Armco Employees Independent Federation, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1965

155 N.L.R.B. 551 (N.L.R.B. 1965)

ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 551
The employees in voting group (a) shall choose between the Peti-
tioner, the Machinists, and neither; the employees in voting group (b)
shall choose between the Petitioner, Milk and Ice Cream Drivers, and
neither. If a majority of the employees in voting group (a) and a
majority of the employees in voting group (b) select the Petitioner, the
Regional Director is instructed to issue a certification of representative
to such labor organization for a unit of production and maintenance
employees which the Board in these circumstances finds appropriate.
If, on the other hand, a majority of the employees in voting group (a)
select the Machinists, these employees will be taken to have indicated
their desire to become a, part of the multipl ant maintenance unit histori-
cally represented by the Machinists; the Regional Director is in such
circumstances instructed to issue an appropriate certification to the
labor organization which may bargain for them as part of that unit.
In such circumstances the Board finds that a separate production unit
is appropriate; and :in any other circumstance in which the Petitioner
is not selected by a majority in both voting groups, the Board finds that
separate production and maintenance units are appropriate. The
Regional Director is instructed to issue such certification of represent-
atives or certifications of results of election as may in the circum-
stances be appropriate.
[Text of Direction of Elections omitted from publication.]
I\IEMBER FANNING took no part in the consideration of the above
Decision and Direction of Elections.
Armco Employees Independent Federation , Inc. [Armco Steel
Corporation ] and United Steelworkers of America, AFL-CIO.
Case No. 9-CB-1103. November 4,196,5
DECISION AND ORDER
On 1l-larch 1.8, 1965, Trial Examiner William J. Brown issued his
Decision .in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the 1\ ational 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 Deci-
sion. Thereafter, the Respondent filed a motion for, dismissal and a let-
ter also seeking dismissal was filed by Armco Steel Corporation. Oppo-
sition to dismissal has been filed by the Charging Party.
155 NLRB No. 58.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 Exam-
iner's Decision, the motion for dismissal and opposition thereto, and
the entire record in this case, and as set out below, finds merit in the
Respondent's motion for dismissal. Accordingly, the Board hereby
adopts the Trial Examiner's findings and conclusions only to the extent
consistent herewith.
The complaint alleged that the Respondent violated Section 8(b)
(1) (A) of the Act by maintaining a collective-bargaining agreement
with Armco Steel Corporation, herein referred to as Armco or the
Company, which permits the posting of certain business of the
Respondent on company bulletin boards, but prohibits the distribution
of all other literature on company property except as approved by
Armco. Subsequent to the issuance o f the complaint herein, the Board
issued its Decision in Armco Steel Corporation, 148 NLRB 1179, find-
ing that the Company, a party to the instant contract, violated Section
8(a) (1) of the Act by maintaining and enforcing the contract clause
in question. Following this decision and existing decisions of the
Board which find that such clauses are an undue restraint upon rights
guaranteed employees under Section 7 of the Act, the Trial Examiner
concluded, based on his finding that the Respondent herein has main-
tained the contract clause in question, that Respondent violated Sec-
tion 8 (b) (1) (A) by maintaining the clause, as alleged in the complaint.
Subsequent to the issuance of the Trial Examiner's Decision in the
instant case, the United States Court of Appeals for the Sixth Circuit
handed down its decision in Armco Steel Corporation v. N.L.R.B., 344
F. 2d 621, denying enforcement of the Board's Order in that case and
holding that the no distribution clause in the contract between the
Company and the Respondent herein was a condition of employment
and a proper subject for collective bargaining. The Board, for rea-
sons it deems sufficient, has not filed a petition for certiorari to review
the court's decision. Since the instant case involves the identical clause
in the same contract between identical parties and falls within the geo-
graphical jurisdiction of the Sixth Circuit, the Board acquiesces in the
court's decision and will here apply the court's view, respectfully
reserving for future cases our position that such contract provisions
interfere with employees in exercising their basic rights under the Act.
Accordingly, we find, for the purposes of this Decision only and in
accord with the court's decision, but contrary to the Trial Examiner,
ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 553
that the Respondent has not violated the Act by maintaining the no-
distribution clause in question. In view of the foregoing, we shall
dismiss the complaint.
[The Board dismissed the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, hereinafter sometimes referred to as the Act, originated with a charge filed
by the United Steelworkers of America, AFL-CIO, hereinafter sometimes referied
to as the Steelworkers on July 9, 1964, with due service thereof on the following
day. Thereafter on August 31, 1964, the General Counsel of the National Labor
Relations Board, hereinafter sometimes respectively called the General Counsel and
the Board, acting through the Board's Regional Director for Region 9, issued the
complaint herein.
The complaint alleged, in addition to jurisdictional matter, that since June 22, 1962,
Respondent and Armco Steel Corporation, hereinafter sometimes called Armco, had
maintained a collective-bargaining agreement covering employees in a bargaining
unit for which Respondent is the certified representative which agreement contains
certain allegedly illegal provisions, hereinafter more fully set out. Under these pro-
visions the Company agreed to furnish bulletin boards for the posting of certain
business of Respondent and prohibiting any other distribution or posting by employees
of literature on company property except with company approval. Thereaftei the
Respondent and Armco filed motions to dismiss the complaint in the instant proceed-
ing on the ground, essentially, that the issue of the legality of the contract clause
referred to above was already pending in other proceedings before the Board and the
courts inasmuch as in Case No. 9-CA-2818, in which Armco was respondent and
Respondent here appeared and participated as a party in interest, the validity of the
clause in question had been adjudicated sub noin. Armco Steel Corporation, 148
NLRB 1179 decided September 21, 1964 These motions to dismiss were denied by
order of Trial Examiner Frederick U. Reel on October 8, 1964. On October 14, 1964,
the Board denied Armco's request for a special appeal from the aforementioned
Trial Examiner's ruling, whereupon Respondent filed its answer on October 19 and
Armco filed an answer on October 21.
The answers admit the existence of the collective-bargaining agreement in question
(Armco's answer, however, denying that Respondent "maintained" the agreement in
question), both answers pieserve the respective parties' positions respecting the multi-
plicity of suits referred to above, and assert that notwithstanding the collective-
bargaining agreement in question there were ample opportunities for distribution of
literature to employees and for their free exercise of their rights to self-organization.
Hearing was held on issues raised by the complaint and answers before Trial
Examiner William J. Brown at Middletown, Ohio, on October 22, 1964. The parties
appeared as noted above and participated in the hearing with full opportunity to
present evidence and argument on the issues Following the close of hearing the
General Counsel, Respondent, and Armco filed briefs which have been fully con-
sidered. On the entire record herein and on the basis of my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
I find, in accordance with the pleadings and evidence, that Armco is an Ohio corpo-
ration with its principal office at Middletown, Ohio, and with plants at Middletown
and New Miami, Ohio, where it is engaged in the manufacture, fabrication, and sale
of steel and related metal products. In the course of its business operations during
the year preceding issuance of the complaint, admittedly a representative period.
Respondent shipped from its Ohio plant directly to points outside the State of Ohio
products valued in excess of $500,000. Armco is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act, and the volume of commerce
affected warrants exercise of the Board's jurisdiction herein.
II. THE RESPONDENT AS A LABOR ORGANIZATION
The pleadings and evidence established and I find that Respondent is a labor orga-
nization within the purview of Section 2(5) of the Act
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
Respondent was certified in 1944 as the collective-bargaining representative of pro-
duction and maintenance employees at Armco's Middletown and New Miami (Hamil-
ton) plants. There are approximately 5,900 employees in the bargaining unit which
includes 1 steel plant and 2 fabricating plants at Middletown and a coke plant and
blast furnaces at Hamilton which supplies pig iron for the steel plant at Middletown.
The Hamilton operations are about 11 miles distant from those at Middletown.
Following the initial certification of the Respondent in 1944 there have been three
representation elections in 1947, 1962, and June 1964 in which the Steelworkers
sought to oust Respondent as the bargaining representative. The percentage of
eligible voters who actually voted in these elections has been relatively high, ranging
from 88 to 94 percent.
The agreements between Armco and Respondent from and after the initial con-
tract of December 7, 1944, have contained clauses prohibiting distribution and posting
by employees of literature on company property. The current agreement contains
in article VI section F a clause reading as follows:
Section F-Bulletin Boards
1. The Company agrees to furnish inclosed bulletin boards whereby notices
of the following matters pertaining to the Union are to be posted:
(a) Notice of Union recreational and social affairs
(b) Notices of Union elections
(c) Notices of Union election results and Union appointments
(d) Notices of Union meetings
2. Such bulletin boards may also be used for the posting of such other notices
as may be agreed upon by the Union and the Company.
3. The number and location of such bulletin boards in each plant under this
Agreement shall be decided by the appropriate Union Vice President and the
representative of the Management of the plant involved.
4. There shall be no other distribution or posting by employees of literature
upon Company property except as approved by the Company.
The validity under the Act of the clause quoted above was considered in Armco
Steel Corporation, 148 NLRB 1179, where the Board found that Armco, by maintain-
ing and enforcing the clause in question, insofar as it prohibited employees from
distributing union literature on nonwork time in nonwork plant areas was an unfair
labor practice under Section 8(a)(1) of the Act. It should be noted that the com-
plaint in the instant case alleges an unfair labor practice within the scope of Section
8(b)(1) of the Act on the part of Respondent in maintaining the clause in question,
and that the complaint does not allege enforcement.
While the General Counsel's brief herein refers to the instant case as one involving
"maintenance and exercise" of the contract provision in question and from that
springboard proceeds to charge Respondent with "maintenance and enforcement,"
there has been no request for leave to amend the complaint. Thus the issue before
me is whether or not the Respondent maintained the clause in question and, if so,
whether its action in so doing constituted the unfair labor practice alleged in the
complaint.
In this connection, it is urged on behalf of Respondent that by virtue of the terms
of the order entered by the Board in Armco Steel Corporation, 148 NLRB 1179,
which excluded Respondent fiom the protection of the Board's cease-and-desist
order, I am required to recognize that the Board has already ruled that the conduct
of Respondent in maintaining the clause in question does not consttiute an unfair
labor practice. This appears to me to be specious reasoning for the effect of the
Board's order in question was no more than recognition that Respondent could waive
its right to distribute literature on nonwork time and in nonwork areas on behalf of
its own members and its own organizational interests; it is quite different when
Respondent seeks to preclude such distribution by the Steelworkers or other labor
organizations.
The evidence clearly reveals that Respondent has maintained the clause in question
in the sense that it has utilized the bulletin board facilities, indeed Respondent's brief
recognizes as a fact that it has maintained the clause in question in the sense it entered
into and adhered to the terms in question. It must also be concluded that Respondent
has enjoyed the twofold effects of the clause by posting its own material while
secured pro tanto from organizational inroads by the Steelworkers.
ARMCO EMPLOYEES INDEPENDENT FEDERATION, ETC. 555
In defense of the contract clause here in question there was evidence adduced on
behalf of Respondent tending to establish that (1) the prohibitions of the clause were
necessary and appropriate safeguards against fire and accident, (2) the clause in ques-
tion did not unduly restiain organizational activities of employees in view of ample
alternate opportunities for distribution of literature, and (3) the clause in question is
a normal and frequent result of collective bargaining and in fact is contained in
agreements of the Steelworkers with other employers.
In support of its contentions that safety factors motivated and justified the broad
no-distribution prohibitions of the contract in question, Respondent points to evidence
adduced through Armco's officials which is credited and which establishes that Arrnco
has a firmly established safety program which places emphasis on plant cleanliness and
housekeeping. The inference may be made that the safety program pays dividends at
industrial average of major accidents in factory employment is 3.26 major accidents
per million man-hours worked, the average at Armco is 1.19. The evidence Also indi-
cates that almost every department of the works heie involved has some type of
flame and some of the operations involve molten metal. In addition the evidence
indicates that there is some amount of grease on the ground. The inference is further-
more warranted that with the established high percentage of employee interest in the
representation campaigns and the volume and frequency of distribution of literature
there could be some threat to the housekeeping program from large-scale distribution
in the plant area. This is of course minimized when such distribution is confined to
nonwork areas.
In addition to considerations of safety there was adduced on behalf of Respondent
evidence indicating the existence of such a multiplicity of avenues of communication
independently of bulletin board or other plant distribution of literature as to make
the prohibitions of the clause in question amount to no substantial impediment to
self-organization of employees. This evidence shows that at the Hamilton operation
there are two plant gates immediately adjacent to the public highway while there are
nine similar gates at the Middletown works immediately adjoining the public ways.
There is some conflict in the evidence as to the practicality of distribution at these
plant gates and it must be concluded that at some gates and at some times the
opportunity to distribute literature to employees entering the premises is good and
at other times either ineffective or dangerous to the distributor. Additionally, as an
indication of the availability of ready means of communication as alternatives to in
plant distribution, evidence was presented which establishes that in the case of the
Hamilton plant some 97 percent of employees lived either in the town of Hamilton
or within 10 miles thereof and in the case of the Middletown operation some 89
percent were so situated.
Finally there was adduced on behalf of Respondent evidence consisting of excerpts
from a number of collective-bargaining agreements, including two to which the
Charging Party was signatory, containing prohibition against plant distribution of
literature, in most cases conjoined with the grant to the incumbent union of the
exclusive use of certain plant bulletin boards.
With respect to the general question as to the legality of the clause here under
consideration, the existing decisions of the Board require the conclusion that the
clause in itself is an undue restraint upon self-oranization or rights guaranteed
employees of Armco under Section 7 of the Act. In- Aimco Steel Corporation, 148
NLRB 1179, the Board found that the contract clause here under consideration was
invalid insofar as it prohibited employee distribution of literature during nonwork
time and in nonwork areas. The conclusion that the board prohibition against
employee distribution of self-organization material does not comport with the pur-
poses and policies of the Act was also supported by Stoddard-Quirk Manufactuirng
Co., 138 NLRB 615; Gale Products, Division of Outboard Marine Corp., 142 NLRB
1246, enforcement denied 337 F. 2d 390 (C.A. 7); and General Motors Corporation
Buick-Oldsmobile-Pontiac Assembly Division, 147 NLRB 509.
The question thus is reduced to whether or not Respondent has, as alleged in the
complaint, maintained the clause and thereby engaged in unfair labor practices within
the purview of Section 8(b) (1) (A). In this connection I note that the only evidence
in the record on the subject of enforcement by Respondent would warrant the finding
that Respondent has nothing to do with enforcing those portions of the clause which
prohibit distribution or posting of literature other than on Respondent's bulletin
board notices. Thus the testimony of Robert Lehmkuhl, Respondent's secretary-
treasurer, and James Sexton, Armco's supervisor of personnel relations, establishes
that Respondent has had nothing to do with enforcing the prohibitory aspects of the
clause and the matter of enforcement was apparently not a topic of discussion at
Respondent's meetings. There is, assuming arguendo the subject of "enforcement" to
have been fully litigated at the hearing, insufficient evidence to establish that Respond-
ent enforced the clause in question.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The issue remains that alleged under the original and unamended complaint-
whether or not Respondent maintained with Armco the clause in question. Respond-
ent's brief concedes that the question is whether or not it may be concluded that
unfair labor practices exist from the fact that Respondent has maintained the
agreement with the no-distribution clause in question. The evidence indisputably
indicates that the bulletin boards were in existence at the plant at the time of the
hearing and that Respondent posted notices thereon In addition it appeais fiom
the credited testimony of Weller Dalton, an employee of Armco's inspection depait-
ment, that during the campaign preceding the 1964 election when he sought to dis-
tribute Steelworker literature on company property he was told he would have to
move to the curb.
The evidence in the present case thus establishes that Respondent has niaintamed
the contract clause in question within the 6-month period preceding filing of the
charge in the instant case in the sense that it has continued to be a pasty to and
enjoyed the fruits of the clause in question.
I conclude and find that Respondent's action in thus maintaining the clause con-
stituted the unfair labor practice within the scope of Section 8(b)(1)(A) alleged in
the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices found to have occurred and set forth above, occui i ing in
connection with the operations of Armco, as described in section 1, above, have a
close, intimate, and substantial relation to trade, traffic, and commeice among the
several States and tend to lead to labor disputes burdening and obstructing commei cc
and the free flow thereof.
V. THE REMEDY
In view of my findings set forth above that Respondent has engaged in unfau labor
practices defined in Section 8 (b) (1) (A) of the Act, I shall recommend that it be
required to cease and desist therefrom and take such affirmative action as appears
necessary and appropriate to effectuate the policies of the Act.
On the basis of the foregoing findings of fact and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the meaning of the Act.
2. Armco is an employer engaged in commerce within the meaning of the Act.
3. By maintaining the clause in its collective-bargaining agreement with Armco
which prohibits employees from distributing self-organizational literature on behalf
of the Steelworkers on nonwork time in nonwork areas of the Armco plant premises,
Respondent has engaged in unfair labor practices defined in Section 8(b)(1)(A) of
the Act.
[Recommended Order omitted from publication.]
United States Rubber Company and United Rubber, Cork, Lino-
leum and Plastic Workers of America, AFL-CIO. Cases Nos.
,3-CA-1922 and 23-C<1-1944. November 5,1965
DECISION AND ORDER
On August 20, 1965, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, 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 Deci-
sion. She also found that Respondent had not engaged in certain other
155 NLRB No. 61.