Cone Mills Corp. White Oak Plant

National Labor Relations Board - Board Decisions

Mar 5, 1969

174 N.L.R.B. 1015 (N.L.R.B. 1969)

CONE MILLS CORPORATION
Cone Mills Corporation White Oak Plant and
Textile Workers Union of America , AFL-CIO,
CLC. Case l 1-CA-3656
March 5, 1969
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On November 26, 1968, Trial Examiner Herzel
H. E. Plaine 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. The Trial Examiner further
found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint. 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 this 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 hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Cone Mills
Corporation, Greensboro, North Carolina, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as here modified '
Delete all four paragraphs of the Appendix and
substitute the language "WE WILL NOT maintain in
effect or enforce our no-distribution rule and posted
warning signs, that prohibit off duty employees from
distributing self-organizational literature in parking
lots and other non-working areas of the plant."
It is hereby further-ordered that the complaint be
dismissed with respect to allegations as to which the
Trial Examiner has found that findings of violation
'The modification consists only of conforming the notice to the order
174 NLRB No. 151
are proscribed by Section 10(b) of the Act
TRIAL EXAMINER'S DECISION
1015
HERZEL H.E. PLAINE, Trial Examiner This is a
proceeding charging the Respondent with violation of
Section 8(a)(1) of the National Labor Relations Act (the
Act). Complaint was issued, July 31, 1968, on a charge by
the Union (the Charging Party) filed with the Board, June
27, 1968
The gravamen of the complaint is that Respondent
promulgated and enforced, and continues to enforce, a
rule at its White Oak plant in Greensboro that prohibits
off duty employees from distributing union literature in
the parking lots and other nonworking areas of
Respondent's plant and grounds. In furtherance of the
prohibition it is alleged that Respondent posted the
parking lots with signs reading "No Trespassing, Working
Employees Only." It is further alleged that in June 1968
Respondent enforced the no distribution rule against off
duty employees by prohibiting them from distributing
union literature in the parking lots
Respondent, by its answer and at trial, admitted that it
has in effect the alleged no distribution rule or policy and
has the warning signs posted, and that it enforced the rule
on June 19, 1968 by cutting off a union leaflet distribution
in one of the parking lots begun by two of Respondent's
women employees who were off duty at the time
However, the Respondent contended (1) that there were
special circumstances, related to maintaining production
and discipline, that justified promulgation and
enforcement against employees of the no distribution in
nonworking areas rule, which rule, it said, was applied
evenly to distribution of nonunion as well as union
materials, and (2) because the Union and Respondent's
employees had places and means for communicating off
and outside Respondent's premises, enforcement in the
parking lots of the no distribution rule against off duty
employees was not an unreasonable impediment upon the
freedom of communication of the employees protected by
the Act '
The case was tried on September 26, 1968, at
Greensboro, North Carolina Only counsel for the
Respondent had filed a brief
Upon the entire record of the case, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation engaged in the
manufacture of textiles at several plants in North Carolina
and elsewhere, including the White Oak plant at
Greensboro, North Carolina, the only plant involved in
this case
Respondent's annual interstate purchases and sales
respectively exceed $50,000, and Respondent is engaged,
as it admits, in commerce within the meaning of Section
2(6) and (7) of the Act
The Union is a labor organization within the meaning
of Section 2(5) of the Act
'Respondent also contended that, because the no-distribution rule was
promulgated, and the implementing no-trespass signs posted, more than 6
months before the Union filed its charge, the alleged violations were barred
by the 6-month limitation of Sec 10(b) of the Act
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE UNFAIR LABOR PRACTICES
A Background and Issues
I Background
The Union was certified by the Board in 1954 as the
bargaining agent for Respondent's employees at the White
Oak plant, and apparently there has been a history of
continuous collective bargaining since then, marred,
however, by brief strikes in October 1966, February 1967,
and May 1967
The White Oak plant is in the city of Greensboro, at an
intersection of well traveled streets Respondent maintains
its own parking lots, used by a majority of its 1,700
employees, who work on a three-shift round-the-clock
operation Some of the parking areas are clustered around
the plant adjacent to entrances into the working areas,
others are across the streets that bound on two sides of
the plant Respondent owns the parking areas, has fenced
them and posted them no-trespassing-working-
employees-only, and keeps them locked at night except at
shift change or when opened on individual request to the
security guard.
Respondent put into effect the no distribution in
parking lots policy, specifically aimed at excluding any of
its own off duty employees, in January 1967, following the
one day strike in October 1966, allegedly (1) to protect
parked cars of employees from pilfering, (2) to insure that
employees who park get into the plant on time for
maintaining continuous production, and (3) to protect
employees and the cars of employees who, in the event of
a strike, choose to come to work Moreover, Respondent
was of the view that its employees had other means of
communication by distribution of literature off company
property on the public sidewalks and streets, home
contacts, mailings, meetings at the union hall or in public
places, newspaper and television stories of advertisements
(prepared by the Union), and use of the plant bulletin
boards for union notices (approved by the employer)
pursuant to the contract with the Union
On the afternoon of June 19, 1968, Respondent
enforced the no distribution policy by terminating a
distribution of a union circular on one of the parking lots,
commenced by two of the plant's women employees of the
night shift. Only plant employees were involved in this
curtailed distribution
2 Issues
Respondent indicates awareness of the well established
presumption that application of an employer's rule,
prohibiting distribution of union literature by company
employees in the company parking lots and other
nonworking areas, is an unreasonable impediment on the
freedom of communication essential to the exercise of the
employees' right to self organization, absent special
circumstances evidencing the necessity of such a rule in
order to maintain production and discipline.' However,
Respondent contends that its three asserted reasons for
promulgating the rule provided a necessity in the interest
of plant discipline and production that overcomes the
presumption of unreasonableness Further, Respondent
contends that the availability to the employees of alternate
means of communication nullifies any claim of
interference with the employees' right of communication
in the plant' nonworking areas
Thus, the issues are, first, whether the Respondent has
shown a necessity, grounded in plant discipline and
production, to curtail the right of its off duty employees
to communicate with fellow employees by distribution of
union and other self organizational literature in company
parking lots and other nonworking areas, and, second,
whether the existence of alternate means by which
employees may communicate outside the plant's
nonworking areas, justifies the employer's eliminating the
off duty employees' right of communication with fellow
employees by distribution of literature in the plant's
nonworking areas
B The No Distribution Rule
I Respondent 's reasons
Respondent produced its vice president for
administration, Edwin F Rousch, who took responsibility
for promulgating the policy and enforcing the rule at the
White Oak plant prohibiting off duty employees from
distributing union literature in the parking lots and other
nonworking areas The rule was promulgated in January
1967, he said, and the no trespassing signs in the parking
lots, which formerly allowed "employees only" was
changed to permit "working employees only" (emphasis
supplied)
As background, Vice President Rousch, Personnel
Manager Norman Pinkelton, and his assistant Robert
New (the latter two of the White Oak plant) described the
parking lots and traffic conditions, and gave some
employment statistics The plant is in the city of
Greensboro and has four parking lots or areas owned and
maintained for the employees by Respondent (although
one is not clearly marked on the map, Exh R-1) Two
parking areas are immediately adjacent to the plant, one
bordered by Fairview and Sixteenth Streets, the other by
Fairview and Gordon Streets Employees have direct
access into the plant on foot from these areas, without
leaving the employer's premises, through gates at
locations C and D, shown on map R- I Additionally there
are two other parking lots across the street from the
plant, one bounded by Sixteenth and Fairview Streets, the
other bounded by Fairview and Fourteenth Streets From
these lots employees, who are not let off on the plant side
before the cars are parked, cross the street on foot and
enter the plant at the gates at locations C and D, and also
at location E, the truck entrance The plant gates at
locations C and D face Fairview Street but are set back a
considerable distance from the street, well within the
Respondent's property line The truck entrance at location
E faces Sixteenth Street
Cars, intending to park, drive directly from the streets
into the lots, and leave through the same entrance ways
In addition, some employees are dropped and picked up
by cars that come into the semicircular driveway off
Fairview Street leading to and from the eight foot wide
plant and office gate (shown on map R-l at point C),
which, as already indicated, is well within Respondent's
property line
'Le Tourneau Company of Georgia , 54 NLRB 1253, 1262 (1944), affd
in Republic Aviation Corp v N L R B, N L R B v Le Tourneau of
Georgia , 324 US 793, 796-797, 801-804 (1945), Stoddard-Quirk Mfg
Co , 138 NLRB 615, 618-621 (1962) The rule applies without any showing
of union animus , N L R B v Lexington Chair Company, 361 F 2d 283,
286 (C A 4, 1966)
CONE MILLS CORPORATION
The parking lots are fenced and kept locked at night,
except during change of the shift or when opened on
individual request to the security guard, who patrol the
lots at night There appear to be three guards for night
duty There is also television camera monitoring, on a
24-hour basis, of the Gordon Street entrance to the
parking lot at Gordon and Fairview and of the truck
entrance on Sixteenth Street (at location E on map R-1)
The Company's property line along the streets and
sidewalks is marked by yellow lines painted on the
pavement, or by yellow stakes, and the words "property
line" painted or stencilled on the street Each of the
parking lots and other open areas inside the property line
is posted with signs inscribed, "No Trespassing, Working
Employees Only, Cone Mills Corp."
The plant has approximately 1,700 employees working
around the clock on three shifts, 7 a m -3 p m , 3 p.m -11
p m , 1 l p m -7 a m The first shift has about 700
employees, and the second and third shifts have about 500
employees each
Personnel Manager Pinkelton made a count at 9 a m.
one morning before the hearing, concerning the first and
largest shift, and found 408 cars parked in the four
parking lots, plus 23 cars parked on Fairview Street
itself ' Respondent apparently regarded this count as
proportionately typical of the other shifts and typical of
the daily situation. A survey concerning residence of the
employees, testified to by Assistant Personnel Manager
New, indicated that only about one-third of the employees
lived within a fifteen square mile area around the plant
(having a radius of three miles from the plant) Bearing in
mind that employees pool rides, it is fairly obvious that
the great majority of the 1,700 employees commute to and
from work by automobile and that a large majority park
their cars in the company lots
A traffic survey for a supposedly typical day, Exhibit
R-8, showed a steady flow of automobile traffic on both
Sixteenth and Fairview Streets, with the now of cars on
Sixteenth Street about four times as heavy as the flow on
Fairview Street. The two parking lots, that have their
respective entrances and exits on Sixteenth Street, park
over three-fourths of the cars.' One of these two lots, with
its entrance-exit on the south side of Sixteenth Street,
parked over half of the total cars (220 out of 408), and
provides direct entrance on foot into the plant, without
leaving Respondent's premises, through the plant gates at
locations D and C.
Personnel Manager Pinkelton testified that the cars
moving in and out of the parking lots from and to the
streets receive no police help and that there are no stop
signs at the parking lot gates except for one lot at
Fourteenth and Fairview Streets Employees on the shift
coming in, he said, park before the outgoing shift starts to
leave Thus, he testified, the first shift is in the plant and
takes over before the third shift leaves, and employees of
the two shifts do not pass each other going in and out -
the incoming shift goes in at one time, and the outgoing
shift comes out at one time
'Manager Pinkelton also counted at the end of the first shift 24
employees who got into cars waiting for them in the driveway at the plant
and office gate, and 89 employees who did not go into either of the two
closeby parking lots but walked toward Fairview Street either to get into a
car parked elsewhere or to take a bus or to walk home
'Manager Pinkelton ' s count showed 220 and 103 cars in these two lots,
or 323 cars out of the 408 total , supra The count in the two lots with
entrance -exit on Fairview Street was 63 and 22 cars , respectively , or 85 of
the total 408
1017
Vice President Rousch gave three reasons for
promulgating the rule prohibiting distribution of union
literature in the parking lots by off duty employees and
for amending the posted signs to exclude all but working
employees.
I The first reason was to protect employees' cars
parked in the lots from pilfering. There had been instances
of pilfering and stealing reported to him by the plant
manager, said Vice President Rousch, but he offered
nothing to explain the exclusion of off duty employees as
a cure for the evil or even relating them to the evil His
explanation was to the contrary, namely, that it was
strangers and outsiders with whom he was concerned Said
Rousch, "It would be impossible for us to know whether
it was an employee or an outsider or a stranger on the
company premises, so this was one way of attempting to
assure ourselves that there would only be employees on
our premises " (Emphasis supplied )
2 The second reason, testified Vice President Rousch,
was to insure that the employees get to work on time
without interruption of production on the changing of
shifts which, he said, "could happen if we had congestion
at the gate adjacent to the office " This is the eight feet
wide sliding gate by the office into the plant proper, set
back a distance from Fairview Street, well inside the
property line (at location C on map R-1) Vice President
Rousch also indicated there were two other gate entrances
into the plant used by employees, at location D on the
map a three feet wide gate well back from Fairview Street
and within the property line, and the wide gate at location
E on the Sixteenth Street side used by trucks and by
employees for ingress and egress
There was no history or evidence that employee
distribution of literature had caused a slowdown of ingress
or egress through any of these plant gates The only
testimony on the subject suggested the absence of any
difficulty caused by such distribution. General Counsel's
witness, employee Nathan Gwyn, an employee for 39
years, testified that prior to the one day strike in late
1966, he and other employees had distributed union
leaflets without difficulty many times in the area of the
plant office gate, but that after the Respondent had
marked out the property line the employees had to go out
to the "road" to distribute leaflets and that he and other
employees made distributions on Fairview Street to
employees on foot or by "catching cars " Employee Gwyn
also testified to witnessing an uninterrupted distribution of
election literature by a Mr Osteen, a candidate for the
United States Congress, two weeks before the trial of this
case, at the plant and office gate about 6 45 a.m , covering
the first shift arriving and the third shift departing (Gwyn
said that the supervisors changed shifts at the same time )
In addition, employee Gwyn testified to an uninterrupted
distribution of union material he made himself at the
plant and on ice gate, six days before the trial of this case,
on September 20, 1968, between 6 and 7 a m
While Respondent presumably was unaware of these
two recently completed distributions at the time they were
made,' the fact that they could take place without even
'Vice President Rousch testified to knowledge since January 1967, of
only two attempted distributions , and knowledge of no others, inside the
property line Both of the attempts , in front of the plant and office gate,
were stopped by Respondent , said Rousch One was the aborted union
leaflet distribution by the two off duty plant employees of June 19, 1968,
the subject of paragraph 7 of the complaint , the other was an interrupted
distribution of election literature by a Judge Preyer , candidate for the
United States Congress
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming to the notice of the plant management would
indicate that the distribution of the printed matter at the
plant gate had no effect on the traffic of employees in and
out of the plant during the change of shifts 6
3 The third reason for the rule excluding off duty
employees from distributing literature in the parking lots,
said Vice President Rousch, was to protect employees and
the property (automobiles) of employees who, in the event
of a strike might elect to come to work. According to
Rousch, the White Oak plant suffered a one day strike on
October 31, 1966, in the course of which some of the
pickets came onto the company premises, including
pickets who were not employees of the White Oak plant
Following the strike the company property line was
marked on the street or sidewalk pavement or staked out
at the street entrances to the parking lots and openings to
the property (as already described) "No Trespassing"
signs permitting "employees only" had previously, and
much earlier, been posted In January 1967, with the
promulgation of the rule excluding off duty employees, the
signs were amended to read "working employees only "
The Union conducted two subsequent strikes at the
White Oak plant, testified Vice President Rousch, one in
February and one in May 1967 In these strikes, said
Rousch, the picket lines were "heavily populated" with
college students, and there were also present union
representatives, newspaper reporters, television
cameramen, and onlookers Signs were carried on the
picket line, but the pickets stayed off the company
property during those two strikes
a. Preventing pilfering
On protecting parked cars against pilfering, Respondent
made no showing of necessity for its rule of no
distribution in parking lots by off duty employees. Vice
President Rousch's testimony, above, made it obvious that
the real concern was with strangers and outsiders who
engaged in thieving and not with any problem of
employees stealing from each other
Respondent has invoked remedies directed at the real
problem of thievery, such as keeping the parking lot gates
locked at night and opened only with help of the guard
except during change in shifts, night patrolling by the
security guards, and 24-hour television camera monitoring
of some of the entrances. If the pilfering is a daytime
problem as well (though there was no evidence on the
subject), possibly some modest extension of one or more
of these measures may prove useful, so long as such
measures are not misused to subvert employees' rights.
The desire to eliminate thievery in the situation
presented here does not demonstrate any special
circumstances that warranted eliminating the employees'
right of communication by distributing self-organizational
literature in the nonworking areas of the employer's
premises As the Board said of a similar claim in Le
Tourneau Company of Georgia, supra, 1261, "Since the
employees have free access to the lots in any event, we fail
to see how the fact that they use such access as an
Also indicative of the absence of any difficulty attendant on past
distributions is the testimony of Respondent ' s Assistant Personnel
Manager New, who testified to a telephone conversation with Union
Representative Nowitski on June 19, 1968, preceding the distribution of
material that was later stopped that day Nowitski called , said New, to say
he intended to distribute some information to employees and didn't want
any trouble New said he replied, "we ' ve never had any trouble in the past,
have we9" and, when Nowitski said he didn ' t know, New replied he didn't
think so
occasion to distribute literature has any bearing on the
problem of thefts." The Supreme Court agreed, in
affirming the Board, that adoption of the rule excluding
employees from distributing union literature in company
parking lots, allegedly to control pilfering from parked
automobiles (and also to control littering), was "barren of
special circumstances" and constituted an unfair labor
practice, Republic Aviation Corp v N L R B, N L R B
v Le Tourneau of Georgia, supra, 797, 801. More
recently, the Court of Appeals for the Fifth Circuit, sitting
enbanc on rehearing , in Republic Aluminum Company v
N L R B. 394 F 2d 405 (CA 5), held that enforcement
of a similar rule, preventing off-duty employees from
distributing union literature in the company parking lot
without company permission , was an unfair labor practice
The court held, among other things, that the basis claimed
for the rule, to control littering of the lot and pilfering
from parked autos, did not constitute special
circumstances necessary to maintain production and
discipline that would warrant departure from the rule
protecting employee distribution of literature in
nonworking areas, 394 F 2d at 408
b Preventing interruption of production
Respondent's claim, that distribution of union literature
in the nonworking areas by off duty employees would
retard the changing of the shifts and thereby would
interrupt the continuous round-the-clock production, was
merely an "assertion," by Vice President Rousch, that
"hardly proves that it is actually `necessary' for the
employer to prohibit union handbilling by its own
employees in nonworking areas in order to `maintain
production or discipline.' " Stoddard-Quirk Mfg Co ,
supra, 621-622. There was no evidence or history to
support the assertion, and such evidence as there was,
summarized above, indicated that past employee
distribution of literature in the nonworking premises had
not created any slowdown of employee traffic in and out
of the plant, or any other difficulties, indeed, went
unnoticed by management in some instances even though
conducted at the main plant and office gate
As a practical matter, in view of the considerable auto
traffic on the streets adjoining the plant and parking lots,
and the fact that most of the employees arrive and leave
by car, creating steady streams of auto traffic in and out
of the parking lots at shift changes, it is undoubtedly less
hazardous (to all involved) and less likely to slow or
disorganize the movement of traffic if employees
distribute their literature to fellow employees inside the
parking lots, after cars are parked or before parked cars
are moved out, or at the several plant gates (which are
inside the property line) where all the employee traffic is
on foot, rather than by "catching" cars (as is now
necessary under Respondent's rule) on the streets or as
they move from and into the streets at parking lot gates '
'The situation is akin to that disapproved in Le Tourneau , supra, where
the plant gate was 100 feet back from the property line at the roadway,
and employees distributing literature , forced back to the roadway by the
company rule, could not reach a large percentage of the employees except
in their moving cars as they left or came into the parking lot, 54 NLRB at
1261
The hazard involved in relegating handbill distribution to the highway
was recently taken into account by the Supreme Court in disapproving an
injunction which had that effect at a community shopping center, the
Court saying that, "the task of distributing handbills to tersons in moving
automobiles is vastly greater (and more hazardous ) than it would be were
petitioners permitted to pass them out within the mall to pedestrians "
CONE MILLS CORPORATION 1019
c. Protecting company premises against picketing
Respondent has confused its undoubted right to
exclude, from its plant and appurtenant private property,
picket lines and pickets (both employees and
nonemployees), with the much narrower limitation it may
impose on the right of its employees (as distinct from
nonemployees) to communicate with each other on self
organizational matters by distribution of literature in the
nonworking areas of the plant.
The Supreme Court in reviewing its decisions on
picketing said,
The Court came to realize that . . picketing even
though `peaceful' involved more than just
communication of ideas and could not be immune from
all state regulation. `Picketing by an organized group is
more than free speech, since it involves patrol of a
particular locality and since the very presence of a
picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are
being disseminated.' International Brotherhood of
Teamsters v. Vogt, 354 U.S. 284, 289 (1957).
"[B]ecause of this intermingling of protected [speech]
and unprotected [conduct] elements, picketing can be
subjected to controls that would not be constitutionally
permissible in the case of pure speech," Amalgamated
Food Employees Union v. Logan Valley Plaza, supra,
391 U.S. 308, 313, and it is only in places such as
"streets, sidewalks, parks, and other similar public places'
. historically associated with the exercise of First
Amendment rights" that picketing "cannot
constitutionally be denied broadly and absolutely " Id at
315
Hence, Respondent has adequate legal protection and
remedies under state law (as confirmed by the United
States Supreme Court), if peaceful picketing should
overstep its appropriate boundaries or become violent
picketing, and Respondent has, as pointed out in its brief,
taken the preliminary exclusionary and protective measure
under North Carolina law of marking its property line
and posting the warnings against trespass.'
However, the employer's right to exclude picketing by
employees and others'° from his premises, under the
constitutional accommodation of property rights and First
Amendment rights, is unincumbered by a statute
comparable to the National Labor Relations Act, which
subjects the employer's property right in his premises to
the right of his employees to communicate with each other
for self organizational purposes on nonworking time,
Republic Aviation Corp v. N.L.R. B., supra " As refined
and explained in Stoddard-Quirk Mfg. Co , supra,
620-622.
Amalgamated Food Employees Union v Logan Valley Plaza, 391 U S
308, 322 ( 1968), discussed , infra, in respect of picketing
The Supreme Court has assimilated the streets and sidewalks of a
company owned town, Marsh v Alabama , 326 U.S. 501 (1946 ), and the
mall area of a privately owned community shopping center , Amalgamated
Food Employees Union v Logan Valley Plaza , supra, in the concept of
public places
"'Traditionally the American law punishes persons who enter onto the
property of another after having been warned by the owner to keep off
General trespass after warning statutes exist in at least twenty states [citing
them, including North Carolina ] while similar statutes are on the books of
at least twelve states more [citing them] " Martin v Struthers 319 U S
141, 147 (1943).
"Legitimate peaceful picketing may be conducted by employees and
nonemployees , AFL v Swing , 312 U.S 321, 326 (1941)
"An explanation reiterated by Mr Justice Reed (dissenting ) in Marsh v
Alabama , supra , 326 U.S. at 515
[T]he free time of employees on plant property was `the
very time and place uniquely appropriate' [for
solicitation] . . This is true, moreover, whether the
plant is located, as in Republic Aviation, in a somewhat
remote location, or in the heart of the city; and whether
the plant itself and its employees complement be large
or small Whatever the particular situation, the
difficulty of drawing employees aside for oral discussion
when they are hurrying to or from work or when they
are engaged in other activities away from the plant is
obvious. Accordingly, unless the right of employees is to
be virtually nullified, a limitation upon the employer's
normal and legitimate property rights is required. The
scope of that limitation, however, is to be determined
by the nature of the need. Balancing the respective
rights, the working time versus nonworking time
adjustment has been evolved. The respective rights of
both employer and employee is thus accorded their
proper weight.
It does not follow, though, that an identical adjustment
is appropriate where distribution of literature is
involved. The distinguishing characteristic of literature
is that its message is of a permanent nature and that
it is designed to be retained by the recipient for reading
or re-reading at his convenience. Hence, the purpose is
satisfied so long as it is received. [footnote omitted]
This purpose, however, can, absent special
circumstances, be as readily and as effectively achieved
at company parking lots, at plant entrances or exits, or
in other nonworking areas, as it can be at the machines
or work stations where the employer's interest in
cleanliness, order, and discipline is undeniably greater
than it is in nonworking areas. Granted that the
distribution of union literature, even when it is limited
to nonworking areas, is an intrusion upon an employer's
acknowledged property rights, we believe this limited
intrusion is warranted if we are to accord a
commensurate recognition to the statutory right of
employees to utilize this organizational technique.
[H]owever, the Supreme Court held that the rules
applicable to employees were different from those
applicable to nonemployees. The Court ennuciated the
rule that `an employer may validly post his property
against nonemployee distribution of union literature if
reasonable efforts by the union through other available
channels of communication will enable it to reach the
employees with its message. .' (supra, [N.L.R.B. v.
Babcock and Wilcox, 351 U.S. 105] at 112; emphasis
supplied). . . Implicit . is the corollary holding that
employees, as contrasted with nonemployees, would be
entitled, subject to reasonable regulations,': to engage in
such distribution.
Bearing in mind these relative rights of employer and
employees, it follows that the employer may not, in effect,
post the nonworking areas of his property against
employee distribution of organizational literature and
prohibit such distribution because of his right, in
appropriate circumstances, to exclude employees who
might in the future attempt to use the nonworking areas
for picketing."
"Defined elsewhere in the opinion , with appropriate Supreme Court
citation , as "necessary" in order to "maintain production or discipline,"
138 NLRB at 622
"It should be observed again, that there was no evidence that employees
had in the past abused their right of distribution of printed materials, and
there was no evidence that employees had used their right of distribution as
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alternate Means of Communication
The Respondent urges that its no distribution of
literature rule on company nonworking premises is not an
interference with the employees' right of communication
on self organizational matters because there are other
places and means of communication available.
Respondent also appears to be saying that the existence of
such other places and means of communication is an
additional justification for having deprived its employees
of the use of its nonworking premises for distribution of
organizational literature.
Respondent points to the fact that the employees can
distribute circulars to their fellows (and have done so as a
result of the current prohibition) on the public streets and
sidewalks, off the company property The evidence also
has shown that this method requires distribution to a large
proportion of the employees when they are in moving
automobiles, a means which is hazardous and at the same
time inadequate when compared with the safe and
effective means of reaching all of the employees on foot as
they enter or emerge from the plant gates, or their parked
cars, all within the property line. Even if distribution on
the public streets and sidewalks were combined with or
supplemented by other means of distribution, which
Respondent says the employees have available, namely,
mailings, home visits, meetings at the union hall or in
public places, newspaper and television stories and
advertisements, and use of the company bulletin boards
for employer approved Union notices," the alternatives
could not be rated as the equivalent of the employee
distribution inside the property line in quickly and
effectively reaching all of the employees."
Considering, then, the comparative ineffectiveness as
well as the expense, time, manpower, and hazard,
variously entailed in the several other claimed means of
communication, elimination of employee distribution of
literature in the nonworking areas of Respondent's plant
is decidedly an interference with the employees' right of
communication.
Irrespective of the demonstrable detriment to the right
of the employees, perhaps the short answer to
Respondent's arguments under this heading is what the
Supreme Court said in Schneider v. State, 308 U S 147,
163 (1939):
[O]ne is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea
that it may be exercised in some other place."
In Stoddard-Quirk Mfg Co., supra, 622, the Board
dealt with the argument that the employees have places
outside the employer's premises where nonemployee
organizers previously passed out circulars to employees.
The Board said-
a ruse to engage in picketing on the parking lots
"The use of the bulletin boards is not available to the employees for all
self organizational matters but only to the Union now representing them,
and the notices which the Union prepares for the bulletin boards are
subject to the Respondent ' s approval
"Analyzing most of these same alternatives in N L R B v United
Aircraft Corp , 324 F 2d 128, 130 (C A 2, 1963), cert denied 376 U S
951, the Court said "The chances are negligible that alternatives
equivalent to solicitation in the plant itself would exist " The offending rule
in the case prohibited , as in the case at bar , distribution by off duty
employees of union literature in nonworking areas, and the Court (as have
other courts ) used the word "solicitation" in the broadest sense and
interchangeably with "distribution "
"Quoted with approval in Amalgamated Food Employees v Logan
Valley Plaza , supra , 391 U S at 323-324
Insofar as this argument is intended to suggest that
Respondent's own employees are entitled to no greater
rights in this regard than tithe nonemployee organizers,
the argument is vulnerable to the Supreme Court's
pronouncement in Babcock and Wilcox, supra, [351
U S 105] at 112-113, that there is `a distinction
between rules of law applicable to employees and those
applicable to nonemployees' and that the `distinction is
one of substance '
Essentially, Respondent would require (the General
Counsel on behalf of) the employees to show that they
have insufficient alternative means of communication
before permitting them to distribute their self
organizational literature in the company parking lots and
other nonworking areas of the plant The requirement of
such a showing has been squarely rejected by the Board,
affirmed by the United States Courts of Appeals in at
least three circuits, Republic Aluminum Company v
N L.R B, 394 F 2d 405 (C.A 5, en bane, 1968);
N L.R B v United Aircraft Corp, 324 F.2d 128 (C.A 2,
1963), cert denied 376 us. 951; Time-O-Matic Inc v.
N.L R B, 264 F.2d 96, 100-101 (C A 7, March 1959) "
In the one case to the contrary, on which Respondent in
this case places reliance, the Court of Appeals for Third
Circuit held that the Board was obliged to consider
whether there were alternative means of communication,
NLRB. v Rockwell Mfg Co, 271 F 2d 109 (C A 3,
November 1959). The later cases have not followed
Rockwell, but rather have followed the earlier Seventh
Circuit decision in Time-O-Matic, supra, and it has been
pointed out that the court in Rockwell "glossed over [the]
distinction" in the Supreme Court cases between the
general right of employees to distribute organizational
literature on the employer's nonworking premises as
contrasted with the special privilege of nonemployees
(union organizers) to use such premises for distribution of
union literature only on a showing that other channels of
communication with the employees are not available,
Stoddard-Quirk Mfg Co, 138 NLRB at 622, fn 10. As
the Court for the Second Circuit said, in the United
Aircraft case supra, 324 F.2d at 131, the decisions in
Republic Aviation (324 U S 793) and Babcock and
Wilcox (351 U.S 105) established that consideration of
available alternatives is not required of employees but is
required in the case of nonemployees, and "made it clear
that the employees in exercise of their rights are not to be
judged by the same standards as nonemployees "
Both the Second Circuit in United Aircraft, supra, and
Fifth Circuit in Republic Aluminum, supra, in refusing to
adopt the rationale of the Rockwell decision of the Third
Circuit, specifically rejected reading N L R B v United
Steelworkers of America, 357 U.S. 357 (1958), relied
upon by Respondent in this case, as modifying Republic
Aviation, pointing out that United Steelworkers dealt
with a valid rule against soliciting on working time and
working premises which the employer himself breached by
antiunion solicitation during working time. In that context
the Supreme Court held that the consideration of
available alternatives for communication was relevant in
determining whether the employer's valid prohibition had
become invalid and whether the union and employees
might properly use the otherwise forbidden time and
"In N L R B v General Industries Electronics , Co , 401 F 2d 297,
(C A 8, September 27, 1968), the court found it unnecessary to pass upon
the question (because the company modified its prohibitory rule to permit
employee distribution in the parking lots), but cited with apparent approval
the disposition made by the Fifth Circuit in Republic Aluminum, supra
CONE MILLS CORPORATION
means to counteract the employer's action, 357 U S at
362-364, and see 324 F.2d at 131-132, 394 F 2d at 408 11
It would therefore appear that the existence of alternate
means of communication among employees of the White
Oak plant has no bearing upon, and cannot be interposed
as a bar to, the right of the employees of the plant to
exercise their right to communicate with each other on
self organizational matters by distribution of literature in
the parking lots and other nonworking areas of the plant
during nonworking time.
Invalidity of Rule,Violations
The Respondent's rule, prohibiting its off duty
employees from distributing self organizational materials
in the parking lots and other nonworking areas of the
plant, that was not demonstrated to be necessary in order
to maintain plant production or discipline (and
Respondent's concomitant amendment of the no
trespassing signs to exclude off duty employees from the
nonworking areas), constituted an impediment to the self
organizational rights of the employees, invalid on its face
when promulgated.
Because the no distribution rule was promulgated and
the no trespassing signs amended in January 1967, more
than 6 months before the filing of the charge June 27,
1968, no violation may be found in the original
promulgation of the rule and amendment of the signs,
under Section 10(b) of the Act However, the continued
maintenance of the rule and the signs and enforcement
thereof in the period relevant to these proceedings, in
particular the curtailment on June 19, 1968, of the
distribution of union literature by the two off duty women
employees of the plant in the parking lot closeby the plant
and office gate, was a violation of Section 8(a)(1) of the
Act."
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with the operations of the
Respondent described in section 1, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing the free now
thereof
"Respondent in its brief also relies upon May Department Stores v
N L R B , 316 F 2d 797 (C A 6, 1963 ), which is like United Steelworkers,
supra . inapposite to the issue of the validity of a rule forbidding employees
to use nonworking areas on nonworking time In May, the union was
seeking equal time with a retail store employer to use working time in the
store premises to respond to the employer 's antiunion arguments made to
the store employees on working time The Court applied the test of United
Steelworkers and found that the union had made no showing that the
employees were out of its reach by usual modes of communication
"Varo , Inc , 172 NLRB No 236, fn 1 (1968) Respondent appears to
claim, in its brief , that the whole of the complaint is barred by reason of
the promulgation of the rule prior to the six-month cut -off Respondent
overlooks the fact that the rule is one that was "invalid on its face," and
that continued enforcement of it is a continuing violation not "solely by
reason of the circumstances existing only at the date of "the promulgation
of the rule, Local 1 424, Int'l Assn Machinists v N L R B, 362 U S 411,
423 (1960)
IV. THE REMEDY
1021
Because continued maintenance and enforcement
against its employees of Respondent's no distribution rule
in nonworking areas is unlawful, it will be recommended
that Respondent cease and desist from maintaining and
enforcing the rule and the signs, that exclude off duty
employees from distributing self organizational literature
in the nonworking areas of the plant It will also be
recommended that Respondent post appropriate notices to
the employees that it will not enforce against them, and is
rescinding, the no distribution rule, and is correspondingly
amending the related no trespassing signs.
Upon the basis of the foregoing facts and upon the
entire record in the case, I make the following
CONCLUSIONS OF LAW
1 The 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 The
Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. By interfering with and restraining employees in the
exercise of their right of communication for self
organization under Section 7 of the Act, Respondent has
engaged in and is engaging in unfair labor practices wtthm
the meaning of Section 8(a)(l) of the Act, affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing facts and conclusions
of law, and upon the entire record in this proceeding, I
recommend that Respondent, its officers, agents,
successors, and assigns, shall
1 Cease and desist from maintaining in effect or
enforcing its illegal no distribution rule and posted
warning signs , that prohibit off duty employees from
distributing self organizational literature in parking lots
and other nonworking areas of the plant
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act
(a) Post in Respondent's White Oak plant in
Greensboro, North Carolina, copies of the notice attached
hereto and marked Appendix 20 Immediately upon receipt
of copies of said notice, to be furnished by the Regional
Director for Region 11 (Winston-Salem, North Carolina),
the Respondent shall cause the copies to be signed by one
of its authorized representatives, posted, and maintained
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 11, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
therewith r'
" 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 in a United States Court of
Appeals, the words "a Decree of the United Sta,es 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,
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and 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 rescind our rule against distribution of
union or other self organizational literature in the
parking lots and other nonworking areas of the plant by
off duty employees, and for this purpose
WE WILL restore the former wording of the posted
"no trespassing" signs to read and admit into
nonworking areas "employees only" in place of
"working employees only "
WE WILL NOT interfere with or prevent off-duty
employees from distributing union or other self
organizational literature in the parking lots and other
nonworking areas of the plant, and
WE WILL NOT announce any policy or post any
notice that threatens disciplinary action or penalties
against employees who engage in such distribution
Dated By
CONE MILLS
CORPORATION, WHITE
OAK PLANT
(Employer)
(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, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 723-2911