General Electric Co.

National Labor Relations Board - Board Decisions

Mar 6, 1967

163 N.L.R.B. 253 (N.L.R.B. 1967)

GENERAL ELECTRIC COMPANY 253
employment. No other conclusion can be drawn than that
Respondent has largely succeeded in its purpose.
Upon the basis of the above findings of fact and upon the
entire record in the case, I make the following:
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described 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.
V1. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that Respondent offer those
employees whose names appear in Appendix A [Board
Appendix substituted for Trial Examiner's Appendix]
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
seniority and other rights and privileges , and make them
whole for any loss of earnings they may have suffered by
reason of the discrimination against them by payment to
them of a sum of money equal to that which they would
have earned as wages from the date of the discrimination
against them , to the date of offer of reinstatement less
interim earnings, and in a manner consistent with Board
policy set out in F. W. Woolworth Company, 90 NLRB
289, and Crossett Lumber Company, 8 NLRB 440, to which
shall be added interest at the rate of 6 percent per annum
as prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716, and offer to James Rosemond
overtime work in accordance with the practice of offering
overtime work prior to the date overtime work was first
discriminatorily withheld from him and make him whole
for loss of overtime pay during the period of time overtime
was discriminatorily withheld from him, with interest at
6 percent.
I shall also recommend that Respondent preserve and
make available to the Board or its agents, upon request,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records and reports necessary to
analyze the amount of backpay due and the right to
reinstatement under the terms of these recommendations.
In order to make effective the interdependent guarantees
of Section 7 of the Act, I shall recommend that the
Respondent cease and desist from, in any manner,
infringing upon the rights guaranteed in that section.
N.L.R.B. v. Express PublishingCo., 312 U.S. 426; N.L.R.B.
v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4).
In view of my findings that Respondent' s antiunion
activities as described above constitute a practice and a
pattern of conduct designed to thwart, and which had
thwarted, the attempts of its employees to organize and my
finding that Respondent has pursued this practice and
pattern with a calculated disregard for the proscriptions of
the Act and of my belief that the conventional
recommendations which I hereinafter make do not fit the
situation here revealed, and will not adequately restore the
status quo, I recommend to the Board that it consider such
other and further remedies which it may deem appropriate
in order better to effectuate the policies of the Act.
Conclusions of Law
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By discriminating in regard to the hire or tenure of
employment of these employees whose names appear in
Appendix A [Board Appendix substituted for Trial
Examiner's Appendix], thereby discouraging membership
in the above Union, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
4. By discriminating in regard to the hire and tenure of
employment of Ben Suratt, Wylie Hill, Hubert Varnadore,
John Fulbright, and Willis Young, Respondent has also
engaged in unfair labor practices within the meaning of
Section 8(a)(4) of the Act.
5. By engaging in interference, restraint, and coercion,
the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
6. Respondent did not violate the Act by discriminating
with respect to the hire and tenure of employment of
Franklin Moore, Bobby Spoon, Joe Manley, Juanita
Faulkenberry, and Daniel Murray.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
General Electric Company and Local 761,
International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Case
9-CA-3570.
March 6,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 5, 1966, Trial Examiner Sidney D.
Goldberg issued his Decision 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 Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting brief;'
the Charging Party filed an answering brief.
' The Respondent filed a motion for receipt of evidence of
relevant events that occurred after the Trial Examiner 's Decision;
the Charging Party filed an opposition thereto. The motion is
denied.
The Respondent also filed a motion for oral argument. The
request is hereby denied, as the record, including the exceptions
and briefs, adequately reflects the issues and the positions of the
parties.
163 NLRB No. 31
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudical error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and for the reasons set
forth below, has decided to dismiss the complaint.
The facts are in large part stipulated. Since 1953,
Local 761 has represented a production and
maintenance unit.' That unit included in 1965, the
time here relevant, some 9,000 of the approximately
13,000 employees at the Respondent's Appliance
Park facility.
Local 761 is a party to the nationwide contract
between the Respondent and IUE, as is Local 191, in
Rome, Georgia. Article IV, section 2, of that
contract provides:
Neither the Union nor any local, nor any
Steward, Officer, or other agent or
representative of either, shall intimidate or
coerce any employee, nor solicit members or
funds in the plant during working hours.
In addition to this provision, the Respondent has
maintained and enforced, during the life of
Appliance Park, an unwritten rule forbidding the
collection of money for any purpose on the premises.
This rule refers only to the collection of cash; money
can be collected through payroll deductions, and
there is in effect a checkoff under which Local 761
collects more than $40,000 per month. The Union
also owns a headquarters and meeting building
located less than a mile from the plant.
As noted, the rule has been enforced with one
exception. In 1964, Local 761 sought permission
from the Respondent to make an on-premises cash
collection for the Crusade for Children sponsored by
the local police and fire departments. Permission
was granted on an ad hoc basis, under specific
conditions, and $2,365 was collected. The Union has
also, at various times, made cash collections for
union purposes, including strike funds, but it did this
off the premises, and had never sought permission to
make such collections on the Respondent's
premises.
In April 1965, representatives of Local 761 sought
the Respondent's permission to make an on-
premises collection, in nonworking areas, for the
declared purpose of furnishing financial support to
Local 191, IUE, which was then engaged in a strike
at the Respondent's Rome, Georgia, plant.
Permission to make an on-premises collection was
denied, but Local 761 was permitted to distribute
announcements that a collection would be made at
the entrances to Appliance Park customarily used
by employees. The collection was made on April 28,
1965, and about $1,200 was obtained.
The complaint alleged, and the Trial Examiner
found, that the Respondent's maintenance of the
rule barring the solicitation and collection of funds
by employees during nonwork time in nonwork areas
of the plant and its enforcement in the
circumstances set forth above violated Section
8(a)(1) of the Act.
We do not agree with the Trial Examiner's
conclusion. We do not think that a mechanical
application of the rules and presumptions
established in Walton Manufacturing Company'
suffices for the decision of this case.
The Walton rules themselves are the result of a
long series of Board and court cases establishing
principles designed to achieve a balance between
the rights of employers and employees.a Were this
case one in which the Respondent permitted no
solicitation or distribution of union literature on any
part of its premises, we could agree with the Trial
Examiner's conclusion. But this is not such a case.
Here it is clear that the Union may distribute its
literature on the premises, in fact was expressly
permitted to distribute the announcement of the
collection here in issue. It is also clear that the rule
has been applied in a nondiscriminatory manner. We
note also that the rule has existed from the beginning
of Appliance Park and is one in which apparently the
Union has heretofore acquiesced, as shown by its
request for permission to collect for the Crusade for
Children. Although we do not say that acquiescence
is the touchstone in assessing the issue of legality,
we nevertheless consider this a factor of some
significance in a situation such as this when the
basic question to be resolved is whether in all the
circumstances the Respondent's rule so trenches
upon protected rights of employees as to violate the
Act.
In striking a balance, as we must, between the
Respondent's right to control its own property and
the competing right of employees guaranteed in
Section 7, we are not prepared to say that the
Union's interest in using Respondent's premises to
collect support money in behalf of striking
employees at another plant and in another
bargaining unit so outweighs the Respondent's
interest in controlling its property as to render
unlawful in the specific circumstances of this case
Respondent's application of the rule herein involved.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
2 With certain exclusions not here relevant ' See Le Tourneau Company of Georgia, 54 NLRB 1253, affd
' 126 NLRB 697 324 U S 793
GENERAL ELECTRIC COMPANY 255
TRIAL EXAMINER 'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: The sole
question in this case is whether the Respondent, by
invoking its rule against on-premises fund collections and
thereby preventing employee-members of the Charging
Union from making such collection to assist a sister local
on strike against Respondent at another plant, has
interfered with rights guaranteed its employees by
Section 7 of the National Labor Relations Act, as
amended, and violated Section 8(a)(1) thereof.
A hearing on the said issue, raised by the complaint'
and answer thereto, was held at Louisville, Kentucky, on
October 27, 1965 All parties were represented and
afforded an opportunity to present evidence, cross-
examine witnesses, and argue upon the facts and the law.
The evidence herein consists principally of a stipulation by
all parties. The Charging Party (herein called the Union),
however, adduced some testimony in addition to the
stipulation and the Respondent (herein called the
Company) adduced testimony relevant to that of the Union
but no issues of fact were developed. The General Counsel
did not file a brief but those filed by the Union and the
Respondent have been considered.
For the reasons hereinafter set forth, I conclude that the
Respondent's refusal to permit employee-members of
the Union to take up a collection for union purposes on
the parking lot was an unjustifiable interference with the
rights of the employees and violated Section 8(a)(1) of the
Act.
Upon the admissions in the pleadings, the stipulation of
the parties , the testimony of the witnesses, and the entire
record in this case, I make the following:
Appliance Park contains six major production buildings,
a warehouse, and several auxiliary buildings Here the
Company produces washing machines, automatic clothes
dryers, dishwashers, garbage disposers, refrigerators, and
air-conditioning equipment.
The tract is not open to the general public and, although
there is no actual boundary fence, entry is not possible
except at certain points, called "gates," where there are
gatehouses and guards on duty at all times
Practically all of the employees come to work by
automobile and there is a large parking area covering
almost all of the eastern end of the tract. Employees are
required to enter through specifically designated gates
and, after entering the tract, have to drive at least a
quarter of a mile to the parking area. Hourly paid
employees generally use Gate 2, off Buechel Bank Road,
the northern boundary of the tract, and Gate 5, off Poplar
Level Road, its southern boundary. The production
buildings abut the employees' parking lot and, after
parking their cars, the employees walk through a series of
paved "walkways" to the buildings where they work.
These walkways begin at least 200 feet from the nearest
building.
In addition to the main parking lot, there are small
parking areas adjacent to the production buildings for use
by top management, a parking area adjacent to the
warehouse for the use of warehouse employees, a parking
area for the employees of outside contractors performing
work on the premises,' and small parking areas near most
of the buildings. There is also parking space outside the
tract for use by the public and persons doing business with
the Company.
FINDINGS OF FACT
1. THE EMPLOYER
General Electric Company has plants and offices
throughout the United States, and from its plant at
Appliance Park, near Louisville, Kentucky, it annually
ships manufactured products valued at more than $50,000
to points outside the State of Kentucky. There is also a
General Electric plant at Rome, Georgia. Respondent is
engaged in interstate commerce.
II. THE LABOR ORGANIZATION
The Umon2 is a labor organization
III. THE UNFAIR LABOR PRACTICES
A. Background
1. The plant
The Company's manufacturing operations at Buechel,
Kentucky, are conducted on a rectangular tract of land
containing about 1,000 acres which it calls "Appliance
Park." This tract, measuring more than a mile on each
side, is traversed by streets and roads like a small city.
Issued August 19,1965 , on a charge filed May 5, 1965
The correct name of the Union, as amended at the hearing,
appears in the caption
These use a separate gate, No 3A, off Buechel Bank Road
The Union was certified in August 1953, after an election held
pursuant to the Board's Decision (106 NLRB 364), and has had
collective-bargaining contracts with the Company continuously
2 The employees
The Company has over 13,000 employees at Appliance
Park. In April 1965, when the events herein occurred, the
Union represented approximately 9,918 of the production
and maintainence employees.' Local320 of the
International Brotherhood of Firemen & Oilers,
AFL-CIO, represented 27 employees, Local 110, United
Plant Guard Workers of America, represented 33
employees; Kentucky Skilled Craft Guild represented 265
employees;s and about 3,100 employees were not
represented by any labor organization.
Appliance Park is about 12 miles south of Louisville and
75 percent of the Company's employees live within a 12-
mile radius from the plant. An additional 10 percent live
within 25 miles and only 1 percent lives more than 50 miles
away.
Shortly before 7 a m., when the day shift begins, about
7,300 employees enter the plant tract, practically all of
them by automobile. This shift ends at 3.30 p m. The 2,600
employees on the second shift, which begins at 3-30 p.m.,
enter the premises about half an hour before that time and
then leave when their shift ends at midnight. The third
shift, from midnight until 7 a.m., consists of about 500
employees. The workday for office and clerical employees
is from 8 a.m. until 5 p.m.
since 1953 The current contract is the National Agreement
between General Electric Company and International Union of
Electrical, Radio and Machine Workers, AFL-CIO, and its locals
certified for the Company's employees The term of the contract
is from September 30,1963, through October 2,1966
These unions are also certified for the employees they
represent
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company' s plant at Rome , Georgia, manufactures
transformers . Its production and maintenance workers are
represented by Local 191 of International Union of
Electrical , Radio and Machine Workers, AFL-CIO, which
was certified by the Board for that purpose . The current
National Agreement covers both Local 191 and the Union
involved herein.
3. The Company's policy on solicitation and collections
There is no problem in this case concerning the
Company's policy with respect to the distribution of
literature by the Union. Employee representatives of the
Union have traditionally handed out leaflets whenever
they desired. Such distributions have been customarily
made at shift changes and those passing out the literature
have usually stood at the points where the walkways lead
from the main parking lot.
While the collective-bargaining contract between the
Company and the Union contains a provision (article IV,
section 2) prohibiting the solicitation of "members or
funds in the plant during working hours," it is clear that
the Company does not rely on it as justification for its
position herein. It does, however, have a separate rule,
unwritten but longstanding, specifically forbidding the
collection of money on plant premises at any time.
The sole departure from this rule was in September
1964, during a fund-raising campaign called "Crusade for
Children," under the auspices of the police and fire
departments of Jefferson County, when the Union
requested permission to solicit donations at the parking
lot. The Company granted that permission in writing,
specifically pointing out that it constituted a single and
experimental departure from its normal policy and limiting
the time, place, and manner of the solicitation permitted.
It was also stipulated that there have been localized
collections in separate and individual sections and
departments of the various buildings, initiated by various
employees for the benefit of fellow employees leaving
work to get married, or on occasions of deaths in
employees' families.
Prior to 1965, the Union had never made, or requested
permission to make, any collection of money on plant
property, although it had collected for strike funds and
other union purposes, at other places.
The Company has never solicited donations, for any
purpose, on the plant tract and, except for the Children's
Crusade and the stated minor, localized collections, has
never permitted anyone else to do so.
The Company's payroll department, of course,
withholds taxes and makes deductions for checkoff of
union dues where authorized, as well as for community
fund and other assignments by employees out of their
earnings.
4. The Union's facilities
In April 1965, when the Union represented
approximately 9,918 of the Company's employees at
Appliance Park,6 it received, as it did each month in 1965,
" This is, presumably, the number of employees in the unit for
which the Union is the certified representative The contract does
not have a maintenance-of-membership provision and the record
does not show how many of these employees are members of the
Union
' Gate 3, about 900 feet from Gate 2
1 It is agreed that , for the purposes of this proceeding,
about $43,890 in dues by means of the checkoff. The union
officers are a president, 2 vice presidents, a recording
secretary, a treasurer, 8 chief stewards, and approximately
373 stewards.
The Union owns a headquarters and a meeting building,
including an auditorium, on Poplar Level Road, less than a
mile from the southwestern border of the plant tract. It has
also, on occasion, secured the use of the National Guard
Armory adjacent to and opposite the main gate7 on
Buechel Bank Road.
In its headquarters office, the Union employs three full-
time clerical workers and has lists containing the names
and mailing addresses of all its members. It also owns
typewriters and mimeographing machines which it uses to
publish communications to the employees it represents.
Union meetings are generally attended by 200 to 300
members and special meetings bring out about 1,000. A
meeting, in January 1965, called to determine whether a
strike then in progress should continue, was held at
Convention Hall on the Kentucky State Fairgrounds at
Louisville and was attended by more than 6,000 members.
B. The Controversy Herein
1. The strike at Rome
In April 1965, the employees represented by Local 191
at the Company's plant in Rome, Georgia, were engaged in
a strike which was, at least for the purposes of this
proceeding, a lawful one.
2. The request and refusal
On April 20 and 27, 1965, respectively, representatives
of the Union adddressed oral requests to appropriate
officials of the Company for permission to have employee
representatives of the Union solicit and collect funds at
stations where the walkways lead from the general parking
area to the production buildings, the same places where
the Union customarily distributed its literature. The
requests stipulated that the solicitation of contributions
would be addressed to employees and would be made, by
employees on nonworking time, at the time of shift
changes. The requests also made it clear that the funds so
collected were to be used to support Local 191 in its strike
against the Company at Rome.
These requests were denied, also orally,8 by the
Company's manager of labor relations, who said that the
Union "must think they were crazy if [it] thought they
were going to let [it] take a collection to use against
them."
3. The Union' s collection
Denied permission to take up a collection at the head of
the walkways from the parking area, the Union, on
April 25, posted two of its officials on the public roads
outside Gates 2 and 5 from 6 a.m. until 7 a.m., with
explanatory signs around their necks9 and plastic buckets
in their hands. They solicited contributions from the
violations of the Company's policy and rule concerning money
solicitations might result in disciplinary penalties
9 On April 23, the Union distributed, at the walkways, circulars
informing the employees that the Company had denied its request
for permission to take up, in the parking area , a collection of
money to aid Local 191 and that the collection would be made
outside the gates on the 28th The Company did not interfere, in
any way, with this distribution
GENERAL ELECTRIC COMPANY
passing cars containing employees on their way to work
and collected over $1,200.10 Leaflets reporting the results
of the collection were subsequently passed out, at the
walkways near the parking area, without company
interference.
C. The Contentions of the Parties
The Union contends that, under the doctrine stated by
the Supreme Court in Republic Aviation Corp. v. N.L.R.B.
and N L.R.B. v. Le Tourneau Company of Georgia, 324
U.S. 793, the Company's rule against the solicitation and
collection of money for union purposes on the plant tract
interfered with the employees' rights and violated Section
8(a)(1) of the Act.
The Company relies, in part, on its property rights to the
plant premises as justification for its refusal to permit the
Union to solicit funds there. Recognizing, however, that
the Board's functions include the formulation of an
adjustment between the rights guaranteed employees by
the Act and the property rights of employers, it contends
that its rule barring "on-premises" collections is valid
because (1) it is confined to the handling of money, (2) the
solicitation would be addressed to persons and employees
not represented by the Union, (3) without such a rule its
premises would be open to "a multiplicity of collections,"
(4) it has not been shown that the Union is not otherwise
able to collect funds, and (5) it is justified in barring the
use of its premises for the collection of funds "to be used
in financing a strike against it." It also contends that its
rule should be presumed valid and that the General
Counsel has not sustained his burden of proving it invalid.
D. Discussion and Conclusions
The cornerstone of Respondent's argument herein
is-as it must be-that there are "valid distinctions"
between the Union's proposed money collection in this
case and the "union solicitations" involved in the decision
in Republic Aviation and Le Tourneau and in the many
such cases decided by the Board and the courts.
In Republic Aviation and in Peyton Packing Co., Inc.,
(49 NLRB 828), cited with approval by the Supreme Court,
the no-solicitation rules were general in their language,
notwithstanding that the disciplinary action taken under
them was based upon solicitations for union
membership."
The Board has also held that the mere existence of a
prohibition in general language constitutes interference
with employees' right in violation of Section 8(a)(1) of the
"' The Union introduced evidence to show the difficulties and
hazards of soliciting contributions in this manner In the view I
take of the law in this case , these elements are not relevant
In Peyton Packing , the posted notice read , in pertinent part
No employee shall engage in solicitation of any kind while on
property of this company
and in Republic Aviation the rule was "Soliciting of any type
cannot be permitted in the factory or offices "
12 See Pueblo Supermarkets , Inc , 156 NLRB 654
("soliciting" ), Kern 's Bakery, Inc , 154 NLRB 1582 ("solicitation
without permission "), Waste King- Universal Products , 148 NLRB
1462 (" unauthorized solicitation for any purpose")
' i Walton Manufacturing Co , 126 NLRB 697, enfd 289 F 2d
177 (C A 5, 1961), where a plant rule prohibited "conducting
outside business on company premises without obtaining
permission This includes solicitations of money or
memberships ", General Motors Corporation , 147 NLRB 509,
and Chevrolet Motor Division , General Motors Corp, 144 NLRB
257
Act12 and in many cases where the prohibition was
directed to solicitation and/or collection of money it was
also held to be an unlawful interference with employee
rights.13 The rationale of the Board, where articulated, and
the authorities, when cited, were the same in both types of
cases. An almost identical set of facts was before the
Board in Flambeau Plastics Corporation, 151 NLRB 591,
in which the employer posted a notice calling attention to
its long-established policy "prohibiting the collection of
non-company sponsored contributions ... on company
premises" and threatening disciplinary action against
anyone attempting to collect union dues on company
premises. Citing Walton Manufacturing Company, supra,
the Trial Examiner held the rule invalid, and the Board,
without comment, adopted his conclusion. The distinction
which Respondent attempts to draw between that case
and this is based upon the finding that the publication of
the prohibition in Flambeau Plastics was part of -the
employer's resistance to organizational activities, was
directed only against the collection of union dues and was,
therefore, "discriminatory," i.e., adopted with an
antiunion motive. This argument, in utilizing the term
"discriminatory" in a discussion of activity alleged to
constitute interference with employees' rights violative of
Section 8(a)(1), overlooks the fact that ". . . prohibited
conduct cannot be excused by a showing of good faith."14
From these decisions I conclude that there is no
substance, at least in law, to the distinction which
Respondent attempts to establish between its rule
forbidding money solicitations and the other no-solicitation
rules which the Board has found violative of employees'
rights of self-organization.
When the rule is examined in its factual setting,
Respondent's effort to distinguish it from other similar
prohibitions fares no better. The principal factual
argument of Respondent is that the Union's appeal for
funds may come to the attention of a substantial number of
Respondent's employees who are not members of the
Union and to some nonemployees. With respect to the
employees not members of this particular union, the
argument must fail before the indubitable fact that union
solicitations of support are customarily addressed to
uncommitted employees and are based upon mutuality or
parallelism of interests. There is no indication in this
record of any valid reason for Respondent to "protect" its
other employees from the Union's solicitation or to deny
them an opportunity to aid members of the Union. Indeed,
an avowed effort by Respondent to prevent employees not
members of the Union from contributing to its support
862, in which the same company rule prohibited "unauthorized
soliciting or collecting contributions for any purpose whatsoever
on Company property", Peyton Packing Co, 129 NLRB 1275,
involving a rule against "soliciting" which excepted "United Fund
and established charities"; General Industries Electronics
Company, 138 NLRB 1371 where the rule designated as a "major
offense" "Soliciting of any kind, or collecting contributions for
any purpose ", Phillips Manufacturing Company, 155 NLRB
512, in which discharge was threatened for "unauthorized
peddling, canvassing, soliciting or collecting contributions on
Company premises, for any purpose whatsoever", Famco, Inc ,
158 NLRB 111, in which the rule provided that "there may be no
solicitations for any purpose on Company property except
Any such contributions collected by employees must be done by a
Member of the Shop Committee "
f
14International Ladies' Garment Workers Union [Bernhard-
Altmann Texas Corp] v N.L.R.B , 366 U S. 731, 739.
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would constitute, in my opinion, unlawful interference
with the rights guaranteed those employees by the Act. 15
The problem of the Union's solicitation being addressed
to nonemployees appears to be minimal. The record shows
that, while suppliers doing business with Respondent were
permitted to use the main parking lot, there were other
parking areas adjacent to most of the buildings where they
could also park. Moreover, the Union's proposed
collection, scheduled to be taken from 6 to 7 a.m and from
3 to 4 p.m., would be unlikely to encounter any substantial
number of these nonemployees.16
As appears from the foregoing, I can see no basis for a
distinction, in law or in fact, between the rule of
Respondent under consideration herein and the rules
involved in the cases decided by the Board. Accordingly, I
conclude that the Board's decisional principle in such
cases, approved by the Supreme Court in the Republic
Aviation and Le Tourneau cases, is applicable to this case.
The principle of decision established by the Board in
dealing with no-solicitation rules was reviewed by the
Supreme Court in the Republic Aviation and Le Tourneau
cases and it there stated.
. Act left to the Board the work of applying the
Act's general prohibitory language in the light of the
infinite combinations of events which might be
charged as violative of its terms.... So far as we are
here concerned that purpose [of the Act] is the right
of employees to organize for mutual aid without
employer interference.
The Court thereupon specifically approved the Board's
principle, expressed in Peyton Packing Co., 49 NLRB 828,
843-844, that:
... a rule prohibiting union solicitation by an
employee outside of working hours, although on
company property . . . must be presumed to be an
unreasonable impediment to self-organization and
therefore discriminatory in the absence of evidence
that special circumstances make the rule necessary in
order to maintain production or discipline.
It appears, from the foregoing, that there are two
separate and distinct "rights" involved: (1) the right of the
employees to carry on self-organizational activities without
interference and (2) the right of the employer to maintain
production and discipline in the plant. Only where these
rights come into conflict with each other need a balance be
struck between them and the primary question in any case
is whether the rights are truly in conflict for, as the Board
has stated: "Where there is no necessary conflict neither
right should be abridged." 17
In this case, however, Respondent's arguments, as well
as the plant rule under consideration, are devoted to an
effort to impose a limit upon the employees' exercise of
their right to engage in an activity for their mutual aid but
the record is barren of evidence that such limitation is
necessary for the maintenance of discipline or production
in the plant.
The cases cited by Respondent in support of its effort to
impose limits upon the employees' exercise of their right
is There is no indication of open or latent rivalry between the
groups of employees represented by different unions that might
have been exacerbated by the activity or visible presence of the
Union's representatives or activity and, as appears below,
Respondent admits that it had no valid reason for concern that the
solicitation would be likely to lead to disorder
"' Dty decision herein does not turn upon this point and
Respondent does not argue that it should
i' Stoddard-Quirk Manufacturing Co, 138 NLRB 615 617
of solicitation are, as indicated above, inapplicable. In the
Babcock & Wilcox casest' the Supreme Court balanced
the organizational rights of the employees against the
property right of the employers in their plant and, although
it permitted the owners to bar outsiders from their
property (except in those unusual situations involving
remoteness), in so doing the Court restated its
pronouncement in Republic Aviation that:
No restriction may be placed on the employees' right
to discuss self-organization among themselves, unless
the employer can demonstrate that a restriction is
necessary to maintain production or discipline.
Republic Aviation Corp. v. N.L.R.B., 324 U.S 793,
803.
It is clear, therefore, that in the factual situation of this
case, the Babcock & Wilcox cases are not only no
limitation on the principle endorsed in Republic Aviation
but actually a reaffirmation thereof. Moreover, although
the Board, in applying the general language of the Act to
specific situations, has drawn a distinction between oral
solicitation and the distribution of literature to limit the
latter," it did so on the basis of a factual finding that the
distribution of literature, albeit on nonworking time,
"carries the potential of littering the employer's
premises"-a consideration clearly related to the
maintenance of plant production and discipline. But even
in that case, it is to be noted, the Board declined to limit
the Union's activity insofar as it was conducted outside the
building and on the parking lot.
Finally, while arguing that its rule is necessary lest
unrestrained money collections might develop into
harassment of employees, fraudulent appeals, and
gambling games, Respondent disavows any suggestion
that the Union would promote such misconduct, but
indicates the difficulties it would have in guarding against
it. The answer to this argument is obvious: the only facts
covered by this decision are those set forth herein.
Another factual situation can be met by the application to
it of the same principle: rules to maintain production and
discipline are justifiable limitations on employee
activity.2o
Respondent's contention that its rule "should be
presumed valid" and that "the burden of overcoming the
presumption of validity should be on the General Counsel"
is solely a product of wishful thinking and not in accord
with the settled principle of decision applicable to this
case. The Board's statement in Peyton Packing supra,
which was approved by the Supreme Court in the Republic
Aviation and Le Tourneau cases, was that a "rule
prohibiting union solicitation by an employee ... must be
presumed to be an unreasonable impediment" and this
presumption is sufficient, in the absence of proof by the
employer that the rule is necessary for production or
discipline, to sustain a finding that the rule violates
Section 8(a)(1) of the Act.2'
In the view I take of this case, it is unnecessary to make
any finding concerning the alternate opportunities of the
Union to reach its employee members or the accessibility
's Babcock & Wilcox Co v N L R B, N L R B v Seamprufe,
Inc, Ranco, Inc v N L R B, 351 U S 105 (1956)
"' Stoddard-Quirk Manufacturing Co , 138 NLRB 615, but
compare N L R B v United Aircraft Corp , 324 F 2d 128 (C A 2.
1963)
20 See Peyton Packing Co , 129 NLRB 1275, 1280-81
21 Walton Manufacturing Co , 126 NLRB 697, General
Industries Electronics, Co 138 NLRB 1371
GENERAL ELECTRIC COMPANY
of the employees to solicitation on the highway outside the
gates to the plant tract.22
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations set forth
in section 1, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice , it will be recommended that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
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. Local 761 and Local 191, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, are
labor organizations within the meaning of Section 2(5) of
the Act.
2. General Electric Company is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By promulgating, maintaining, and enforcing a rule
prohibiting solicitations for donations on its plant premises
known as Appliance Park to prevent employee-members
of said Local 761 from soliciting donations for union
purposes on the walkways adjoining the plant parking lot,
Respondent has interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed in
Section 7 of the Act, and has committed an unfair labor
practice within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings and
conclusions, I recommend that the Board issue the
following:
ORDER
General Electric Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from promulgating, maintaining,
and enforcing a rule prohibiting solicitations for donations
on its plant premises known as Appliance Park to prevent
employee-members of Local 761, International Union of
Electrical, Radio and Machine Workers, AFL-CIO, from
soliciting donations for union purposes on the walkways
adjoining the plant parking lot, or in any like or related
manner interfering with the rights of employees
guaranteed in the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its plant, known as Appliance Park, in
Buechel, Kentucky, copies of the attached notice marked
"Appendix." Copies of said notice, to be furnished by the
Regional Director for Region 9, shall be posted by the
Respondent, after being signed by the Respondent's
representative, immediately upon receipt thereof, and
maintained by the Respondent for 60 consecutive days
thereafter, in conspicuous places, where notices to
employees are customarily posted. Reasonable steps shall
259
be taken by the Respondent to insure that said notices are
not altered , defaced , or covered by any other material.23
(b) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Decision , what steps
the Respondent has taken to comply herewith.24
2 If, however, a finding on this matter were necessary, I would
find, on the basis of the nature and location of the roads leading
into the plant tract, the large number of automobiles rapidly
entering and leaving through each of the employee gates during
the shift change and the conduct of Respondent in directing the
attention of the county police to the situation, that the Union did
not have a reasonable opportunity for off-premises access to the
employees and that Respondent' s rule "constituted an
unreasonable impediment to the freedom of communication
essential to the exercise of its employees' rights to self
organization." (See N.L R.B. v Monarch Machine Tool Co , 210
F 2 d 183, 186 (C A 6,1954))
23 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced 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 "
is In the event that this Recommended Order is 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 Respondent has taken to comply herewith "
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT promulgate, maintain , or enforce a
rule prohibiting solicitations for donations on our
plant premises known as Appliance Park to prevent
employee-members of Local 761, International Union
of Electrical, Radio and Machine Workers, AFL-CIO,
from soliciting donations for union purposes on the
walkways adjoining the plant parking lot.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce employees in the
exercise of their rights of self-organization.
GENERAL ELECTRIC
COMPANY
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Room 2023,
Federal Office Building, 550 Main Street, Cincinnati, Ohio
45202, Telephone 684-3627.
295-269 0-69-18