General Motors Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 168 (N.L.R.B. 1979)

168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Motors Corporation, Frigidaire Division and
Seth B. Goldberg and International Union of Elec-
trical, Radio and Machine Workers and its Local
No. 801, AFL-CIO-CLC, Party to the Contract.
Case 9 CA 11630
January 24, 1979
DECISION AND ORDER
B. CHAIRMAN FANNINO AND MEMBERS JNKINS
ANi) MUIRPIHY
On September 5, 1978, Administrative Law Judge
Charles W. Schneider issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Boar(: has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the reccrd and the at-
tached Decision in light of the limited exceptions and
brief and has decided to affirm the rulings, findings,'
and conclusions of the Administrative Law Judge
and to adopt his recommended Order which has
been modified in certain respects.2
ORDER
Pursuant to Section IO(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Motors Corporation, Frigidaire Division,
Dayton, Ohio, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Maintaining any collective-bargaining provi-
sion which prohibits employees from soliciting union
membership or dues during nonworking time on be-
half of International Union of Electrical. Radio and
Machine Workers, AFL-CIO CLC. and its local
unions, or any other labor organization.
(b) In any like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Delete from paragraph (6) of the collective-
bargaining contract the provision prohibiting solici-
tation of employees.
(b) Post at all plants covered by the collective-bar-
gaining agreement copies of the attached notice
marked "Appendix." Copies of said notice, on
forms provided by the Regional Director for Region
9, after being duly signed by Respondent's author-
240 NLRB No. 20
ized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
I he Administrative l.aw Judge's finding that par. 6 of the collective-
bargaining agreement violates Sec. 8(a)(l) of the Act is adopted In the ab-
sence of eceptions. Chairman Fanning and Member Jenkins do so for the
reasons stated in their dissenting opinion in Es.se. International, Inc.. 211
NLRB 749 1974).
Member Jenkins agrees lith his colleagues that par. 58(a) of the collec-
tive-bargaining agreement relates only to posting. However. he would find
the prohibition against postings on company property violative of Sec
(a)( ). See Gen'ral Moiors (orporution (Cheirolet Engineering (enter), 212
NIRB 133. 134 135. fn 2(1974)
[ he Administratise .as Judge inadvertently failed to include in his
O()r:- and notice the narrow cease-and-desist provision appropriate for an
8(a I1) iolallon of this itpe. We shall therefore m,di f his Order and notice
acc. rdingly
In the event that this Order is enforced hb a judgment of a United States
( io ir of Appeals, the words in the notice reading "Posted b Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judg-
meilt of the United States (Court .of Appeals Enforcing an Order of the
National Laor Relations Board."
APPENDIX
Noirlc( To EPILOYEE S
POS I l) BY ORDI)R (): I lF
NA I IONAI L.AB()R R.AI IONS BOARD
An Agency of the United States Government
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us o post this notice and we intend
to abide by the following.
Wi wl, Li NOr maintain any collective-bargain-
ing provision which prohibits you from soliciting
union membership or dues during nonworking
time on behalf of International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO-
CLC, and its Local Unions, or any other labor
organization.
WT wll. N in any like or related manner
interfere with, restrain, or coerce you in the ex-
ercise of your rights guaranteed by Section 7 of
the National Labor Relations Act, as amended.
Wt: Wll.. remove from paragraph (6) of the
collective-bargaining agreement the provision
prohibiting solicitation of employees.
GENERAI. MOrORS CORPORATION.
FRIGIDAIRE. DIVISION
GENERAL MOTORS CORPORATION 169
DECISION
STATEMENT OF THE CASE
CHARLES W SCHNEIDER, Administrative Law Judge: On
August 5, 1977, Seth B. Goldberg, the Charging Party, filed
the instant unfair labor practice charge against Frigidaire
Division of General Motors Corporation, Respondent,
pursuant to the National Labor Relations Act, as
amended, 29 U.S.C. § 151, et seq. On September 14, 1977.
the Regional Director for Region 9 of the Board (Cincin-
nati, Ohio) issued a complaint on the charge and on Sep-
tember 27, 1977, an order amending complaint, alleging in
substance that Respondent had committed unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
Service of the charge, the complaint, and the amendment
thereto was made on Goldberg, Respondent General Mo-
tors Corporation. International Union of Electrical, Radio
and Machine Workers and its Local No. 801, party to the
contract, referred to herein as the IUE, and on District 7 of
the International Union.'
On September 22, 1977, General Motors Corporation
filed an answer to the complaint, and on October 6, 1977.
an answer to the order amending complaint, in which it
denied the allegations of unfair labor practices. The com-
plaint was also amended on January 20, 1978, and again at
the hearing. The final allegations, involving only Section
8(a)(1), are stated infra.
Pursuant to notice, a hearing was held before me at Day-
ton, Ohio, on March 20, 1978. The Charging Party, the
General Counsel, Respondent, and the IUE appeared at
the hearing. All parties who appeared were afforded full
opportunity to be heard, to introduce and to meet material
evidence, and to present oral argument and file briefs.
Briefs were filed by the General Counsel and by Respon-
dent on May 22, 1978.
Upon consideration of the entire record and the briefs, I
make the following:
corporation organized under and existing by virtue of the
laws of the State of Delaware. Respondent is engaged in
the manufacture of electrical appliances at its facility in
Dayton, Ohio. During the past year, Respondent pur-
chased goods valued in excess of $50,000 directly from
firms outside the State of Delaware. Respondent is, and
has been at all times material herein, an employer engaged
in commerce within the meaning of Section 2(2), (6). and
(7) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether or not the index of the current collective-
bargaining agreement, coupled with paragraph 58(a) to
which the index refers, violates Section 8(aX1) of the Act.
2. Whether or not paragraph 6 of the agreement violates
Section 8(a)(1) of the Act.
B. The Facts
On December 10, 1976, Respondent, and the IUE and
the latter's locals, entered into the collective-bargaining
ag: ement referred to in footnote 1, supra. The agreement
is effective through September 14, 1979. As far as material
he,e, this agreement contains the following provisions:
Index
Distribution, or Posting of Literature par. 58(a), p. 60
Literature, Posting or Distribution of par. 58(a), p.
60
Posting, or Distribution of Literature-par. 58(a), p.
60
FINDINGS OF FACT
I HE BUSINESS OF THE COMPANY
General Motors Corporation, Frigidaire Division, Re-
spondent, is and has been at all times material herein, a
The contract nvolved describes the parties to the agreement as follow,
the Delco Products Division (Kettering. Ohio). Delco Air ( ondl-
tioning Division. Frigidaire Division. Delco Products D[ivlsion (Roch-
ester, New York). Packard Electric D)ivision and Delco-Rem 5 Di ision
(New Brunswick. New Jersey) of General Motors ('orporation. herein-
after referred to as the "Corporation". and the International ni,on of
Electrical. Radio and Machine Workers. AFI. (10 Cl.C. and its t.o-
cal Unions 717 (Warren. Ohio). 755 and 801 (Dayton, Ohio). 509
(Rochester. New York). and 416 (New Brunswick, New Jersesl. herein-
ifter referred to as the "I nion."
The Union is a labor organization The record does not disclose hatll
District 7 is. or the nature, if an., of Its insol.ement in the problem. There
is no indication of service of process on Locals 416. 717. or 755. No issue is
raised in that regard.
6. The Union and its members will not intimidate or
coerce any employe in regard to his right to work or in
respect to union activity or membership. There shall
be no solicitation of employes for union membership
or dues on Company time. Any employe who feels
that he has been unjustly disciplined for violation of
this provision may take the matter up through the
Grievance Procedure and provisions under the Section
regarding Disciplinary Layoffs and Discharges. [p. 101
Paragraph 6 has existed in identical form in a number of
past collective-bargaining agreements between Respondent
and the IUE going back at least to 1967: The agreement
also contains the following provisions.
UNION BULLETIN BOARDS
57. The plants covered by this Agreement will erect
bulletin boards which may be used by the Union for
posting notices approved by the local Managements
and restricted to:
GENERAL MOTORS CORPORATION 169
* *
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Notices of Union recreational and social af-
fairs,
(b) Notices of Union elections,
(c) Notices of Union appointments and results of
Union elections,
(d) Notice of Union meetings,
(e) Other notices concerning bona fide Union ac-
tivities such as cooperatives, credit unions and un-
employment compensation information.
58. 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.
58(a). There shall be no other posting by employes,
of pamphlets, advertising or political matter, notices,
or any kind of literature upon Corporation property
other than as herein provided. [p. 60]
Paragraph 58(a), in altered form, was carried over from
the prior contract, where it contained a clause forbidding
general distribution of material.2 That predecessor clause,
or similar ones, were found unlawful by the Board in a
number of cases, 3 and was amended during the 1976 nego-
tiations to its present form.
Since 1964 Respondent has maintained and posted in
the plants covered by the contracts, the following shop
rules prohibiting the following conduct:
17. Unauthorized soliciting or collecting contribu-
tions for any purpose whatsoever during working time.
18. Unauthorized distribution of literature, written
or printed matter of any description in working areas
on Company premises during working time.
C. Conclusions
Absent a showing of special circumstances, a rule or
contractual provision proscribing, or susceptible of inter-
pretation that, union-related solicitation or distribution of
union-related literature is prohibited during nonworking
time is presumptively invalid under the National Labor
' Thus, the predecessor of par. 58(a) provided as follows:
There shall be no other general distribution, or posting hy emploes. of
pamphlets, advertising or political matter. notices, or any kind of lihtera-
ture upon Corporation property other than as herein provided
The italicized words were deleted in the 1976 contract.
1See, e.g.. General Motors Corporalion et al.. 147 NLRB 509 (1964). et
aside 345 F.2d 516 (6th Cir. 1965): General Motors Corporation. et al. 158
NLRB 1723 (1966). enforcement denied 381 F2d 265 (9th Cir. 1967}: Th:
Magnavox Company of Tennessee, 195 NRB 265 (1972). 415 U.S. 322
(1974): General Motort Corporation, 211 NLRB 986 11974), and General
Motors Corporation ((hevrolet Engineering Center), 212 NLRB 133 (1974).
both enfd. as modified 512 F.2d 447 (6th Cir. 19751.
For a more detailed history of the development of BHoard law respecting
clauses and rules of these kinds. some of it litigation involving Respondent,
see also the following additional cases: North American Aviation, Inc. 56
NLRB 959, fn. 2 (1944); The May Department Stores Co.. et atl. 59 NLRB
976 (1944): Gale Product.. Div. of Outboard Marine Corp., 142 NL R B 1246
(1963). enforcement denied 337 F.2d 390 (7th Cir. 1964): Chevrolet otor
Division. General Motors Corporation, 144 NLRB 862 (1963): Armco Steel
Corporation. 148 NLRB 1179 (1964). enforcement denied 344 F.2d 621 (6th
Cir. 1966).
Relations Act. N.L.R.B. v. Magnavox Company of Tennes-
see, 415 U.S. 322 (1974); Essex International, Inc., 211
NLRB 749 (1974). Special circumstances have been recog-
nized where there is a compelling employer interest in
plant security or in the maintenance of production and
discipline. Magnavox, supra. Ambiguous rules may likewise
be invalid. Farah Manufacturing Company, Inc., 187 NLRB
601, 602 (1970). Facially invalid rules, as well as overly
broad or ambiguous ones, to be vindicated, require an em-
ployer to show by extrinsic evidence that the rule was com-
municated or applied in such a way as to convey a clear
intent to permit the appropriate activity during periods
when employees are not actively at work. Essex Interna-
tional, supra. Accord: WIPO, Inc., 199 NLRB 649 (1972);
Hyland Machine Company, 210 NLRB 1063 (1974).
That the prohibition may be contained, or have its origin
in, a collective-bargaining contract is not a defense. The
right to solicit and to distribute on subjects of statutorily
protected interest at proper times and places is one guaran-
teed by the Act, which the bargaining representative has no
authority to waive. As the Supreme Court said in the Mag-
navox case (415 U.S. at 325-326):
So long as the distribution is by employees to employ-
ees and so long as the in-plant solicitation is on non-
working time, banning of that solicitation might seri-
ously dilute §7 rights. For Congress declared in §1 of
the Act that it was the policy of the United States to
protect "the exercise by workers of full freedom of
association, self-organization, and designation of rep-
resentatives of their own choosing." 29 U.S.C. §151.
1. The index and paragraph 58(a) of the contract
The General Counsel's contention in this respect is that,
by reason of the wording of the index, paragraph 58(a)
applies to the distribution of literature--or at least would
lead employees reasonably to conclude that it did-and
that, thus read, it purports to prohibit the distribution of
any literature not specifically permitted. Such a prohibi-
tion, the contention continues, would include material
whose distribution is statutorily protected. Alternatively,
the General Counsel contends that, at best, the index
makes paragraph 58(a) ambiguous, thus tending to restrain
employees in the exercise of distribution rights.
Respondent's contention is that paragraph 58(a) applies
only to posting, and not to distribution. In addition, Re-
spondent indicates a willingness to eliminate the distribu-
tion references in the index and not to enforce paragraph
58(a) as a distribution rule.
On its face paragraph 58(a) is applicable only to posting,
and not to distribution. It appears in a section of the con-
tract related to the use of union bulletin boards in the
plants and the nature of material to be posted. References
in the index to paragraph 58(a) as relating to distribution
are presumably inadvertent carryovers from the prior con-
tract, in which paragraph 58(a) contained a restriction on
distribution. Though the index in that respect is inaccurate,
the error does not seem so egregious or substantial as to
restrain or coerce employees. The index on its face does
not state an unlawful rule. The rule as stated is not unlaw-
GENERAL MOTORS CORPORATION 171
ful. The combination of two legitimate expressions seems
unlikely to produce an illegitimate one. Even if a reading
of paragraph 58(a) is preceded by a reading of the index,
paragraph 58(a) will not support an interpretation that it
relates to distribution, as well as to posting. The possibility
that, because of the juxaposition of the index and the rule.
an employee would reasonably construe paragraph 58(a) to
forbid distribution of literature, seems remote. It appears
more probable that he would dismiss it as obvious error. It
is therefore concluded that the General Counsel's conten-
tion in this respect is unsupported, and found that mainte-
nance of the index is not violative of Section 8(a)( I).
However, to preclude all possibility of misunderstand-
ing, it is in order for Respondent, as it has indicated, to
eliminate the references in the index to paragraph 58(a) as
involving distribution. Under the circumstances, continued
retention of the index references might lead to future con-
tentions that they were allowed to remain in order to take
advantage of any fortuituous fallout resulting from appre-
hensions of uninformed or overly cautious employees, and
thus might provoke unnecessary litigation.
2. Paragraph 6 of the contract
A different conclusion follows, however, with respect to
paragraph 6 of the contract. We have seen that an employ-
ee is free, in the absence of special circumstances, to en-
gage in union solicitation and distribution on nonworking
time in nonworking areas. An employer may therefore pro-
hibit such activity during "working time". He may not.
however, forbid it during "work hours." unless he clarifies
the phrase to make clear that it refers to work "time." since
work hours may be understood to mean any time that work
is being performed in the plant. Essex International. Inc.,
211 NLRB 749; Eastex, Incorporated, 215 NLRB 271
(1974).4
The Board has held that the phrase used in paragraph 6.
"Company time." is ambiguous, susceptible of broader in-
terpretation impinging on protected rights, and, in the ab-
sence of evidence that it is necessary to maintain discipline
or production, violative of Section 8(a)(1). Florida Steel
Corporation, 215 NLRB 97 (1974), and cases there cited.
No such evidence was introduced here. Thus, in the Florida
Steel case the Board said, supra at 98-99:
[T]he term "company time," like "working hours" is
unduly ambiguous and tends to connote all paid time
from the beginning to the end of the work shift, and
can easily be interpreted as a restriction on solicitation
4 As the Board said in the ZEe case. lupra ilt 750:
The term "working hours" connotes the period of time front the hegiln-
ning to the end of a orkshift. B contrast. he term "uorking
time" or w"ork time" connotes the period of ime that is spent in the
performance of actual job duties, uhich would not include lime allted
for lunch and break periods.
In light of the above distinction. v e hall consider rules hich pro-
hibit solicilatllon or disribution during "working time" or w"ork tiime"
to he valid on heir face. On he oiher hand, those rules hiLh prohibit
solicitatlon or distribution during "orking hours." uless their ini pait
on lunch and breaktime is clarified, undulh restrict emploees' right,
under Secteior 7 of the Act t engage in unllion sclcitlatlion or dli'trihi-
tion during their nns,,rArlng Inlt'
during breaktime or other periods when employees are
compensated although not actively at work.
See also N.L.R.B. v. Florida Medical Center. Inc., dhb a
Lauderdale Lakes General Hospital, 576 F.2d 666 (5th Cir.
1978), 98 LRRM 3144; KDI Precision Product.s, Inc., 185
NLRB 335 (1970).
Respondent contends that paragraph 6 is not to be so
construed, for several reasons: (I) that it is applicable only
to the IUE-a contention in which it is supported by the
IUE., (2) that the solicitation provision of paragraph 6 has
never been invoked, (3) that the provision can have no real
application since employees are required to maintain mem-
bership in the IUE and to pay union dues, and (4) that
Shop Rules 17 and 18. quoted supra, page 5 (which the
General Counsel concedes comply with Board law), make
it clear that solicitation, collecting contributions, and dis-
tributing literature are prohibited only during "working
time." I do not find those assertions to constitute a defense.
Whatever the intent of Respondent and the IJUE to con-
fine the prohibitions of paragraph 6 to the IUE and to
activity on its behalf, the provision is not so worded, and
cannot be so read. It will be noted that the word "union" is
not capitalized in paragraph 6. whereas in other portions of
the contract, the bargaining representative is referred to as
the "Union." Secondly, even if the language of the contract
were confined to members of the IUE, or to efforts on its
behalf, the restriction would be invalid. As the Supreme
Court said in the case of Magna'o.r of Tennessee (415 U.S.
at 26):
[Llimitation of the right of in-plant distribution of lit-
erature to employees opposing the union does not give
a fair balance to §7 rights. as the Board ruled in the
present case. For employees supporting the union
have as secure §7 rights as those in opposition.
See also, General Motors Corporation, 211 NLRB 986, 988.
No reason appears to distinguish between solicitation and
distribution as to their legalit .
Thus, the statutory rights of employees in a bargaining
unit may not be circumscribcd thcc respects by a collec-
tive-bargaining agent, at least in the absence of demon-
str,.ted cause. That the rule has never been invoked is not a
defense, since its verv existence tends to restrain employees
in the exercise of the statutory right. Eastex, Inc., 215
NLRB 271, and cases there cited. A similar contention bh
respondent in the analogous case of General Motors Corpo-
ration, 212 NLRB 133. enfd. as modified 512 F.2d 447, was
not found there to be sustained.
As to Shop Rules 17 and 18: Shop Rule 18 appears to be
inapposite to the instant problem since it does not deal
with solicitation which is the subject of paragraph 6. but
with distribution of literature. And while Shop Rule 17
does not forbid employees to solicit and to collect contri-
butions on nonworking time, that fact does not cure the
infirmity in paragraph 6. If the employee reads paragraph 6
only. he will be restrained: if he reads paragraph 6 and
Shop Rule 17 together, he will find them basically inconsis-
It aIppears that pr r3 i i s ha~c h.ad it, oriepl it .1 Itllnc hll the co-
tract co lt.aine d no unlr-lll ecurlt proslsion Ihe teslll in i tdilc.lte, that in1
ncecotl.ltlOiS in 1970 the It I Ullsucccsfull propo.sed icitio .tl of the entre
p.lra.gr.lph on the thcor, thal Itl Tl! lnger ecreed 1 scful purpo-sc
GENERAL MOTORS CORPORATION
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tent, thus leaving the situation ambiguous. Since "the risk
of ambiguity must be held against the promulgator of the
rule rather than against the employees who are supposed to
abide by it," 6 it follows that Shop Rules 17 and 18 do not
remedy the invalidity of paragraph 6 of the contract. The
ambiguity found here is to be distinguished from that as-
sertedly found in the situation involving the index. In the
latter case, neither the index nor paragraph 58(a) state or
suggest an improper prohibition. In the instant case para-
graph 6 plainly states an improper prohibition. 7
6Farah Manufacturing Companv, 187 NLRB 601, 602.
In General Motors Corporation, 211 NLRB 986. a shop rule identical
with Shop Rule 17. and in General Motors Corporation, 212 NLRB 133. rules
identical with Shop Rules 17 and 18 were found by the Board to be valid on
their face. In the instant case, the General Counsel introduced evidence
designed to show that Shop Rule 18, relating to distribution, was given a
broader construction by Respondent than it facially imports. The purpose
of this evidence was to negate the Respondent's contention that the facial
validity of Shop Rules 17 and 18 cured any infirmity found in paragraph 6.
Since the General Counsel's evidence involves distribution. and not solicita-
It is consequently found that paragraph 6 is interpretable
as prohibitng solicitation of employees for union member-
ship or dues on nonworking time, and thus construed is
violative of Section 8(aXI) of the Act.
REMEDY
Having found that, by prohibiting the solicitation of em-
ployees for union membership or dues on nonworking
time, Respondent has engaged in unfair labor practices vi-
olative of Section 8(aXI) of the Act, it will be recom-
mended that Respondent (1) cease and desist therefrom,
(2) delete from section 6 of the collective-bargaining con-
tract the provisions prohibiting solicitation of employees,
and (3) post appropriate notices to all facilities covered by
the collective-bargaining agreement. These actions are nec-
essary to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
tion. it is not apposite to the present problem. The validity of the alleged
broader construction was the subject of a settlement agreement between the
parties in Case 9-CA-11678.