Chrysler Corp.

National Labor Relations Board - Board Decisions

Jan 19, 1977

227 N.L.R.B. 1256 (N.L.R.B. 1977)

1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chrysler Corporation , Eight Mite Road Stamping
Plant and John O. Ware . Case 7-CA-12391
January 19, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On June 22, 1976, Administrative Law Judge
Joseph I. Nachman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge' and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent , Chrysler Corpo-
ration , Detroit, Michigan, its officers, agents , succes-
sors , and assigns , shall take the action set forth in the
said recommended Order.
' We find no support in the record evidence for Respondent's assertion
that the Regional Director for Region 3 in Case 3-CA-5134 or in Case 3-
CA-5656-2 or the Regional Director for Region 7 in Case 7-CA-2001
approved Respondent's rules against solicitation and against distribution of
literature that are the subject of this case Even assuming that either Regional
Director has approved such rules , however, such deternunation would not be
binding on this Board . On the merits, we agree with the Administrative Law
Judge that Respondent's rules against solicitation and against distribution of
literature are invalid on their face and hence we adopt his recommended
Order
Member Fanning dissents to the extent that the majority implies that an
employer may prohibit distribution that has not been shown to interfere with
production or discipline, during nonworking time See his dissenting opinion
in Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 626 (1962)
DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Administrative Law Judge: This
proceeding, heard before me at Detroit, Michigan, on
March 30, 1976, with all parties present and duly represent-
' Issued November 28, on a charge filed October 14 These and all dates
hereafter mentioned are 1975, unless otherwise indicated
2 No issue of commerce is presented The complaint alleges and the
answer admits facts which establish that jurisdictional element I find those
facts to be as pleaded Moreover , the Board has heretofore asserted
jurisdiction over Chrysler See Chrysler Corporation (Local 212, International
227 NLRB No. 186
ed, involves a complaint 1 pursuant to Section 10(b) of the
National Labor Relations Act (herein Act), which, as
amended at the hearing alleges in substance that Chrysler
Corporation (herein Respondent or Company), promulgat-
ed, and at all times material maintained in effect at its Eight
Mile Road Stamping Plant in Detroit, and its various other
plants in the United States, unlawful no-distribution and
no-solicitation rules, and on September 29, pursuant to said
rules, threatened to discharge its employee John O. Ware
because he sought to distribute literature during his
nonwork time, in nonwork areas of the plant. By answer,
Respondent admitted certain allegations of the complaint,
but denied the commission of any unfair labor practice. For
reasons hereafter stated I find the rules involved to be
unlawful, and recommend an appropriate order. Addition-
ally, I find that the General Counsel failed to prove by a
preponderance of the evidence that Respondent threatened
any employee with discharge or other discipline because
such employee sought to distribute in the plant, and
recommend that the said allegation of the complaint be
dismissed.
At the hearing all parties were afforded full opportunity
to introduce relevant and material evidence, to examine
and cross-examine witnesses, to argue orally on the record,
and to submit briefs. Oral argument was waived. Briefs
submitted by the General Counsel and Respondent, respec-
tively, have been duly considered. Upon the pleadings,
stipulations of counsel, the evidence, including my observa-
tion of the demeanor of the witnesses while testifying, I
make the following:
FINDINGS OF FACT2
A. The Rules Involved
About 1958, Respondent promulgated and distributed
among its employees a so-called "Guide to Good Con-
duct," which contained rules governing the conduct of
employees and for the violation of which employees might
be disciplined. Among such rules were:
17 Unauthorized solicitation
18 Unauthorized distribution of literature.3
On January 31, 1973, the Regional Director for Region 3,
on a charge filed by Donald H. Egerton, a Chrysler
employee, issued a complaint in Case 3-CA-5134, which
alleged inter alia, that Respondent interfered with the
Section 7 rights of its employees by (a) promulgating,
maintaining in effect, and enforcing no-solicitation rules
which restricted the right of employees to engage in union
activity during nonworking time and in nonworking areas;
and (b) warned, disciplined, and suspended employees
because they violated the no-solicitation rule. On March 21,
1973, the aforesaid complaint was dismissed by the Region-
al Director because the charge upon which said complaint
Union, United Automobile, Aircraft and Agricultural Implement Workers of
America, UA W-AFI-CIO, 128 NLRB 952 ( 1960).
3 Respondent 's production employees are represented by UAW, and a
contract is currently in effect , but its provisions are not particularly relevant
here The "Guide" was unilaterally promulgated by Respondent
CHRYSLER CORPORATION 1257
issued was, with the approval of the Regional Director,
withdrawn.' Shortly thereafter, namely on March 29, 1973,
Respondent advised all of its personnel managers and
directors that the "Guide" was revised, that the revised
edition must be thereafter used, and the same has at all
times since that date been in effect. The revision in the
"Guide," to the extent here material, changed the language
of rules 17 and 18, so that they now read:
17. Unauthorized solicitation, except such solicitation
during employees' nonworking time as is protected by
the National Labor Relations Act.
18. Unauthorized distribution of literature, except
such distribution during nonworking time in nonwork-
ing areas as is protected by the National Labor
Relations Act.
The uncontradicted evidence shows that Respondent has
permitted distribution of leaflets and other literature in
nonwork areas of its plants, particularly dunng union
election campaigns, insisting only that this be done in a
manner that would not inure, deface, or destroy company
property, and that any posters be removed promptly upon
conclusion of the campaign. The evidence also leaves no
room for doubt that during union campaigns employees
have solicited on behalf of a candidate for union office, and
that Respondent has taken no action to interfere with the
exercise of that activity .5 In addition, Respondent's labor
relations administrator, Sullivan, testified without contra-
diction that foremen, union representatives, and individual
employees have from time to time discussed with him the
right of employees to distribute literature in the plant, and
that he always stated that such could be carried on in
nonwork areas of the plant during the employees' nonwork
time .6
Respondent, contending that other cases heretofore
pending before the Board have a bearing on the instant
proceeding, established the following facts:
1. On June 12, 1974, the Regional Director for Region 3
issued a complaint against Respondent (Case 3-CA-5656-
2), which in material part alleged that the latter interfered
with the Section 7 rights of its employees in that (a)
supervisors, in the presence of other employees made
demeaning and derogatory remarks regarding the literature
of Respondent's employees who were candidates in an
election for union delegates; (b) Respondent promulgated,
maintained, and enforced a no-solicitation rule in a manner
so as to discriminate against employees who solicit or
distribute literature on behalf of candidates for union
office; and (c) Respondent threatened employees with loss
of pay or other reprisals because of the way they voted for
union officers. By answer, Respondent denied the allega-
tions of that complaint and also pleaded certain affirmative
defenses. By letter dated September 20, 1974, Respondent
4 Although a settlement agreement informally settling the case was
prepared, that document apparently was never executed by any party.
Correspondence in that case, in evidence before me, shows that the Charging
Party there withdrew his charge on Chrysler's representation that it would
expunge from its records the warning given Edgerton, and the department
manager's report thereon, and make him whole for the 3 days' disciplinary
layoff meted out to him In his letter to the Region, dated March 12, 1973,
company counsel stated that Chrysler was revising its "Guide," a copy of the
by its counsel, advised the individual charging party in that
case that it recognized his rights protected by Section 7 of
the Act, including the right to run for union office, and that
Respondent would do nothing to interfere with his exercise
of such right. In addition, Respondent stated that the verbal
warning dated May 6, 1974, given him for absenteeism, was
being removed from his personnel file. Concluding that
Respondent's letter provided a substantial remedy for the
unfair labor practices which could be established by the
evidence, and that it would not serve the policies of the Act
to continue with formal proceedings, the Regional Director,
by order dated October 4, 1974, directed that the complaint
and notice of hearing theretofore issued in that case be
withdrawn. The Charging Party's appeal from that order
was denied by the General Counsel on November 19, 1974.
2. On July 1, 1975, the Regional Director for Region 7
issued a complaint against Respondent in Case 7-CA-
12001, based on a charge filed May 7, 1975, which
complaint alleged that Respondent at its Detroit forge plant
interfered with the Section 7 rights of its employees by
discriminatorily interpreting and enforcing rules 17 and 18,
as amended in 1973, by permitting certain candidates for
union office to solicit and distribute campaign material on
their own and off their work shift, in working areas, while
denying the same right to other employee candidates for
union office. By letter dated May 20, 1975, a Board agent
wrote Respondent concerning that case. The first and last
paragraphs of the letter read:
In our phone conversation of May 12, 1975, we
discussed briefly the fact of a charge having been filed
and some related matters. Since that date I have been
able to get a thrust for the investigation. It appears that
the Employer has no-solicitation and no-distribution
rules which are presumptively valid on their face. (I
don't have them.) Therefore, I inform you at this time
that it is being alleged that these rules are alleged to be
disparately enforced.
The foregoing is intended to be an aid to you in
evaluating what response, if any, and in what manner
the Employer will address itself to the charge.
* *
If there are any questions, feel free to contact the
undersigned.
Case 7-CA-12001 did not go to hearing, but was settled
informally, by execution of a settlement agreement on July
3, 1975, in the Board's usual form, but with the addition of a
nonadmission clause. The notice which Respondent agreed
to and did post simply set forth the rights of employees
which Section 7 protects, and a commitment by Respon-
revision being enclosed, and that the same would shortly be put into effect at
all plants regardless of the disposition in Case 3-CA-5134
5 Although the evidence is not entirely clear, the fair inference is that the
activity was always conducted in such a manner that there was no
interference with production.
6 According to Sullivan, during his approximately 7 years' tenure with
Respondent, there have been no instances where the inquiry related to the
right to engage in solicitation.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent that it would not disparately and/or discriminatorily
enforce or apply the rules of conduct and their interpreta-
tion, and that said rules would be applied to all employees
alike. This was followed by the language of rules 17 and 18
in full text.?
B. The Alleged Threat to Ware
On September 29, company employee John O. Ware,
who worked on the 3:30-to-11:30 p.m. shift, came to work
and, after punching in, went from the timeclock toward the
lunchroom where he intended to distribute copies of the
"Watchdog," that he had with him.8 On the way Ware met
Cloud, the chief steward on his shift, who told Ware that
Superintendent Burns was looking for him because he
(Ware) had distributed copies of the "Watchdog." Ware
then started toward his locker, intending to put these copies
of the "Watchdog" he had in his possession in there, but on
the way met Jesse Coleman, who was from the safety
department. According to Ware, Coleman had a clipboard
and a copy of "Watchdog"; he asked Coleman if he could
pass out copies of that paper, and Coleman replied that
only the "Green slate," which was endorsed by Local 212,
could pass out literature in the plant. Ware then said he was
passing out his literature anyway; and Coleman replied that
if he did he would be fired .9 Ware then placed his literature
in his locker and reported for duty at the start of his shift.
Shortly thereafter, Chief Steward Cloud passed Ware's
work station. Accordingly to Ware, he gave Cloud a copy of
"Watchdog" and asked that the latter take it to the labor
relations department and find out why he (Ware) could not
distribute it. Still according to Ware, Cloud returned in a
short time saying that Ware could not distribute the
material in the plant, and showed Ware a section of the
contract prohibiting the posting of literature on the bulletin
board; Ware explained that he did not want to post the
literature, only to distribute it; and Cloud stated that Ware
could not do so.
Cloud testified, in effect corroborating Ware, that after
obtaining the document, and being told that Ware wished
to distribute it, he took the document to labor relations and
asked Administrator Sullivan why Ware could not distnb-
ute it; that Sullivan showed him sections 107 and 108 of the
contract, and stated that what Ware proposed was contrary
to the contract and that, if he did so disciplinary action
would be taken against him; that he then returned the
document to Ware and told him not to pass it out, and if he
did he would be in trouble.
The testimony of Coleman and Sullivan is in sharp
conflict with that of Ware and Cloud. According to
Coleman, Ware approached him during the late afternoon
of September 29, stating that he had been advised by labor
relations that he could not post any literature in the plant;
he replied that if Ware had been so advised by labor
relations he would suggest that Ware follow that advice;
The notice was duly posted for the period required by Board practice
The "Watchdog" is a publication of United National Caucus of Local
212, an organization in opposition to the present management of Local 212,
which is the collective-bargaining representative of the employees at
Respondent's Eight Mile Road Stamping Plant Ware is a member of Local
212, as well as of the Caucus On behalf of the Caucus, Ware had agreed to
distribute "Watchdog" at the Eight Mile Run Stamping Plant , during his
shift, and so solicit employees of that plant to become members of the
Caucus
Ware made some remark that notwithstanding the advice
he intended to post the material anyway; and Coleman
again stated that it would be his suggestion that Ware
follow the advice of labor relations, and that he did not
think Ware should challenge management in the fashion he
proposed.
Sullivan admits that Cloud came to his office on the
afternoon of September 29, and that a conversation
followed. According to Sullivan, the question Cloud put to
him was what kind of literature might employees post on the
union bulletin board in the plant; he read to Cloud sections
107 and 108 of the contract; Cloud made no comment and
left the office.
On consideration of the entire record, I credit the
testimony of Coleman and Sullivan, and find that Respon-
dent made no threat to discipline Ware if he distributed
literature in nonwork areas of the plant during his non-
worktime, and that Sullivan communicated no such threat
through Cloud.10
C. Contentions and Discussion
Upon the foregoing facts, it may be quite quickly
concluded that the General Counsel has failed to prove by a
preponderance of the evidence that Respondent threatened
Ware with discharge if he distributed literature in nonwork
areas of the plant during his nonworking time, and that
paragraph 7 of the complaint has not been proved and must
be dismissed in its entirety. I so find and conclude.
The conclusion so reached, however, does not dispose of
the case. There remains for decision the principal question
litigated, namely whether rules 17 and 18, as modified in
1973, are invalid on their face because they infringe upon
the organizational rights of employees protected by Section
7 of the Act. Respondent does not question the Board's
rule, which, with approval of the courts, it has long
followed, that absent special circumstances an employer
must afford his employees the right to solicit on plant
premises, subject only to the restriction that the solicitation
be on nonworking time, and that the right to distribute
literature must be afforded, subject only to the restriction
that it be done in nonworking areas of the plant and during
nonworking time. Stoddard-Quirk Manufacturing Company,
138 NLRB 615, 621 (1962). Rather, Respondent contends
that the fact that its rules clearly and plainly advise
employees that the flat prohibition against solicitation and
distribution is inoperative in those areas where the Act
protects employees' rights to solicit and distribute, and that
Respondent took no action contrary thereto, demonstrates
that the aforesaid rules do not violate the Act. I find these
contentions without merit.
Although the rules involved may be, as Respondent
argues they are, unambiguous and grammatically correct, it
must be pointed out, as Judge Hayes said in N.L.R.B. v.
9 The complaint alleges, but the answer denied, that Coleman was a
supervisor and considerable evidence was introduced by the parties on that
issue In my view, the issue need not be decided
10 If in fact Cloud communicated to Ware a statement allegedly in the
name of Sullivan, which statement Sullivan did not make, Respondent, of
course, cannot be charged with that conduct as a violation of the Act
CHRYSLER CORPORATION
Miller-Charles and Company, 341 F.2d 874 (C.A. 2, 1965), in
language fully applicable here:
The true meaning of the rule might be the subject of
grammatical controversy. However, the employees of
Respondent are not grammarians.
An employee in Respondent's plant desiring to solicit or
distribute would, upon reading the rules have to ask
himself: What conduct that I may engage in does the
National Labor Relations Act protect? The strong proba-
bility that the employee is not a lawyer makes him ill-
equipped to answer the posed question, and requires that
the employee act at his peril. It is, of course, true that the
employee could consult counsel - a course that no
employee should be required to pursue - or he could
consult with his business agent or his shop steward, but this
course is also one that an employee should not be required
to pursue.ii It is in this sense that I find the rules involved
to be ambiguous and confusing to employees and therefore
presumptively invalid, absent a showing that the rules are
necessary to maintain production or discipline. Respondent
made no such showing. Fasco Industries, Inc., 173 NLRB
552, fn. 1(1968).
The principle is further illustrated by the Board's holding
in Solo Cup Company, 144 NLRB 1481 (1963). There the
employer had promulgated a rule stating that an employee
would be subject to discipline for engaging in "unautho-
rized solicitation on Company property." The employer
argued that "unauthorized" referred to worktime, and did
not mean that company approval was required before
solicitations could be engaged in by employees during their
nonworktime. Rejecting the contention and holding the
rule to be invalid on its face, the Board said at 1481:
A similar argument was presented to the Court of
Appeals for the Fifth Circuit, 289 F.2d 181, where an
employer attempted to prove that a rule prohibiting all
"outside business' on company property was not a
violation since union activities are part of the employ-
ees' rights and are therefore not included in the legal
definition of "outside business." This approach was
rejected on the ground that the reasonably foreseeable
effects of the wording of the rule on the conduct of the
employees will determine its legality, and that where the
language is ambiguous and may be misinterpreted by the
employees in such a way as to cause them to refrain from
exercising their statutory rights, then the rule is invalid
even if interpreted lawfully by the employer in practice.
[Emphasis supplied.]
In the instant case, the fact that Respondent may
interpret and even apply its rules in a lawful manner is
"TheTh evidence in this case shows that Ware did consult his steward, but
got little in the way of information that might be regarded as useful or
practical And it must be remembered that in the instant case Ware sought to
distribute on behalf of an organization opposed to the current management
of Local 212
12 Nothing herein is meant to imply that Respondent must promulgate a
rule which tells the employees the specific conduct in which they may
engage , for Respondent may elect not to promulgate any rule I hold only
that, if Respondent elects to promulgate a rule, it must not be phrased in
language which reasonably tends to cause employees to refrain from
engaging in activity protected by Sec 8(a)(1) of the Act
1259
beside the point. The crucial fact, as above indicated, is that
it may reasonably be foreseen that employees reading rules
17 and 18 would not know what conduct is protected by the
National Labor Relations Act and, rather than take the
trouble to get reliable information on the subject, would
elect to refrain from engaging in conduct that is in fact
protected by the Act. Hence, the rules involved are invalid
on their face. I so find and conclude.12
Upon the foregoing findings of fact and the entire record
in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. By maintaining in effect rules 17 and 18 of its "Guide
to Good Conduct," Respondent interfered with, restrained,
and coerced its employees in the exercise of their rights
protected by Section 7 of the Act, and thereby engaged in,
and is engaging in, unfair labor practices proscribed by
Section 8(a)(1) of the Act.13
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
4. The General Counsel has failed to prove by a
preponderance of the evidence that Respondent threatened
to discipline John O. Ware if the latter distributed literature
in nonwork areas of its plant during his nonworktime.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act, it will be
recommended that it be required to cease and desist
therefrom and take certain affirmative action designed and
found necessary to effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record of the case, I hereby issue the
following recommended:
ORDER 14
The Respondent, Chrysler Corporation, Detroit, Michi-
gan, its officers, agents , successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining in effect, enforcing or
applying any rule or regulation prohibiting its employees
from soliciting on behalf of any labor organization, during
their nonworking time, in any area of its plants, or
distributing literature during their nonworking time on
behalf of any labor organization, in any nonworking area of
its plant.
13 Because the rules here involved were promulgated in 1973, more than 6
months prior to the filing of the instant charge, I am precluded by Sec 10(b)
of the Act from finding the promulgation of said rules to have been an unfair
labor practice
i4 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 findings,
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
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of their
right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representa-
tives 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
and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Forthwith rescind rules 17 and 18 of its "Guide to
Good Conduct," to the extent that such rules prohibit its
employees from soliciting on behalf of any labor organiza-
tion during their nonworking time in any area of its plants,
or distributing literature during their nonworking time, on
behalf of a labor organization, in nonworking areas of its
plants during their nonworking time.
(b) Post at each of its various plants in the United States,
copies of the attached notice marked "Appendix." 15 Copies
of said notice, on forms provided by the Regional Director
for Region 7, after being signed by an authorized represen-
tative of Respondent, shall be posted immediately upon
receipt thereof, and maintained by it for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the aforesaid Regional Director for Region 7,
in writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IS In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Section 7 of the National Labor Relations Act gives all
employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all these things.
Paragraphs 17 and 18 of the "Guide to Good Conduct,"
which we promulgated in March 1973, is not revoked and
rescinded to the extent that said paragraphs tend to inhibit
our employees from soliciting on behalf of any labor
organization during their nonworking time in any area of
our plants, or from distributing literature on behalf of any
labor organization in nonworking areas of our plant, during
their nonworking time.
WE WILL NOT promulgate, maintaine in effect,
enforce, or apply any rule or regulation which prohibits
our employees from soliciting on behalf of any labor
organization during their nonworking time in any areas
of our plants, or in distributing literature on behalf of
any labor organization in any nonworking area of our
plants, during their nonworking time.
WE WILL NOT in any like or related manner interfere
with our employees in the exercise of the foregoing
rights.
CHRYSLER CORPORATION,
EIGHT MILE ROAD
STAMPING PLANT