Metropolitan Auto Parts, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1953

102 N.L.R.B. 1634 (N.L.R.B. 1953)

1634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
METROPOLITAN AUTO PARTS, INCORPORATED and LOCAL 841, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, AND LODGE 1898, DISTRICT 38,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL
MASSACHUSETTS MOTOR CAR COMPANY, INC. and LocAL 841, INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, AFL, AND LODGE 1898, DISTRICT 38,
INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL. Cases Nos.
1-CA-1156 and 1-CA-1157. February 25,1953
Decision and Order
On October 8, 1952, Trial Examiner George Bokat issued his Inter-
mediate Report in this consolidated proceeding, finding that the Re-
spondents had engaged in and were engaging in certain unfair labor
practices in violation of Section 8 (a) (1) of the Act, and recommend-
ing that they cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. Thereafter, the Respondents filed exceptions to the Interme-
diate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations except insofar as they are inconsistent with our
findings and Order as herein set forth.
1. We agree with the Trial Examiner's conclusion that both Re-
spondents violated Section 8 (a) (1) of the Act by denying the Union's
request for an opportunity to rebut preelection speeches made by Alvin
T. Fuller, the president of both Respondents. We do not rely, how-
ever, solely upon the rationale used by the Trial Examiner in reaching
his conclusion.
There is no dispute that Fuller made antiunion, noncoercive speeches
on company time and property to the employees of both Respondents
on March 11, 1952, 2 days before the representation elections. The
Union had expressly requested the privilege of addressing the em-
ployees on company time and property in the event that either Re-
spondent so addressed its employees. The Respondents each received
letters containing the Union's request on March 10 but made no reply
thereto.
The Respondents contend that their failure to accord the Union the
right to answer before the election and under the same conditions and
on the same premises as those utilized by the Respondents in Fuller's
102 NLRB No. 171.
METROPOLITAN AUTO PARTS, INCORPORATED 1635
preelection speeches against the Union does not, in view of the circum-
stances here present, constitute a violation of Section 8 (a) (1) of the
Act. In support of their contention, the Respondents maintain that to
support an 8 (a) (1) finding it is required under the Bonwit Teller
doctrine that the Respondents' refusal to grant the Union an equal
forum amounts to a discriminatory application of an existing and
enforced no-solicitation rule; and that in the present instance the rec-
ord will not support a finding that, at the time of the refusal in ques-
tion, a no-solicitation rule was being enforced by the Respondent
Metropolitan or even existed at the plant of the Respondent Massachu-
setts. The Respondents further contend that the Union's forum was
equal to that utilized by the Respondents in making their preelection
speeches, and therefore no part of the Bonwit Teller doctrine could be
utilized to find violations herein.
Although, as set forth herein, we agree with the Trial Examiner
that a no-solicitation rule existed at Respondent Metropolitan to the
extent deemed necessary under the narrow construction of the Bonwit
Teller doctrine, we are unable to find that a similar no-solicitation
rule existed at Respondent Massachusetts:
In the original Bonwit Teller case,2 the Board utilized as the basis for
its decision both the disparate use of a no-solicitation rule, and the
theory that "the right of employees, guaranteed by Section 7 of the
Act, freely to select or reject representation by a labor organization
necessarily encompasses the right to hear both sides of the story under
circumstances which reasonably approximate equality." The question
presented is whether the latter theory alone is sufficient basis for a
finding that the refusal by an employer to accord a union equal oppor-
tunity to present its case prior to an election violates Section 8 (a) (1)
of the Act. We believe this question must be answered affirmatively
despite any dicta or views to the contrary which may be found in the
decision of the court of appeals in the Bonwit Teller case.
It is clear that where an employer chooses to enter the representation
campaign and utilizes company time and property to present his views,
be uses a "privileged and effective forum" which he may not in fairness
refuse to the opposition upon request. We believe that this refusal,
without more, prevents the employees from hearing "both sides of the
story under circumstances which reasonably approximate equality."
It follows that in these circumstances a refusal alone constitutes inter-
ference with the employees' freedom of choice, regardless of the exist-
ence of other media of communication between the union and the
i The record fails to show that any such rule was called to the attention of Respondent
Massachusetts ' employees or that the rule was ever promulgated to or through any super-
visory personnel at Massachusetts . Accordingly , we find that the Trial Examiner erred
in finding a no-solicitation rule at Massachusetts.
2 96 NLRB 608 , enforced as modified at 197 F. 2d 640 (C. A. 2^).
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees .3 Accordingly, we find that the Respondents' use of com-
pany time and property for electioneering speeches to employee as-
semblies, while simultaneously denying the Union the same forum for a
like use, interferes with the right of employees freely to select or reject
union representation and constitutes a violation of Section 8 (a) (1)
of the Act.4
In reaching this conclusion, we believe that our finding is supported
not only by theoretical consideration but also by the realities to be
found in union organization campaigns. Thus, it is apparent that
printed materials and individual solicitations neither reach the full
audience that the employer can insure by his control over working
time nor do they approach the persuasive power of an employer's
oral presentation. Soliciting employees on the employer's premises,
even when not precluded by a no-solicitation rule, cannot substitute
for the systematic arguments presented orally to an employee as-
sembly. Soliciting employees off the premises can seldom be ex-
tensive, due to both time limitations and geographical diffusion of
employees a Consistent with the foregoing, we find that solicitation
and extensive use of other approaches to the employees by the Union
does not qualify the principle involved herein, and we find no merit
in the Respondents' contentions in that regard.- The conclusion is
inevitable that where an employer uses company time and premises
to make a preelection speech, he must permit, upon request, an equal
forum to the union spokesman.
Upon the basis of this principle, the Board has set aside elections in
a succession of cases 7 which involved conduct by employers identi-
cal to that presented in the instant case. We find that the same con-
siderations which impelled us to set aside elections in those represen-
tation proceedings are applicable in finding a violation of Section 8
(a) (1) herein.
In any event, we further find, as did the Trial Examiner, that the
Respondent Metropolitan violated Section 8 (a) (1) in its discrimi-
natory application of a no-solicitation rule." The Respondent Metro-
3 National Screw & Mfg . Co. of California, 101 NLRB 1360; Onondaga Pottery Co.,
100 NLRB 1143.
4 National Screw & Mfg . Co. of California, supra; Cornell-Dubilier Electric Corp., 101
NLRB 1483 ; The Muter Co., 101 NLRB 287; Onondaga Pottery Co, supra ; Massa-
chusetts Motor Car Co., Inc, 99, NLRB No. 74 ; Metropolitan Auto Parts, Inc., 99 NLRB
401 ; Belknap Hardware d Mfg. Co., 98 NLRB 484; Bernardin Bottle Cap Co, Inc., 97
NLRB 1559 ; Biltmore Manufacturing Co., 97 NLRB 905, see also John Irving Stores of
Chicago, Inc. et al ., 101 NLRB 82.
6 National Screw & Mfg . Co. of Cal ., supra.
6 National Screw & Mfg . Co. of Cal, supra ; Onondaga Pottery Co , supra
i See cases cited in footnote 2, supra. See also Foreman & Clark, Inc., 101 NLRB 40;
The Hills Brothers Co., 100 NLRB 964.
8 Bonwit Teller, supra; American Tube Bending Co., 102 NLRB 735. See also J. J.
Newberry Co, 100 NLRB 1140; Higgins, Inc., 100 NLRB 829 ; The Great Atlantic d Pacific
Tea Co., 97 NLRB 295.
METROPOLITAN AUTO PARTS, INCORPORATED 1637
politan contended that a failure to enforce its no-solicitation rule
proved that the rule was not in existence at the time of the alleged
unfair labor practice.
Because a presumption of continuance attaches to a no-solicitation
rule once promulgated,9 the burden of going forward then shifts to
establish the revocation of such rule. In view of Respondent Metro-
politan's failure in this respect, we find that such a rule was in effect
at Metropolitan and that the latter, by its discriminatory application
of this rule, violated Section 8 (a) (1) of the Act.
Order
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondents Metropolitan Auto Parts,
Incorporated, and Massachusetts Motor Car Company, Inc., both of
Boston, Massachusetts, and their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, and coercing their employees in
the exercise of their right to self-organization, to form labor organi-
zations , to join or assist Local 841, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, and Lodge 1898, District 38, International Association of
Machinists, AFL, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection by, during an organizational cam-
paign by a labor organization, making antiunion speeches to the Re-
spondents' respective employees during working hours and on the
Respondents' respective premises, without according, upon reason-
able request, a similar opportunity to address the employees to the
labor organization against which such speeches are directed.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at their respective places of business in Boston, Massa-
chusetts, copies of the appropriate notices attached hereto and
marked Appendices 10 "A" and "B." Copies of said notices, to be fur-
nished by the Regional Director for the First Region, shall, after be-
9 It is a general rule of evidence that where a state of things is once established by
proof, the law presumes that such a state of things continues until the contrary is shown.
Wigmore on Evidence , Vol. II, Sec. 437 ( 3rd edition ). See International Union, United
Mine Workers of America, et ai., 83 NLRB 916, 918.
10 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
250983--vol 102-53--104
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing duly signed by the Respondents' representatives, be posted by the
respective Respondents immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondents to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
CHAIRMAN HERZOG, concurring in part only :
I join in the Board's conclusion that there was a violation of Sec-
tion 8 (a) (1) with respect to the employees of Metropolitan, where
a general no-solicitation rule was still in effect. I regret that I cannot
join, however, in so much of the majority opinion as reaches the
same result with respect to Respondent Massachusetts, on the Board's
assumption that there was never any no-solicitation rule imposed
there.
This is the first unfair labor practice case to reach us on the Bonrwit
Teller doctrine since the Second Circuit appraised our rationale in
passing upon that decision of the Board 11 Aside, therefore, from the
reasons which have already induced me to question the breadth of the
Board's application of that doctrine in representation cases '12 1 do
not believe that we should also extend it in unfair labor practice cases
beyond the limits thought permissible by the reviewing court. The
spirit and legislative history of Section 8 (c) do not seem to me to
encourage this Board to find that an employer's insistence on monopo-
lizing his own property as a platform constitutes a violation of the
amended Act, absent that discrimination which arises whenever he
treats his no-solicitation policy as a one-way street.
I reach this conclusion although I also believe that because the
Board is authorized to set and maintain the standards for its own
elections, it should be free, exercising discretion and restraint, to set
aside the results of balloting when employees have been denied a
reasonable opportunity to hear both sides on an equal basis.13 To find
a violation of law is more than to direct a new election; that which
was not unlawful may nevertheless have been unfair.
11 Bonwit Teller v. N. L. if. B, 197 F. 2d 640 at 646 (C. A. 2), enforcing 96 NLRB 608,
eas modified.
12 Foreman & Clark, 101 NLRB 40; National Screw, 101 NLRB 1360.
13 General Shoe, 77 NLRB 124; Biltmore Manufacturing, 97 NLRB 905. See the Board's
action in the representation cases which involved the same parties and conduct as here.
Metropolitan Auto Parts, 99 NLRB 401, and Massachusetts Motor Car Co., 99 NLRB No. 74
(1952).
METROPOLITAN AUTO PARTS, INCORPORATED 1639
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, to join or assist LOCAL 841, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL, and LODGE 1898, DISTRICT 38, INTER-
NATIONAL ASSOCIATION OF MACHINISTS, AFL, or any other labor
organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection
by making antiunion speeches to our employees during working
hours and on our premises during an organizational campaign by
a labor organization, without according, upon reasonable request,
a similar opportunity to address our employees to the labor or-
ganization against which such speech is directed.
METROPOLITAN AUTO PARTS, INCORPORATED,
Employer.
By ------------------------------------------------------
(Representative ) ( Title)
Dated ------------
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Appendix B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor
organizations, to join or assist LOCAL 841, INTERNATIONAL BROTH-
ERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, AFL, and LODGE 1898, DISTRICT 38, INTERNATIONAL
ASSOCIATION OF MACHINISTS, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining or other mutual aid or protection by making
antiunion speeches to our employees during working hours and
on our premises during an organizational campaign by a labor
organization , without according , upon reasonable request , a simi-
lar opportunity to address our employees to the labor organiza-
tion against which such speech is directed.
MASSACHUSETTS MOTOR CAR COMPANY, INC.,
Employer.
By ----------------------------------------------
(Representative ) (Title)
Dated ------------
This notice must remain posted for 60 consecutive days from the
date hereof, and must not be altered, defaced, or covered by any other
material.
Intermediate Report
STATEMENT OF THE CASE
Upon charges duly filed by Local 841, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL, and Lodge 1898, Dis-
trict 38, International Association of Machinists, AFL, herein called collectively
the Union, and upon complaint, order of consolidation, and notice of hearing
issued and served by the General Counsel, and answers having been filed, a hear-
ing upon due notice was held at Boston, Massachusetts, on June 30 and July 1,
1952, before the undersigned Trial Examiner, involving allegations of unfair labor
practices in violation of the National Labor Relations Act, 61 Stat. 136, herein
called the Act, by Metropolitan Auto Parts, Incorporated, herein called Metro-
politan, and Massachusetts Motor Car Company, Inc., herein called Massachu-
setts, both companies collectively referred to herein as the Respondents.
The allegations in substance are that the Respondents violated Section 8 (a)
(1) of the Act by addressing their respective employees on company time and
premises prior to a Board election while denying the Union's request for an equal
opportunity of addressing the employees on company time and property. All
parties were represented by counsel and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to introduce evidence bearing
on the issues, to argue the issues orally upon the record, and to file briefs, pro-
posed findings of fact, and conclusions of law. The Respondents filed a brief and
proposed findings and conclusions with the undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Metropolitan Auto Parts, Incorporated, a Massachusetts corporation holding a
franchise from the Chrysler Motor Corporation, is engaged in the sale and dis-
tribution of automobile parts and accessories. During the year 1951, Metro-
politan's purchases from outside of the Commonwealth of Massachusetts were
in excess of $100,000. During the same period sales made to points outside of
the Commonwealth of Massachusetts were in excess of $70.000.
METROPOLITAN AUTO PARTS, INCORPORATED 1641
Massachusetts Motor Car Company, Inc., a Massachusetts corporation holding
a franchise from the Chrysler Motor Corporation , is engaged in the sale, service,
and repair of Plymouth and Dodge automobiles and trucks. During 1951 Mas-
sachusetts' purchases from outside of the Commonwealth of Massachusetts were
in excess of $100 ,000. During the same period sales made to points outside the
Commonwealth of Massachusetts were in excess of $70,000.
I find that the Respondents are engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 841, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL, and Lodge 1898, District 38, International
Association of Machinists, AFL, are labor organizations within the meaning of
the Act admitting to membership employees of the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The elections
During the past 3 years the Teamsters and Machinists have, by means of a
joint organizing council, been fairly successful in organizing the employees of
various automobile dealers in the Boston area. Having failed in a prior attempt
to organize the Respondents' employees, the Union began a new campaign in
about November 1951. The Respondents are located on Commonwealth Avenue
in Boston, where for a stretch of about 2 miles are found the major automobile
dealers of Boston, giving rise to the name Automobile Row.
The Respondents are related companies, Alvin Fuller, Jr., being the president
of both. On March 4, 1952, the Respondents entered into consent-election agree-
ments with the Union providing for certification by the Board if the Union won
the elections. The elections were scheduled to be held on March 13.
On March 7, the Union wrote to Metropolitan in part as follows :
. . . we are hereby demanding that, in the event the Company addresses
these employees on Company time and property, we be granted the same
privileges.
On the same day the Union also wrote to Massachusetts and after referring to
the impending election stated :
Since the Company has seen fit to call employees together at various times
during working hours in reference to this question, we demand the same
privilege of addressing the employees on company time and property.
The Respondents received the letters on March 10 but made no reply thereto.
The elections were duly held on March 13. The tally of ballots as to Massa-
chusetts showed that of approximately 47 eligible voters, 44 cast valid ballots,
of which 17 voted for the Union, 27 against the Union, and 3 were challenged.
The tally for Metropolitan showed that of approximately 14 eligible voters, 13
cast valid ballots, of which 4 voted for the Union, 9 against the Union, and 2
were challenged. The Union objected to the results of the elections on the
ground that the Employers interfered by making antiunion speeches on company
time and property while denying the Union an equal opportunity to address the
employees. On May 29, 1952, the Board ordered the elections of March 13 set
aside.'
1 See Metropolitan Auto Parts, Incorporated , 99 NLRB 401 , and Massachusetts Motor
Car Company, Inc., 90 NLRB No. 74.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the identical issue upon which the Board set aside the elections is now
charged as a violation of Section 8 (a) (1) of the Act, I think it important to
quote the Board's reasoning in setting aside the election in the Metropolitan case
which the Board also applied as the basis of its decision in the Massachusetts
case:
On March 11, 1952, at about 5 p. in., the Employer's president, Fuller,
addressed all eligible employees on the issues involved in the election,
pointing out that unionization was unnecessary in view of the advantages
the employees had enjoyed without a union.
Although we find nothing coercive in the contents of Fuller' s speech, we
do find, as did the Regional Director, that the Employer interfered with
the election after utilizing company time and property to campaign against
the union by denying the union an opportunity to reply under the same
circumstances. As the Board has recently held, the critical question in
this type of case is whether the circumstances were such that only by
granting the Union' s request for use of the same forum could the employees
have a reasonable opportunity to hear both sides of the issue on which they
were about to vote 2 On the basis of the above facts, including particularly
the timing of the Employer's speech,' we are satisfied that the question must
be answered in the affirmative in this case.
Moreover, we find, contrary to the Employer's contention, that the fact
that the Petitioner conducted an extensive preelection campaign by dis-
tribution of circulars and by conversations with employees does not preclude
a finding of interference. The Board has, under comparable circumstances,
rejected a similar contention 4
2 Bernardin Bottle Cap Company, 97 NLRB 1559 ; Belknap Hardware & Manufac-
turing Company , 98 NLRB 484 ; Biltmore Manufacturing Company, 97 NLRB 905:
Bonwit Teller, Inc., 96 NLRB 608.
3 As in Bernardin Bottle Cap Company, supra , the Employer received the Petitioner's
letter requesting an opportunity to address the employees a day before the Employer
made the speech but did not answer it
4 (treat Atlantic & Pacific Tea Company, 97 NLRB 936.
As indicated in the above quotation, Fuller addressed the eligible employees of
Metropolitan on March 11 at about 5 p. m. This was on working time for some
of the employees but not for others. Earlier that day, at about 11: 45 a. in.,
Fuller had spoken to the employees of Massachusetts on company time and
property on the issues of the election, pointing out that unionization was unneces-
sary in view of the advantages the employees had enjoyed without a union.
The General Counsel concedes, and I find, that there was nothing coercive in
the contents of either speech. Neither was there anything coercive in what
Fuller said at two earlier meetings Fuller had with some of the Massachusetts
employees on March 3 and 6. These discussions were not directly concerned
with the subject matter of the election.
B. The no-solicitation rule
About November 1, 1950, President Fuller promulgated the following rule and
caused it to be called to the attention of the employees of both Respondents :
It has come to my attention that Company time is being used and employees
are interrupted by discussions of matters other than Company business.
I should like to make it clear that the Company rule is, Company time is
for Company business and not for discussions of other matters. This means
METROPOLITAN AUTO PARTS, INCORPORATED 1 643
that a man working on Company time is not to waste that time by discussing
matters other than Company business , and it also means that no one is to
bother someone who is working , by discussions of other matters.
If this rule is broken the offender will be subject to disciplinary action
which may amount to discharge.
It should also be observed that at Massachusetts there is a waiting room pro-
vided for customers whose cars are being repaired . Over the entrance to the
service or repair department is a sign stating in effect that "The management
requests that the public stay out of the repair department." The rule, however,
is not always observed by the public and is not enforced by this Respondent.
At Metropolitan , automobile parts are sold over a long counter and patrons and
visitors are not permitted access to that part of the building behind the counter
where parts are stored. The employees who sell parts are called countermen
and have authority to enforce this prohibition . Otherwise the Respondents had
no stated rule prohibiting nonemployee union organizers from visiting their prem-
ises nor was any rule promulgated prohibiting the employees from engaging
in union activities on company premises outside of working time.
This brings us to evidence adduced at the hearing that despite the absence
of such a rule 2 union organizers were, on a number of occasions , asked to leave
the premises of both Respondents . One of them , Thomas Hawes , testified that
he visited the repair department of Massachusetts on 5 or 6 occasions during
the organizational campaign preceding the election , sometimes alone and some-
times in company with another organizer named Dominic Zenga. On 2 of these
visits, according to Hawes, he was asked to leave the premises , each time by a
different individual unknown to Hawes by name. Hawes could only identify the
2 persons to whom lie referred by the fact that one wore a white service coat and
the other a blue uniform, the latter having been pointed out to him by 2 em-
ployees as being the "body shop foreman." Zenga testified that within the 3-
or 4-month organizational period preceding the election he was told to leave the
premises of Massachusetts on 6 or 7 occasions by individuals he could not name
but who had been pointed out to him as foremen. This occurred, according to
Zenga, while he was talking to employees who on some of these occasions were
at work and on others while they were not. At Metropolitan, according to
Zenga, he tried to get in to see the employees on 3 occasions , once by the way
of the counter and the other 2 by the way of the shipping room but did not
succeed. Hawes testified that the only area of Metropolitan he visited was the
loading platform which was on the side of the building and was only asked to
leave once out of 6 or 7 visits.
The Respondents produced at the hearing all of the individuals established
by the evidence as constituting the officials and supervisory personnel of both
Respondents Neither Hawes nor Zenga was able to identify any of them as
being the individuals who excluded him from the premises of the Respondents.
While I am satisfied that on some occasions Hawes and Zenga were asked to
leave the property of Massachusetts , the General Counsel has not established by
a preponderance of the evidence that anyone having authority to bind that Re-
spondent so acted. A careful study of all of the evidence on this issue com-
pels a finding that the General Counsel has failed to sustain his burden of proof
that the Respondents directed Hawes or Zenga to leave their premises.
C. Concluding findings
The issue to be resolved is a narrow one : did the preelection talks by Presi-
dent Fuller to the employees on company time and property while failing to
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
honor the Union's request to use the same forum for a like use, under the facts
found above, constitute an unfair labor practice?
Following the Bonwit Teller case, the Board, in numerous decisions involving
objections to conduct affecting the results of elections, has given its answer in
no uncertain terms? In Banwit Teller, Inc. v. N. L. R. B., 197 F. 2d 640 (C. A. 2),
the Board's decision, on petition for review, was remanded to the Board for cer-
tain modifications concerning charges of unfair labor practices. However the
court's rationale on the remand be viewed, the Board has adhered to its earlier
position that even in the absence of a no-solicitation rule, an employer's denial
of a union's request to use the same forum where the employer has made a pre-
election antiunion talk on company time and property constitutes interference
with the conduct of an election a
The Board's decision in Bonwtt Teller relied on two separate grounds: (1)
under the narrower rationale, refusal to permit rebuttal by the union resulted in
discriminatory application of an otherwise valid no-solicitation rule.` (2)
Under the Board's "more fundamental consideration" it held that the right of
employees freely to select or reject union representation includes the right "to
hear both sides of the story under circumstances which reasonably approximate
equality."'
Interpreting the facts of the instant case in the light of the two principles
just described we find that under (1) the Respondents did have in existence
what appears to be a valid no-solicitation rule prohibiting the discussion of
matters other than company business on company time. It is thus clear that
although there was nothing illegal in what the Respondents said or the manner
in which the employees were assembled, that the Respondents, by addressing
their employees and urging an antiunion vote while refusing the Union's re-
quest for a similar opportunity to urge a prounion vote, enforced its rule against
union activity during working hours in a discriminatory manner and thereby
interfered with, restrained, and coerced their employees in the exercise of the
rights guaranteed by the Act e
' See cases cited in footnote 2 of the Board 's quoted decision in the Metropolitan case,
supra.
3 See Higgins, Inc, 100 NLRB 829 ; The Hills Brothers Company, 100 NLRB 964;
Onondaga Pottery Company, 100 NLRB 1143; J. J. Newberry Co., 100 NLRB 1140.
Settled Board doctrine prevents an employer from applying the rule in such a way as
to favor one union over another, or to preclude union solicitation while permitting anti-
union employees or third parties to campaign freely. The Board reasoned that the rule
is discriminatorily applied as well when employers campaign on company premises while
denying unions the same privilege. Employers may not, under these circumstances, exempt
themselves from their own rules.
b Factories and shops where employees work are "natural and proper places for the dis-
semination of information and opinion " ( Schneider v. State, 308 U. S 147, 163) among
employees concerning unionization . "Normally . . . [ they] are the only place in which
all employees congregate , and hence may afford the only practicable opportunity for initial
steps by which self-organization is effected" (Tomlinson of High Point, 58 NLRB 982,
986). In Bonwit Teller, the Board stated that "the place of work has been recognized
to be the most effect :ve place for the communication of information and opinions con-
cerning unionization."
6 Section 7 of the Act guarantees employees "the right to self-organization , to form,
join, or assist labor organizations. . . . " The statutory guarantee, as the Supreme Court
has pointed out, "comprehends whatever may be appropriate and lawful to accomplish
and maintain such organization " of employees . Thomas v. Collins, 323 U. S. 516 , 533-534.
This includes not only the right of employees "fully and freely to discuss and be in-
formed . . . privately or in public assembly" concerning their "choice of" representatives,
but also the "correlative . . . right of the union, its members and officials . . . to discuss
with and inform the employees concerning matters involved in their choice." See also
Republic Aviation Corp v. N L. R B.; N. L. R. B. v. Le Tourneau Co, 324 U. S. 793
METROPOLITAN AUTO PARTS, INCORPORATED 1645
In view of this finding it appears unnecessary to discuss the fact that the
Respondents had no stated rule as such applicable to nonemployee union
organizers and the determination of whether the notice excluding the public
from the repair department of Massachusetts or the like legitimate business
practice of excluding the public from premises behind the counter at Metro-
politan constituted, in effect, such a rule. It may be observed, however, that
the rule as it applied to the employees could be said also to apply to nonunion
organizers because implicit in the Respondents' direction to their employees to
discuss only company business on company time was a prohibition against
listening while at work to exhortations from a union organizer. Furthermore,
the Respondents' denial of the Union's request for an opportunity to address
the employees likewise had the effect of establishing a prohibition against or-
ganizers soliciting the employees while on company time.
I also find without merit the Respondents' argument that the Union had
other effective avenues of communication to reach the employees during the pre-
election campaign. A similar argument was made by the two employers in the
Republic and Le Tourneau cases cited above. The Supreme Court nevertheless
agreed with the Board that the two employers could not, because avenues of com-
munication between employees may have been available to them elsewhere than
on company property, restrict the employees' exercise of their rights under the
Act upon the companies' premises. This is not to say that a union is entitled as
a matter of right under any circumstance to the opportunity of addressing
employees on company time and property. Both an employer and a union have
opportunity to contact and persuade employees concerning the issues of an elec-
tion through numerous media. However, once an employer uses company time
and property, particularly where he violates his own rule against such conduct
by the employees and the concomitant denial of similar use to a union, it is clear
that the right of employees freely to select or reject union representation has
been interfered with when they do not have the right to hear both sides under
conditions reasonably approximating equality. Nor can an employer escape
the consequences of his discrimination by arguing that a union might have utilized
other media of communication to counteract the discrimination!
In view of the fact that the circuit court in the Boawit Teller case clearly
upheld the Board's rationale as discussed under point (1) above, I find it
unnecessary to answer the Respondents' argument directed against point (2)
and the meaning to be attributed to the circuit court's remand as it affects that
point.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in
connection with the operations of the Respondents described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and take
certain affirmative action designed to effectuate the policies of the Act.
7 The Board normally does not set aside elections on inaccurate , untrue, or exaggerated
campaign grounds but leaves to the interested parties a counteracting function. The
parties cannot perform that function if the right of employees to hear both sides under
comparable circumstances is interfered with.
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW s
1. Local 841, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, and Lodge 1898, District 38, Inter-
national Association of Machinists, AFL, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. By making a preelection antiunion talk to their respective employees on
company time and property while denying the Union the same privilege, the
Respondents discriminatorily applied their own no-solicitation rule and thereby
engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
8 The Respondents submitted "proposed findings and conclusions" numbered 1 to 15.
All, except number 9 which is accepted, are rejected on several grounds: (1) Some are
inconsistent with the findings and conclusions made above, (2) some are too broad and
some too limited in scope, and (3) some are unnecessary to the decision as made.
HEATING, PIPING AND AIR CONDITIONING CONTRACTORS NEW YORK
CITY ASSOCIATION , INC., AND DIERKS HEATING CO ., INC. and FER-
RO-CO CORPORATION and SHEET METAL WORKERS INTERNATIONAL AS-
SOCIATION , LOCAL UNION No. 28 , PARTY TO THE CONTRACT
SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, AND SHEET
METAL WORKERS INTERNATIONAL ASSOCIATION , LOCAL UNION No. 28
and FERRO- CO CORPORATION and HEATING , PIPING AND AIR CONDI-
TIONING CONTRACTORS NEW YORK CITY ASSOCIATION , INC., PARTY TO
THE CONTRACT . Cases Nos . 2-CA-2185 and 2-CB-693. February
25, 1953
Decision and Order
On September 24, 1952, Trial Examiner Horace A. Ruckel issued
the Intermediate Report in this proceeding, finding that Respondents
Association, Dierks, and Local 28 had engaged in and were engaging
in certain unfair labor practices, and recommending that each of
them cease and desist therefrom and take certain affirmative action, as
set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that Respondent International had
not engaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect to such allega-
tion. Thereafter, the Respondents, the charging party, and the Gen-
eral Counsel filed exceptions ; the Respondents Association, Interna-
tional, and Local 28, and the General Counsel filed supporting briefs.
102 NLRB No. 167.