358 N.L.R.B. 974 (N.L.R.B. 2012)

DTM Corporation

National Labor Relations Board - Board DecisionsAug 31, 2012

358 N.L.R.B. 974 (N.L.R.B. 2012)

974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 358 NLRB No. 112 DTM Corporation and Security, Police, Fire Profes- sionals of America, Local 48. Case 16–CA– 027094 August 31, 2012 DECISION AND ORDER BY MEMBERS HAYES, GRIFFIN, AND BLOCK On June 30, 2010, Administrative Law Judge William N. Cates issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Acting General Counsel filed an answering brief and cross- exceptions. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The issue is whether the no-strike clause in the Respond- ent’s collective-bargaining agreement with the Union violates Section 8(a)(1) of the Act because, in the judge’s words, it “clearly and explicitly bans and/or prohibits the distribution of literature (leaflets and handbills) without limitation.” For the reasons explained below, we disa- gree with the judge’s interpretation of the no-strike clause. Accordingly, we dismiss the complaint. I. FACTUAL AND PROCEDURAL BACKGROUND The Respondent provides security services to the air traffic controllers at the Dallas/Fort Worth Airport. The Security, Police, Fire Professionals of America, Local 48 (Local 48) represents the Respondent's security guards employed at the site. On September 21, 2009, Local 48’s parent union signed a collective-bargaining agreement with the Respondent covering these guards. Article IX of the agreement, entitled “No Strike and No Lockout,” reads in relevant part: The Employer agrees not to cause, permit, or engage in any lockout of its employees during the term of this Agreement. The Union agrees that neither it nor the employees it represents covered by this Agreement will, during the term of this Agreement, cause, permit, or take part in any strike, including sympathy strike, picketing, leafleting, informational picketing or any other work action that has the purpose or effect of slowing down or interfering with work. [Emphasis added.] The judge interpreted article IX to prohibit employees from engaging in “leafleating” and “informational pick- eting” generally, although such activities are protected by Section 7 of the Act. Applying the standard set forth in Lutheran Heritage Village—Livonia, 343 NLRB 646 (2004), which addresses unilaterally issued employer rules, the judge found that article IX was unlawfully overbroad. Citing NLRB v. Magnavox Co., 415 U.S. 322, 325 (1974), the judge also found that article IX con- stituted an impermissible waiver by the Union of em- ployees’ Section 7 rights. II. ANALYSIS Section 7 of the National Labor Relations Act gives employees the right to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection. However, unions, in their representa- tional capacity, may collectively bargain a waiver of cer- tain Section 7 rights. Rights that may be waived include the right to engage in strikes and the right to encourage or sanction strikes. See, e.g., Lear Siegler, Inc., 293 NLRB 446, 447 (1989). In contrast, a union may not broadly waive the right of employees to distribute literature on nonworking time in nonworking areas. Magnavox, supra. Here, the judge clearly erred by lifting the collective-bargaining agree- ment’s prohibition against “leafleting, informational picketing, or any other work action” out of its context in the no-strike clause. As part of its prohibition of strikes, article IX prohibits “leafleting, informational picketing or other work action that has the purpose or effect of slowing down or interfering with work.” The most rea- sonable construction of this language is that the phrase “that has the purpose or effect of slowing down or inter- fering with work” modifies each of the three terms in the preceding series: “leafleting,” “informational picketing,” and “other work action.” In other words, the only leaflet- ing, informational picketing, or other work action prohib- ited by article IX is that with the proscribed “purpose or effect of slowing down or interfering with work.” To the extent that such activity would be protected by Section 7, the Union was permitted to waive employees’ right to engage in it, as part of its lawful waiver of the right to strike.1 Neither protected distribution in nonworking areas among employees during their nonworking times, nor informational picketing by off-duty employees on public property for any other purpose, would be covered by this prohibition. Thus, Magnavox, supra, cited by the judge, is distinguishable.2 1 We do not believe that art. IX can reasonably be interpreted to pro- hibit mere employee discussion, written or oral, of a work stoppage. 2 There was no dispute that the rule at issue in Magnavox prohibited all employee distribution anywhere on the employer’s property. Id. at 322. DTM CORP. 975 Based on the foregoing, we find that the Respondent did not violate Section 8(a)(1) as alleged.3 ORDER The complaint is dismissed. Becky Mata, Esq. and Sharon L. Steckler, Esq., for the Gov- ernment.1 Scott Kamins, Esq., for the Company.2 Lloyd A. Tyson, Union Representative, for the Union.3 DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case in- volves the Company’s promulgating and maintaining alleged unlawful rules in its collective-bargaining agreement restricting employees’ ability to handbill, ability to leaflet and ability to engage in work actions that constitute protected, concerted activities. I heard this case in trial in Fort Worth, Texas, on April 28, 2010. The case originates from a charge filed on October 26, 2009, by Security, Police, Fire Professionals of America, Local 48 (the Union). The prosecution of the case was formalized on January 26, 2010, when the Acting Regional Director for Region 16 of the National Labor Relations Board (the Board), acting in the name of the Board’s General Counsel, issued a complaint and notice of hearing (the complaint) against DTM Corporation (the Company). The Company, in a timely filed answer to the complaint, de- nied having violated the Act in any manner alleged in the com- plaint. The three allegations litigated are that since September 21, 2009, the Company has promulgated and maintained an unlaw- ful rule in its collective-bargaining agreement that restricts employees’ ability to handbill, ability to leaflet and ability to engage in work actions that constitute protected, concerted activities in violation of Section 8(a)(1) of the National Labor Relations Act (the Act). The parties were given full opportunity to participate, to in- troduce relevant evidence, to examine and cross-examine wit- nesses, and to file briefs. I carefully observed the demeanor of the witnesses as they testified. I have studied the whole record, the posttrial briefs, and the authorities cited therein. Based on more detailed findings and analysis below, I conclude and find the Company violated the Act as alleged in the complaint. 3 In light of our analysis, we find it unnecessary to pass on whether it was correct for the judge to apply the Lutheran Heritage Village stand- ard to a collectively-bargained rule. Because we are dismissing the complaint, we also find it unnecessary to pass on the Respondent’s contention that the judge erred by finding that the International Union was not a necessary party, or on the Acting General Counsel’s conten- tion that the judge’s recommended notice should be modified. 1 I shall refer to counsel for the General Counsel as counsel for the Government and the General Counsel as the Government. 2 I shall refer to counsel for the Respondent as counsel for the Com- pany and shall refer to the Respondent as the Company. 3 I shall refer to the Charging Party as the Union and to its repre- sentative as union representative. FINDINGS OF FACT I. JURISDICTION, LABOR ORGANIZATION STATUS, AND AGENCY STATUS The Company is a Washington corporation engaged in the business of providing security solutions, facility management and automation resources throughout the United States includ- ing the FAA ARTCC site in Fort Worth, Texas. During the past fiscal year, a representative period, the Company per- formed services valued in excess of $50,000 in States other than the State of Texas. The parties admit, and I find, the Com- pany is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The parties admit and/or do not dispute, and I find, the Union is a labor organization within the meaning of Section 2(5) of the Act. Company Chief Operating Officer Margo Briggs is a super- visor and agent of the Company within the meaning of Section 2(11) and (13) of the Act. Captain Chad Riley is site supervisor for the Company and Lloyd Tyson is vice president of the Un- ion. II. THE FACTS The Company provides security services for the Federal Aviation Administration (ARTCC) at its Fort Worth, Texas site (site), 24 hours per day, 7 days per week. Specifically, the Company provides security service for the air traffic controllers at the Dallas/Fort Worth Airport. The security officers control the access gate, check identification badges of those entering and leaving and for automobile parking decals. The security officers escort vendors and visitors on the premises as well as patrol the site and prepare daily activity reports for the site. The Company and the Union are parties to a collective- bargaining agreement, effective by its terms, from September 21, 2009, to September 30, 2012. Although the representative status of the Union was not alleged in the complaint, the Com- pany, in the collective-bargaining agreement, recognizes the Union as the exclusive bargaining representative “for all of its full-time and part-time security guards employed at [the site],” but excluding “Officers and Directors of the Company; all of- fice clerical, all managerial and supervisory employees and all other employees who are not security guard employees, [and] all employees who are not regularly scheduled to work at the site as part of their normal work duties.” There are approxi- mately 11 guards in the bargaining unit. Union Vice President Tyson testified that at some point in October 2009, the Union’s acting site steward prepared and sent to company management, and others, a “Notice” type flyer addressed “To Whom It May Concern” advising of certain action the Union would be taking. The Notice reads as follows: On November 02, 2009 at or about 1100, the Security Offic- ers working for DTM Corporation will be performing an In- formational Picket and/or Strike in front of the FAA/ARTCC in Fort Worth, Texas. This is due to DTM Corporation’s lack of dealing with the SPFPA, Local # 48 in good faith. On October 1, 2008, DTM Corporation was awarded this contract at this location and has yet to pay anyone of the Secu- 976 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD rity Officers everything that was stated in the CBA that the FAA handed to them and DTM Corporation agreed to. October 1, 2009 started a new pay raise, stated in the current CBA and none of these Security Officers even know what they are being paid, due to DTM Corporation’s efforts to keep all information away from these Security Officers, as well as not following the CBA. Thank you, SPFPA, Local #48 Vice President Tyson thereafter spoke by telephone with Site Supervisor Captain Riley about the Union’s notice to engage in informational picketing and “told him that I did not like the language in the notice about the strike because I believed the strike according to our CBA [collective-bargaining agreement] was unlawful. But we planned to do an informational picket across the street on public land by non-duty officers.” Tyson told Riley he was concerned for his officers and for the opera- tions of the facility and he “would in no way allow any activity that would endanger the safety of either the officers or the op- erations of the facility.” Site Supervisor Riley said he spoke several times with Tyson about the notice “just to confirm that it was legit and, you know, and should I be concerned.” Riley asserted it “never came clear” to him that the security officers were not going to strike. On October 21, 2009, Company Chief Operating Officer Briggs prepared a letter to the security officers at the site re- garding “SPFPA Union Contract Update CBA Contract Rati- fied.” The letter states: Dear Security Team: DTM Corporation has been informed that there has been some misinformation circulating around the security facility relating to the new Collective Bargaining Agreement (CBA). As you are aware, a new CBA was ratified between DTM Corporation and the International Union Police Fire Profes- sionals of America and Amalgamated Local #48. DTM has been diligently working with the Union and its members to work through any issues coming to the attention of the Company, or the Union. With the ratification of the new CBA, officers can expect to receive an increase in their hourly wage. The new wage rate is $19.67, plus health and welfare. Officers can expect to see the increases effective November 1, 2009. DTM fully understands that there may have been some ques- tions relative to this new agreement. If anyone has any ques- tions relative to the new agreement, or needs clarification on any issues, please do not hesitate to share your concerns with your site supervisor, Captain Chad Riley. He, in turn, will ei- ther resolve the issue, or forward the information to the DTM Corporate Office for resolution. A copy of the new CBA is on site, in the hands of Captain Ri- ley. DTM wishes to thank all of the fine officers working at the FAA/ARTCC for their efforts in making the FAA facility a model place to work, and one that DTM can be proud of. Respectfully, /Margo H. Briggs Margo Briggs Chief Operations Officer Site Supervisor Captain Riley distributed a copy of Briggs letter and a paper copy of the parties’ collective-bargaining agreement to each of the unit employees. Union Vice President Tyson testified the Company did not have any meetings with the unit employees to notify them not to picket. Tyson said the unit employees did not picket because the collective-bargaining agreement reflected if they did they could be discharged. Tyson said quite a few of the unit employees considered their job as their primary source of employment “and they were afraid of losing their jobs” if they picketed. Tyson testified that accord- ing to the collective-bargaining agreement there was no time or place where the unit employees could leaflet, at no time con- duct informational picketing or hand bill nor any time where they could engage in any other work stoppage for any reason. Site Supervisor Captain Riley testified unit employees have scheduled breaktimes during their shifts and their activities during breaktimes are not regulated. The employees’ activities before and after worktimes are not regulated and the employees could discuss whatever they desired and could distribute mate- rials related to the Union. Riley explained the Company does not regulate employee activities or restrict distribution in the parking lot. Riley explained the collective-bargaining agree- ment has not been strictly enforced and that the agreement only states the employees need permission for certain activities. Riley stated that in fact the employees could engage in such activities so long as it did not interfere with the FAA’s busi- ness. It is undisputed that no strike or informational picketing ever occurred at the site herein. Union Vice President Tyson testified he, on October 28, 2009, found in the access gate guard house a printed copy of an email with attachment dated October 27, 2009, from Company Vice President Elliot W. Gibson. Tyson made a copy of the email and attachment because it contained a copy of the Com- pany’s plan of action in case the unit employees engage in in- formational picketing. Site Supervisor Captain Riley testified employees were not allowed to remove documents from the guardhouse without permission and added Tyson did not obtain permission to remove the copy of the email with attachment he took from the guardhouse. Tyson fully realized the email and attachment he took were not addressed to him. The email was, in fact, addressed to cer- tain FAA officials, among others; and the attached letter was addressed to the Contracting Officer for the FAA/ARTCC site setting forth the Company’s plan of action regarding the Un- ion’s proposed job action announced for November 2, 2009. In his letter Gibson explains what actions the Company was plan- ning if a strike occurred noting the allocation of personnel as DTM CORP. 977 well as obtaining and training supplemental workers to ensure the security of the site. Gibson indicated in his letter the Com- pany would be proactive in working with the International Un- ion to negate any type of job action. Gibson summarized the Company’s plans stating in part: Since the inception of the contract award (contract #DTFASW–09–R–00002), DTM Corporation has understood its duty and responsibility to provide safety and security at the FAA facility, in Fort Worth, Texas. Moreover, DTM has also understood its responsibility to ensure that its employees un- derstand that any kind of Union job action, (strike, sick–out, blue flu, work slowdown) will not be tolerated. DTM sent a copy of its CBA to its employees at the FAA/ARTCC informing them that strikes violate the contrac- tual agreement between the Union and DTM Corporation. Further, DTM aggressively continues its work behind the scenes to work a viable settlement with the Union on any pro- visions of the Collective Bargaining Agreement that may be in dispute. The technical aspects of this plan will still move forward to ensure that any proposed threats of a job action will not com- promise the safety and security of the Federal Aviation Ad- ministration. The parties collective-bargaining agreement at article IX, “No Strike and No Lockout” reads as follows: The Employer agrees not to cause, permit, or engage in any lockout of its employees during the term of this agreement. The Union agrees that neither it nor the employees it repre- sents covered by this Agreement will, during the term of this Agreement, cause, permit, or take part in any strike, including sympathy strike, picketing, leafleting, informational picketing or any other work action that has the purpose or effect of slowing down or interfering with work. It shall be a violation of this Agreement, and it shall be cause for discharge in the event an employee refuses to enter upon any property in- volved in a labor dispute involving other employee organiza- tions or refuses to go through or work behind any picket lines involving other employee organizations at the Employer’s place or places or business. The Union and Employer agree to take all steps possible to ensure that the site is properly se- cured and protected in the event of labor disputes involving other employee organizations at the site. Article XXI, miscellaneous, section 4 reads: Union representatives shall not conduct Union–related busi- ness with any employee during the time the employee is on duty, nor shall any employee conduct Union–related business during the time he/she is on duty without permission. Em- ployer property, equipment and office facilities shall not be used to conduct any form of Union–related business. Em- ployees who violate this section will be subject to disciplinary action. Article XXIII, access, reads: One Union Business Representative, or any duly authorized representative of the Union, shall have admission to the estab- lishment of the Employer only after giving a minimum of seventy–two (72) hours advance written notice of his desire to be on the premises to the Employer’s Project Manager or duly authorized designee, except in cases of emergency making such advance notice impossible, in which case as much ad- vance notice as is possible must be given. While on the prem- ises, the Business Representative or any duly authorized un- ion representative shall only be allowed to meet with bargain- ing unit employees for the purpose of ascertaining whether or not this Agreement is being observed by the parties hereto or for assisting in the adjustment of grievances. Any meetings can only take place in non–work areas, during non–work time. Such visits shall not interfere with the orderly and effi- cient operation of the Employer’s business. There shall be no Union business or solicitations during work time and/or in work area of either the person doing the soliciting, or the per- son being solicited, unless such solicitations are expressly permitted under the terms of this Agreement. III. ANALYSIS, DISCUSSION, AND CONCLUSIONS It is helpful to consider certain court and Board precedents in deciding the issues herein. The Board in Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999), set forth the standard for determining whether the mere maintenance of certain work rules violate Section 8(a)(1) of the Act, noting, “the appropriate inquiry is whether the rules would reasonably tend to chill employees in the exercise of their Sec- tion 7 rights.” In determining whether a challenged rule is unlawful the Board does not read phrases in isolation nor does it presume interference with employee rights. Id. at 825, 827. The Board in Lutheran Heritage Village–Livonia, 343 NLRB 346 (2004), set forth a two-part inquiry for determining wheth- er an employer’s maintenance of a work rule violates the Act. First, if the rule “explicitly” restricts Section 7 activities it is unlawful. Where, however, the rule does not explicitly restrict Section 7 activities, the Board looks for a showing of one of the following: “(1) employees would reasonably construe the lan- guage to prohibit Section 7 activity; (2) the rule was promul- gated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 646. The mere presence of a rule that has the effect of chilling em- ployees exercise of their Section 7 rights can be a violation of the Act and “the finding of a violation is not premised on man- datory phrasing, subjective impact, or even evidence of en- forcement, but rather on the reasonable tendency of such a pro- hibition to coerce employees in the exercise of fundamental rights protected by the Act.” Radisson Plaza Minneapolis, 307 NLRB 94, 94 (1992), enfd. 987 F.2d 1376 (8th Cir. 1993). From the facts herein, this case came about as a result of the Local Union not being fully informed of the terms or aware of the fact that the International Union and the Company had fi- nalized a collective-bargaining agreement covering the em- ployees here. Those concerns prompted the Union’s acting steward to prepare and send to Company management a “No- tice” type flyer “To whom it May Concern” advising the Com- pany, in part, that the Union at 11 a.m. on November 2, 2009, 978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD would: “be performing an Informational Picket and/or Strike in front of the FAA/ARTCC in Fort Worth, Texas.” Union Vice President Tyson and Company Site Supervisor Captain Riley thereafter spoke several times about the Notice with Tyson telling Riley he did not like the language in the notice regarding a strike which he believed was unlawful but that the Union only planned to conduct an informational picket across the street on public land with nonduty employees. Thereafter, on October 21, 2009, Company Chief Operating Officer Briggs, sent a letter to, among others, the unit employ- ees concerning any “misinformation circulating around the security facility relating to the new Collective Bargaining Agreement.” Briggs attached a copy of the new collective- bargaining agreement to her letter. Company Site Supervisor Riley, distributed a copy of Briggs letter and the new collec- tive-bargaining agreement to each unit employee. Union Vice President Tyson explained the unit employees did not engage in the planned picket because of language in the new collective- bargaining agreement that reflected if they did they could be discharged. Tyson said the employees were, “afraid of losing their jobs.” Tyson testified that according to the collective- bargaining agreement there was no time or place where the unit employees could conduct informational picketing, leafleting or hand billing nor could the employees engage in any other work stoppage for any reason. I turn now to that portion of the language in the parties col- lective-bargaining agreement at issue here. Article IX, “No Strike and No Lockout” in part reads: The Union agrees that neither it nor the employees it represents covered by this Agreement will . . . cause, per- mit, or take part in any strike, including sympathy strike, picketing, leafleting, informational picketing or any other work action that has the purpose or effect of slowing down or interfering with work. The first question is whether the contract language at issue “explicitly” restricts activities protected by Section 7 of the Act. If it does, the provision is unlawful. I find the language unlawfully over broad and ambiguous. There are no limitations to the rule. There are no exceptions or explanations regarding when or under what circumstances the rule will be applied. An employee reading the rule would reasonably understand he or she could not engage in, for example, informational picketing, even while off duty and on public property without possibly running afoul of the rule and its consequences, namely disci- pline. That portion of the rule stating, “that has the purpose or effect of slowing down or interfering with work” only adds confusion and ambiguity to the rule and does not limit the rule’s application. Ambiguities are resolved against the prom- ulgator of the rule rather than those required to obey it. The challenged rule clearly chilled the unit employees’ exercise of their protected Section 7 rights in as much as they chose not to engage in the scheduled November 2, 2009 informational pick- eting because they feared losing their jobs. The challenged rule clearly and explicitly bans and/or pro- hibits the distribution of literature (leaflets and hand bills) without limitation. Such an overly broad rule against the distri- bution of literature for or against a union or in support of other concerted protected activity coerces employees in exercising their Section 7 rights. The Supreme Court in NLRB v. Mag- navox Co., 415 U.S. 322 (1974), found a ban on distribution in an agreement to be invalid because it stifled the organizational rights of employees which rights are at the core of the represen- tation and bargaining provisions of the Act. The Court in Mag- navox made it clear that banning the distribution of literature was not a right that could not even be bargained away by the union. The Supreme Court in Magnavox further noted: The place of work is a place uniquely appropriate for dissem- ination of views concerning the bargaining representative and the various options open to the employees. So long as the dis- tribution is by employees to employees and so long as the in– plant solicitation is on nonworking time, banning of that solic- itation might seriously dilute Section 7 rights. For Congress declared in Sections 1 of the Act that it was the policy of the United States to protect “the exercise by workers of full free- dom of association, self–organization, and designation of rep- resentatives of their own choosing.” 29 U.S.C. Section 151. The rule herein placed no limitation on its application. More specifically it did not limit, for example, the ban on leafleting to actual working times, thus the ban would include employees’ break or lunch times. Simply stated the Company never in any manner conveyed a clear intent to the employees that the rule was in any way limited in its application. The Supreme Court in Beth Israel Hospital v. NLRB, 437 U.S. 483, 491 (1978), stated: “We have long accepted the Board’s view that the right of employees to self-organization and bargain collectively . . . necessarily encompasses the right effectively to communicate with one another regarding self-organization at the job site.” Accordingly, any ban that is overly broad and precludes em- ployees from distributing information at any time or place on the jobsite, as the case herein, has the stifling effect of explicit- ly preventing employees from exercising their Section 7 rights. The Company failed to present valid evidence that the chal- lenged rule in the collective-bargaining agreement was neces- sary for compelling and/or legitimate business justifications. Specifically, the Company failed to demonstrate any legitimate business reason or justification for attempting to interfere with or prohibit its unit employees from engaging in informational picketing for one day with off-duty employees on public prop- erty. The defense of waiver is not available to the Company be- cause, as noted elsewhere herein, the parties cannot waive or bargain away core Section 7 rights guaranteed to employees. Other selected provisions of the parties collective-bargaining agreement does not explain, clarify or establish justification for the Company’s promulgating and maintaining the challenged overly broad rule. While article XXI, miscellaneous, section 4, and article XXIII, access, outlines rights, and some restrictions, for union representatives and employees in conducting union related business on the Company’s premises the articles do not provide clarification of the challenged rule nor provide addi- tional rights or privileges with respect to other protected Sec- tion 7 rights. I specifically reject the Company’s contention that the limi- tation on leafleting and handbilling is simply part of the lawful DTM CORP. 979 no–strike provision of the challenged rule. While it is clear no strike provisions in collective-bargaining agreements may be lawful, NLRB v. Magnavox Co., 415 U.S. 322, no reasonable reading of the challenged rule herein could lead one to con- clude that the prohibition against leafleting and handbilling is inextricably intertwined with the no-strike portion of the chal- lenged rule. Finally, the fact the rule may not have actually been enforced is no defense for the Company for a number of reasons. First, the very existence of the rule chills employees’ exercise of their Section 7 rights and violates Section 8(a)(1) of the Act. Se- cond, although the Company took no action against the em- ployees regarding their stated intention to engage in informa- tional picketing it is clear the employees never, in fact, picket- ed. Third, the failure of the Company to enforce the challenged rule does not somehow extinguish the existence of its overly broad and ambiguous rule. The fact the Company provides the employees and Union access to, and use of, a bulletin board does not demonstrate the employees should have known they could leaflet or handbill without running afoul of the chal- lenged rule. In summary, I find the Company has promulgated and main- tained a rule in its collective-bargaining agreement that unlaw- fully restricts employees’ ability to handbill, ability to leaflet and ability to engage in work actions that constitute protected concerted activities and that such violates Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. The Company, DTM Corporation, is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Security, Police, Fire Professionals of America, Local 48 is a labor organization within the meaning of Section 2(5) of the Act. 3. The Company and the Union have been the parties to a collective-bargaining agreement, effective by its terms, from September 21, 2009, to September 30, 2012, for all full-time and part-time security guards employed at the Company’s FAA/ARTCC Fort Worth, Texas site. 4. By, since on or about September 21, 2009, promulgating and maintaining a rule in its collective-bargaining agreement restricting employees ability to handbill, restricting employees’ ability to leaflet and restricting employees’ ability to engage in work actions that constitute protected, concerted activities the Company has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The Company’s unfair labor practices specified in 4 above, affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. REMEDY Having found the Company has engaged in certain unfair la- bor practices, I find it necessary to order the Company to cease and desist there from and to take certain action designed to effectuate the policies of the Act. Specifically, the Company is to rescind those portions of the collective-bargaining agreement article IX, “No Strike and No Lockout” that unlawfully restricts employees’ ability to handbill, unlawfully restricts employees’ ability to leaflet and unlawfully restricts employees’ ability to engage in work actions that constitute protected, concerted activities and notify the employees in writing that this has been done. [Recommended Order omitted from publication.]