McDonnell Douglas Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1971

194 N.L.R.B. 514 (N.L.R.B. 1971)

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McDonnell Douglas Corporation and Technical Em-
ployees of Aerospace Manufacturers. Case
14-CA-5823
December 14, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On April 29, 1971, Trial Examiner Louis Libbin
issued his Decision in the above-entitled proceeding,
finding that 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,
Respondent filed exceptions with a supporting brief
to the Trial Examiner's Decision.
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
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner2 with the following additions and
modifications.
1. In adopting the Trial Examiner's conclusions
regarding the Masterson incident, we rely particularly
on the facts that Masterson was attempting to
distribute TEAM literature only in a nonwork area,
the parking lot, which was outside the security
perimeter, and there is no showing that such conduct
interfered in any fashion with the orderly movement
of traffic in the parking lot or otherwise interfered
with production, discipline, or security.
2. We agree with the Trial Examiner's conclusion,
for essentially the reasons on which he relies, that the
Respondent's no-distribution and no-solicitation
rules, as interpreted and applied in the context of this
case, unlawfully interfered with employee rights in
violation of Section 8(a)(1) of the Act. We particularly
agree that the Respondent has not established
sufficient justification for limiting employee exercise
of the well-established statutory rights to distribute
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F 2d 362 (C.A. 3) We have carefully examined the record and
union literature and engage in union solicitation to
some vague, undefined, and unexpressed
"reasonable" period, or for treating employees at
other times as nonemployees. In agreeing with the
Trial Examiner in this respect, we do not hold,
however, that such employee rights are necessarily
unlimited at all times and in all places.
As noted by the Trial Examiner, the Respondent is
concerned with problems involving security, traffic,
and littering. These are unquestionably legitimate
concerns and Respondent, in attempting to resolve
these problems, seeks to exercise its right to control
the use of its own property. As noted, however, a
result of Respondent's attempted solution has been an
interference with employee efforts to exercise well-
established employee rights granted by the Act. In
cases such as this, where two well-established rights
are in conflict, it is the duty of the Board to seek a
solution which results in an "accommodation be-
tween the two . . . with as little destruction of the one
as is consistent with the maintenance of the other." 3
The Respondent's announced rule is, in our opin-
ion, unnecessarily destructive of employee rights
because it is so vague that employees cannot know
what they may and may not do, and because the rule
can be and has once been interpreted so as virtually to
preclude the exercise of established employee rights.
On the other hand, we believe the Trial Examiner's
recommended Order is too broad because it may be
interpreted to preclude adoption and promulgation
by the Respondent of reasonable rules designed to
implement its legitimate concerns.
We believe an appropriate accommodation can be
achieved between the Respondent's right to control
the use of its property and the employees' statutory
rights, specifically in this case, their right to distribute
union literature and engage in union solicitation on
Respondent's premises.4 Such an accommodation
would require, in our opinion, that any rules which
Respondent may establish governing the use of its
property, which infringe upon the employee rights
here involved, shall be made known to the employees
and be framed in such language that the employees
can clearly understand what is expected of them, and
shall not infringe upon such rights to any greater
extent than is necessitated by Respondent's legitimate
interest in such matters as security, traffic, and
littering.
We shall, accordingly, frame our Order in the light
of these considerations.
find no basis fof reversing his findings
2 The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions , and the brief adequately present the
issues and the positions of the parties.
3 N.L.R B v The Babcock & Wilcox Company, 351 U S. 105, 112.
4 See Stoddard-Quirk Manufacturing Co, 138 NLRB 615.
194 NLRB No. 75
McDONNELL DOUGLAS CORP. 515
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby Orders that Respondent
McDonnell Douglas Corporation, St. Louis, Missouri,
its officers , agents, successors , and assigns, shall:
1. Cease and desist, except as Respondent can
establish it is necessary to maintain production,
discipline, or security, from:
(a) Interfering with the rights of its employees to
distribute literature on behalf of Technical Employees
of Aerospace Manufacturers, or any other labor
organization, on its parking lots during nonworking
time.
(b) Promulgating, maintaining, and giving effect to
any rules which limit its employees' rights to distrib-
ute literature on its premises during nonworking time
in nonwork areas, or to engage in union solicitation
on its premises during `nonworking time unless the
limitations imposed on such activity can be justified
by Respondent as necessary to maintain production,
discipline, or security.
(c) In any like or related manner interfering with,
restraining, and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Revoke and withdraw its existing no-distribution
and no-solicitation rules to the extent that they
purport to classify employees as nonemployees for the
purpose of applying and enforcing such rules, or
infringe upon employee rights with respect to union
solicitation or distribution of union literature to any
greater extent than Respondent can establish is
required in order to maintain production, discipline,
or security.
(b) Inform its employees that they are free to engage
in the distribution of union ' literature in nonwork
areas of its premises, during nonworking time, and to
engage in union solicitation on its premises, during
nonworking time, except to the extent such activities
violate published rules justified by considerations of
production, discipline, or security.
(c) Post at its Lambert Airport plant in St. Louis,
Missouri, copies of the attached notice marked
"Appendix." Copies of said notice, on forms provided
by the Regional Director for Region 14, after being
duly signed by Respondent's authorized representa-
tive, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.5
MEMBER KENNEDY , concurring in part and dissenting
in part:
I agree with the conclusion of my colleagues that
Respondent, by prohibiting its employee, Boyd
Masterson , from distributing union literature on
Respondent's parking lot about' half an hour before
the commencement of his shift violated Section
8(a)(1) of the Act and that a remedial order is
appropriate . Respondent has not challenged the
finding of a violation made by the Trial Examiner
and, in fact, has conceded the violation; however, it
has taken the position that the Masterson incident is
no longer in issue in that it has taken steps to avoid the
recurrence of a similar incident.
I disagree with my colleagues, however , in their
conclusion that Respondent's no-distribution and no-
solicitation rule interferes with employee rights,in
violation of Section 8(a)(1) of the Act. In finding a
violation, my colleagues have concluded that (1)
Respondent has not established sufficient justifica-
tion for limiting°the right of its employees to distribute
union literature and engage in union solicitation and
(2)' Respondent's announced rule is "unnecessarily
destructive of employee rights because it is so vague
that employees cannot know what they may and may
not do, and because the rule can be and has once been
interpreted so as virtually to preclude the exercise ' of
established employee rights." The reference of my
colleagues to a prior interpretation of the rule is
undoubtedly to the Masterson incident. In my
opinion, the findings and conclusions of my col-
leagues in this regard are based on a faulty and
incomplete view of the controlling facts and are
erroneous.
The Trial Examiner found, with record support,
that the Masterson incident occurred on September
17, 1970 , Respondent's memorandum which dealt
with the subject of distribution of literature and union
solicitation was not prepared and distributed until
September 21, 1970. Respondent's director of security
did not issue and distribute the memorandum to the
guards and post it on the guards' bulletin board in the
locker room where maintenance and cleanup employ-
ees could also see it until September 25, 1970. This
memorandum, which was also distributed to various
high ranking officers of Respondent, set 'forth
5 In the event that this Order is enforced by a Judgment of a United changed to read "POSTED PURSUANT TO A JUDGMENT OF, THE
States Court of Appeals, the words in the notice reading "POSTED BY UNITED STATES COURT OF APPEALS ENFORCING AN ORDER
ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be OF THE NATIONAL LABOR RELATIONS BOARD "
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's policy of prohibiting employee distribu-
tion of union literature during nonworking time in
nonwork areas of Respondent's premises except "for
a reasonable time before or after their shifts." Thus,
since the Masterson incident preceded the publication
of the rule there is no basis for my colleagues'
conclusion that the Respondent's rule here under
consideration was interpreted to preclude the exercise
of protected employee rights.
Turning to consideration of the rule on its face, my
colleagues agree that Respondent has a right to
control the use of its property and that in the instant
case Respondent had a legitimate concern with
problems involving security, traffic, and littering.
They hold, however, that Respondent's attempted
solution of these problems by limiting the exercise of
employee rights to a "reasonable period" before or
after employees' scheduled working hours has result-
ed in interference with employee efforts to 'exercise
rights guaranteed by the Act. In their Decision and
Order here, my colleagues require Respondent to"
revoke and withdraw its'existing no-distribution and
no-solicitation rule to the extent that it purports to
classify employees as nonemployees for the purposes
of applying and enforcing such rule or infringes on
employee rights with respect to union solicitation or
distribution of union literature to any greater extent
"than Respondent can establish is required in order to
maintain production, discipline, or security." The
Decision and Order thus concedes Respondent's right
to limit by "published rules justified by considerations
of production, discipline, or security" the right of
employees to engage in the distribution of union
literature in nonwork areas of its premises during
nonworking time and to engage in union solicitation
on its premises during nonworking time.
As is plain from the foregoing, my colleagues, in
condemning Respondent's rule on the ground that it
is "so vague" and undefined "that employees cannot
know what they may and may not do," have
committed the very sin they purport to correct by
framing their order in the "vague" terms of
"published rules justified by considerations of prod-
uction, discipline, or security" for they fail to indicate
what would constitute justification for such rules or
why Respondent's concern with such matters as
security, traffic, and littering reflected by its present
rule is not "justified." Nor do my colleagues indicate
when, to whom, and in what manner Respondent
"can establish" that its rules are justified.
As I view it, Respondent's rule is a reasonable
published regulation supported by legitimate consid-
erations. In my opinion Respondent, in limiting the
rights of its employees to engage in union solicitation
and distribution of union literature, and limiting their
presence on the plant premises to a reasonable period
of time before or after their scheduled working hours,
has shown ample justification therefor. At the St.
Louis Lambert Field complex here involved, Respon-
dent manufactures aircraft and various types of
aerospace vehicles and engages in the performance of
other special projects for various governmental
agencies. Its plant is guarded by a 7-foot fence topped
with three strands of barbwire which defines the outer
limits of its property and forms the first line in its
security perimeter. Within the outer security perime-
ter there is an inner security perimeter formed by the
same type of fence and building walls. Respondent's
operations are carried on in a great number of
buildings scattered over 500 acres. The entire area is
divided generally into two large tracts. Respondent
there currently employs approximately 31,000 people.
Each building is adjacent to parking lots which
accommodate in the aggregate approximately 18,000
automobiles.
Normally, Respondent's operation has three shifts.
There are approximately 25,000 people employed on
the first shift, which commences at 7 a.m.; 5,000 more
employees on the second shift; and between 800 and
1,000 people employed on the third shift. All
employees are required to wear a badge about the size
of a playing card, which reflects on its face the
employee's picture, department, clock number, and
governmental security clearance or classification.
Some employees have high security classifications,
such as confidential, top secret, intelligence,- or
cryptographic. The badge identifies each person as an
employee of Respondent and has a surface perforated
with computer punchcard type holes which, when
inserted into an electrical reader , similar to a
timeclock, transmits to a central computer the fact
that the employee, by clock number, is in the plant
and the time of his entry and departure. There are
approximately 20 separate badge categories, and no
person enters the inner security perimeter without a
badge. A visitor without prior clearance must first
obtain a visitor's badge, which is worn at all times,
and only then, and if he is being escorted by an
appropriate McDonnell Douglas employee, will he be
permitted past the interior perimeter checkpoints.
As a contractor for the U.S. Department of
Defense, Respondent, manufactures .fighter planes
and various types of missiles and is responsible for
other special projects for various defense agencies.
Respondent also undertakes projects for the- National
Aeronautics & Space Administration, the Defense
Intelligence Agency, the National Security Agency,
and various intelligence agencies within the three
military service branches. By the nature of its work,
Respondent is subject to and is required to comply
with the provisions of the Department of Defense
Industrial Security Manual. Respondent's security
McDONNELL DOUGLAS CORP. 517
problems run the spectrum of espionage, property
protection, people control, robbery, vandalism, and
others. Approximately every 90 days, Respondent is
inspected by the Defense Contract Administrative
Services Region to determine whether Respondent is
performing in accordance with the regulations pre-
scribed in the Department of Defense Industrial
Security Manual. Similar inspections are made by the
C.I.A., the Defense Intelligence Agency, and the Air
Force Intelligence unit. Occasionally, representatives
from these agencies will, without advance notice to
Respondent, attempt to penetrate the security perime-
ter to Respondent's facility to test the effectiveness of
the security measures taken by Respondent.
Respondent disseminated, on September 25, 1970,
to its guards and on September 21, 1970, to its
supervisory personnel, memoranda concerning the
permissible limits of solicitation and distribution of
literature on the premises of its Lambert Field facility.
In order to control the access which employees had to
sensitive areas and materials, as well as for the
security of, all property located on Respondent's
premises, and to provide for general orderliness,
Respondent deemed it necessary to treat its employ-
ees as nonemployees beyond a reasonable period
before and after the shift on which they worked.
Respondent's Director of Security Rutherford testi-
fied that Respondent's business-manufacture and
development of weapons, weapons systems, and
special projects for the intelligence gathering agencies
of the government-considered in the light of the
"present day enviroment" was fraught with security
problems. Considered particularly significant were
numerous bomb threats, acts of violence, and civil
disorders, which were deemed a source of particular
concern in terms of the need for Respondent to
protect itself against such eventualities. Respondent's
Labor Relations Manager Flynn summarized the
need for the rule restricting the presence on the plant
premises of employees to a reasonable period of time
before and after their shift when he credibly testified:
... [T}here is no supervisor around there to
supervise people who don't have business in the
place. There are areas in the plant where people
store tools that are subject to be stolen, there are
offices that can be entered, there are almost 6,000
security containers that would be available to
people wandering around the plant, the opportuni-
ties of mischief, of security violations are absolute-
ly unlimited, we cannot have hundreds of people
politically campaigning on the second shift or
third shift because there is no way that we can
control where they are, we don't have a guard to
send to everyone, that is basically our problem,
people control.
Thus, it is plain that Respondent's rule was supported
by legitimate considerations.
In my view, the rule promulgated by the Respon-
dent on September 21, 1970, permits employees a
reasonable period of time before and after their shift,
i.e., a period of time as may fairly, justly, and
reasonably be required, to solicit or distribute union
literature in nonwork areas during nonworking times.
The rule does not prohibit or restrict the type of
conduct engaged in by Masterson, on the afternoon of
September 17, 1970, and Respondent so concedes.
Most employees of Respondent arrive at the plant
within the half hour preceding their shift and depart
within the half hour following the conclusion of the
shift. The right of the employees to engage in
solicitation and distribution is not restricted by the
rule during the period of time when contact with
fellow employees is most available ; i.e., during shift
changes. Thus , I am unable to agree with the Trial
Examiner's and my colleagues' conclusions that the
rule "obviously unduly inhibits and circumscribes the
employees' exercise of their guaranteed rights." Cf.
Diamond Shamrock Co. v. N. L. R. B., 443 F.2d 52 (C.A.
3); N. L. R. B. v. Great Atlantic & Pacific Tea Company,
277 F.2d 759 (C.A. 5).
Since I am of the view that Respondent's rule is not
so vague or indefinite as to deprive Respondent's
employees of the exercise of rights guaranteed and
protected by the Act and, in any event, since in my
opinion Respondent has shown legitimate considera-
tions for the promulgation and publication of the rule,
absent evidence of discriminatory application or
implementation , I would not find the rule unlawful.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, except as it is necessary to
maintain production, discipline , or security, inter-
fere with the rights of our employees to distribute
literature on behalf of Technical Employees of
Aerospace Manufacturers, or on behalf of any
other labor organization, in our parking lots or in
any other nonwork areas of our premises during
nonworking time.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their rights guaranteed by Section 7
of the Act.
WE WILL rescind and withdraw our no-distribu-
tion and no-solicitation rules to the extent that
they purport to classify our employees as nonem-
ployees for the purpose of applying and enforcing
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such rules, or infringe unnecessarily upon our
employees' rights.
All our employees are free to distribute union
literature of the type specified in our rules in
nonwork areas during nonwork time and to
engage in word-of-mouth solicitations in or
outside their work areas during nonwork time
except to the extent such, activities violate pub-
lished rules justified by considerations of prod-
uction, discipline, or security.
MCDONNELL DOUGLAS
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th Boulevard, Room 448, St.
Louis, Missouri 63101, Telephone 314-622-4174.
TRIAL EXAMINER'S DECISION
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent McDonnell Douglas, Corporation, a Mary-
land corporation, maintains plants in the States of
California and Missouri, with its principal office and place
of business at Lambert St. Louis Airport in the State of
Missouri, herein sometimes called the Lambert Airport
plant. Respondent is engaged in the manufacture, sale, and
distribution of aircraft, space vehicles, and related prod-
ucts. During the year ending March 31, 1970, a representa-
tive period, of the products manufactured, sold, and
distributed at its Lambert Airport plant, valued in excess of
$100 million, products valued in excess of $50,000 were
shipped from said plant directly to points located outside
the State of Missouri. During the same period Respondent
manufactured, sold, and delivered to the United States
Government from its Lambert Airport plant, military
aircraft, valued in excess of $100 million, which had a
substantial impact on the national defense.
Upon the above admitted facts, I find, as Respondent
also admits in its answer, that Respondent is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
September 18, 1970, by Technical Employees of Aerospace
Manufacturers, herein sometimes called TEAM, the
General Counsel of the National Labor Relations Board,
by the Regional Director for Region 14 (St. Louis,
Missouri), issued a complaint, dated November 30, 1970,
against McDonnell Douglas Corporation, herein some-
times called Respondent. With respect to the unfair labor
practices, the complaint alleges in substance that Respon-
dent violated Section 8(a)(1) of the Act by prohibiting an
employee from distributing union literature on its. parking
lot and by a no-solicitation and no-distribution rule which
Respondent promulgated, maintained, and gave effect to.
In its duly filed answer, Respondent denies all unfair labor
practice allegations as well as the allegation that TEAM is a
labor organization within the meaning of the Act.
This case was tried before me at St. Louis, Missouri, on
February 25, 1971. All parties appeared and were afforded
full opportunity to and did participate in the trial. On April
12, 1971, the General Counsel and Respondent filed briefs
which I have fully considered. For the reasons hereinafter
indicated, I find that Respondent violated Section '8(a)(1) of
the Act as alleged in the complaint.
Upon the entire record in the case,' and from my
II. THE LABOR ORGANIZATION INVOLVED
Witness Herman C. Carl testified that he is president of
TEAM, and that TEAM is an organization which seeks to
represent Respondent's employees in labor disputes
involving wages, hours, and other conditions of employ-
ment and which has Respondent's employees as its
members. He further testified that TEAM was one of the
labor organizations whose name appeared on an NLRB
ballot in elections to determine the bargaining representa-
tive for Respondent's employees in 1968. Boyd Masterson
testified that he is an employee of Respondent and the vice
president of TEAM and that he distributed TEAM
organizational literature to other employees on Respon-
dent's parking lot on September 17, 1970. He further
testified that he has been continuously active on its behalf
and has,been working at its headquarters from time to time.
Although by its answer Respondent raised the issue of
whether TEAM was a labor organization within the
meaning of the Act, it now has presumably abandoned its
position in this respect as its brief no longer mentions this as
an issue in the case. In any event, the undisputed testimony
hereinabove set forth demonstrates, as I find, that
Technical Employees of Aerospace Manufacturers, herein
called TEAM, clearly meets the requirements for a labor
organization set forth in Section 2(5) of the Act.
1 I hereby note and correct the following inadvertent errors in the "rates" is corrected to read "ratio", on line I of page 228, the name
typewritten transcript of the testimony- On line 24 of page 45, the word "Stevens" is changed to "Burke"; and on line 16 of page 228, the word
"talked" is corrected to read "walked"; on line 20 of page 215, the word `,complying" is changed to read "relying."
Mc DONNELL DOUGLAS CORP. 519
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The issues litigated in this trial are whether Respondent
violated Section 8(a)(1) of the Act by its conduct in the
following two specific respects: (1) by prohibiting an
employee from distributing union literature on Respon-
dent's parking lot about a half hour before the commence-
ment of his shift, and (2) by promulgating, maintaining, and
giving effect to a rule which prohibited employees, after the
expiration of a "reasonable period" before or after their
scheduled working hours, from distributing union literature
in nonwork areas during nonworking time and from
soliciting union membership during nonworking time
(emphasis added). Respondent admits the foregoing
conduct. As to the first respect above mentioned, it
contends that Respondent erroneously prohibited said
distribution and that therefore an isolated incident of this
kind should not be found to constitute a violation of the
Act or require a remedial order. As to the second respect,
Respondent ' contends that, under the circumstances
disclosed by this record, the prohibitions in its no-
distribution and no-solicitation rule are warranted and do
not unlawfully interfere with its employees' statutory right
to engage in self-organizational activities.
B. The Faets2
1. The Masterson incident
- Boyd Masterson , an employee of Respondent and vice
president of TEAM, was scheduled to start his shift at
Respondent 's plant at 4 p .m. on September 17, 1970.
Between 3 and 3 : 30 that afternoon , Masterson parked his
car on parking lot 18 and approached Gate 101-D. There is
no guard at the entrance to parking lot 18, but in order to
get from the parking lot into Respondent 's buildings it is
necessary to pass by a uniformed security guard stationed
at Gate 101-D. When he arrived at Gate 101 -D, he began
passing out TEAM literature to employees arriving on the
parking lot for the 4 p.m. shift . As soon as he began passing
out the literature , Buchanon, one of Respondent's uni-
formed security guards , approached him and told him that
he could not distribute literature there. Masterson, who was
still in the parking lot outside Gate 101-D, protested and
claimed that he had a right to hand out such literature.
Buchanon admittedly stated that he had a directive not to
let any literature be distributed. When Masterson contin-
ued to hand out the literature , a marked patrol car with
Guard Herring and a third person arrived in response to a
telephone call made by Buchanon . Herring told Masterson
that he could not pass out the literature . In response to
Herring's request , Masterson showed his identification
badge containing his number and picture , told his
department and shift , and gave him a copy of the literature
which he was distributing , Herring also wanted to know if
anyone else was distributing this literature at any of the
2 Unless otherwise indicated, the findings in this section are based on
testimony and exhibits which are admitted or undisputed.
3 Masterson and Buchanon were the only witnesses who testified to this
incident The above findings are based on the credited testimony of
Masterson and some admissions by Buchanon. I do not credit Buchanon's
other gates, stating that he would like to go and stop them.
Masterson continued to pass out copies of the literature,
although the guards remonstrated with him, and did not
stop his distribution until Herring physically interfered with
him. As it was now about 3:40 p.m., Masterson returned the
literature to his car and was then checked through Gate
101-D by Buchanon to go to work on his 4 p.m. shift ,3
2. The no-distribution no-solicitation rule
Warren Flynn, Respondent's manager of labor relations,
with the assistance and advice of Ivan Rutherford,
Respondent's director of security, prepared and on
September 21, 1970, distributed to Respondent's supervi-
sors a memorandum which dealt with the subject of
distribution of literature and solicitation. This memoran-
dum prohibits "non-employees" from distributing literature
or from engaging in solicitation "anywhere on Company
premises at any time." In addition, a footnote to the
memorandum provides as to both distribution and
solicitation that:
Employees are not allowed on Company premises
except during their scheduled working hours and a
reasonable period before and after those hours. At other
times, they are to be treated as non-employees.
[Emphasis supplied.]
On September 25, 1970, Richard McConnell, Respon-
dent's then chief of security force, after consultation with
and approval of Director of Security Rutherford, issued
and distributed a memorandum to the guards and posted it
on the guard bulletin board in the locker room where
maintenance and cleanup employees could also see it. This
memorandum, which was also distributed to various high
ranking officers of Respondent, sets forth Respondent's
policy of prohibiting employee distribution of union
literature during nonworking time in nonwork areas of
Respondent's premises except "for a reasonable time before
or after their shifts."
When called as a witness by the General Counsel in the
presentation of his case, Flynn was asked by the General
Counsel on redirect examination who would determine
what constitutes the "reasonable period" referred to in the
footnote to the September 21 memorandum and in the
September 25 memorandum. Flynn testified, "I think that
the determination would have to be made on an ad hoc
basis" and that "it would probably be bucked up to me
someplace along the line." When called as a witness by
Respondent in the presentation of its case , Flynn was asked
by Respondent's counsel what would be a reasonable time
in Respondent's cafeterias before and after the employees'
shift. Flynn testified, "I would think that a half hour should
take care of anyone's reasonable needs for eating." Flynn
further pointed out that "there is a wage and hour
restriction about people not ringing in more than 29
minutes or some such figure immediately prior to their
starting time." However, on cross-examination he testified
that the employees can go into the cafeterias without
testimony that he did not speak to Masterson before the patrol car arrived.
Nor do I deem it necessary to resolve the conflict in testimony as to
whether Masterson was passing out some literature from his car before
parking because that admittedly was not the reason why Masterson was
prohibited from distributing literature near the gate on that occasion
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ringing in although the cafeterias are located "inside of the
security perimeter." Respondent's director of security,
Rutherford, who admitted having had a hand in framing
the objectionable footnotes in the September25 memoran-
dum, testified that he "would consider about 1 hour as a
reasonable' time before and after" the shift in the context in
which the term is used in said footnotes. He explained as
the reason for his considering 1 hour to be a reasonable
period that "this is normally what we run into, people
coming in to work early to have their breakfast or the time
that it takes them to get off the parking lot, either due to
traffic conditions or vehicle conditions and to get from their
work place to their parking place and off of the premises."
C. Contentions and Conclusions
1. As to the Masterson incident
Respondent's manager of labor relations, Flynn, admit-
ted that Respondent's rules in question do not prohibit the
solicitation and distribution of the kind engaged in by
Masterson on September 17, 1970, and that the action of
Respondent's guards in stopping Masterson's distribution
was in error. Respondent contends in its brief that the
Masterson incident is no longer in issue in view of Flynn's
above-stated admissions; that, as this was the only incident
of this nature which had been brought to Flynn's attention,
the issuance of the memoranda of September 21 and 25,
1970, "have avoided recurrence of similar incidents"; and
that "under all the circumstances the prompt curative
action taken by Respondent has obviated the need for a
punitive finding and order with respect to the Masterson
incident."
However, although Flynn admittedly was aware of the
Masterson incident before the issuance of the above
memoranda, neither he nor any other management
representative ever informed Masterson that the prohib-
ition upon his distributing the literature on September 17,
1970, was erroneous or advised him of his rights to
distribute literature on Respondent's parking lots. Moreo-
ver, as Rutherford admitted, employees have never been
informed of what constitutes the "reasonable period"
within which such distribution may be made under
Respondent's rules.
Under all the circumstances, I agree with the General
Counsel that a finding of a violation is warranted and that a
remedy is necessary to inform the employees of their right
to distribute union literature and that Respondent will
accord them that right. Accordingly, I find that by
prohibiting Masterson from distributing union literature on
its parking lot on September 17, 1970, Respondent
interfered with, restrained, and coerced him in the exercise
of his rights guaranteed by Section 7 of the Act and thereby
violated Section 8(a)(1).
2. As to the no-distribution no-solicitation rules
The United States Supreme Court has held in two
landmark cases that, absent unusual circumstances, an
employer may not, without violating the Act, forbid
employees from (1) distributing union literature on its
parking lot in their nonworking time and (2) engaging in
union solicitation in the plant in their nonworking time.4
Thereafter, the Board has held that a rule forbidding
employee distribution of union literature in nonwork areas
during nonworking time is presumptively invalid and that a
rule forbidding union solicitation by employees in their
nonworking time is also presumptively invalid even though
limited to working areas.5
The General Counsel contends that on the basis of the
above authorities Respondent's no-solicitation and no-
distribution rules unduly limit, and therefore constitute an
illegal interference with, the rights of its employees to
engage in union organizational activity insofar as they, by
their footnotes, put employees in the class of nonemployees
for the purposes of union distribution and solicitation when
they remain on the premises more than a reasonable time
before or after their scheduled work shift. On the other
hand, Respondent contends, as witnesses Flynn and
Rutherford testified, that the objectionable part of the rules
are necessary in order for Respondent to comply with the
security restrictions imposed on it by the United States
Government because of the nature of its business and that
"the severe security restrictions on the operation of
Respondent's business constitute unusual circumstances of
such a degree as to justify the alleged interference with the
employees' rights."
Respondent contends, as Rutherford testified, that the
objectionable parts of the rules are required by certain
specific sections and provisions of the "Industrial Security
Manual For Safeguarding Classified Information." Howev-
er, there is nothing in these sections and provisions which
state that employees should be classified as nonemployees
after a reasonable time before or after their scheduled work
shift. Nor has Respondent demonstrated that such a
classification is the only way in which it can fulfill the
security restrictions set forth in these sections and
provisions or even that the absence of such a classification
would constitute a real and serious threat to proper
compliance with the security requirements.
It appears that Respondent is most concerned about
traffic problems of the employees coming and leaving the
premises, littering, the safe keeping of military secrets and
proprietory secrets belonging to Respondent, and damage
to Respondent's property. Respondent's premises, includ-
ing the parking lots, are surrounded by several fences. The
outside fence can be entered during most of the day by any
stranger who can drive onto the parking area. However, in
order to get into a secured area behind the second fence, it
is necessary for the stranger to be cleared for entry by a
uniformed guard. This is also true of employees who have
to submit to a badge check at this point. At night the
exterior fences are closed but for one open point where
guards check to see that the persons entering the premises
are employees. Respondent operates seven cafeterias on its
premises and it is common for employees to come in early
and to have breakfast before ringing in and beginning their
work. Nonwork areas in the buildings include cafeterias,
vending machine areas, smoke areas, aisles, and lounges.
4 N L R B v Le Tourneau Company of Georgia and Republic Aviation 5 Stoddard-Quirk Manufacturing Company, 138 NLRB 615.
Corp. v. N L R B, 324 U S. 793.
Mc DONNELL DOUGLAS CORP. 521
Employees arriving early are permitted to come into
Respondent's building, read newspapers, get breakfast, or
sit in their work-areas before ringing in and commencing
work. Rutherford testified that he would not be concerned
if employees came in 1 hour and 15 minutes early and went
to a smoke area or snack area. There-are vending machines
on Respondent's premises which are serviced by unescorted
persons who are supposed to confine themselves to the
areas they are servicing and to the aisles leading to those
areas. Respondent also sponsors schools for employees and
encourages them to attend school on Respondent's
premises after working hours.
Respondent's director of labor relations, Flynn, admitted
that the only security problem on the parking lots per se
relates to the traffic problem of getting people onto or out
of Respondent's premises as rapdily as possible. Respon-
dent normally operates three shifts, with approximately
25,000 employees on the first shift which commences at 7
a.m., 5,000 employees on the second shift, and between 800
and 1,000 on the third shift. Because of the traffic problems,
shift starting times are staggered in the various buildings
and employees even in the same buildings start work at
different times, for example at 7, 7 :30, and 8:15 a.m.
Respondent adduced no evidence to show that union
solicitations or distributions on its parking lots by
employees standing near the gates through which employ-
ees enter or leave the parking lots to go into and from the
secured areas where they work, as in Masterson's case,
would in any way hamper or affect the flow of traffic or
result in intolerable litter. Nor was any evidence adduced to
show that littering has ever been a problem. Moreover, the
rules in issue are directed , not to littering, but to the time in
which organizational activities may take place. And
Respondent has failed to substantiate a valid reason which
would justify a rule limiting the time in which employees
may engage in union solicitation and distribution on its
parking lots.
The main burden of Respondent's defense seems to be
based on its asserted security problem. Respondent has a
security force of approximately 350 uniformed guards
under the supervision of Director of Security Rutherford.
In addition Respondent's supervisors are also charged with
enforcing security and will challenge employees whom they
see in areas of the building in which they do not belong.
Employees cannot enter secured areas without submitting
to a badge check. Despite its asserted fear that its security
would be compromised if there were no time limitation on
employee union solicitation and distribution, Respondent
has in the past permitted and even encouraged, without any
time limitation, employee solicitation on its.premises during
both working and nonworking hours and in working and
nonworking areas of nonunion items such as for the
purpose of Yugoslavian hams and for donations to political
parties and to, charities. Respondent has cafeterias, smoking
areas, and vending machine areas and aisles, all of which
are admittedly considered to be nonwork areas. As
previously noted, employees are permitted to enter
Respondent's premises, after passing a badge check, for the
purpose of having breakfast, for the purpose of going in and
reading newspapers, and for other purposes. Indeed, even
nonemployees, such as suppliers for the vending machines,
are permitted to go on the premises unescorted but are
expected to remain in the nonworking areas . It would seem
that Respondent's own employees should be accorded the
same privilege when they are seeking to exercise rights
guaranteed by the Act. Respondent contends that, as there
are fewer supervisors on the second and third shifts , there is
more danger of a security breach at that time and therefore
employees should not be permitted in the plant to engage in
union solicitation or distribution unless they are working on
those shifts. However, that is no answer to the question of
why employees at any shift could not be permitted to
remain in the cafeterias or any other nonsecurity areas
which could be designated by Respondent.
Respondent further contends that its rules are not unduly
restrictive as they do not entirely prohibit union solicitation
and distribution, that they merely specify that such activity
"be confined to a reasonable period before and after the
shift on which the employee works," and that therefore they
do not "unreasonably compromise employee rights."
However, Respondent's own officials could not agree on
what constitutes a "reasonable period." Thus Flynn
testified that he thought "the determination would have to
be made on an ad hoc basis" and that he thought a half hour
would be a reasonable period . On the other hand,
Rutherford testified that he thought about 1 hour would be
a "reasonable period" based upon his estimate that this is
the time it normally takes for employees who come in early
to have their breakfast before their shift and for employees
to wash up, leave their work areas, and to get off the
parking lot after their shift . Judged by Rutherford's own
estimate , the rules allow no time for organizational
purposes and Flynn's estimate of one half hour is clearly
prohibitive . Furthermore, the record shows that some of
Respondent's parking lots are open at 5:30 a.m., others at 6
a.m., and others at 7 a.m., and that the employees in
buildings 102-104 do not start work until 7:30 a.m.
Applying Respondent's rule of limiting a "reasonable
period" to 1 hour, an employee whose shift begins at 7:30
a.m. is barred from engaging in union solicitation or
distribution on the parking lots which are open before 6:30
a.m. None of Respondent 's evidence affords any reasona-
ble justification for prohibiting such an employee from
soliciting and handing out literature on the parking lots
which open between 5 :30 and 7 : 30 a.m . Moreover, as the
employees admittedly were never informed of what
Respondent regards as a "reasonable period," they would
be acting at their peril if they engaged in organizational
activity during a time which Respondent later determined
did not constitute a "reasonable period." Such a standard
obviously unduly inhibits and circumscribes the employees'
exercise of their guaranteed rights . Respondent has in the
past afforded much greater opportunities and wider
latitude for solicitation on its premises both during working
and. nonworking -hours and in -working and nonworking
areas where the solicitation was not connected with union
activities, as previously noted.
Without attempting to minimize Respondent's traffic and
security problems, I find that Respondent has not sustained
its burden of proving the existence of the unusual
circumstances necessary to rebut the presumption of the
invalidity of, and thereby justify, its rules which restrict the
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full exercise by their employees of their guaranteed rights to
engage in the distribution of union literature in nonworking
areas at any time and to engage in union solicitation during
nonworking tune at any time or place on Respondent's
premises while its plant is in operation. I therefore find that
by promulgating, maintaining, and giving effect to its no-
distribution and no-solicitation rules, Respondent inter-
fered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act and
thereby violated Section 8(a)(1).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
3. By promulgating, maintaining, and giving effect to its
no-distribution and no-solicitation rules which prohibit its
employees, except during a reasonable period before or
after their scheduled working hours, from distributing
union literature in nonwork areas during nonworking time
and from soliciting union membership during nonworking
time, Respondent has engaged and is engaging in unfair
labor practices within the meaning of Section 8(a)(I) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
The activities of the Respondent set forth in section III,
above, occurring in connection with the business operations
of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic,
and commerce between the several States and tend to lead
to labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. Technical Employees of Aerospace Manufacturers,
herein called TEAM, is a labor organization within the
meaning of Section 2(5) of the Act.
2. By prohibiting an employee from distributing TEAM
literature on its parking lot during nonworking time,
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I will recommend that Respondent revoke and withdraw
its no-distribution and no-solicitation rules to the extent
that they prohibit the specified organizational activity after
the expiration of a "reasonable period" before or after their
scheduled working hours and classify employees as
nonemployees for that purpose, and inform the employees
of their right to engage in such organizational activity
without the aforestated time limitation.
[Recommended Order omitted from publication.]