The Goodyear Aircraft Corp.

National Labor Relations Board - Board Decisions

Jul 21, 1944

57 N.L.R.B. 502 (N.L.R.B. 1944)

In the Matter of THE GOODYEAR AIRCRAFT CORPORATION and INTER-
NATIONAL AssoCIATION OF "MACHINISTS
Case No. 8-C-1597.-Decided July 21, 1941,
Mr. Russell Packard and Mr. William 0. Murdock, for the Board.
Mr. Walter DeBruin, of Akron, Ohio, for the respondent.
Mr. D. C. Brown, of Akron, Ohio,' and Mr. Carl Huhndor f f, of
Washington, D. C., for the I. A. M.
Mr. Glenn L. Moller, of 'counsel to the Board.
DECISION
• AND
ORDER
STATEMENT OF THE CASE
Upon a charge duly, filed on December 9, 1943, by International
-Association of Machinists, herein called the I. A. M., the National
Labor' Relations Board, herein called the Board, by the Regional
Director for the Eighth Region (Cleveland, Ohio), issued its complaint
dated March 8, 1944, against The Goodyear Aircraft Corporation,
herein called the respondent, alleging that the respondent had engaged
in and was engaging in, unfair labor practices affecting commerce
within the meaning of Section 8 (1) and (3) and Section 2 (6) 'and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and notice of hearing thereon were
duly served upon the respondent and the I. A. M.
On March 18, 1944, the respondent filed an answer admitting the
allegations of the complaint as to the nature of its business, but deny-
ing that it had engaged in, any unfair labor practice. In its answer
the respondent admitted that it had discharged Eileen Blackburn and
Lillian Blubaugh, employees named in the complaint, and asserted
that they were discharged because of frequent violations, after due
warning, of a company rule forbidding the distribution of "literature,
pamphlets or printed matter" on company, property.
Pursuant to notice, a hearing was held on March 20 and 21, 1944, at
Akron, Ohio, before J. J. Fitzpatrick, the Trial Examiner duly desig-
nated by the Chief Trial, Examiner. The Board and the respondent
57 N. L. R. B., No. 91.
502
i
THE GOODYEAR AIRCRAFT CORPORATION 503
were represented by counsel ; the I. A. M., by its representative. All
parties participated in the hearing and were granted full opportunity
to be heard, to examine and cross-examine witnesses, -and to introduce
evidence bearing upon the issues. During the course of the hearing,
the Trial Examiner made various rulings on motions and' 'on objec-
tions to the admission of evidence. The Board has reviewed these
rulings and finds that no prejudicial error was committed. The'ru1-
ings are hereby affiriped. .At the conclusion of the hearing, a motion
by counsel for the Board to conform the pleadings to the proof with
respect to formal matters was granted without objection. -
On April 15, 1944, the Trial Examiner issued his Intermediate
Report, copies of which were served upon the respondent and the
I. A. Al., finding that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and (3) and Section 2 (6) and' (7) of the Act.
The Trial' Examiner found that although Blackburn and Blubaugh
we're discharged for repeated violations of the respondent's so-called
"no-distribution" rule, the respondent had applied the rule to Black-
burn and Blubaugh in a discriminatory manner, and that the purpose-
of the discharges was to discourage membership in the I. A. M. ' The
Trial Examiner recommended that'the respondent cease and desist
from the aforesaid unfair labor practices, and, inter alia, offer rein-
statement and pay back pay to the discharged employees.
The respondent filed exceptions to the Intermediate Report, to-
gether with a supporting brief. On June 13,' 1944, the respondent
and the I. A. M. participated through counsel in oral argument before
the Board in Washington, D. C. The Board has considered the brief
and exceptions filed by- the respondent, and finds that the exceptions
have merit.
Upon the entire record in the case, the Board makes the `following :
FINDINGS OF FACT '
1. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation with its principal place
of business at Akron, Ohio, is engaged in the manufacture, sale, and
distribution of aircraft and aircraft parts. During the calendar year
1943, the respondent purchased duralumin steel tubing and rubber
fabric valued in excess of $5,000,000, of which a substantial amount
was delivered to'the respondent's plant at Akron, Ohio, from points
outside the State of Ohio. During the same period the respondent
completed products valued in excess of $10,000,000, of which a sub-
stantial pbrtion'was sold and delivered from the Akron plant to points
outside the State of Ohio. .
504 " DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
International Association of Machinists is a labor' organization
affiliated with the American Federation of Labor, admitting to mem-
bership employees of the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1. Chronology of events
The respondent, a. "subsidiary of The Goodyear Tire and Rubber'
Company, began business in 1941. Shortly thereafter, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, -C.
I. 0., herein called the C. I. 0., commenced organizational. activities,
at the plant and, in January 1942, established itself as the exclusive
bargaining representative of the respondent's employees, obtaining at.
that time a 1-year collective bargaining contract. Successive annual
contracts have been executed by the parties since that time, so that,
at all times since January 1942, the C. I. O. has acted as the ex-,
elusive bargaining representative of the, respondent's employees. In
October 1943, the I. A. M. began organizational activities at the,,re=`
spondent's plant, and during the month of November became increas-
ingly active in-its efforts to win the support of the respondent's em-
ployees. On the night of Wednesday, December 1, 1943, Eileen Black-
burn and Lillian Blubaugh, members of the I. A. M., during the half-
hour period preceding the commencement of their shift, passed out at
a clock-card rack in the plant, I. A. M. authorization cards to,all em-
ployees who would, accept 'them.' -The following night they stood
at a clock-card rack adjoining the department in which ,'one of them,
worked and again distributed I. A. M. cards.2 - Onthis occasion Alva
L. Jarvis, the shift superintendent, told them,that they were violating
company-rules, and' ordered them to cease distributing cards. Black-
burn protested that the C. I. O. had been permitted to distribute cards
and that, therefore, she and Blubaugh had an equal right to engage
in such activity., She also insisted that, independently of the re-
spondent's indulgence with respect to the C. I, 0., they had a legal
right to distribute cards. Jarvis indicated that he would discuss the
matter with the respondent's plant superintendent. The two em-
ployees ceased their distribution activities and went to 'their jobs.,
The following night, December 3, Blackburn and Blubaugh stationed
themselves next to the clock-card racks adjoining one of the' depart-,
1 On this occasion the two employees distributed more than 100 cards.
2 The clock-card racks referred to ' are located In aisles separating i the various production
departments . Most of the production departments are not partitioned and are separated
from other departments only by the aisles and by railings ,' benches, and other partial
barriers , rather than by wall partitions. ' •
THE 'GOODYEAR AIRCRAFT CORPORATION .505
rnents and again distributed I. A. M. cards. Jarvis ordered them to
cease. They again insisted that they had a right to engage. in such
activity and stated that they did not intend to cease; whereupon Jarvis
sent them home. The following day, Blackburn called at the plant
upon L. E. Miller, the plant superintendent, who reiterated the po-
sition previously taken by Jarvis. At the request of Blackburn, two
L A. M. committeemen, Foltz and Tudor, were called- and participated
in, the discussion which ensued. Blackburn again insisted that she
had a legal right to distribute union cards. Miller then stated that he
would discuss the matter with Nelson Ball, the assistant personnel
manager, who was out of town and not expected to return until the
following week. Saturday was Blackburn's night off. On Sunday,
Blackburn and Blubaugh again distributed cards in the plant, this
time unmolested.3 On Monday night they again passed out cards at
the clock-card racks 'and were again sent home. The following day,
Tuesday, December 7, the two I. A. M. committeemen met with the
-respondent's representative to discuss the matter. In the course of
the discussion, Ball stated that he could not permit the two employees
to continue their distribution activities because such'conduct violated
company rules and because the C. I. O. was demanding the same privi-
lege. Tudor and, Foltz stated that they saw his "point of view"; they
agreed to present the matter to the International officer, and to talk
to the two employees. Thereafter, on the same day, Foltz -advised
'Miller that the I. A. M. committeemen had talked to the International
cfficer and to Blackburn and Blubaugh; that the International officer
had indicated that the International could not and would not attempt
to control the distribution activities of the two employees. ' In talking
-to Miller, Foltz also admitted -that he was unable to control them 4
The same night, Tuesday, the two employees'resumed their distribu-
tion activities at the plant and they were again sent home. The fol-
lowing night, Wednesday, December 8, upon their return to the plant,
they were discharged. On the next day, December 9, 1943, the I. A. M.
filed the charge which gives rise to this proceeding.
2. The alleged discriminatory application of the no-distribution rule
The respondent has had in effect, since it commenced operations,,
certain rules of conduct which have long been in force at the plants of
its parent company. One of these rules, as set forth above, forbids
B Sunday night was Jarvis ' night off.
The findings above with respect to the conversations between management and union
representatives on December 7 are based upon ' the testimony of Miller and Ball, whom
we credit. Foltz , when questioned ' about these statements , did not deny them ; he admitted
some and, as to others , stated that be did not remember . ' Tudor did not appear as a
witness.
506 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD
"distributing or 'circulating literature, petitions, written or printed
matter," while another forbids "soliciting or collecting contributions."
The respondent .urges. that it has at no time enforced the rule against
solicitation,' insofar as union activity is concerned, but insists that it
has made a reasonable effort to enforce the rule against distribution of
literature.5 So far as appears, the respondent adopted its no-distribu-
tion rule in an, "effort to keep the premises free of advertising material
and political literature which might litter the premises of any company
during the periods of election of public officials or balloting upon con-
troversial issues." The I. A. M. contends, and the Trial Examiner
found, that the respondent had not 'enforced its rule against distribu-
tion of literature in instances involving distribution of C. I. 0. litera-
ture,'-and that the enforcement of the rule against Blackburn and
Blubaugh,.involving, as it did, distribution of authorization cards on
behalf of the I. A. M., was therefore discriminatory and hence a viola-
tion of the Act.
The Trial Examiner's finding that the respondent had permitted the
C. I. 0. to distribute its authorization cards and other printed matter
rests upon testimony of several Board witnesses, including Blackburn,
an erstwhile C. 1. 0. member and one of the dischargees, that they had
openly, during their free time, and covertly, on company time, solicited
members for the C. I. 0. in various locations in the plant, and that,
in the course of such solicitation, they had distributed authorization
cards; upon the fact that pursuant to permission obtained from the
respondent as the result of collective bargaining, the C. 1. 0. had placed
its newspaper in boxes or racks in the plant, which the respondent had
provided for the distribution of its own regular publication to 'em-
ployees; and upon the fact that sample ballots for C. 1. 0. elections and
cards dealing with a proposal for vacation pay were distributed by the
C. I. 0. in the plant without interference from the respondent .6
The Trial Examiner concluded that, having permitted the use by
the C.J. 0. of authorization and membership cards in the course-of
soliciting membership in that labor organization, the respondent
could not, without discriminating, forbid the kind of-conduct here
engaged in by Blackburn and Blubaugh., We do not, agree. -The
record reveals that as long as the I. A. M. used the same organizational
"tactics as have been used by the C. I. 0., the resliondent'did not inter-
' The respondent's contriict with the C . I O. contains the following clause : , `Neither
party will permit solicitation of employees for any purpose on Company time in a manner
which interferes with production.
a-The Trial Examiner also found that the respondent did,not enforce,its no-distribution
rule insofar as it applied to solicitation or advertising in connection with various patriotic
and charitable causes, and with respect to social affairs directly or indirectly sponsored by
management . We do not, consider significant the respondent 's indulgence in this regard
in view of our finding hereinafter that the respondent did not discriminate with respect to
the enforcement of its no -distribution rule as between the C. I. O. and the I. A. M.
THE -GOODYEAR AIRCRAFT CORPORATION 507
fere-in any way.7 Not until the activities of Blackburn and Blubaugh
went beyond distribution of printed matter incidental to isolated in- •
stances of solicitation of membership in the I. A. M. and entered the
field of indiscriminate and wholesale distribution of authorization
cards , did the respondent object., There is undenied testimony, which
we credit, that, on a number of prior occasions, the C. -I. 0. had re-
quested permission ,to distribute literature and that the respondent
had uniformly, denied such requests. It is significant that when
Blackburn and Blubaugh, undertook to pass out cards at the clock
racks to anyone who would accept them, the C. I. 0. promptly com-
-municated with the respondent and demanded the same privilege.
If,'previously, the C. I. 0. had been permitted to engage in such activ-
ity, obviously it would have had no occasion to seek permission from
the respondent to continue. Moreover, the respondent again denied
,the request of the C. I. 0.
Similarly, in our opinion, the fact that the respondent permitted
the C. I. 0., the exclusive bargaining representative of its employees,
the distribute ballots in the plant and to use company facilities for the
distribution of the C. I., 0. newspaper does not establish that the re-
spondent, in discharging Blackburn and Blubaugh, discriminated as
between the C. I. 0. and the I. A. M. in respect to the precise activities
in which the two employees had engaged 8
We find that the respondent did not adopte its no-distribution rule
for the purpose of discouraging-union organization or for any other
° Blackburn, when questioned concerning her previous organizational activity on behalf
of the I A. M., testified as follows :
Q. Was that [December 1] the first night on which you had passed these cards out at
the clock racks?
A. At the clock racks ; yes.
Q. So your activity up until that time in regard to solicitation of members for the
I. A.M. had not been at the clock racks, but within the department?
A. It bad been in the cafeteria. It may have been in isolated Instances at the clock
racks.
Q. Yes; but you never started your broad program of broadcasting these cards at the
clock racks until December 1? Isn't that right?
A. That is right.
8 In the conference between Assistant Personnel Manager Ball and the two I. A. M.
committeemen , Ball stated , as he testified : "I pointed out to the two gentlemen that it was
definitely a violation of rules, and it was something we had to put a stop to. We could
not continue it. That, as far as the girls being sent home and losing a day of work, I
indicated to them that I thought we could probably arrange that matter to everybody's
satisfaction , providing this particular offense was discontinued . I pointed out to them
the danger that lay in a continuation of this thing, inasmuch as the contracted (sic)
union , that is, the regular bargaining agency, insisted , rightfully , that they be given the
same permission ; and noted to these gentlemen that by doing that we were developing
a situation there that might lead to grave consequences , and jeopardizing the production
of that particular plant. Since the production of the plant Is related to combat aircraft
for the united States Navy, we naturally were extremely anxious that there be no kind of
labor disturbance , particularly inter-union jurisdictional fights " We do not agree with
the Trial Examiner 's inference drawn from Ball 's statement that the respondent thereby
indicated a purpose to favor the C. I. 0. and to prejudice the I . A. M. In their union rivalry
for the support of the respondent 's employees. I -
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objective proscribed by the Act, and that the respondent, in discharg-
ingBlackburn^and Blubaugh, after repeated warnings to desist from
the conduct in which they engaged, did not enforce such rule in a
discriminatory manner within the meaning of the Act. We conclude
that, unless the rule against distribution of literature was per se. an
unreasonable restraint upon the exercise of the rights, guaranteed by
the Act, the respondent has not violated the Act as alleged in the
complaint.
i
3. The, validity of the no-distribution rule
As stated above, the respondent advances as justification for its
n_adistribution rule its desire to' maintain plant cleanliness. We ac-
cordingly see no objection to such rule. An employer has a legitimate
interest in keeping his plant clean and, as we have held, in the absence
of exceptional circumstances, to protect such interest he may prohibit
the distribution of literature within his plant, where production is
being carried on, at all times.9 We are not convinced that, under the
circumstances disclosed here, the protection of the respondent's interest
in maintaining, plant cleanliness is outweighed by the interest of its
employees in engaging in the type of activity banned by the respond-
ent'as a tactic in union organization. We are of the opinion and find
that the respondent's rule against distribution of literature, as inter-
preted and applied'by the respondent, is not an unreasonable impedi-
ment to self-organization and that the respondent was justified in
demanding that,its employees respect the rule, and in discharging
Blackburn and Blubaugh for,violation thereof.
Since we find that the respondent has not discriminated with respect
to the hire and tenure of employment of Blackburn and Blubaugh, we
shall order that the complaint be dismissed.
1 .1
1. International Association of Machinists, affiliated with the
American Federation of Labor, is a labor organization,' within the
meaning of Section 2 (5) of the Act.
-2. The operations of the respondent, The Goodyear Aircraft' Cor-
poration, Akron, Ohio, occur in commerce, within the meaning of
Section 2 (6) and (7) of the Act.
3. The respondent has not engaged, in unfair labor practices,
within the meaning of Section 8 (1) and (3) of the Act.
CONCLUSIONS OF LAW Q,
9 Matter of Tabun-Picker & Co., 50 N . L. R. B. 928 ; ' Matter of North' American £viation,
'Inc., 56 N. L. R. B. 959. '
1
THE GOODYEAR AIRCRAFT CORPORATION '509
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act,, the National Labor Relations Board hereby orders that the com-'
plaint against The Goodyear Aircraft Corporation, be, and it, hereby
is, dismissed.
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Order.
0