General Aniline & Film Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1964

145 N.L.R.B. 1215 (N.L.R.B. 1964)

GENERAL ANILINE & FILM CORPORATION 1215
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, Fifth Floor,
Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No. 751-5500,
if they have any question concerning this notice or compliance with its provisions.
General Aniline & Film Corporation and Local 227, Interna-
tional Chemical Workers Union , AFL-CIO. Case No. 13-CA-
93ON8. January 24, 1964
DECISION AND ORDER
On August 26, 1963, Trial Examiner George J. Bott issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions and a
supporting brief.
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 In-
termediate Report and the entire record in the case, including the
exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.'
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
i The Recommended Order is hereby amended by substituting for the first paragraph
therein the following paragraph
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondent , its officers , agents , successors , and assigns , shall:
The Appendix is hereby amended by substituting for the phrase " during their working
time" the phrase "during their nonworking time "
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charge of unfair labor practices filed by Local 227,
International Chemical Workers Union , AFL-CIO, on February 28, and April
5, 1963, against the above Company, the General Counsel of the National Labor
Relations Board issued a complaint and notice of hearing dated April 8, 1963,
145 NLRB No. 119.
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleging that Respondent Company had violated Section 8(a)(1) of the Act. An
answer and amended answers admitting certain allegations of the complaint but
denying the commission of any unfair labor practices were filed by Respondent
and a hearing was held before Trial Examiner George J. Bott in Albany, New
York, on June 4, 1963. All parties were represented at the hearing. Subsequent
to the hearing General Counsel and Respondent Company filed briefs which I have
considered.
Upon the entire record 1 in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent Company is a Delaware corporation with its principal offices in
New York, New York. It is engaged in the business of manufacture, sale, and
distribution of dyestuffs and chemicals at plants in several States of the United
States, including the Rensselaer, New York, plant, involved in this proceeding.
During the 12 months prior to the issuance of the complaint, Respondent manu-
factured, sold, and shipped from its plants products valued in excess of $50,000,
of which products valued in excess of $50,000 were shipped from said plants
directly to States of the United States other than the States wherein said plants
are located. Respondent concedes, and I find, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 227, International Chemical Workers Union, AFL-CIO, hereinafter some-
times referred to as the Union , is a labor organization as defined in Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
The Issue
The issue is whether Respondent violated Section 8(a)(1) of the Act by main-
taining and enforcing a rule at its Rensselaer plant prohibiting the distribution of
any printed or written material on company property.
The Facts
It is conceded that Respondent promulgated, maintained, and enforced a rule,
known as rule 25, which prohibited the distribution of any printed or written
materials to employees without the approval of the personnel department. In
addition, there is no dispute that on December 3, 1962, employees Joseph Lamb
and John Wagner were distributing leaflets outside the plant gatehouse in a non-
working area and during nonworking time. The employees were campaigning for
office in the Union and were electioneering by such distribution. The area of dis-
tribution, although outside the gatehouse, was on company property, but, as noted,
during the employees' nonworking hours. Respondent also admits that Lamb
and Wagner were issued warning slips by the Company on December 6, 1962, for
distributing literature in nonworking 'areas of the plant and during times when
said employees were not at work on Respondent's time.
Respondent contends that its prohibition of all literature distribution without
approval on its property was proper in the circumstances of this case and points
to certain facts as justifying the prohibition. There is no question but that, as
Respondent contends, its plant manufactures chemicals that are combustible and
otherwise hazardous. This factor, argues Respondent, makes it evident that the
rule is necessary for a safe and efficient operation of the plant. It is not always
clear in the record, however, whether Respondent is most concerned with the paper
on which the words are written as creating the hazard or the words themselves
as "inflammatory."
Patrick McShane, personnel relations manager at Rensselaer, testified that rule
25 was promulgated primarily to maintain discipline in the plant and to protect
the employees, the equipment, and the products from being endangered through lack
of attention . He said that certain chemical reactions were involved in production
i General Counsel's and Respondent 's stipulation correcting the record Is hereby approved
and made part of the record Respondent 's Exhibits Nos. 7A through 71 which were
identified , but inadvertently not offered , are also received in evidence by stipulation.
GENERAL ANILINE & FILM CORPORATION 1217
and that three buildings had been spark proofed to eliminate spontaneous com-
bustion? He testified that there had been certain employee errors in the past due
to inattentiveness. McShane added, however, that there were other problems to
which the rule was addressed such as "the contents of the literature from the
standpoint of . . . being truthful literature or defamatory in nature, or in any
way suggesting perhaps an improper relationship between Union and management."
He said there were cases on record of misrepresentation in literature, to which em-
ployees should not be subjected since it would interfere with their work by causing
distraction. McShane also said that he had warned an employee in the past for
distributing literature to employees on their way to work and told him that "we
did not want our employees bringing in this type of literature [for] in many cases
they were reporting directly to their jobs and would not have sufficient time to
read it before they started work." Under cross-examination McShane repeated
that the rule was passed to preserve order and protect the equipment, men, and
products, and that there was a potential hazard in distribution because of litter in
the plant. In addition to combustion caused by the litter itself, he stressed possible
inattentiveness and error on the job caused by a perusal of the literature. He stated
that there had been spontaneous combustion in the plant, but was unable to con-
nect it with distribution of literature. He agreed that if Lamb and Wagner had
asked for permission to distribute the literature on the day in question it probably
would not have been granted because it was a "personal type" of literature, and
a rival candidate had recently been prevented from distributing his pamphlets, and,
in addition, it was possible to distribute the literature from the publc sidewalk off
company premises. McShane also conceded that he knew of no instance where
employees came into the plant with literature on their persons which resulted in
altercations among employees.
Charles Stratton, Respondent's production manager at Rensselaer, testified about
the purpose of the rule. Although Stratton stated that the "sheer volume of dis-
tributed literature can make a housekeeping problem in the plant [and] can give
a disorderly appearance [and] can become a dangerous situation," he stressed
the content of the literature rather than possible litter as the overriding considera-
tion. He stated that "As far as my department was concerned the purpose of i to
25 was to maintain order and discipline and to make sure that production is held
and done properly and in sufficient amount." He added that the "trouble with
material being distributed, people are liable to read it on the job," and explained
further that "Literature that is controversial or exciting can distract people from
their duties, particularly kettle operators who must have their full attention on
what they are doing for their own safety or for the safety of others, and for
production Stratton, under cross-examination, conceded that he knew of
no actual problem of litter associated with the distribution of literature.
As far as Curtis Collison, formerly personnel relations manager at Rensselaer,
but now at Linden, New Jersey, in the same capacity, was concerned, litter and
safety were only "byproducts" of the rule. He testified that the "major part or
overriding reason" for the rule was to prevent "inflammatory and destructive dis-
tribution of literature in the plant." As an example of "inflammatory" literature,
he recalled an unauthorized distribution in 1955 which attacked the Company's
industrial engineers and was, therefore, according to Collison, not conducive to
plant harmony. He added, under cross-examination, that the object of the rule
was "also to prevent disruption, tension, and concern in the plant."
In addition to its contentions that distribution of literature on its premises is
justified by housekeeping, or operational and safety considerations, Respondent
also contends that the nature of the literature distributed by Lamb and Wagner
affords it no protection under the Act since it is election campaign literature of
a "personal nature," and because it could be distributed outside the plant on public
property at the entrances to company property.
With respect to the first of these contentions, the record shows, as I have found
above, that Lamb and Wagner were running for union office and distributed handbills
in their own behalf. Lamb was running for president of the Union against incumbent
LaBier and candidate Fitzpatrick. All candidates distributed literature and the
record contains examples of each. Lamb's handbill, which Wagner assisted in dis-
tributing, and for which both employees were warned, reminds the employees of
the coming election and that their decision is important because the labor contract
will be open for negotiation. The greater portion of the document is taken up with
z Approximately 12 buildings are used in production.
734-070-64-vol. 145-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an attack on incumbent LaBier's alleged shortcomings as an officer of the Union. He
is accused of having taken credit for employee benefits without justification and not
having done more for the employees in the past. Some of these criticisms relate di-
rectly to employer and employee relations. The document extols Lamb's alleged
qualifications for office and Lamb promises not to be a "puppet."
LaBier's distribution mentions his record of benefits obtained and states his plat-
form of benefits yet to come. Fitzpatrick in his pamphlet attacked the incumbent
as a creature of the Company and a "puppet." He accuses Lamb of being a "lamb."
The document also refers to a discontinued bonus.
I find that the campaign literature was typical campaign literature, but does relate
and refer directly to the effect of the election on employee relations with the Com-
pany and is generally relatively restrained in tone.
In regard to the availability to the employees of alternate means of communicating
with the employees, the record shows that distribution could be made on public
property with perhaps only slight inconvenience. As will be discussed in more detail
below, however, I find this consideration, as well as considerations regarding the
size of the communities in which the plant is located and employees live, irrelevant.
Analysis, Additional Findings, and Concluding Findings
The Board has held, with judicial approval, that an employer may not prohibit his
employees from distributing union literature on their own time in nonworking areas
of the plant unless he can show special circumstances making the rule necessary in
order to maintain production or discipline 3 In my opinion, and I find, Respond-
ent has shown no special circumstances which make rule 25 necessary in order to
maintain production or discipline.
As far as the elimination of litter from a housekeeping point of view is involved,
Personnel Relations Manager Collison, as stated earlier, testified that litter and safety
were only "byproducts" of the rule, and he and other Respondent witnesses em-
phasized other considerations. The record also shows that other written material has
been distributed or permitted in the plant with Respondent's cooperation. News-
papers are sold at the gatehouse, and, in the past, hundreds of booklets and a sub-
stantial number of circulars explaining Respondent's pension plan were distributed to
employees by an employee in the plant. Respondent's witnesses conceded that the
possession or distribution of any of the above literature would create just as much
litter or hazard as the circulars distributed by Lamb and Wagner. There is no
evidence in the record that the distribution of circulars has caused a housekeeping
problem in the past, and Lamb and Wagner testified that, on the day they distributed
the handbills for which they were reprimanded, the employees took the handbills and
carried them into the plant without disposing of them before entering the plant.
There is a receptacle for trash just inside the gatehouse, and, according to the em-
ployees, they saw no litter in the plant that day caused by their distribution. In
addition, Respondent has rule 24, relating to good housekeeping, which could be
utilized to prevent litter, and neither Lamb nor Wagner was told when they were
stopped from distributing, or warned thereafter, that they were littering the plant
premises or contributing to it. I find that rule 25 is not supported by special con-
siderations relating to ordinary housekeeping.
Similarly, with respect to safety factors connected with litter itself, as distinguished
from the disorderly appearance that litter can create, the same general considera-
tions just set forth establish that the rule finds no special justification from that
view. Here again, Respondent has a rule 20 relating to safety which was not invoked
against Lamb or Wagner, and no witness for Respondent was able to say that the
presence of paper in the plant had resulted in combustion.
As set forth above, Stratton, Respondent's production manager, testified that the
problem with literature is that employees are liable to read it on the job and that
if the material is "controversial or exciting" it may distract employees. Because of
this consideration Respondent seeks to justify a blanket interdiction against distribut-
ing any material anywhere on its premises on the employees' own time without prior
3 Stoddard-Quirk Manufacturing Co., 138 NLRB 615; General Industries Electronics
Company, 138 NLRB 1371 ; United Aircraft Corporation, 139 NLRB 39; Remington Rand
Corporation, 141 NLRB 1052. Accord. N.L.R B. v. LeTourneau Company, 324 U S. 793;
N.L.R B. v. Babcock & Wilcox Company, 351 U S 105, 112-113; N.L.R.B. v. Walton
Manufacturing Company, 289 F. 2d 177, 180 (C A. 5) ; N.L R.B. v. Linda Jo Shoe Com-
pany, 307 F. 2d 355 (C.A. 5) ; Time-O-Matic, Inc v. NL.R.B., 264 F. 2d 96, 100 (C.A. 7).
GENERAL ANILINE & FILM CORPORATION 1219
permission . I think the mere statement of the argument carries its own refutation.
Respondent may legally make a rule prohibiting reading anything on the job, and,
indeed, rule 11 about loafing or wasting time on the job seems to cover the situa-
tion. If, however, Respondent can control what employees are given to lead on
their own time it can control what they say for debate and discussion about unions,
or anything else, may carry over in some measure into working hours. If this con-
sideration can justify such a rule then employee rights under the Act would be
tenuous at best. In any event, none of Respondent's witnesses were able to cite
examples where the distribution of literature had caused disruption of production or
altercations among the employees. Therefore, whatever might be the case in other
circumstances, the mere possibility that employees might read on the job what they
carry into work, and having read it, become agitated and disturbed, cannot justify
so broad a limitation against distribution of union literature in nonworking areas.
I also find that the nature of the material in the leaflets did not exceed the bounds
of lawful comment protected by Section 7 of the Act and is not otherwise unpro-
tected because it is "personal." Respondent's argument here with respect to content
is two pronged. First, Respondent contends that the union campaign literature in
evidence contains epithets which could arouse employee partisanship and factional-
ism to such an extent as to endanger Respondent's operations, and second, that since
the literature is union campaign material, it is "personal" and unprotected. About
the only personal attacks on the candidates in the leaflets in evidence are statements
that candidate Lamb would be a "lanib," that another candidate is someone's "puppet"
and "a chalk artist." The rest of the material, as might be expected, downgrades the
opponent's alleged achievements, elevates the writers, and promises more. I do not
think either the candidates or Respondent's employees are so innocent or volatile that
these documents would inflame them into assaults on each other or Respondent's
property. In addition, employees or unions do not lose the protection of the Act if,
in discussing matters of vital concern such as conditions of employment, they make
highly critical or inaccurate statements, so long as these statements are not deliber-
ately and maliciously false? I find no evidence that such is the case here. I also
find that the distributors did not lose the protection of the Act because the literature
in question was part of their campaigns for union office. It should go without say-
ing that one of the most important considerations in union representation is the
character of the representatives. An appeal to employees based upon the records of
the incumbents and the promises of the opponents may be an effective implement of
the guarantee to employees in the Act of "representatives of their own choosing."
Moreover, much of the material in the handbills relates directly to wages, hours,
and working conditions Lamb's handbill, for example, refers to the overtime sys-
tem and the loss of a bonus; Fitzpatrick's refers to the bonus, and LaBier's to nu-
merous working conditions he hopes to improve.
As indicated earlier, Respondent also contends that when there are alternative
means of communication available to employees, the employer's duty of justifying its
no-distribution rule is lessened. I find, however, that in determining whether Re-
spondent's no-distribution rule violates Section 8(a)(1), the question of the avail-
ability to the employees or the Union of alternative means of communicating with
the employees is irrelevant. With respect to other avenues of communication, the
Supreme Court, various courts of appeal, and the Board have held that their avail-
ability has no bearing when an employee's right to distribute union literature is in-
volved as compared to a nonemployee's right which depends on the lack of other
effective means of reaching employees.5
I find and conclude , therefore, that Respondent by promulgating, maintaining,
and enforcing a rule prohibiting its employees , when they are on nonworking time,
from distributing union literature in nonworking areas of Respondent 's property,
violated Section 8(a) (1) of the Act.
4 N.L R.B. v . Peter Cailler Kohler Swiss Chocolates Company, 130 F. 2d 503 (C.A. 2) ;
Cusano v. N L R.B., 190 F 2c1 898, 902 (C A. 3) ; N.L R.B. v. Illinois Tool Works, 153
F 2d 811 (CA. 7).
5 N.L R .B. v. Babcock & Wilcox, supra, at 112-113; Time- O-Matie, Inc. V . N.L.R B ,
supra, at 100-101 ; N L.R B v. Walton Manufacturing Company , supra, at 180; United
Aircraft Corporation, 139 NLRB 39 ; contra, N.L R.B. v Rockwell Manufacturing Company,
271 F 2d 109 (C A. 3 ) The Board did not follow the Rockwell case in later decisions.
N.L.R.B . v. United Steelworkers of America, 010 (Nutone ), 357 U.S 357 , relied upon by
Respondent , is inapposite to the case at bar, for the validity of the plant rule was not in
question.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in con-
nection with its operations set forth in section I, 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 commerce and the
free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and from like or related con-
duct. I shall also recommend that Respondent cancel the warnings issued to
Joseph Lamb and John Wagner and take certain other affirmative action designed
to effectuate the policies of the Act, as provided below.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case I make the following:
CONCLUSIONS OF LAW
1. The Respondent Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Local 227, International Chemical Workers Union, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By promulgating, maintaining, and enforcing a rule prohibiting employees
during their nonworking time from distributing union literature in nonworking areas
of Respondent's property, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act and thereby committed unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, General
Aniline & Film Corporation, its officers, agents, successors, and assigns , shall:
1. Cease and desist from promulgating, maintaining, or enforcing any rule pro-
hibiting employees during their nonworking time from distributing union litera-
ture in nonworking areas on company property, or in any like or related manner
interfering with, restraining, or coercing employees in the exercise of their right to
self-organization to bargain collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain from any or all such activities.
2. Take the following affirmative action which will effectuate the policies of
the Act:
(a) Notify in writing employees Joseph Lamb and John Wagner that it has
canceled the warnings issued to them on December 6, 1962.
(b) Post in conspicuous places at its plant in Rensselaer, New York, including
all places where notices to employees are customarily posted, copies of the attached
notice marked "Appendix" 6 Copies of said notice, to be furnished by the Regional
Director for the Third Region, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt thereof, and maintained
by it for 60 consecutive days thereafter. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced, or covered, by any
other material.
(c) Notify said Regional Director, in writing, within 20 days from receipt of
this report, what steps Respondent has ,taken to comply herewith?
6In the event that this Recommended Order be 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 be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States
,Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
7In the event that this Recommended Order be adopted by the 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 herewith."
FOOD GIANT SUPER MARKETS, ETC. 1221
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify you that:
WE WILL NOT promulgate , maintain, or enforce any rule prohibiting our
employees during their working time from distributing union literature in
nonworking areas of the plant.
WE HAVE notified employees Joseph Lamb and John Wagner that the warn-
ings issued to them on December 6, 1962 , have been canceled.
WE WILL NOT in any like or related manner interfere with , restrain , or coerce
our employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist any labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from any or all such activities.
GENERAL ANILINE & FILM CORPORATION,
Employer.
Dated------------------- By--------------------------------------------
(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.
Employees may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue, Buffalo , New York , Telephone No.
TL 6-1782, if they have any question concerning this notice or compliance with its
provisions.
Food Giant Super Markets ; Mayfair Markets , d/b/a El Rancho
Markets ; Safeway Stores, Inc. and Retail Clerks International
Association , Local 727, AFL-CIO. Case No. 28-CA-975. Janu-
ary 24, 1964
DECISION AND ORDER
On October 8, 1963, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondents 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, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision , the exceptions and brief, and the entire record in
145 NLRB No. 124.