Arkansas-Best Freight System, Inc.

National Labor Relations Board - Board Decisions

Jul 30, 1981

257 N.L.R.B. 420 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arkansas-Best Freight System, Inc. and Richard
Griggs. Case 14-CA-14213
July 30, 1981
DECISION AND ORDER
On March 16, 1981, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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,' findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein. 2
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,
Arkansas-Best Freight System, Inc., Cape Girar-
deau, Missouri, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as modified herein:
1. Substitute the following for paragraph l(b):
"(b) Maintaining or enforcing any rule which
discriminatorily prohibits its employees from post-
ing union campaign literature on employee bulletin
boards."
2. Substitute the following for paragraph l(c):
"(c) Maintaining or enforcing any rule or policy
which prohibits its employees from posting union
campaign literature on employee bulletin boards or
distributing union campaign literature in nonwork-
' We find no merit in Respondent's contention that the General Coun-
sel's motion at the hearing to amend the complaint should not have been
granted. There is no indication that any of the parties were caused any
hardship by the amendment. Respondent's reliance on Mike Yurosek &
Son, 229 NLRB 152 (1977). is misplaced. In that case the motion to
amend was not raised until all testimony had been taken. In the present
case, the motion to amend was made early enough in the hearing to obvi-
ate any possible problem of "surprise." See South Shore Hospital, 229
NLRB 363 (1977).
2 We have modified the Order to conform with the Administrative
Law Judge's finding that Respondent violated Sec. 8(a)(1) by maintaining
and enforcing a rule which prohibits employees from posting union cam-
paign literature on the employee bulletin board. We also modify the Ad-
ministrative Law Judge's recommended remedy. Although we agree that
Respondent should be ordered to rescind its policy statement of Septem-
ber 17, we shall limit such rescission, and the concurrent posting of the
appropriate notice, solely to the facility involved in the present proceed-
ing, located at Cape Girardeau. Missouri. We limit the posting of the
notice to the one facility since the record is devoid of any evidence indi-
cating that Respondent's policy statement of September 17 was posted or
implemented at any of its other facilities. Such an absence distinguishes
the present situation from others swhere respondents were found to have
engaged in violations of the Act, similar in nature, on a companywide
basis. See Delchamps. Inc., 234 NLRB 262 (1978), and Florida Steel Cor-
poration, 233 NLRB 491 (1977).
ing areas on nonworking time, or from soliciting
votes on nonworking time."
3. Substitute the following for paragraphs 2(a)
and (b):
"(a) Withdraw and rescind its policy statement
of September 17, 1980, posted at its Cape Girar-
deau, Missouri, facility regarding the distribution
and posting of campaign literature and solicitation
of votes in union elections.
"(b) Post at its Cape Girardeau, Missouri, termi-
nal copies of the attached notice marked 'Appen-
dix.' 5 Copies of said notice, on forms provided by
the Regional Director for Region 14, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other materi-
al."
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS 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.
WE WILL NOT prohibit our employees from
posting union campaign literature on the em-
ployee bulletin board at our Cape Girardeau,
Missouri, terminal.
WE WILL NOT maintain or enforce any rule
which discriminatorily prohibits our employees
from posting union campaign literature on the
employee bulletin board at our Cape Girar-
deau, Missouri, terminal.
WE WILL NOT maintain or enforce any rule
or policy which prohibits our employees from
posting or distributing union campaign litera-
ture in nonworking areas on nonworking time,
or from soliciting votes on nonworking time at
our Cape Girardeau, Missouri, terminal.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of their right to engage in union
257 NLRB No. 63
420
ARKANSAS-BEST FREIGHT SYSTEM, INC.
or concerted activities, or to refrain therefrom
at our Cape Girardeau, Missouri, terminal.
WE WILL withdraw and rescind our policy
statement of September 17, 1980, regarding the
distribution and posting of campaign literature
and solicitation of votes in union elections at
our Cape Girardeau, Missouri, terminal.
ARKANSAS-BEST FREIGHT SYSTEM,
INC.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge: The com-
plaint in this case against Arkansas-Best Freight System,
Inc.' (herein called Respondent or the Company), was
heard by me in St. Louis, Missouri, on October 27,
1980.2 The charge was filed on September 8 by Richard
Griggs, an individual. The complaint, which issued on
October 3 and was amended at the hearing, alleges that
Respondent violated Section 8(a)(l) of the National
Labor Relations Act, as amended. The gravamen of the
complaint, as amended, is that since on or about Septem-
ber 3, the Company has maintained and enforced a dis-
criminatory rule prohibiting union campaign literature on
its employee bulletin board, and, since September 17, has
maintained and enforced an overly broad no-solicitation/
no-distribution rule. The Company's answer denies the
commission of the alleged unfair labor practices. All par-
ties were afforded full opportunity to participate, to pre-
sent relevant evidence, to argue orally, and to file briefs.
The General Counsel and the Company each filed a
brief.
Upon the entire record in this case, from my observa-
tion of the demeanor of the witnesses, and having con-
sidered the briefs and arguments of the parties, I make
the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, an Arkansas corporation, is engaged
throughout the United States as a motor freight common
carrier in the interstate transportation of freight, general
commodities, and related products. The Company main-
tains a branch terminal at Cape Girardeau, Missouri. In
the operation of its business, the Company annually de-
rives gross revenues in excess of $50,000 for the trans-
portation freight and commodities from Arkansas direct-
ly to points outside of Arkansas, and annually performs
services valued in excess of $50,000 in States other than
Arkansas. I find, as the Company admits, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 574, affiliated with the In-
ternational Brotherhood of Teamsters, Chauffeurs, Ware-
The Company's name is hereby amended to reflect its correct name.
: All dates herein refer to 1980, unless otherwise indicated.
housemen and Helpers of America (herein called the
Union), is a labor organization within the meaning of
Section 2(5) of the Act. The Union is the collective-bar-
gaining representative of the Company's employees at
the Cape Girardeau facility.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The Company and the Union are signatories to the
National Master Freight Agreement, covering, inter alia,
the employees at Cape Girardeau, which contains the
following provision (art. 19, sec. 2):
The Employer agrees to provide suitable space for
the Union bulletin board in each garage, terminal or
place of work. Postings by the Union on such
boards are to be confined to official business of the
Union.
The Company's Cape Girardeau terminal is located
within a fenced enclosure. There is an employee parking
lot located on company property adjacent to but outside
the fenced area. The "drivers' room" is located within
the terminal building, and there is a washroom adjacent
to the drivers' room. The drivers' room measures about
12 by 20 feet, and contains two tables and a coin chang-
er, but no vending machines or other facilities for meals
or coffeebreaks. The Company's over-the-road drivers,
who are based at Cape Girardeau, normally use this
room for their paperwork, e.g., preparing logs or such
paperwork as is necessary for their trips. On the average,
the road drivers use the drivers' room from three to six
times per week, and spend about 30 minutes in the room
on each occasion. There is also a "city room" where the
city drivers receive their assignments. Additionally, there
is a lounge for "foreign" drivers, i.e., road drivers based
at other terminals, which includes facilities for meals.
However, the road drivers based at Cape Girardeau nor-
mally take their breaks on the road or at other terminals,
and seldom have occasion to use the lounge. Until mid-
May, the drivers' room contained three bulletin boards,
two of which were used by the Company for company
business. One of these was locked and under glass, and
the other was open. A third bulletin board was reserved
for the Union, pursuant to the above-quoted provision of
the National Master Freight Agreement. Only the
Union's steward and business agent had access to this
board, which was locked and glass enclosed. Until mid-
May, employees who for whatever reason wished to post
notices of their own, e.g., for sale of personal property
or invitations to social events, simply taped or otherwise
attached their notices to the walls of the drivers' room.
The Union elects its officers every 3 years. The most
recent election, prior to the events which gave rise to
their case, was in 1977. The evidence fails to indicate
that in the 1977 election, or in any previous election, the
employees or union officials used the walls of the driv-
ers' room for campaign literature as such, although at
least in 1977, campaign literature was placed on the
tables in the drivers' room. Indeed the last seriously con-
tested election was apparently in 1968, when the Compa-
421
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny's Cape Girardeau facility consisted of a housetrailer.
However, following the 1977 election, Union Steward
John Reece, who was also elected as a union vice presi-
dent or trustee, posted a notice on the wall, thanking the
members for voting for him. Uncontroverted testimony
by unit road drivers Richard Griggs (the Charging Party
herein) and David Prater further indicate that employees,
including Griggs, used the walls of the drivers' room for
the purpose of posting open letters or other notices of a
controversial nature involving intraunion matters. In
1977, Griggs posted an announcement of a rally on
behalf of PROD, a Teamster dissident movement. Em-
ployees posted notices of subsequent PROD meetings.
Griggs also posted his open letters to the members. One
of these called upon the Union to commence negotiations
for time off for "extra board"; i.e., oncall drivers and an-
other, in 1978, announced Griggs' resignation from and
expressed dissatisfaction with PROD. Similar employee-
posted notices dealt with other controversial matters, in-
cluding an investigation of the Central States' Pension
Fund, which covered the unit employees. It is uncontro-
verted that, prior to May 1980, these notices remained
on the walls until removed by the posting employee, and
that prior to May 1980, the Company did not remove
any such notice.
Union nominations were scheduled for November 2,
and election of officers was scheduled for the second
Sunday in December. However, some prospective candi-
dates, including Griggs, sought to begin their campaign-
ing long before those dates. Unlike prior campaigns,
when the candidates ran separately, the prospective 1980
candidates were in the process of forming slates. About
May 1, David Prater posted a notice on the drivers'
room wall requesting contributions for his prospective
slate. Company Driver-Supervisor David Ledure, who
had assumed that position upon his transfer from the
Company's Indianapolis terminal in April, removed the
notice. When Prater complained to Ledure, the supervi-
sor explained that he removed the notice because compa-
ny policy prohibited politicking for union office on com-
pany premises. Prater disagreed that this was company
policy, and referred to the prior use of the walls. Prater
also called Ledure's attention to a posted notice by the
Union's business agent, concerning deregulation of the
trucking industry. Ledure conceded that this notice was
political, but argued that the notice reflected a common
policy by the Company and the Union. Shortly thereaf-
ter, the Company, by Ledure, removed all notices from
the drivers' room walls, and placed them (but not includ-
ing any campaign literature) on a newly installed em-
ployee bulletin board. This was an open cork board, and
was relatively small, measuring only about 3 by 5 feet,
and less than half the size of the union bulletin board. At
the present hearing, the Company stipulated that the bul-
letin board was "designated for and used by employees
for posting of notices regarding sales of personal proper-
ty and other items." There is no indication that prior ap-
proval was required for an employee to post such no-
tices. Supervisor Ledure testified that he considered the
drivers' room to be unsightly because of the notices on
the walls. However, no evidence was presented which
would indicate that the removal of notices from the
walls was necessary to maintain production, discipline,
health, or safety. As indicated, the Company took no
action until after the dispute over Prater's notice.
On September 3, Richard Griggs, on behalf of the
prospective slate of candidates headed by himself and
David Prater, posted a notice on the employee bulletin
board captioned "TEAM 80 DEDICATED TO
BETTER REPRESENTATION" followed by a list of
the prospective candidates, further identified as "Candi-
dates For Office In Teamsters Local 574 Election De-
cember 1980." There followed a handwritten invitation
to "all Teamsters and Spouses" to attend a "free fish fry"
on September 6. Steward Reece called the notice to the
attention of Supervisor Ledure, who removed the notice,
tore it in half, and reposted the bottom portion of the
notice, beginning with "Candidates For Office" and in-
cluding the invitation to the fish fry. After speaking to
Ledure, who reiterated company policy, Griggs removed
the truncated notice, which he regarded as inadequate.
That week, Prater distributed literature for the "Team
80" slate in the employee parking lot, without interrup-
tion. However, the evidence fails to indicate that any su-
pervisor was present or that the Company knew of the
distribution.
On September 17, the Company, by the vice president
for industrial relations, Poe Rogers, issued to all its facili-
ties the following statement of policy:
TO ALL BRANCH MANAGERS 9-17-80
MANY LOCAL UNIONS ARE HOLDING ELECTIONS FOR
OFFICERS THIS YEAR AND CAMPAIGNS IN MANY
AREAS ARE IN FULL SWING.
THIS IS A REMINDER OF ABS'S LONG STANDING
POLICY OF NEUTRALITY IN UNION POLITICS AND
UNION ELECTIONS.
IN KEEPING WITH THIS POLICY THE
DISTRIBUTION/POSTING OF CAMPAIGN LITERATURE
ON COMPANY PREMISES OR EQUIPMENT IS PROHIBIT-
ED.
BULLETIN BOARDS, DRIVERS ROOMS AND OTHER AP-
PROPRIATE AREAS SHOULD BE INSPECTED DAILY
AND ANY SUCH MATERIAL OBSERVED SHOULD BE
IMMEDIATELY REMOVED.
CANDIDATES FOR OFFICE MAY NOT SOLICIT VOTES
ON COMPANY PREMISES IN PERSON OR THROUGH AN-
OTHER PERSON.
YOU AND ALL OTHER MANAGEMENTS/-
SUPERVISORY/SALES PERSONNEL MUST AVOID ANY
EXPRESSION OF PARTIALITY TOWARD ANY CANDI-
DATE OR SLATE OF CANDIDATES INCLUDING OUR
OWN EMPLOYEES WHO MAY BE RUNNING FOR
OFFICE.
YOU MAY NOT PROHIBIT EMPLOYEES FROM WEAR-
ING CAMPAIGN BUTTONS OR ITEMS OF PERSONAL
CLOTHING WITH CAMPAIGN SLOGANS OR NAMES.
IF YOU DESIRE, YOU MAY POST THIS NOTICE, OR ONE
SIMILARLY WORDED OVER YOUR OWN SIGNATURE,
422
ARKANSAS-BEST FREIGHT SYSTEM, INC.
ON THE BULLETIN BOARD IF CAMPAIGNS ARE BEING
CONDUCTED IN YOUR AREA.
The Company posted a copy of this statement in the
drivers' room at Cape Girardeau. Interestingly, the
notice was not posted on any bulletin board. Rather, the
notice was posted on a glass portion of the wall. Rogers
testified, in sum, that the notice reflected a longstanding
company policy, which was effective throughout its
entire system. However, prior to May 1980, the employ-
ees at Cape Girardeau were not informed of the forego-
ing or any similar policy and, as indicated, the Company
did not prevent the posting or distribution of controver-
sial material in the drivers' room. Indeed, Steward Reece
testified that he did not learn of the Company's policy
until September 1980. Supervisor Ledure testified that,
pursuant to the company policy, he would prohibit any
distribution of campaign literature within the fenced
premises of the terminal (i.e., excluding the parking
area), but would not prohibit verbal campaigning unless
it interfered with employee work. In fact, apart from the
written language of the stated policy, the evidence indi-
cates that the Company has applied the policy in this
manner at Cape Girardeau. Rogers and Ledure testified
that the rationale for the Company's policy was its wish
(as indicated in the written statement) to remain neutral
with respect to union politics and elections. In October,
Griggs placed a stack of campaign literature on one of
the tables in the drivers' room, i.e., for self-distribution
by the employees. Ledure, invoking company policy, re-
moved the literature. David Prater testified that in Octo-
ber he saw Union President Gilbert Davis distributing
literature to drivers just inside the terminal fence. How-
ever, the evidence fails to indicate the nature of the lit-
erature. Moreover, the prospective incumbent candidates
did not engage in any active campaigning (at least none
involving the distribution of literature) prior to this hear-
ing. Steward Reece testified, and also informed Ledure
and Griggs, that after the official nomination of candi-
dates on November 2, the Union would post a list of the
candidates, including slates, on the union bulletin board.
B. Analysis and Concluding Findings
In Container Corporation of America, 244 NLRB 318,
fn. 2 (1979), the Board held as follows:
It is well established that there is no statutory right
of employees or a union to use an employer's bulle-
tin board. However, it is also well established that
when an employer permits, by formal rule or other-
wise, employees and a union to post personal and
official union notices on its bulletin boards, the em-
ployees' and union's right to use the bulletin board
receives the protection of the Act to the extent that
the employer may not remove notices, or discrimi-
nate against an employee who posts notices, which
meet the employer's rule or standard but which the
employer finds distasteful. See Group One Broad-
casting Co.. West, 222 NLRB 993 (1976); Nugent
Service, Inc., 207 NLRB 158 (1973); Tempco Mfg.
Co., Inc., 177 NLRB 336 (1969); Challenge Cook
Brothers of Ohio, Inc., 153 NLRB 92 (1965).
See also Challenge Cook Brothers of Ohio. Inc., 153
NLRB 92, 99 (1965), enfd. as modified in other respects
374 F.2d 147, 153 (6th Cir. 1967), cited by the Board in
Container Corporation. The rationale of Container Corpo-
ration is applicable to the facts of this case. The employ-
ee bulletin board which was installed by the Company in
May 1980 was a modified continuance of the Company's
policy of permitting the employees to post personal no-
tices or other written material on the walls of the driv-
ers' room. The right of employees to engage in a partisan
union election campaign is a right which is protected by
Sections 7 and 8(a)(l) of the Act. Having permitted its
employees to use first the walls and later the employee
bulletin board in the drivers' room to post personal writ-
ten material, the Company cannot lawfully exempt from
such permission activity which falls within the ambit of
Section 7 simply because, as here, the Company finds
such activity "distasteful." Container Corporation. supra.
Such a restriction is discriminatory and violative of Sec-
tion 8(a)(l) of the Act.
The Company's reliance on Nugent Service, Inc., 207
NLRB 158 (1978) (also cited in Container Corporation), is
misplaced. In Nugent, the employer discharged an em-
ployee who, in disregard of the employer's instruction,
posted a notice on plant bulletin boards on behalf of one
of two employee factions which were competing for
union office. The plant contained two bulletin boards,
one of which was used by the Company and the other
which was established and used by the collective-bar-
gaining representative, pursuant to their contract. How-
ever, in practice, employees were permitted to post per-
sonal notices on the boards. Initially, the employer did
not object when one rival group posted its campaign lit-
erature on the boards. However, the employer put a stop
to the practice when the two rival groups nearly came to
blows over the dissident group's use of the boards. The
Administrative Law Judge held that the employer prop-
erly prohibited the campaign literature and, consequent-
ly, did not violate the Act by discharging the employee
for insubordination. The Board affirmed his Decision.
The facts in Nugent differ from those in the present case
in two significant respects. First, in Nugent, the boards
were established principally as a means of communica-
tion by the employer and the union respectively, al-
though employee use of the boards was tolerated. There-
fore, as found by the Administrative Law Judge, "their
use for partisan union purposes serves to entangle the
Employer in a dispute which should be none of his con-
cern." However, in the present case the Company pro-
vided a bulletin board for the exclusive use of the em-
ployees. More fundamentally, the issue in Nugent, as de-
fined by the Administrative Law Judge, was "the extent
to which the Company could restrict use of the bulletin
boards during a campaign for the election of union offi-
cers, after a confrontation between adherents of the two op-
posing factions. (Emphasis supplied.) In essence, the Ad-
ministrative Law Judge applied the well-established rules
that a restriction on employee union solicitation during
nonworking time "must be presumed to be an unreason-
able impediment to self-organization and therefore dis-
criminatory in the absence of evidence that special circum-
423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances make the rule necessary in order to maintain pro-
duction or discipline." Republic Aviation Corporation v.
N.L.R.B., 324 U.S. 793, fn. 10 (1945), citing Peyron Pack-
ing Company, Inc., 49 NLRB 828, 843-844 (1943). (Em-
phasis supplied.) No such special circumstances exist in
the present case. Supervisor Ledure admitted in his testi-
mony that there was adequate space on the employee
bulletin board for the Team 80 notice. There is no evi-
dence that the use of the walls or bulletin board for con-
troversial material has ever generated violence, or the
threat of violence. If a shortage of space should develop
on the employee board, then the Company has only itself
to blame. The Company had, without any difficulty, per-
mitted its employees to use the walls of the drivers'
room for their personal notices, including controversial
matters. Nevertheless, the Company chose to substitute
for this purpose a relatively small bulletin board. More-
over, the Company took this action only after David
Prater sought to post a notice which related to his cam-
paign. Therefore, the Company is in no position to com-
plain that it might be forced "to intervene in allocating
the amount of space available and the length of time
each side could have for posting its literature" (Nugent
Service, supra, 207 NLRB at 161). I have no reason to
question the Company's assertion that it wishes to main-
tain a position of neutrality with respect to intraunion
politics and elections. However, an employer, no matter
how well meaning its motivation, cannot carve out from
employee use of a bulletin board for various forms of so-
licitation, e.g., sales of personal property or invitations to
social events, all or a portion of solicitation which consti-
tutes the kind of activity which is protected by Section 7
of the Act. Such a prohibition is discriminatory and un-
lawful. Therefore, the Company is violating Section
8(a)(1) of the Act by maintaining and enforcing a rule
which prohibits employees from posting union campaign
literature on the employee bulletin board.3
I further find that the Company violated Section
8(a)(1) by promulgating, maintaining, and enforcing a no-
solicitation/no-distribution rule or policy, which was un-
lawfully broad both on its face and its application. On its
face, the policy statement of September 17 and specifical-
ly the third, fourth, and fifth sentences prohibit any dis-
tribution of campaign literature or electioneering whatso-
ever on company premises. This would encompass
verbal solicitation on nonworking time, as well as distri-
bution, posting, and solicitation in nonwork areas, such
as the employee parking lot, washroom, and drivers'
lounge. It is settled law that an employer may not,
absent the special circumstances noted by the Supreme
I find without significance an administrative refusal by the Regional
Director for Region 25 to issue an unfair labor practice complaint based
on a charge against the Company which was similar to that in the present
case (Case 25-CA-12038). It is settled law that such administrative dispo-
sitions do not constitute authoritative Board precedent. Moreover, the
Regional Director's summary report, which refers to a "Company-union
bulletin board at the Company's Indianapolis terminal," fails to indicate
that employees were permitted to use the board for personal notices.
Both the summary report and the charge tend to indicate that the board
was used exclusively for company or union business. Therefore. it ap-
pears that the Region 25 case arose in a different factual context from
that of the present case. The Region 25 case arose prior to the events of
the present case, including the Company's policy statement of September
17,
Court in Republic Aviation, supra, maintain or enforce a
rule which prohibits its employees from engaging in
union solicitation (including campaign activity) on non-
working time or union distribution on nonworking time
or in nonworking areas. Stoddard-Quirk Manufacturing
Co., 138 NLRB 615, 619-621 (1962). Therefore, even
apart from the manner of its enforcement, the Company
unlawfully promulgated and maintained its policy state-
ment of September 17. Yellow Cab, Inc., 210 NLRB 568,
569 (1974). Employees are not required to speculate, at
the risk of possible disciplinary action, whether an em-
ployer will enforce an unlawful no-solicitation/no-distri-
bution rule in a lawful manner. Such a rule has a chilling
effect on the exercise of Section 7 rights, without regard
to the manner of its enforcement. Moreover, the Compa-
ny's enforcement of the policy was also unlawfully
broad. As indicated, Supervisor Ledure testified that he
interpreted the Company's policy as prohibiting the dis-
tribution posting of literature in nonworking areas of the
terminal, such as the drivers' lounge and washroom. For
the reasons previously discussed, the policy also unlaw-
fully extended to the employee bulletin board in the
drivers' room. I further find that the Company violated
Section 8(a)(l) by removing campaign literature from the
table in the drivers' room. First, the Company did so
pursuant to an invalid policy. Second, the action was dis-
criminatory because the Company had previously per-
mitted the distribution of campaign literature in this
manner. Third, the drivers' room was not a strictly work
area, but was "a mixed use area, where drivers may
either work or relax," and "the only area where drivers
can regularly communicate with one another on subjects
of mutual concern." Indeed, the Company recognized
these factors by permitting its drivers to use the drivers'
room for the posting and distribution of personal notices.
See Transcon Lines, 235 NLRB 1163, 1165 (1978), enfd.
as modified in other respects 599 F.2d 719, 721-722 (5th
Cir. 1979).
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a rule
which discriminatorily prohibits its employees from post-
ing union campaign literature on the employee bulletin
board at its Cape Girardeau terminal, and by promulgat-
ing, maintaining, and enforcing a rule or policy which
prohibits its employees from posting or distributing union
campaign literature in nonworking areas and from cam-
paigning on nonworking time, and thereby interfering
with, restraining, and coercing its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the
Company has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
424
ARKANSAS-BEST FREIGHT SYSTEM. INC.
THE REMEDY
Having found that the Company has committed viola-
tions of Section 8(a)(1) of the Act, I shall recommend
that it be required to cease and desist therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act. I shall specifically recommend that the
Company be ordered to rescind its policy statement of
September 17. As the statement reflects a companywide
policy and the Company distributed the statement
throughout its entire system, I shall recommend that the
Company be directed to post an appropriate notice at
each of its facilities.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 4
The Respondent, Arkansas-Best Freight System, Inc.,
Cape Girandeau, Missouri, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Prohibiting its employees from posting union cam-
paign literature on the employee bulletin board at its
Cape Girardeau, Missouri, terminal.
(b) Maintaining or enforcing any rule which discrimin-
atorily prohibits its employees from posting union cam-
paign literature on its bulletin boards.
In the event no exceptions are filed as provided 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 waived for all purposes
(c) Maintaining or enforcing any rule or policy which
prohibits its employees from posting or distributing union
campaign literature in nonworking areas on nonworking
time, or from soliciting votes on nonworking time.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights guaranteed Section 7 of the Act.
2. Take the following affirmative action which is
found necessary to effectuate the policies of the Act:
(a) Withdraw and rescind its policy statement of Sep-
tember 17, 1980, regarding the distribution and posting of
campaign literature and solicitation of votes in union
elections.
(b) Post at its principal office and place of business, at
its Cape Girardeau, Missouri, terminal and at each of its
facilities throughout the United States copies of the at-
tached notice marked "Appendix. " '5 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
' In the event that this Order is enforced b a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National L.abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
425