonworking
time and in nonworking areas of company premises,
from distributing union literature on behalf of the
above-named union, and that employees may resume
such distribution.
NATIONAL STEEL CORPORATION,
GREAT LAKES STEEL DIVISION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 con-
secutive days from the date of posting, and must not
be altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with,its provisions, they may
communicate directly with the Board's Regional
Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48223, Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A . RICCI, Trial Examiner : These cases , involving
objections to conduct affecting the results of an election and
unfair labor practice charges , were heard by the fully desig-
nated Trial Examiner at Detroit , Michigan , on April 15 and 16,
1968, on complaint of the General Counsel against National
Steel Corporation , Great Lakes Steel Division , herein called
the Respondent , or the Company, and upon a report on
objections issued by the Regional Director . The charge was
filed on September 25, 1967, the complaint issued on January
16, 1968, and the Regional Director 's report is dated
December 19, 1967. The two cases were consolidated for
hearing . The sole issue to be decided is whether the Respon-
dent violated Section 8 (a)(1) of the Act . Briefs were filed after
the close of the hearing by the General Counsel and the
Respondent.
Upon the entire record, and from my observation of the
witnesses , 1 make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, is engaged in the
manufacture, processing, sale and distribution of steel and re-
lated products. This proceeding involves its plants located at
Ecorse and River Rouge, Michigan. During the calendar year
1967, a representative period, the Respondent purchased and
caused to be transported to its Ecorse and River Rouge plants,
goods and materials valued in excess of $1,000,000, of which
goods and materials valued in excess of $500,000 were
transported and delivered to these plants directly from
out-of-State sources. During the same period it sold from these
plants products valued in excess of $1,000,000, of which an
amount valued in excess of $500,000 was shipped directly to
locations outside the State of Michigan. I find that the
Respondent is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to
exercise jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
United Steel workers of America, AFL-CIO, herein called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
This is a parking lot case. A long-standing rule of the
Company prohibits distribution of literature anywhere on its
premises, at any time; the ban is applicable to union literature
of all kinds. The plant property is very extensive, with
employees leaving the public highway and continuing perhaps
a quarter of a mile on private company property before
reaching the parking lots where they leave their cars. The rule
applies as well to the company streets and [the] roads, the
passageways leading from the parking lots to the buildings, and
the sidewalks in front of the factories and offices. The
complaint calls this limitation upon the employees' right to
distribute union literature, and to solicit membership thereby,
NATIONAL STEEL CORP.
in nonworking areas during nonworking time, illegal under the
statute, and demands that the Respondent rescind the rule
with respect to such activities by its employees. The illegality
of the rule is well established. Republic Aviation Corporation
v N.L.R.B., 324 U.S. 793.
The Respondent advances a number of reasons why the
restriction should be permitted to stand in this case. The
purported defenses have been repeatedly reiected in the past,
and they are again rejected here. A novel argument is based
upon the Board's decision in Excelsior Underwear Inc., 156
NLRB 1236. I find that defense equally without merit
The facts are not disputed. In the spring of 1967, the
Union, through its Local 1299, made a third attempt to
organize the office clerical employees, numbering over 550,
and stationed in five different locations of the spawling plant
premises Employee members of the in-plant organizing
committee distributed union literature at two of the parking
lots on a number of locations, both before and after May 24,
when a consent election agreement was signed. On a number
of these occasions, if not all, plant guards, and their officers,
told the employees it was prohibited to do this without
company permission, ordered them to cease or to remove
themselves from the entire premises, and then wrote down
their names for reporting to the Industrial Relations Depart-
ment. The employees so engaged referred the guards to the
Union's agent in charge of the campaign, and continued their
distribution activities. The Union never requested or received
permission to distribute the leaflets, and no employee was
forcibly restrained from the activity. George Watts, organizing
representative of Local 1299, credibly testified that after the
second occasion that guards took down the names of the
employees, he had difficulty recruiting employees to continue
the distribution activities. The guards in fact submitted to
their superiors written reports of what was going on.i Quite
apart from Watts' conclusionary testimony that "some of
them were scared," there can be no question but that such
orders by the guards for the employees to cease violating
company rules of comportment, and the repeated requests for
their individual names, had an intimidating, and deterring
effect upon the committee members. In its brief the Respon-
dent stresses the fact no one has yet been disciplined for
violating the rule I deem this fact irrelevant to the question of
the legality of the rule itself. The important consideration here
is that at the hearing James Barton, vice president of industrial
relations, reaffirmed the existence of the rule as voiced by the
guards to the employees, and stated unequivocally the
Respondent's intention to continue it in effect. This was
tantamount to the Respondent's declared intention to con-
tinue to prohibit distribution of union literature on its parking
lots absent a restraining order from the Board.
I find that by maintaining a rule against distribution -f
union literature by its employees on the parking lots, and on
the street ways and sidewalks of its plant premises, all
nonworking areas, the Respondent has restraineu and coerced,
iA number of reports so written by the guards were received in
evidence , each dated and signed by the individual guard. They prove
that the employee distributors were asked for their names, that the
names were reported when obtained , that where the guards did not
know the identity of the employees they sent out physical descriptions
of the men , and that in a number of instances the automobile license
plate numbers of the employees so engaged were reported to the front
office
403
ant is restraining and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, all in violation
of Section 8(a )(1), as alleged in the complaint.
Virtually all of the Respondent's defenses are predicated
upon the decision of the Third Circuit Court of Appeals in
N.L.R.B. v. Rockwell Manufacturing Co., 271 F.2d 109
(1959), which in turn was based upon that Court's interpre-
tation of N.L.R.B. v. United Steelworkers of America, 357
U.S. 375.2 And the central pount of the Rockwell decision,
now assertedly supporting the Respondent's defense, is the
idea that absent a showing by the Government that the union
does not have adequate access to employees elsewhere, a
parking lot no-solicitation rule cannot be held illegal. Restated
in terms of this Respondent's affirmative defense, where it can
be shown that the union does have reasonable or fair access to
the employees off the company's premises, the employer need
not permit distribution of literature on its parking lot. A Fifth
Circuit Court decision held likewise Republic Aluminum
Company v N.L.R.B., 374 F.2d 183. This decision proved to
be a mistake, and was reversed, en bane, in Republic
Aluminum Co v. N.L.R.B., 394 F 2d 405 (C.A. 5). See also
N.L.R.B. v. United Aircraft Corp., 324 F.2d 129 (C.A 2).
In the course of the organizational campaign the Union
held employee meetings in its own halls, at locations away
from the plant It mailed literature to the workmen's homes
on a number of occasions. There was personal solicitation
towards membership in other areas of the plant, in the
cafeteria, even-in violation of company rules via the in-
plant mailing system. There is also some indication, not very
clear on the records, that at certain other smaller parking lots
in other areas the Respondent may have permitted distribution
of union literature. From all this the Respondent argues there
was no need for distribution at the major parking lots, and
therefore it cannot be said the Company acted improperly in
excluding the in-plant committee from these particular non-
work areas This contention is no more than an attempt to
evade the fixed rule of law that limitations of this kind are
presumptively invalid, and that the presumption can only be
rebutted by evidence that the purpose of the prohibition is "to
maintain production and discipline."3 In a comparable situa-
tion the Trial Examiner rejected a company offer to prove, in
defense, precisely this sort of easy access to the employees,
and the Board sustained the ruling. Minneapolis-Honeywell
Regulator Company, 139 NLRB 849, 860. See also Mallory
Capacitator Co., 167 NLRB No. 89.
There is no evidence here of necessity to insure production,
or to guard against improper littering of the parking lot.
Barton's conclusionary statement that the rule was established
2In the Rockwell case the court disagreed with the Board 's holding.
Trial Examiners are bound by Board law, unless reversed by the
Supreme Court.
3The Supreme Court expressly approved the rule in the following
language.
It is not within the province of an employer to promulgate and
enforce a rule prohibiting union solicitation by an employee outside
of working hours, although on company property. Such a rule must
be presumed to be an unreasonable impediment to self-organization
and therefore discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to maintain
production or discipline . Republic Aviation Corp., supra.
No restriction may be placed on the employees ' right to discuss
self-organization among themselves , unless the employer can demon-
strate that a restriction is necessary to maintain production or
discipline . Babcock and Wilcox Company, 351 U.S.i105.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"because of litter or housekeeping problems that resulted," is
totally without evidentuary support. There is an implicit
suggestion that all the Union had to do was ask permission and
it would have been granted. But the statutory right of
employees to carry on proper self-organizational activities
cannot await the good graces of the employer. See footnote 1
in the en bane decision in Republic Aluminum, supra.
A final argument is that when an employer places in the
hands of the union a list of the names and home addresses of
all the employees, in compliance with the Excelsior rule, as
this Respondent did on June 1, it is relieved of any duty to
permit union distribution anywhere on its premises, at any
time. The employer's opinion of how much freedom a union
should have to organize is one thing; the Board's holding in the
Excelsior case is another. It is for the Board, and not for any
individual respondent employer, to decide the proper balanc-
mg of private property rights against the statutory prerogative
of employees to engage in union activities, I find nothing in
the Excelsior case suggesting that the list of employee names
in a union's hands is a quid pro quo for the privilege of
communicating with employees on the parking lots. Had the
Board intended so to curtail statutory organizational rights
when it obligated employers to supply the names and addresses
of its employees, it would have said so. Absent any clear
qualification, in the Board's decision, of the now court-
approved decisional precedent relating to parking lot cases,
there is no warrant for departing from case authority now.
IV. THE OBJECTIONS
In his report on objections, dated December 19, 1967, the
Regional Director sustained an objection of the Umon and
Recommended that the election, held on June 28, 1967, be set
aside and a new one held The basis for the Regional Director's
holding is precisely the existence of the unlawful no-solicita-
tion rule. The Respondent filed exceptions to this recommen-
dations and finding of the Regional Director Because the
maintenance of the no-solicitation rule was in itself restraint
and coercion within the meaning of Section 8(a)(1) and
because it of necessity thereby interfered with the election, I
overrule the Respondent's exceptions to the Regional Direc-
tor's recommendation, and now recommend that the result of
the election be set aside and a new one held, when, in the
opinion of the Regional Director, it becomes timely.
V. THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations set forth in
section 1, 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.
VI THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act
Upon the basis of the above findings of facts, and upon the
entire record in the case, I make the following-
CONCLUSIONS OF LAW
1 The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization as defined in Section
2(5) of the Act
3. By maintaining a rule against distribution of union
literature on its parking lots and other nonwork areas of its
premises, the Respondent has engaged in and is engaging in
unfair labor practices in violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]