Airpax Electronics, Inc.

National Labor Relations Board - Board Decisions

May 8, 1967

164 N.L.R.B. 409 (N.L.R.B. 1967)

AIRPAX ELECTRONICS, INC. 409
Airpax Electronics , Inc. and International
Union , United Automobile , Aerospace &
Agricultural Implement Workers of
America, AFL-CIO. Case 5-CA-3610.
May 8, 1967
DECISION AND ORDER
maintaining an employee rule which unduly restricts
employees in the right to engage in union solicitation and
literature distribution on company premises.
Upon the entire record and my observation of the
witnesses, and after due consideration of the brief filed by
the Respondent, I make the following:
FINDINGS AND CONCLUSSIONS
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On February 1, 1967, Trial Examiner Owsley Vose
issued his Decision in the above-entitled case,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision 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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made 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 the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Airpax
Electronics, Inc., Cambridge, Maryland, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
OWSLEY VOSE, Trial Examiner: This case, heard before
Trial Examiner Owsley Vose, at Cambridge, Maryland, on
December 20, 1966, pursuant to a charge filed on
September 19, 1966, and a complaint issued on
November 14, 1966, presents two questions. The first is
whether the Respondent engaged in surveillance of a
union meeting in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended, and the second whether
the Respondent further violated the same section by
164 NLRB No. 57
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Maryland corporation, maintains a
plant at Cambridge, Maryland, where it is engaged in the
manufacture of electronic equipment. In the year
preceding the issuance of the complaint herein, the
Respondent purchased and received from out-of-State
sources, and shipped to out-of-State destinations, more
than $50,000 worth of materials and products. Upon these
facts I find, as the Respondent admits, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the Act to
assert jurisdiction herein.
It. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace &
Agricultural Implement Workers of America, AFL-CIO,
hereinafter called the Union, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Surveillance of a Union Meeting
The Union launched a campaign to organize the
Respondent's employees during the summer of 1966.
During the campaign the Union sent a letter to the
Respondent notifying it of the names of the employees
serving on the In-Plant Committee.
On August 30, 1966, the Respondent sent a letter to all
of its employees concerning the union campaign. In the
letter the Respondent cautioned the employees to think
the matter over very carefully before deciding to sign a
union card, stating that "Your action can change our
business and your job pretty drastically." The letter stated
in conclusion as follows:
I think you can trust us, and I am pretty sure a third
party telling both of us what to do will only slow us
down to a walk. And-we're running now. Let's keep
it going and share the results.
The first meeting of employees interested in the Union
was scheduled for 8 p.m. on September 7, 1966, in a room
over the post office in the neighboring town of East New
Market, Maryland. East New Market is a very small
community located at the intersection of State Highways
14 and 16 (Main Street) about 10 miles east of Cambridge.
The coming meeting was discussed among the employees
during break and lunch periods shortly before the meeting.
Wanda Hurley, a setup operator at the plant, testified
that she arrived early for the meeting in the car of Mr. and
Mrs. Willey. Upon arriving in East New Market, Mr.
Willey turned the car around and parked it on Main Street
facing in the direction of Cambridge.
About 7:45 p.m., according to Hurley, she observed a
white Oldsmobile slowly approaching on Main Street from
the direction of Cambridge. In it were Lucy Grant,
personnel manager at the Respondent's plant, who was
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
driving, her husband, maintenance supervisor at the plant,
and a third person, who may have been a child. The
Grants, who lived in Cambridge, were not driving their
own car, but one belonging to Mrs. Collier, whose husband
drove it to work at the plant . After passing the Willey car,
the white Oldsmobile driven by Lucy Grant turned right on
Highway 14 and disappeared.
Mrs. Willey testified that after the car driven by Mrs.
Grant turned right on Highway 14, she saw Mrs. Grant
glance up at the second story of the post office, which is
located on Highway 14 just past the store on the corner.
Both Hurley and Mrs. Willey testified that a few
minutes later they saw the car which Mrs. Grant was
driving return on Highway 14 and go straight across the
intersection with Main Street. About 8 p.m. Mrs. Grant
again drove up Main Street past the car in which Hurley
and the Willeys were sitting. (Highway 14 makes a loop
and terminates in Main Street, about a mile west of East
New Market.) At this time the cars of various employees
were parked near the intersection. Both Hurley and Mrs.
Willey testified that as Mrs. Grant approached she was
looking both to the right and to the left. The car which Mrs.
Grant was driving continued on out Main Street and was
not seen again.
Thereafter, neither Mrs. Grant nor any other
representative of management spoke to Hurley or Mrs.
Willey about their attendance at this union meeting.
The Respondent did not call any witnesses to testify
concerning the incident of surveillance alleged in the
complaint. In view of the testimony of Hurley and Mrs.
Willey, which I credit, and all of the circumstances of the
case, I conclude that Mrs. Grant in thrice driving slowly
past the area at which a union meeting of the
Respondent's employees was scheduled to be held during
the period the employees were arriving for the meeting
was engaging in surveillance over these employees, and
that the Respondent by virtue of Mrs. Grant's conduct has
engaged in interference, restraint, and coercion in
violation of Section 8(a)(1) of the Act.
B. The Respondent's Rule Regarding Solicitation and
Literature Distribution on Company Property
In 1964 the Respondent incorporated in its Employee
Handbook the following rule:
SOLICITING ON COMPANY PREMISES
Soliciting or collecting contributions or distributing
literature or written or printed matter of any
description on Company property without specific
approval of management is strictly prohibited.
Certain established charities have been recognized
by the Company and its employees. Solicitations for
such groups may be made with prior approval of
management when they will not interfere with our
normal operations.
The Respondent continues to include the above-quoted
rule in its current Employee Handbook which is given to
new employees when they are hired.
In Walton Manufacturing Company, 126 NLRB 697, the
Board after reviewing various Supreme Court decisions
' According to the testimony of Thomas Coughhn, manager of
the Cambridge division of the Respondent, the rule was put into
effect because of abuses by employees in soliciting donations for
dealing with no-solicitation or no-distribution rules, stated
its conclusions regarding the applicable rules of law. In
part the Board stated as follows:
1. No-solicitation or no-distribution rules which
prohibit union solicitation or distribution of union
literature on company property by employees during
their nonworking time are presumptively an
unreasonable impediment to self-organization, and
are therefore presumptively invalid both as to their
promulgation and enforcement; however, such rules
may be validated by evidence that special
circumstances make the rule necessary in order to
maintain production or discipline.
The Court of Appeals for the Fifth Circuit, reviewing the
Board's Decision in the Walton case, held the rule
involved in • that case, which similarly prohibited
solicitation and distribution of literature "on company
property without the Company's permission," to be
"unlawful on its face," and accordingly sustained the
Board's finding of a violation of Section 8(a)(1) of the Act
(289 F.2d 177, 180-181).
The Respondent, while not specifically contending that
its rule was necessary to maintain production or discipline,
urges in defense that the rule was not aimed at
organizational activities in the first place' and that it has
never been enforced so as to place restrictions on the
organizing activities of employees. The Respondent also
points to the testimony of Manager Coughlin regarding a
meeting which he had with the members of the Union's In-
Plant Committee, in which he told them that they had a
right "to organize on their time, but not on company
working hours." The Respondent contends that in these
circumstances the broad scope of its prohibition against
solicitation and literature distribution on company
property should be disregarded, and no violation of the Act
should be found.
The General Counsel contends that the continued
publication of the Respondent's broad rule against
solicitation and literature distribution on company
property without the Respondent's permission unduly
restricts employees' freedom to engage in organizational
activities on company property during nonworking time.
While the Respondent may never have disciplined
employees for engaging in union solicitation or literature
distribution during nonworking time, this does not mean
that employees, unaware of the Respondent's asserted
relaxation of the rule, may not have been deterred by the
formally promulgated rule from engaging in proper
organizing activities on Respondent's property.
The action of Manager Coughlin in informing the
members of the Union's In-Plant Committee that they had
a right to organize on their own time, but not on company
working hours, in my opinion, is not sufficient to overcome
the inhibiting effect upon the employees as a whole of the
Respondent's continued inclusion in its formal rules of its
broad no-solicitation and no-distribution rule. Manager
Coughlin did not mention the Respondent's rule in the
course of his talk with the union committee members. Nor
did he make it clear that he was talking about conduct on
company property. The Respondent did nothing to apprise
the employees as a whole that its no-solicitation, no-
distribution rule was not intended to apply to organizing
activities during nonworking time and in nonwork areas.
various benefits from employees in departments other than their
own
AIRPAX ELECTRONICS, INC.
Under all the circumstances, I find that Manager
Coughlin's ambiguous comments to a small group of its
employees do not relieve the Respondent of the
consequences of its failure to rescind its published
employee rule which on its face imposes restrictions on
organizing activity on company property in excess of those
permitted by the Act. In conclusion, I find that the
Respondent by maintaining in effect its no-solicitation and
no-distribution rule has engaged in interference, restraint,
and coercion in violation of Section 8(a)(1) of the Act.2
CONCLUSIONS OF LAW
1. By engaging in surveillance over employees attending
a union meeting and by maintaining a rule prohibiting
employees from engaging in union solicitation and the
distribution of union literature on its property without
permission during nonworking time and in nonwork areas,
the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
411
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 5, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith 4
2
Unlike Ferguson-Lander Box Co, 151 NLRB 1615, relied on
by the Respondent, the record in this case does not establish that
the employees as a whole understood that the rule against
solicitation was not intended to apply to union solicitation
' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's 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 "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the
Regional Director for Region 5, in writing , within 10 days from the
date of this Order, what steps Respondent has taken to comply
herewith "
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices by engaging in surveillance over employees
attending a union meeting and by maintaining an invalid
no-solicitation, no-distribution rule, my Recommended
Order will direct the Respondent to cease and desist from
such unfair labor practices and to take certain affirmative
action to effectuate the policies of the, Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following:
RECOMMENDED ORDER
The Respondent, Airpax Electronics, Inc., Cambridge,
Maryland, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Engaging in surveillance over employees while
attending union meetings or engaging in other union
activities.
(b) Maintaining a rule prohibiting employees from
engaging in union solicitation or the distribution of union
literature on its property during nonworking time or in
nonwork areas.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found
will effectuate the policies of the Act:
(a) Post at its Cambridge, Maryland, plant , copies of the
attached notice marked "Appendix."3 Copies of said
notice, to be furnished by the Regional Director for
Region 5, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT spy on our employees' union
activities.
WE WILL NOT maintain a rule prohibiting
employees from engaging in union solicitation or the
distribution of union literature on our property during
nonworking time or in nonwork areas.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of the right to join or not to join a union and to
engage in union or concerted activities.
AIRPAX ELECTRONICS, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Sixth Floor, 707
North Calvert Street, Baltimore, Maryland 21202,
Telephone 752-8460, Extension 2100.