Ford Motor Co.

National Labor Relations Board - Board Decisions

Nov 21, 1977

233 N.L.R.B. 698 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ford Motor Company (Rouge Complex) and Robert
Parsons and John Ellis. Cases 7-CA-13069 and 7-
CA-13220
November 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On May 17, 1977, Administrative Law Judge
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in opposition thereto.
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
only to the extent consistent herewith.
The facts, as more fully set forth by the Adminis-
trative Law Judge, are as follows: The International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW) and its
Local No. 600, herein called the Union or Local 600,
and Ford Motor Company (Rouge Complex), herein
called Respondent, have been parties to successive
collective-bargaining agreements for many years
covering employees at its Dearborn, Michigan, plant.
The most recent contract was effective by its terms
until September 14, 1976.1 Although the contract
contains no clause specifically prohibiting or limiting
the employees' right to distribute literature on
company premises, Respondent concedes it has had
a longstanding prohibition on the distribution of
literature on company property. At the time of the
events herein, negotiations for a new contract were
imminent.
Some time before April 1, Respondent was con-
templating an increase in its rate of production. The
Union, concerned about the possibility of some 1,500
employees being laid off in July if Respondent in fact
increased its rate of production, discussed the matter
on various occasions with the employees. On April 4,
the Union held a rally at which it informed the
employees of the steps it was taking to avert the
possible layoffs, including its conducting of a "Henry
Have A Heart" campaign. A number of employees,
among them Parsons, Ellis, Abbott, and Fuqua,
however, felt that the Union's position with respect
to the possible layoffs and its campaign were not
sufficiently militant and formed an organization
known as "Time to Unite" for the purpose of
persuading the Union to take a more aggressive
position. The organization, in an effort to win the
support of other union members, printed circulars
and distributed them among the employees of the
Rouge Complex.
On April 28, Parsons was in the bathroom on
breaktime during the work shift. Parsons left his
lunchbag at the door of the bathroom. The lunchbag
contained several copies of four different documents.
One document, entitled "Time to Unite, No. 14"
published by the "Time to Unite" organization,
sought to inform the employees about the UAW's
reluctance to call a strike to prevent the possible
layoffs and encouraged other workers to contact the
organization to start a petition directing the Union to
set a date for a strike vote. The remaining documents
were a tabloid size newspaper entitled "The Work-
er," and two one-page documents entitled "Interna-
tional Workers Day" and "On to May Day." These
latter documents were published by the Revolution-
ary Communist Party. While Parsons was in the
bathroom, Giacino, Respondent's labor relations
representative, discovered the documents in his
lunchbag, picked up the bag, and told Parsons to
come with him. Parsons inquired as to Giacino's
identity, grabbed the lunchbag out of his hand, and
protested Giacino's actions. Both men then went to
the labor relations office where Giacino told Parsons
he "had literature in there that he couldn't have."
Parsons said he "could have any kind of literature he
wanted." Giacino responded, "that is not right, you
can't have any literature on you on company
property. We can tell you what you can and can't
do." Giacino then said, "I am going to call plant
security and I am demanding that you give me the
literature in your lunch bag." Parsons told Giacino
that the literature in the bag was "none of his
business" and he "could have any kind of literature
he wanted." Giacino then summoned two security
guards and a security supervisor. Soon after their
arrival, the security guards informed Parsons they
would call the police and have him arrested if he did
not give them his lunchbag. Parsons then relin-
quished the literature. Giacino instructed Parsons to
return to work and told him that he would later be
informed of the discipline he was to receive.
The following day, Parsons was summoned to
Giacino's office and was given a 3-day disciplinary
suspension. Subsequently, a grievance was filed by
the Union on behalf of Parsons, which resulted in the
rescission of the 3-day suspension with backpay. A
I All dates herein are in 1976 unless otherwise indicated.
233 NLRB No. 102
698
FORD MOTOR COMPANY
record of the discipline, however, remained in
Parsons' personnel file.
On May 4, employee Abbott solicited signatures on
a petition calling for the Union to set a date for a
strike vote by Local 600 members to avoid the
possible layoffs. Abbott solicited the signatures on
his nonworking time in Respondent's parking lot.
Shortly after commencing the solicitation, Abbott
was prevented from continuing to solicit the signa-
tures by Respondent's security guards. On May 27,
prior to the commencement of his shift, Abbott
distributed at the same location a newsletter entitled
"76 Auto Contracts-A Time To Fight," which was
published by the Auto Workers United to Fight in
76, a national group of UAW members concerned
about working conditions and other matters seeking
to get their demands and points of view incorporated
into the negotiations for a new contract. As on the
previous occasion, Abbott was prevented from
distributing the newspaper by Respondent's security
guards.
Thereafter, on June 8 and 9, Parsons, Ellis, Abbott,
and Fuqua attempted to distribute in Respondent's
parking lot another publication by the Time to Unite
group entitled "Time to Unite, No. 17." The
literature was addressed to rank-and-file members of
the Union and demanded a strike vote concerning
the layoffs and generally derided the efforts of the
UAW in distributing "Henry Have A Heart"
buttons. Respondent's plant guards, however,
stopped them, confiscated their employee identifica-
tion badges, and took photographs of them. The
following day each was separately summoned to the
labor relations office and suspended for the remain-
der of the shift and for the next day. Subsequently,
the Union grieved the matter on behalf of the
employees. Ellis, Abbott, and Fuqua were given
backpay for their suspensions conditioned on their
promises that they would not repeat the alleged
offense. It was further agreed that a record of their
suspensions would be kept in their personnel files.
Parsons, however, was not given any backpay
because of his previous suspension on April 28.
Subsequently, on August 2, Fuqua was called to
Giacino's office. During their conversation, Giacino
told Fuqua that "this literature you guys are passing
out is not true. Not a word of it is true, and it is
unauthorized literature, and you guys will get fired if
you keep passing this kind of literature out." He
further added, "If you have any influence over the
guys that are passing it out, if I was you, I would tell
them to stop." Although Giacino did not specifically
indicate to which literature he was referring, it is
clear that at that time the "Time to Unite" group,
2 195 NLRB 265 (1972).
3 415 U.S. at 325-326 (1974).
including Fuqua, was continuing to distribute leaflets
similar in content to those it previously had distribut-
ed.
The Administrative Law Judge concluded that,
under usual circumstances, the employees' solicita-
tion and distribution of the union literature would
constitute protected activities within the meaning of
Section 7 of the Act. He found, however, that the
Union had waived the rights of employees to solicit
and distribute union literature and that, inasmuch as
the employees' activities were not directly related to
the selection or rejection of the collective-bargaining
representative, the Union's waiver was effective
under N.L.R.B. v. Magnavox Company of Tennessee,
415 U.S. 322 (1974). He therefore concluded that
Respondent's rule itself and its enforcement of that
rule by its actions with respect to the employees
involved herein were lawful and, accordingly, he
dismissed the complaint in its entirety. We disagree,
for the reasons set forth below.
The Supreme Court in Magnavox, in adopting the
Board's decision,2 stated as follows:
The place of work is a place uniquely appropriate
for dissemination of views concerning the bar-
gaining representative and the various options
open to the employees. So long as the distribution
is by employees to employees and so long as the
in-plant solicitation is on nonworking time,
banning of that solicitation might seriously dilute
§7 rights. .... It is the Board's function to strike
a balance among "conflicting legitimate interests"
which will "effectuate national labor policy,"
including those who support versus those who
oppose the Union.3
In balancing these interests, the Board, in its
Magnavox decision and subsequent cases, has distin-
guished between the distribution of union institution-
al literature and literature which pertains to the
employees' selection or rejection of a labor organiza-
tion as their collective-bargaining representative, or
other matters related to the exercise by employees of
their Section 7 rights. The Board has consistently
held that an incumbent union may silence its own
voice by waiving the right to distribute its own
institutional literature, but that it is powerless to
waive the employees' right to distribute literature
pertaining to matters concerning their working
conditions and other conditions of employment.4
Thus, the Board has held that an incumbent union
cannot waive the rights of employees to distribute
4 See, e.g., Yellow Cab, Inc., 210 NLRB 568 (1974); McDonnell Douglas
Corporation. 210 NLRB 280(1974).
699
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
literature which promoted a demonstration by
employees which was not sponsored by the union, 5
opposed an increase in union dues, 6 criticized the
character of negotiations and the terms of a
contract,7 and opposed reelection of incumbent
officers.8 We find that the literature herein, involving
the employees' concerns over the possibility of
layoffs and the Union's efforts to avert that possibili-
ty, clearly falls within the category of other condi-
tions of employment. It is therefore clear that the
employees' solicitation and distribution of literature
in the instant case was protected concerted and/or
union activity within the meaning of Section 7 and
that the Union could not effectively waive the
employees' rights to engage in such activities under
the principles of Magnavox.9
Based on the foregoing, we conclude, contrary to
the Administrative Law Judge, that the Union's
purported waiver of the employees' rights is unavail-
ing to Respondent and that, by admittedly maintain-
ing a no-solicitation and no-distribution rule prohi-
biting such activities with respect to union matters by
employees on company premises, Respondent has
maintained an invalid rule in violation of Section
8(a)(1) of the Act. 0° We further find that Respondent
through the enforcement of that rule by suspending
Parsons on April 2911 for possessing literature and
by suspending Parsons, Ellis, Abbott, and Fuqua on
June 10 for having distributed or having attempted to
distribute literature violated Section 8(a)(3) and (1).12
Finally, we conclude that Respondent additionally
violated Section 8(a)(l) by Giacino's threat to Fuqua
on August 2 that the employees distributing the
literature either cease their activities or suffer
discharge.
Upon the foregoing findings of fact, and upon the
entire record in this proceeding, the Board makes the
following:
I Yellow Cab, supra.
a McDonnell Douglas, supra.
7 Massey-Ferguson, Inc., 211 NLRB 487 (1974).
8 General Motors Corporation, 211 NLRB 986 (1974), enfd. in relevant
part 512 F.2d 447 (C.A. 6, 1975).
9 Member Murphy believes that the employees' rights to possess or
distribute literature on nonworking time and in nonworking areas and to
discuss their working conditions during nonworking time are also protected
by the first amendment to the Constitution. See her separate position as
stated in fn. 4 of United ParcelServices, Inc., 230 NLRB 1197 (1977).
10 We note that Respondent does not contend that its broad prohibition
on solicitation and distribution is necessary for the maintenance of
production or plant discipline. See Republic Aviation Corporation v.
N.LR.B., 324 U.S. 793 (1945); Stoddard-Quirk Manufacturing Co., 138
NLRB 615 (1962).
"i With respect to Parsons' suspension on April 29, the Administrative
Law Judge found no violation based, in part, on the General Counsel's
concession at the hearing that the publications of the Revolutionary
Communist Party contained in Parsons' lunchbag did not constitute
protected literature. It is clear, however, that additional literature, which we
have found to be protected, was also contained in Parsons' lunchbag and
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of
the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and giving effect to an invalid
no-solicitation and no-distribution rule which pro-
hibits employees from possessing literature or distrib-
uting literature on company premises in nonworking
areas during nonworking time, pertaining to the
selection or rejection of a collective-bargaining
representative, or other matters relating to the
exercise of their Section 7 rights, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(aX 1) of the Act.
4. By enforcing its invalid no-solicitation and no-
distribution rule by suspending Robert Parsons, John
Ellis, John Abbott, and Jerry Fuqua because they
possessed and/or distributed or attempted to distrib-
ute literature pertaining to the selection or rejection
of a collective-bargaining representative, or other
matters relating to the exercise of their Section 7
rights, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. By threatening its employees with discharge for
distributing on company premises in nonworking
areas during nonworking time literature pertaining to
the selection or rejection of a collective-bargaining
representative, or other matters relating to their
exercise of Section 7 rights, Respondent has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)( ) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
that Giacino indicated to him that he could not have any literature "on him"
on company property. We find, without passing on the issue of whether the
Communist Party literature in itself was protected, that Respondent's
suspension of Parsons for the mere possession of the protected literature in
his lunchbag was unlawful. See Federal-Mogul Corporation, 224 NLRB 325,
336 (1976).
12 In its brief to the Board, Respondent urges that the Board, under
Spielberg Manufacturing Company, 112 NLRB 1080 (1955), give final and
binding effect to the resolution by it and the Union of the grievances arising
from its suspension of the employees involved herein. The Spielberg
doctrine, however, is inapplicable to the circumstances here, inasmuch as
the grievances were adjusted during the early stages of the grievance
procedure and were not submitted to arbitration or to any other impartial
tribunal. See, e.g., Whirlpool Corporation, Evansville Division, 216 NLRB 183,
185-186 (1975); Pontiac Motors Division, General Motors Corporation, 132
NLRB 413, 415 (1961). Furthermore, since the adjustments of the grievances
were contingent on the employees' promises not to engage in such conduct
in the future and on records of the discipline being maintained in their
personnel files, we find in any event that the resolutions of the grievances
were repugnant to the purposes of the Act.
700
FORD MOTOR COMPANY
THE REMEDY
Having found that Respondent has engaged in and
is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act, we
shall order that it cease and desist therefrom and take
certain affirmative action necessary to effectuate the
purposes of the Act. Such affirmative action shall
include an order that Respondent expunge from the
personnel records of Robert Parsons, John Ellis,
John Abbott, and Jerry Fuqua any entry concerning
their suspensions for their possession and/or distri-
bution of literature pertaining to the selection or
rejection of the Union, or other matters relating to
the exercise of their Section 7 rights. We also shall
order that Respondent make the above-named
employees whole for any losses of pay 13 they may
have suffered by payment to each of the sums they
would have earned but for the discrimination against
them, with interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).14 We shall also require that
Respondent post appropriate notices.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Ford Motor Company (Rouge Complex), Dearborn,
Michigan, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Maintaining, giving effect to, or enforcing an
invalid no-solicitation and no-distribution rule which
prohibits employees from possessing literature or
distributing literature on company premises in
nonworking areas during nonworking time, pertain-
ing to the selection or rejection of a collective-
bargaining representative, or other matters relating
to the exercise of their Section 7 rights.
(b) Suspending or otherwise discriminating against
employees because they possess literature and
distribute or attempt to distribute literature on
company premises in nonworking areas during
nonworking time, pertaining to the selection or
rejection of a collective-bargaining representative, or
other matters relating to the exercise of their Section
7 rights.
(c) Threatening employees with discharge or other
discipline because they distribute literature on
company premises in nonworking areas during
nonworking time, pertaining to the selection or
rejection of a collective-bargaining representative, or
other matters relating to the exercise of their Section
7 rights.
(d) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Expunge from the personnel records of Robert
Parsons, John Ellis, John Abbott, and Jerry Fuqua
any entry concerning their suspensions for possessing
literature and/or distributing or attempting to
distribute literature on company premises in non-
working areas during nonworking time, pertaining to
the selection or rejection of a collective-bargaining
representative, or other matters relating to the
exercise of their Section 7 rights.
(b) Make whole the above-named employees for
any loss of pay they may have suffered by reason of
Respondent's discrimination against them in the
manner set forth in the section of this Decision
entitled "The Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its facility in Dearborn, Michigan,
copies of the attached notice marked "Appendix." 15
Copies of said notice, on forms provided by the
Regional Director for Region 7, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
13 As indicated previously, it appears from the record that some of the
discriminatees may have received backpay for the periods they were
suspended. These matters are more appropriately left to the compliance
stage of this proceeding.
14 See, generally. Isis Plumbing A Heating Co.. 138 NLRB 716 (1962).
'1 In the event that this 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."
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain, give effect to, or
enforce any rule which prohibits our employees
from possessing literature or distributing litera-
ture on company premises in nonworking areas
during nonworking time, pertaining to the selec-
tion or rejection of a collective-bargaining repre-
sentative, or other matters relating to the exercise
of their Section 7 rights.
WE WILL NOT suspend or otherwise discrimi-
nate against our employees because they possess
literature and/or distribute or attempt to distrib-
ute literature on company premises in nonwork-
ing areas during nonworking time, pertaining to
the selection or rejection of a collective-bargain-
ing representative, or other matters relating to the
exercise of their Section 7 rights.
WE WILL NOT threaten employees with dis-
charge or other discipline because they distribute
literature on company premises in nonworking
areas during nonworking time, pertaining to the
selection or rejection of a collective-bargaining
representative, or other matters relating to the
exercise of their Section 7 rights.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed by Section 7 of the Act.
WE WILL expunge from the personnel records
of Robert Parsons, John Ellis, John Abbott, and
Jerry Fuqua any entry concerning their suspen-
sions for possessing literature and/or distributing
or attempting to distribute literature on company
premises in nonworking areas during nonworking
time, pertaining to the selection or rejection of a
collective-bargaining representative, or other mat-
ters relating to the exercise of their Section 7
rights.
WE WILL make whole the above-named em-
ployees for any loss of pay they may have
suffered by reason of the discrimination against
them, with interest.
FORD MOTOR COMPANY
(ROUGE COMPLEX)
DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Administrative Law Judge: This
case was heard at Detroit, Michigan, upon the consolidated
amended complaint of the General Counsel issued August
31, 1976, which complaint was based upon a charge filed in
Case 7-CA-13069 on June 9, 1976, by Robert Parsons,
herein called Parsons, and a charge filed on July 28, 1976,
by John Ellis, herein called Ellis. The complaint alleges, in
substance, that the Ford Motor Company, herein called
Respondent or the Company, maintained, applied, and
enforced an overly broad no-solicitation, no-distribution
rule by refusing to permit union-connected material to be
distributed on company premises on nonworking time in
nonworking areas, thereby violating Section 8(a)(I) of the
Act and disciplining employees for such solicitation and
distribution, thereby violating Section 8(a)(3) and (1) of the
Act.
In its duly filed answer, Respondent admits that it did
refuse to permit the solicitation and distribution and also
did discipline the employees involved, but affirmatively
alleges that it has had a longstanding unwritten waiver
from International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, and its
Local No. 600, of employee-members' rights to solicit or
distribute union matter on company property. Respondent
also alleges that the material for which distribution was
prohibited in this instance was not protected union
literature. Additionally, Respondent alleges that the entire
matter of disciplinary measures was disposed of through
contractual grievance procedures. Thus, the issues are
joined.
Subsequent to the hearing, counsel for the General
Counsel and counsel for Respondent filed briefs.
Upon the entire record in the case, and upon due
consideration given to the contentions and arguments set
forth in the parties' briefs, and upon my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, maintains its
principal office and place of business in the city of
Dearborn, Michigan, where it is engaged in the manufac-
ture, sale, and distribution of automobiles, trucks, automo-
tive parts, and related products. During the year ending
December 31, 1975, the Respondent's manufacturing plant
known as the Rouge Plant Complex, in Dearborn,
Michigan, purchased, and caused to be delivered and
transported to the said plant, automobile parts and
accessories and other goods and materials of a value in
excess of $500,000 directly from points outside the State of
Michigan. During the same period of time, which is a
representative period, Respondent, from its Rouge Com-
plex Plant, manufactured, sold, and distributed products of
a value in excess of $500,000 which were shipped from the
said plant directly to points outside the State of Michigan.
It is admitted, and I find, that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, and its Local
702
FORD MOTOR COMPANY
No. 600, herein called the Union or the UAW, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
UAW and Respondent have been parties to successive
collective-bargaining agreements for many years. The
agreement in effect at the time of the events herein
contained no specific waiver of employees' right to
distribute literature in nonworking areas on nonworking
time. However, the agreement did contain a strikes,
stoppages, and lockout section' which contained a clause
prohibiting strikes during the contract period "except with
respect to disputes which are to be referred to the
procedure provided for in Article VII, Section 23 of this
agreement, and then only after such procedure has been
exhausted."
Article VII is part of the grievance procedure article,
which, in section 23, sets forth the procedures for grievance
processing in instances involving production standards, job
security and outside contracting, health and safety, and
new job rate grievances. Subsection (e) of the said section
23 gives the Union the right to strike during the term of the
agreement if the parties fail to reach agreement over any of
these aforenamed matters.
In addition to the foregoing, article IV of the said
bargaining agreement reserves to Respondent a broad
spectrum of management rights. Section 5 of that article
retains for Respondent broad rule-making powers subject
to the Union's right to question the reasonableness of
Respondent's rules and regulations through the agree-
ment's grievance and arbitration procedures.
It was in the context of the foregoing that the events
occurred with which this case is involved. It should be
noted that there is little or no dispute with regard to the
events; 2 the disagreement is with their legal effect.
It is evident from the record that some time before April
1, 1976,3 Respondent was contemplating an increase in
production which some of the employees, at least, at the
Rouge Complex were concerned would result in a speedup
which, in turn, would result in July 1976 of a layoff of
about 1,500 employees. The UAW had discussed this
matter with the employees and had, in fact, on April 4, held
a rally in which they informed the employees of what was
being done, and informed the employees with regard to a
campaign which had been started some time before by the
UAW called a "Henry Have A Heart" campaign. How-
ever, a number of the employees, among them those
involved in the instant proceeding, felt that the Union had
not been militant enough with regard to the campaign and
with regard to the matter of the possible layoff of
employees contemplated in July 1976. They therefore
formed an organization known as "Time to Unite" to seek
to force the union officials to take a more militant stand
against the possible layoff. In connection therewith, from
time to time, circulars were printed and circulated among
the employees of the Rouge Complex by members of Time
I Art. V. pp. 24-26, of agreement dated October 31., 1973, with expiration
date ofSeptember 14, 1976.
2 Respondent offered no testimony or evidence of any nature. Much of
the factual matter was stipulated.
To Unite, among them the four employees involved in this
proceeding.
On April 28, Robert Parsons had in his possession in his
lunchbag four different documents. One document entitled
"Time To Unite No. 14," dated April 12, 1976, was a one-
sheet document which sought to inform the Rouge
Complex employees about the UAW officials' reluctance
to carry the fight against the contemplated layoff to the
point of striking to avoid the same. The document referred
to a petition drive by the "Time To Unite" group of a
"Rouge-wide strike vote." The second document in
Parsons' lunch bag on that date was a tabloid size
newspaper entitled "The Worker." In addition thereto was
a third document, a one-page sheet entitled "International
Workers Day-May Day" and "On to May Day," which
sheet announced a May Day celebration sponsored by the
Revolutionary Communist Party, United May Day Com-
mittee. It should be noted that the tabloid newspaper called
"The Worker" was also a publication of the Revolutionary
Communist Party. The fourth and last document in
Parsons' lunchbag that day was a one-page sheet, very
similar to the other one, which was also an encouragement
of employees to attend the May Day rally sponsored by the
Revolutionary Communist Party, United May Day Com-
mittee. It should be noted there were a number of copies of
each document in the bag.
During the work shift, at breaktime, Parsons went to the
bathroom and left his lunchbag at the door. While Parsons
was in the bathroom, about 6:30 p.m., Mr. Giacino, a labor
relations representative of Respondent, picked up Parsons'
lunchbag. When Parsons protested, Giacino informed
Parsons he was a labor relations representative. Parsons
took the lunchbag out of Giacino's hand at which point the
latter ordered Parsons to come with him to the labor
relations office. They then proceeded to the labor relations
office. When they arrived, Giacino told Parsons that the
latter had literature in the lunchbag that he could not have.
Parsons asked Giacino how the latter knew and Giacino
answered that he had looked into it while it was sitting on
the floor of the bathroom. Parsons then told Giacino that
the literature in the bag was none of his business and that
Parsons could have any kind of literature he wanted.
Giacino told Parsons that was not right, that the latter
could not have any literature with him on company
property. Giacino added that the Company could tell
Parsons what the latter could do or could not do.
After Parsons again protested, Giacino told Parsons that
the Company was going to take the literature from him.
Parsons answered that they could not. After a few minutes
argument, during which Parsons refused to give up the
literature, Giacino called plant security. Between the call
and the time that the security people arrived, Parsons and
Giacino continued their argument in much the same vein.
Soon two security guards arrived together with their
supervisor who asked Parsons to hand over the lunchbag
with the literature. Again Parsons protested and an
argument ensued. However, when Parsons was informed
3 All dates herein are in 1976 unless otherwise specified.
703
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the security people were going to call the Dearborn
police, Parsons finally gave in and gave up the literature.
After the literature was taken by the guards, Parsons
went back to work and finished his shift. It should be noted
that, during the conversation or argument between Parsons
and Giacino, Giacino never discussed what the literature
was about but merely stated as a positive position that
Parsons could not have any literature on him in the plant.
All Giacino informed Parsons was that Respondent could
tell the employees what they could or could not do on
Respondent's property.
As noted above, Parsons finished his shift on that day.
The next day, April 29, when Parsons reported for work, he
was called to the labor relations office. Again Giacino
informed Parsons that the latter was being given 3 days off
as a disciplinary measure for possession of the literature.
Thereafter, the Union filed a grievance on his behalf with
regard to the said disciplinary layoff and, as a result
thereof, Parsons was given backpay for the 3-day layoff
and his employment record was cleared of any matter with
regard to the discipline or the reason therefore.
On May 4, John Abbott, a fellow employee of Parsons,
before the beginning of the shift which commenced at 4
p.m., solicited signatures on a petition calling for the strike
vote mentioned above in contemplation of preventing the
layoff as set forth in the literature retained by Respondent
from Parsons' lunchbag. Abbott was soliciting signatures
for the petition at Gate 9 in Respondent's parking lot and
was prevented from continuing by one of Respondent's
security guards. The petition constituted a demand upon
Local 600 to stop the engine plant layoffs before the
renewal negotiations which were due in September 1976.
The petition stated in part, "The time to strike is now
before the layoffs hit. We will not be told simply to wait till
September contract expiration. Set a date for a strike
vote!"
Again, on May 27, at the same place and before his shift
began, Abbott attempted to distribute copies of a tabloid-
size paper with a headline which read, "'76 Auto Con-
tracts-A Time To Fight!" which was published by Auto
Workers United To Fight In '76 and was dated May 19,
1976, and was known also as "National Newsletter No. I."
Although this was a national paper published by a group
which evidently had membership among UAW members
in most of the Ford Company plants throughout the
country, it was being circulated and sold by the Time To
Unite group in Local 600 at the Rouge Complex, which
group was evidently a subgroup of Auto Workers United
To Fight in '76. As on the previous occasion, Abbott was
prevented by Respondent's security guard from distrib-
uting the material.
Once again, on approximately June 9, Parsons, Abbott,
John Ellis, and Jerry Fuqua attempted to distribute
another one-page document which was entitled "Time To
Unite No. 17," dated June 7, 1976. The attempt to
distribute on this occasion was made in the parking lot at
the Rouge Complex outside Gate 10. The leaflet in
question was addressed to the rank-and-file members of
the Union and again directed to the request on their part to
demand a strike vote in protest of the contemplated layoff
of the approximately 1,500 members of the Union at the
Rouge Complex. The leaflet again urged that a plantwide
strike against the layoffs would be the most effective
action. It derided the means taken by the UAW, which was
to distribute 10,000 "Henry Have A Heart" buttons to be
worn by the employees who were members of the Union.
The leaflet insinuated that the UAW was making only half-
hearted attempts to prevent the layoff and, as noted, urged
that a strike was the most effective means of stopping the
said layoff.
At the time the four above-named employees attempted
distribution of the aforesaid leaflet, Respondent's plant
guards stopped them, confiscated their employee identifi-
cation badges, and took photographs of them. When the
shift began, these employees went into work at their
normal worktimes at their normal work stations. However,
the following day each was called into the labor relations
office and given the balance of that day and the following
day off without pay as reprimand for his distribution
activities. However, when a grievance was filed on behalf
of each of them by the UAW, Respondent consented to
delete the reprimand from the employees' records and give
them the pay for the time they were laid off with the
employees' promise, however, that they would not repeat
the same alleged offense. In fact, the UAW representatives
present at the grievance proceedings on these matters did
not prevent or tell Respondent that such promises could
not be made and, in effect, consented thereto.
In a final incident, which occurred on approximately
August 2, employee Fuqua was engaged in a conversation
with labor relations representative Giacino wherein Giaci-
no requested of Fuqua that the latter use whatever
influence he might have with his coworkers in the Time To
Unite organization to cease distributing certain literature
in order to prevent these employees from being discharged.
Although Giacino did not specifically mention what
literature he had in mind, at approximately the same time
during July 1976, leaflets 17, 18, and 19 of "Time To
Unite" were evidently being distributed by the Time To
Unite group. In fact, Fuqua had passed out leaflets 18 and
19 himself. It should be noted in connection therewith that
Fuqua was not called to the labor relations office regarding
the literature but with regard to his possible knowledge of a
fire that had evidently occurred in the plant and was being
investigated. A number of the employees in Fuqua's
department had also been called in.
In addition to the "Time To Unite" issues 17, 18, and 19,
at approximately the same time a second petition was
being circulated with regard to a request to seek to stop
harassment in the department and to oust the general
foreman, Jim Tortevant. Tortevant, in the heading of the
petition, was accused of a number of acts, among them,
racial slurs, threats to discharge employees without reason,
refusing to honor doctors' notes as excuse for absences,
and other matters. The heading of the petition ended with
the words "We demand general foreman, Jim Tortevant to
be removed. We demand this harassment stop."
B. Discussion and Conclusions
The basic issue here is whether, under all the circum-
stances presented, the employees involved engaged in
protected activity, or conversely stated, whether the
704
FORD MOTOR COMPANY
limitations placed on employees' solicitation and distribu-
tion by the Respondent are lawful. Respondent concedes
that under Board and Supreme Court decisions, 4 absent
unusual circumstances, an employer may not promulgate,
maintain, or enforce a rule which prohibits employees from
union solicitation or distribution of union literature on
company property in nonworking areas on nonworking
time. However, Respondent maintains that, in the instant
case, UAW, the bargaining representative of the employees
herein, waived the employees' right to solicit and distribute
with regard to union matters. Respondent argues that such
waiver is within the purview of the case of N.L.R.B. v.
Magnavox Co., 415 U.S. 322 (1974), adopting the Board's
views in 195 NLRB 265 (1972). Respondent maintains,
therefore, that the activities engaged in by the employees
involved herein were proscribed by Respondent's long-
standing no-solicitation, no-distribution rule which pre-
vented solicitation and distribution of union matter on
company premises, and, certainly, with regard to distribu-
tion on Respondent's parking lot outside the entrance gates
to Respondent's plant proper.
Counsel for the General Counsel contends, on the other
hand, without discussing the issue of waiver that the
activity engaged in by the employees involved was
protected activity and that the employees had an absolute
right to solicit signatures for the petitions, above-men-
tioned, and to distribute the material, above-described, on
the parking lot and within the nonworking areas of
Respondent's plant inasmuch as the matter concerned the
working conditions and the possible layoff of the individu-
als involved and of other employees in the plant and also
were activities which could have led to a legitimate strike
within the confines of the above-cited sections of the then
effective collective-bargaining agreement.
By reason of these cross-contentions, it becomes neces-
sary, first, to determine whether in the absence of waiver,
the activities engaged in by the employees involved were,
indeed, protected and therefore permissible pursuant to the
contract and under Board law and, if the answer to that is
in the positive, then, secondly, whether there was a waiver
by the UAW and, if there was a waiver, whether it applied
to such activity.
With regard to the first issue, whether the activity of the
employees involved, absent waiver, can be considered as
protected activity which would be permissible if conducted
on company property in nonworking areas on nonworking
time, counsel for the General Counsel concedes that the
matter which was found in the lunchbag of employee
Parsons entitled "The Worker" or the "May Day"
literature, both of which were publications of the Revolu-
tionary Communist Party, is not protected. However, even
conceding that, it is questionable whether the seizure of the
material by the Respondent's representative, Giacino, was
proper, or an interference with the employees' Section 7
rights under the circumstances. This is so, because the facts
reveal that Parsons was told by Giacino in the labor
relations office on February 28 that he was not allowed to
N.L. R.B. v. Republic Aviation Corporation, 324 U.S. 793 (1945); Babcock
and Wilcox Companv, 351 U.S. 105 (1965); National Steel Corporation, Great
Lakes Steel Division, 173 NLRB 401 (1968), enfd. 415 F.2d 1231 (C.A. 6,
1969).
have any literature at any time in his possession. With
regard to any of the other pamphlets, either the material
other than the Communist-inspired material in Parsons'
lunchbag on April 28, or the material sought to be
distributed at the gates in the parking lot by the various
employees on May 4, May 27, and June 9, the conclusion
must be reached that this matter referred to employees'
working conditions. The concern was basically that the
employees could suffer a layoff to the extent that 1,500 of
them might temporarily or permanently lose their jobs.
Certainly, it cannot be contended that this was not a
legitimate concern for which the employees, whether
rightly or wrongly, were convinced that their bargaining
representative, the Union herein, was not representing
them to its fullest capacity. It is clear from the leaflets that
the employees behind the Time To Unite movement were
convinced that the mere wearing of buttons which stated
"Henry Have A Heart" was not sufficient to prevent the
massive threatened layoff which was to occur in July 1976.
Thus, it is clear that the employees involved herein,
through the distribution of the literature, and the solicita-
tion of signatures on the petitions, were engaged in
activities undertaken to force their bargaining representa-
tive to take what the employees felt were proper means to
seek to prevent a situation which could lead to mass
layoffs.
The mere fact that the circulars and the petition called
for a strike vote was not necessarily in derogation of the
bargaining agreement in force at the time. The Board has
held, in any number of instances, that activity of this type
is protected by Section 7 of the Act in that the literature
sought to be distributed and the petition for which
signatures were being sought were in the form of criticism
of the Respondent's alleged speedup program which the
employees, rightly or wrongly, thought could lead to
layoffs.5 Thus, it is apparent that both the literature and the
activity of circulating the same would, under ordinary
circumstances, be protected and the enforcement of a rule
against such literature and the distribution of the same
would constitute a violation of employees' Section 7 rights
and would therefore be violative of Section 8(a)(1) of the
Act. Additionally, disciplinary measures taken against
employees for such activity would be violative of Section
8(a)(3) of the Act.
Moreover, a reading of the sections of the collective-
bargaining agreement in effect at the time of the above-
discussed activity could readily lead to the conclusion that
an ultimate strike over the contemplated layoffs after the
exhaustion of grievance procedures which the bargaining
representative of these employees had not undertaken
could readily be considered a permissible strike under the
contract inasmuch as the job speedup alleged by the
employees in their literature could be considered an item
grievable as a production standard. It makes no difference
whether this interpretation by the employees and the
activity taken with regard thereto might be considered
5 See Dreis Krump Manufacturing, Inc., 221 NLRB 309 (1975); Leslie
Metal Arts Company, Inc., 208 NLRB 323 (1974); The Singer Company, 220
NLRB 1179 (1975); NLR.B. v. Guernsey-Muskingum Electric Co-Operative.
Inc., 285 F.2d 8 (C.A. 6, 1960).
705
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unwise or, possibly, a misinterpretation of their contract
rights. 6
In view of the foregoing conclusions, the question
remains whether the UAW, by its actions, waived the rights
of these employees to distribute the literature in question
and solicit signatures on the petitions, for which activities
the employees were disciplined. For consideration first in
answer to this issue is whether there was, in fact, a waiver
by the Union. Although there is nothing in the contract in
effect at the time of the events herein which would indicate
that the Union was agreeable to waive any of the
employees' rights to distribute literature and solicit union
membership or other union matters on company property
in nonworking areas on nonworking time, there is some
indication in the record that this broad prohibition did
exist for some period of time.
There is also no indication that the Union had protested
or sought to have the Respondent eliminate the rule or
amend it so that it conformed to Board and court decisions
with regard to distributions of union material generally.
However, in disposing of the disciplinary measures taken
against the employees here involved, through the grievance
procedures, although the Union was successful in obtain-
ing the wages lost by the employees as a result of the
disciplinary layoffs, the ultimate outcome of these griev-
ances was the admonition by the Respondent to the effect
that the employees had better not indulge in such activity
again and the employees involved had to promise that they
would not again engage in such activity. The UAW
representatives consented to the admonition and the
promises and stood by and permitted the same to be made.
Thus, it would seem that the UAW's stance would
necessarily constitute some sort of consensual agreement
on its part to the otherwise overly broad no-solicitation,
no-distribution rule. This, together with the fact that the
rule had existed for some time with no protest on the part
of the Union, leads to the conclusion that a waiver did,
indeed, exist.
The question remains, however, even assuming waiver,
whether such waiver was applicable to the conduct
engaged in by the employees involved herein. In N.L.R.B.
v. Magnavox Company of Tennessee, 415 U.S. 322 (1974),
which adopted the Board's views in 195 NLRB 265 (1972),
the Supreme Court held that a waiver with regard to
otherwise overly broad no-solicitation rules could not be
given effect to deny employees the right to distribute union
literature which involved, in any way, the selection or
rejection of bargaining representatives. To quote the Board
in the Magnavox of Tennessee case,7 the Board will not
permit waivers of "distribution of literature by or on behalf
of members of an incumbent labor organization which
pertains to: (1) The employees' selection or rejection of a
labor organization as the bargaining representative of the
employees...." In the case at bar the waiver by the
UAW, as spelled out above, is similar to the waiver found
by the Board and the Court in the above-quoted Magnavox
case. In the Magnavox case, there was no written agree-
6 See N. LR.B. v. Washington Aluminum Co., 370 U.S. 9 (1962); Dreis &
Krump Manufacturing, Inc., 221 NLRB 309 (1975).
7 195 NLRB 265, 266 (1972).
8 195 NLRB 265 266, fn. 9.
ment with the union that waived employees' distribution
rights but, rather, the waiver was spelled out from the
union's acquiescence in the maintenance and enforcement
of a broad no-solicitation rule.
Additionally important, there is a second statement by
the Board in the Magnavox of Tennessee case, supra, which
states that a union cannot acquiesce or waive with regard
to distribution rules "other matters related to the exercise
by employees of their Section 7 rights." However, in a
footnote following that statement, the Board said that this
holding is "not to be taken as licensing in any way the
distribution of institutional- as distinguished from purely
organizational-literature of a labor organization which
has acquiesced in an employer's promulgation or mainte-
nance of a broad no-distribution rule." 8
The Board has followed the Magnavox rule in the
General Motors Corporation case,9 which was enforced by
the Court of Appeals for the Sixth Circuit on March 25,
1975,10 in which the court of appeals held that, pursuant to
Magnavox, a waiver with regard to a broad no-solicitation
rule cannot be applicable to the distribution of literature on
company premises in nonworking areas on nonworking
time where the said literature pertains to the selection of
officers of a union which is the employees' bargaining
representative. This was in agreement with the Board's
decision in that case.1'
Careful reading of the literature involved in the case at
bar reveals no instance of the advocacy of the selection or
rejection of any labor organization as bargaining represen-
tative of the employees of the Rouge Plant Complex. Nor
does any of the literature apply to the extension of
Magnavox as set forth by the Board and the court of
appeals in the General Motors case, supra. There is nothing
in this literature which pertains to the election of officers of
the UAW. While it is true that the literature is critical of
these officers and officials and while it is true that, perhaps,
in the long run, the literature could effect the outcome of
some future election with regard to these individuals,
officers, or representatives, the literature does not directly
advert or even indirectly advert to any protected matter
within the meaning of the Magnavox or General Motors
cases.
Therefore, I am constrained to conclude that insofar as
the distribution of the literature by the individuals herein is
concerned, the waiver, as spelled out by the action or
inaction of their bargaining representative, leaves them
unprotected. Therefore, the action taken against them by
the Respondent was not violative of the Act. This
conclusion applies equally to the threat of discharge made
to employee Fuqua on or about August 2, 1976, by Labor
Relations Representative Giacino. The only possible
violation which can be found in the entire record could
possibly be the statement by Giacino to the effect that no
distribution of any literature could be made by any
employee anywhere on the Respondent's premises at any
time. Such a statement would be a policy statement which
would indicate an overly broad no-distribution, no-solicita-
9 General Motors Corporation (Chevrolet Engineering Center), 212 NLRB
133 (1974).
l0 512 F.2d 447 (C.A. 6, 1975).
"1 212 NLRB 133.
706
FORD MOTOR COMPANY
tion rule even in view of Magnavox. However, inasmuch as
this was merely an isolated statement, I cannot conclude
that the statement was violative of the Act in view of the
type of literature which was, indeed, contained in Parsons'
lunchbag.'2
CONCLUSIONS OF LAW
I. Ford Motor Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, and its
12 I am somewhat troubled by the opening of Parsons' lunchbag by
Giacino without Parsons' permission. However, although the morality of
this action on Giacino's part may be questionable and although Parsons'
personal nghts may have been violated under some law other than the Act
Local 600, are labor organizations within the meaning of
Section 2(5) of the Act.
3. By the promulgation, maintaining, and enforcement
of the broad no-solicitation rule which prohibited solicita-
tion and distribution of union material on company
property during nonworking time in nonworking areas, the
Respondent did not violate Section 8(aX1) of the Act in
view of the waiver by the employees' bargaining represen-
tative herein named above in Conclusion of Law 2.
4. The disciplining of the employees herein did not
constitute violations of Section 8(a)(3) and (1) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
herein. I am constrained to find that the mere discovery and opening of the
bag cannot be found to be a violation of the Act. Nor can I completely
ignore the inference that such literature had been pasted on the plant walls
before the Parsons-Giacino incident.
707