General Motors Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1966

158 N.L.R.B. 1723 (N.L.R.B. 1966)

GENERAL MOTORS CORPORATION 1723•
WE WILL NOT threaten employees with the closing down of Midwestern
Engine and Equipment Co., Inc., the loss of their jobs, withdrawal of bene-
fits accorded to younger employees, and other reprisals, to defeat employees
union organizing activity, assistance to Local 627, or authorization to Local
627 to act as their collective-bargaining representative.
WE WILL NOT promise employees increases in wages or other benefits to
defeat their union organizing activity, their assistance to Local 627, or their
authorizations to it to act as their collective-bargaining representative.
WE WILL NOT conduct individual conversations with employees to solicit
them to vote against Local 627 in a Board-conducted election.
WE WILL NOT in any other manner interfere with, restrain, or coerce
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist Local 627 or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining, • or
other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment as
authorized in Section 8(a)(3), of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
All our employees are free to become or refrain from becoming members of
International Union of Operating Engineers, Local No. 627.
MIDWESTERN MANUFACTURING COMPANY, INC.; MIDWESTERN
ENGINE AND EQUIPMENT CO., INC.; AND MIDWESTERN PIPE-
LINE PRODUCTS COMPANY,
Employer.
Dated------------------- By--------------- '---------------------------
ARMON, H. Bosr, President
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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,
Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas,
Telephone No. 335-4211, Extension 2145.
General Motors Corporation and Paul Joseph Goldener
International Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America , UAW-AFL-CIO (Gen-
eral Motors Corporation ) and Paul Joseph Goldener. Cases
Nos. 31-CA-29 (formerly 21-CA-6263) and 31-CB-10 (formerly
21-CB-2427). June 9, 1966
DECISION AND ORDER
Upon charges filed by Paul Joseph Goldener, the General Counsel
of the National Labor Relations Board, by the Regional Director for
Region 31, on January 14, 1966, issued a consolidated complaint
against Respondent General Motors Corporation and Respondent
International Union, United Automobile, Aerospace & Agricultural
Implement Workers of America, UAW-AFL-CIO. Copies of the
charges and the consolidated complaint and notice of hearing before
a Trial Examiner were duly served upon the Respondents and the
158 NLRB No. 149.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charging Party. In substance, the complaint alleged that Respond-
ent Employer and Respondent Union had violated and were violating
Section 8(a) (1) and (b) (1) (A), respectively, of the National Labor
Relations Act, as amended, by maintaining a collective-bargaining
agreement containing a provision which unlawfully restricts the right
of employees to distribute union literature on the Employer's prop-
erty. The answers duly filed by Respondent Employer and Respond-
ent Union substantially admit the jurisdictional and factual allega-
tions of the consolidated complaint, but deny the commission of any
unfair labor practices.
On or about January 24, 1966, the Charging Party, counsel for the
General Counsel, the Respondent Employer, and the Respondent
Union entered into a stipulation and a joint motion to the Board.
The stipulation recited the jurisdictional facts; the facts relevant to
the complaint in the consolidated cases; and the agreement of the
parties that the charges, the order of consolidation, the complaint and
notice of hearing, the answers of the Respondents, and the stipula-
tion and motion shall constitute the entire record in the consolidated
cases, and that no oral testimony was necessary or desired by the
parties. The parties further stipulated that they waived a hearing
before a Trial Examiner, the ruling on motions by a Trial Examiner,
the making of findings of fact and conclusions of law by a Trial
Examiner, and the issuance of a Trial Examiner's Decision, .and that
they desired to submit these cases directly to the Board. The parties
further petitioned the Board to transfer the cases to the Board.
On February 7, 1966, the Board approved the stipulation, granted
the motion, and ordered the proceedings to be transferred to the
Board. Thereafter, the Charging Party, the General Counsel, the
Respondent Employer, and the Respondent Union filed briefs which
the Board has considered.
Upon the entire record in these cases, the Board hereby makes the
following :
1. FINDINGS OF FACT
A. The business of Respondent Employer
General Motors Corporation is a Delaware corporation engaged in
the manufacture and assembly of automobiles at numerous plants
located in various States of the United States. Respondent Employer
maintains a plant at 8000 Van Nuys Boulevard, Van Nuys, Califor-
nia. Annually, in the course and conduct of its business operations,
Respondent Employer purchases goods valued in excess of $50,000
which it causes to be transported to its various plants directly from
States other than those in which said plants are located. Annually,
in the course and conduct of its business operations, Respondent
GENERAL MOTORS CORPORATION 1725
Employer sells and ships products valued in excess of $50,000 directly
to firms located outside the State in which said goods are manufac-
tured or assembled. Respondent Employer admits, and we find, that
it is now, and at all times material herein has been, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act. We
further find that it will effectuate the purposes of the Act to assert
jurisdiction in this proceeding.
B. The labor organization involved
The answer of Respondent International Union, United Automo-
bile, Aerospace & Agricultural Implement Workers of America,
UAW-AFL-CIO, admits, the stipulation provides, and we find that
Respondent Union is now, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of the Act.
C. The unfair labor practices
Since November -10, 1964, and at all times material herein, Re-
spondents have maintained in effect a collective-bbargaining agree-
ment, effective until September 6; 1967, which covers production and
maintenance employees at those plants of Respondent Employer
located throughout the United States, including the said plant at Van
Nuys, California, containing, inter alia, the following provisions :
(92) The plants covered by this Agreement will-erect bulletin
boards which may be used by the Union for posting notices
bearing the written approval of the President of the Local
Union or the Chairman of the Shop Committee and restricted
to:
(a) Notices•of Union recreational and social affairs.
(b) Notice of Union elections.
(c) Notices of Union appointments and results of Union
elections.
(d) Notices of Union meetings.
(e) Notices concerning bona fide Union activities such as:
Cooperatives; Credit Unions; and Unemployment Compensa-
tion information.
(f) Other notices concerning union affairs which are not
political or controversial in nature.
The Union will promptly remove from such Union bulletin
boards, upon the written request of management, any material
which is libelous, scurrilous, or detrimental to the labor-
management relationship.
(93) The number, location and size of such bulletin boards in
each bargaining unit under this Agreement shall be decided by
the Local Management and the 'Shop Committee.
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(94) There shall be no other general distribution, or posting
by employees, of pamphlets, advertising or political matter,
notices, or any kind of literature upon Corporation property
other than as herein provided.
In General Motors Corporation, 147 NLRB 509, we found that
these Respondents violated Section 8(a) (1) and (b) (1) (A), respec-
tively, by maintaining a provision similar to the present paragraph
94 insofar as the contract prohibition extended to the distribution of
literature on behalf of labor organizations other than the Respondent
Union. We rested this conclusion on the reasons set forth in Gale
Products, Div. of Outboard Marine Corp., 142 NLRB 1246, where we
recognized the salutary purpose of refusing to disturb "concessions
yielded by either party through the processes of collective bargaining
even where such a concession may infringe upon rights guaranteed
employees under Section 7 of the Act." But we also pointed out
that the validity of a particular concession or waiver must depend
upon whether the interference with the employees' statutory rights is
so great as' to override any legitimate reasons for upholding the
waiver, or would unduly hamper the employees in exercising their
basic rights under the Act. Accordingly, we found in General Motors,
as in the earlier Gale Products case, that neither an employer nor an
incumbent union is entitled to attempt to freeze out another union by
waiving the employees' right to urge a change in their collective-
bargaining representative.
We must again point' out, as we did in Mid-States Metal Products
Inc. (Local 738, International Chemical Workers Union), 156 NLRB
872, that employees also have the right to completely revoke their
earlier selection of a collective-bargaining representative at an appro-
priate time, and revert to individual bargaining or no bargaining at
all.
Since we may not have adequately explicated the full sweep of our
reasoning in the earlier General Motors case, we now emphasize that
the Act commands us to protect the employees' statutory right at
appropriate times to review and reconsider their former selection of
a union as their collective-bargaining representative, either by replac-
ing it with another union or by completely abandoning collective bar-
gaining. Although enforcement was denied in the previous General
Motors Corporation case, 345 F. 2d 516 (C.A. 6), and with due
respect for the court's opinion, we nevertheless adhere to our conclu-
sion in that case, for reasons amplified herein.
We recognize fully the importance of preserving the integrity of
the, collective-bargaining contract, and of encouraging labor and man-
agement to reach an effective voluntary agreement through the proc-
GENERAL'MOTORS CORPORATION , 1727
ess of negotiation, even though- that agreement might involve a bar-
ter by the union of certain rights of the employees for the purpose of
obtaining certain benefits for them.. We -are also.keenly aware, how-
ever, of the advantage, that accrues to an incumbent union, and per-
haps to an employer, from an agreement which prohibits employees
from opposing the union by using the customary and vital channel
of communication proscribed by the contract under consideration.
This factor may be worthy of further, comment. In a case involv-
ing the same problem as this one, it has been suggested that, pre-
sumably, " ... the union obtained from [the employer]. a quid pro
quo for its assent to the clause." Armco Steel. Corporation v.
N.L.R.B., 344 F. 2d 621, 623 -(C.A..6). It may be that, in this case,
the bulletin boards which the Employer agreed to provide were, in a
sense, a quid pro quo for the Union's agreement, in paragraph 94 to
refrain from the distribution of literature, or that, perhaps, other
quid pro quo benefits were conferred. But to treat the clause as
simply the result of an arms-length transaction, as if the Union were
constrained to "assent" to a clause which. so clearly advantages the
Union (in its capacity as a union) at least as much as it serves,the
purposes of the Employer, seems somewhat unrealistic to us. The
clause has the natural, and; to-the Union, beneficient effect, of barring
disaffected -employees from contacting their fellows in ". , . the one
place where they clearly- share common, interests and where they tra-
ditionally seek to persuade fellow workers in matters affecting their
union organizational life . . ." (Gale Products, supra, at 1249). That
this interdiction furthers the organizational, interests of the incum-
bent union is unmistakably apparent.
The authority of a collective-bargaining; representative, to make ,
decisive and binding commitments on behalf of- the-, employees for
whom it speaks is undisputed and not in issue here.. But the union
and the employees are and remain separate, entities for many pur-
poses, and the employees, by once selecting the union as their repre-
sentative, do not forfeit their fundamental' right to, change their rep-
resentative at appropriate times.. When a union acts to abridge that
right in the manner presented in this case, it, is essentially benefiting
the union qua union, to the detriment of the employees.,it represents.
There surely are limits,to, a union's power to waive the individual
statutory rights of employees; a provision in a contract, however
otherwise advantageous to the employees, in which the union prom-
ised that the employees would not, during the term of the-contract,
file a, petition for decertification, would be clearly invalid. The pres-
ent effort to debar employees, in, a significant way, from their legal
right to encourage a change , of union representative similarly
infringes upon-a'right deeply rooted in the Act: the employees' free-
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dom to change their bargaining agent This attempt to impede that
free choice, unmitigated as it is by any persuasive countervailing con-
siderations, must be held invalid
The Respondents argue, however, that the decision of the Court of
Appeals for the Sixth Circuit in the earlier General Motors case is
res yudscata in this proceeding They point out that three of the
principal parties (the General Counsel, the Employer, and the
Union) are the same, and that the contract provision upon which the
present finding is based is identical to that found lawful by the court
in the prior decision We do not consider the doctrine of res 3uda-
cata to be applicable here One essential difference between the two
cases is that the no-distribution rule adjudicated in the first case was
provided for in a different contract, separate and distinct from the
one which imposes the restraint here condemned In Commassaoner
of Internal Revenue v .Sunnen, 333 U S 591, the parties, in an ear-
lier proceeding, had litigated to finality the tax consequences of a
separate contract, which was however identical in form to the con-
tracts then before the Court The Court held that where the second
proceeding involved an instrument or transaction "identical with,
but in a form separable from, the one dealt with in the first proceed-
ing," the parties are not bound by res 3udwata or collateral estoppel,
and the tribunal in the second proceeding is free to make an inde-
pendent examination of the legal matters in issue (333 UIS at 601)
In the present case, the Respondents are maintaining the no-
distribution rule under a new contract, not the old contract which gave
rise to the earlier case considered by the Court of Appeals for the Sixth
Circuit By analogy to the reasoning of the Sunnen case, it follows
that the parties are not bound by the result reached in the previous
General Motors case
Furthermore, one of the elements necessary to the application of
the doctrine of res .cdwata is that the identical parties, or their privies,
be involved in both proceedings Different charging parties have
initiated these two cases While it might be argued that the individ-
ual Charging Party in this proceeding, and all employees who are
similarly situated, are but nominal parties and were in theory repre-
sented by the General Counsel in his enforcement of the "public
right" in the first case, we take note of the recent discussion by the
Supreme Court, in International Union, UAW, Local 283 v Scofield,
382 U S 205, 218, 220, concerning the status of a charging party in a
-Board case
In prior decisions, this Court has observed that the Labor Act
recognizes the existence of private rights within the statutory
scheme These cases have, to be sure, emphasized the "public
GENERAL MOTORS CORPORATION 1729
interest" factor To employ the rhetoric of "public interest,"
however, is not to imply that the public right excludes recogni-
tion of parochial private interests
In short, we think that the statutory pattern of the Labor Act
does not dichotomize "public" as opposed to "private" interests
Rather, the two interblend in the intricate statutory scheme
An employees' freedom to express his opposition to an incumbent
union, or his support of another union, seems to us to be a particu-
larly important right, with implications of both public and private
interests, and we think that the employee should be afforded the
opportunity to oppose and to argue against an attempt by his em-
ployer and his collective-bargaining representative to dilute that
right
Accordingly, we conclude that Respondent Employer and Respond-
ent Union have violated, and are violating, Section 8(a) (1) and
(b) (1) (A), respectively, by proscribing the distribution of literature,
during nonworking time and in nonworking areas, in opposition to
Respondent Union, or in favor of or opposition to any other labor
organization
II THE EFFECTS OF THE UNFAIR LAEOR PRACTICES UPON COMMERCE
The activities of Respondents set forth above have a close, intimate,
and substantial relation to trade, traffic, and commerce among and
between the several States, and tend to lead to industrial strife bur-
dening and obstructing commerce
III THE REMEDY
Having found that Respondent Employer and Respondent Union
violated and are violating Section 8(a) (1) and (b) (1) (A) of the
Act, respectively, by maintaining in effect the provision described
above, we shall order that they cease and desist from maintaining,
giving effect to, or enforcing said provision However, we believe
that in the circumstances of this case it will not be necessary in order
adequately to remedy the aforesaid unfair labor practices that Re-
spondents be required to post the customary notices General Motors
Corporation (Buzek-Oldsmobile-Pontiac Assembly Division) etc, 147
NLRB 509, 513
CONCLUSIONS OF LAW
1 General Motors Corporation is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
221-731-67-vol 158-110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW-AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent Employer and Respondent Union, by maintaining
in effect a collective-bargaining agreement prohibiting the distribu-
tion of literature in opposition to Respondent Union, or in behalf of
or in opposition to any labor organization other than Respondent
Union, during nonworking time in nonworking areas of the Employ-
er's property, violated and are violating Section 8(a) (1) and (b) (1)
(A) of the Act, respectively.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby orders that
the Respondent , General Motors Corporation, Van Nuys, California,
its officers , agents, successors , and assigns, and Respondent Interna-
tional Union , United Automobile , Aerospace and Agricultural Imple-
ment Workers of America , UAW-AFL-CIO, its officers , agents,
and representatives , shall:
1. Cease and desist from maintaining , giving effect to, or enforcing
any provision of a collective bargaining agreement which prohibits
any employee from distributing literature in behalf of any labor
organization other than the contracting labor organization or distrib-
uting literature in opposition to any labor organization where, in
either case , the activity occurs in nonworking areas on nonworking
time.
2. Notify the Regional Director for Region 31, in writing , within
10 days from the date of this Decision and Order , what steps have
been taken to comply herewith.
CHAIRMAN MCCULLOCH AND MEMBER JENKINS took no part in the
above Decision and Order.
The Rushton Company and International Union of District 50,
United Mine Workers of America. Case No. 10-CA-6178.
June 9, 1966
DECISION AND ORDER
On February 18, 1966, Trial Examiner Lowell Goerlich issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices within
158 NLRB No. 151.