The Kelly-Springfield Tire Co.

National Labor Relations Board - Board Decisions

Apr 12, 1976

223 N.L.R.B. 878 (N.L.R.B. 1976)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Kelly-Springfield Tire Company and United Rub-
ber, Cork , Linoleum and Plastic Workers of Ameri-
ca, Local 959, AFL-CIO. Case I 1-CA-6052
April 13, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 12, 1975, Administrative Law Judge
Stanley N. Ohlbaum issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, The Kelly-Springfield
Tire Company, Fayetteville, North Carolina, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY N. OHLBAUM , Administrative Law Judge: Issues
arising from Respondent Employer's denials of allegations
in a complaint issued by the National Labor Relations
Board 's Regional Director for Region 11 (Winston-Salem,
North Carolina) on May 7, growing out of a charge filed
by the above Union on March 24, were heard by me at the
United States Courthouse in Fayetteville, North Carolina,
on June 17, 1975, in this proceeding under the National
Labor Relations Act, as amended (29 U.S.C. § 151, et. seq.),
herein called the Act.
The issues are the legality of Respondent's rule forbid-
ding distribution of literature at its plant without its ap-
proval; and the legality of its refusal to furnish to the
Union, as exclusive bargaining representative of its em-
ployees, a seniority list for the Union's use in connection
with analyzing mass plant layoffs in and subsequent to
January 1975, and the addresses of bargaining unit em-
ployees.
Full opportunity having been provided to the parties to
present evidence, argue contentions, and file briefs (re-
ceived on July 29 and August 12, 1975),1 and due delibera-
tion having been had, now, upon the entire record and my
observation of the testimonial demeanor of the witnesses, I
make the following:
FINDINGS AND CONCLUSIONS
It. JURISDICTION
At all material times , Respondent, The Kelly-Springfield
Tire Company, has been and is a Maryland corporation
engaged in the manufacture of tires and tubes in Fayette-
ville, North Carolina, where, during the representative year
immediately preceding issuance of the complaint, it re-
ceived raw materials, directly in interstate commerce from
points outside of that State, valued at over $50,000, and
where during the same period it produced and whence it
shipped products, directly in interstate commerce to places
outside of North Carolina, valued at over $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; and that at all of
those times the Charging Party Union has been and is a
labor organization within the meaning of Section 2(5) of
the Act.
Ill. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union has been the exclusive bargaining representa-
tive of Respondent's Fayetteville, North Carolina, plant
production and maintenance employees since at least Jan-
uary 1973, following an August 1972 Board-conducted rep-
resentation election. On or about January 22, 1973, Re-
spondent entered into a collective agreement with the
Union, effective from that date to October 1, 19752
B. Employer's Refusal to Furnish Union with Seniority List
or Unit Employees' Addresses
In connection with the Board-conducted election (Au-
gust 17, 1972), Respondent Employer furnished the re-
quired "Excelsior list" J of the 1,200 or so employees in the
bargaining unit here involved. That list showed 4 that em-
ployees from Respondent's plant-located about 10 miles
north of Fayetteville-included employees residing in
North Carolina at the following approximate distances
(one way) from Respondent's plant: Bladenboro, 62 miles;
1 Although General Counsel's application to file a reply brief by August
20, 1975, was allowed, by communication dated August 15 and received
August 29 he indicated none would be submitted.
2 By letter dated October 17, 1975, Respondent 's counsel informed me
that a new collective agreement had been entered into.
3 Excelsior Underwear inc., 156 NLRB 1236 (1966).
Credited testimony of General Counsel's witness, Robert E. Lee
(Respondent 's employee for over 5 years and president of Charging Party
Union since December 1974).
223 NLRB No. 115
KELLY-SPRINGFIELD TIRE CO.
Dunn, 20 miles ; Fairmont, 40-60 miles; Lumberton, 45-50
miles ; Newton Grove, 40-45 miles; Olivia, 30-35 miles.
Since then, new hires have included employees from Cum-
berland, Dublin, Harnett, Hoke, Robeson, and Sampson
counties, covering a radius of approximately 70 miles (one
way) from the plant. It is estimated by Union President
Robert E. Lee that 75 percent of the unit employees "com-
mute" to the plant from within approximately 40 miles,
another 5 percent from within 50 miles , and the remainder
from within 70 miles (one way); on the other hand,
Respondent's comparatively new Personnel Manager Rob-
ert Michael Hallbauer estimates that the plant draws 70-75
percent of its employees from Cumberland County, which
extends approximately 20-25 miles from the plant, with 95
percent of the employees within a 40- to 45-mile one-way
"commuting" distance; and Respondent's employment
manager , Thomas Harold Elkins, estimates that over 90
percent of the current bargaining unit work force resides
within 45 miles of the plant. Although resolution of any
divergence between these estimates is not deemed essential
here, in view of the consistently significant distance of the
residences of a substantial proportion of the unit employ-
ees from the plant, it is to be noted that Respondent, which
is concededly in possession of the specific facts and figures
in its business records, failed to produce primary proof
thereof notwithstanding General Counsel's subpena direct-
ed to it for the purpose of eliciting precise data on this
point.
Within a 5- to 7-week period following January 1, 1975,
Respondent, without notification to the Union, laid off
around 250-300 bargaining unit employees. The Union re-
ceived inquiries from 50-100 of the laid-off employees con-
cerning the propriety of their selection for layoff. When the
Union requested Respondent to supply it with 'a seniority
list and addresses of the unit employees, Respondent re-
fused on the ground that the Union "didn't need this infor-
mation." Thereupon, by certified mail letter of February 17
delivered to Respondent on February 19, 1975 (G.C. Exh.
3), the Union formalized its request. Although Respondent
thereafter provided the Union with the names and undiffer-
entiated seniority of all employees, in the form of a bulk
print-out or plant "manning list," as of March 4, 1975 (i.e.,
subsequent to and not as of the period of the aforedescribed
layoffs), Respondent has continued to refuse to supply the
Union with a differentiated (i.e., bargaining unit) seniority
list as of January 1, 1975, or the addresses of the bargain-
ing unit employees, contending it is under no obligation to
do so since the requested seniority information is unneces-
sary to the Union and difficult to provide, and that the
requested addresses are "confidential" and "privileged," at
any rate in a "right to work" 5 state such as North Caroli-
na.
The parties' collective agreement (G.C. Exh. 2) "recog-
nizes the Union as the exclusive bargaining agent" of the
unit employees (art. I), and includes provisions regulating
nondiscrimination (art. I, secs . 3, and 4), productivity (art.
II, sec . 2), no strikes or lockouts (art. II, sec. 3), wages,
"carbon black" premium wages, overtime, safety and
5 National Labor Relations Act, Sec. 14(b).
879
health, occupational injuries and illnesses, leaves, holidays,
military duty, transfers, and discipline (arts. VI, VIII, and
IX), seniority, layoffs, and recalls (art. VII), and detailed
grievance procedures (art. IV) including the right of the
Union to conduct worktime investigations, studies, and
analyses (art. IV, sec. 4). While the Employer's "grievance
form" (G.C. Exh. 4) calls for grievance details and requires
the grieving employee's signature, it does not include the
employee's address or telephone number. It is evident that the
Union was active in attempted protection and advance-
ment of employees' interests and administration of the col-
lective agreement. Thus, it has not only issued a substantial
quantity of organizational and informational literature (e.
g., Resp. Exhs. 2-17 incl.), but it has pursued contractual
grievance procedures to assure Employer adherence to the
collective agreement 6
At the time of the hearing (mid-June 1975), there were
approximately 612 union members, all on check off, with
the Union unaware of the actual number of employees in
the bargaining unit but estimated by the Union to be
around 1,125-40 without regard to the large number termi-
nated commencing in January 1975.7 With an annual work
force turnover rate as high as perhaps 80-85 percent, the
Employer does not notify the Union concerning new hires, and
only "to a certain extent" about discharges. There is no
union-security provision, nor under the Act and North
Carolina law may there be, but there is a union dues check-
off provision in the collective agreement.
As has been shown (fn. 7, supra ), the percentage of
union membership in the bargaining unit remains relatively
low. Nonetheless, under Section 9(a) of the Act, the Union
is obligated to serve as the bargaining representative on
behalf of the nonmembers as well as the members of the
Union employed in the bargaining unit. An integral part of
that representation is the administration, and enforcement
where appropriate, of the provisions of the collective agree-
ment covering all employees in the bargaining unit, includ-
ing the seniority and other provisions thereof. It is difficult
to see how some of those provisions can be administered
and enforced-and hence the Union's carrying out of its
statutory and common-law obligations as bargaining agent
can be fulfilled-unless the Union is furnished data con-
cerning plant seniority as of the period of Respondent's
mass layoffs in and following January 1975; and unless it
has reasonable access to its principals-the unit employees
whose rights those provisions presumably protect-
through knowledge of where they live and may be contact-
6 E.g., the Union' s successful effort for reinstatement of employee Chris
Schmid, allegedly laid off in disregard of "bumping" rights prescribed by
the collective agreement . Respondent's employment manager, Elkins, con-
ceded on cross-examination that the Company has misapplied seniority and
"bumping" rights in terminating unit employees, allegedly particularly be-
cause of the large number of unit employees-over a thousand.
7 Respondent's personnel manager, Hallbauer, testified that of 1,111 cur-
rent unit employees (excluding 200 on layoff), 613 are union members; and
that while there have been about 32 membership withdrawals since 1974,
213 more joined in March to May 1975, for the current total of 612 (or 613)
as compared to the 388 members out of 1,300-1,400 unit employees on
January I, 1975. Thus, by either estimate , the percentage of the union mem-
bership appears to be relatively low-under Magma Copper Company, San
Manuel Division, 208 NLRB 329 (1974), an element for consideration in
connection with the Union's claimed justification for the requested informa-
tion as to unit employees' addresses.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed and spoken to privately and without time or work limi-
tation, pressure or restraint. The difficulty is compounded
by Respondent' s maintenance of a prohibition-consid-
ered infra, 111,C-against "distribution of any type of liter-
ature on plant property without the approval of the Person-
nel Manager" as well as a limited proscription against use
by the Union of plant bulletin boards.8
As to the requested information concerning the seniority
of unit employees , Respondent 's Personnel Manager Hall-
batter conceded that-notwithstanding a union letter of
February 17, 1975 (G.C. Exh. 3), requesting a seniority list
of the unit employees, for the Union's use in connection
with the Company's mass layoff commencing in January
1975-the Company has at no time supplied the Union
with such a list as of January 1975, the layoff period.
Respondent 's explanation on brief (as well as Hallbauer's
at the trial) for not doing so is that it would be "complicat-
ed." Shortly after Hallbauer furnished such a list as of
March 4, 1975, Union President Lee informed Hallbauer
he was unable upon the basis of that list to assess the pro-
priety of the massive January layoffs with which he was
concerned under the seniority provisions of the collective
agreement (G.C. Exh. 2, art. VII), thus making it impossi-
ble for the Union to service that agreement. It is clearly not
a justification for failure to provide required information
that it is "complicated"-indeed , in a sense that is an addi-
tional reason why the Union needs it to administer the
collective agreement properly in so large a bargaining unit;
furthermore , it seems appropriate to observe that , since Re-
spondent was presumably operating under the seniority
layoff requirements of the collective agreement at the time
it made the mass layoffs in question , Respondent must
have had a seniority list, or its equivalent, on hand in ef-
fecting those layoffs. Nor is Respondent's additional con-
tention sound that the Union should be required in each
instance to take up each alleged improper layoff on a "case
by case basis," since the very determination of whether to
take up a case depends upon possession of comparative
seniority data; and there should be no necessity to resort to
numerous separate grievance procedures concerning this
matter, when the key issue which presumably might unlock
and resolve them is a seniority list-a matter not requiring
contract interpretation and no such contention being inter-
posed herein. In this aspect of the case-concerning
Respondent 's conceded continuing failure to furnish the
Union with a seniority list of unit employees as of January
1, 1975-it is clear and I find that Respondent's failure and
continuing refusal to furnish such a list as of January 1,
1975, as distinguished from a later date or dates, was calcu-
lated to and did prevent the Union from access to "infor-
mation that is needed by the bargaining representative for
the proper performance of its duties" (N. L.R. B. v. Acme
Industrial Co., 385 U.S. 432 at 435-436 (1967)) and essen-
s Thus, the Employer, in disagreement with the Union, does not regard
the Union 's newspapers as "educational" or otherwise qualifying for posting
on its bulletin boards with the "approval " of its personnel office under art.
IX, sec. 6, of the collective agreement (G.C. Exh. 2). In Magma Copper
Company, San Manuel Division, 208 NLRB 329 (1974), the Board indicated
that inability of the bargaining representative to reach employees via plant
bulletin boards is an added element of justification for requiring an employ-
er to supply the union with the addresses of unit employees.
tial to analysis of the propriety of Respondent's January
1975 massive layoffs of unit employees. See N.L.R.B. v.
Reed & Prince Mfg. Co., 205 F.2d 131, 135 (C.A. 1, 1953),
cert. denied 346 U.S. 887 (1953); N.L.R.B. v. Gulf Atlantic
Warehouse Company, 291 F.2d 475 (C.A. 5, 1961); South-
west Chevrolet Corp., 194 NLRB 975, 984-985 (1972), enfd.
sub nom. Edward Behrendt 82 LRRM 2620 (C.A. 7, 1972);
Kayser-Roth Hosiery Company, Inc., 187 NLRB 562, 565
(1970), enfd. in material part 447 F.2d 396, 400-401 (C.A.
6, 1971).
We move now to Respondent's further continuing fail-
ure to comply with the Union's request for addresses of unit
employees. Among the reasons pressed upon the Employer
by the Union, without avail, for its alleged need for ad-
dresses of unit employees, is the massive nature of the lay-
offs and terminations of unit employees at the plant and
complaints received by the Union from affected employees
concerning questions of seniority, which the Union alleg-
edly cannot process properly or resolve without access to
information from laid-off (as well as other) unit employees.
While, to be sure, "[t]here is no general rule requiring an
employer to give the bargaining agent a list of the unit
employees' names and addresses," nevertheless "courts
have imposed such a requirement when the information is
relevant and necessary to the union's performance of its
duties . See United Aircraft Corp. (Pratt & Whitney) v.
N.L.R.B., 434 F.2d 1198, 1204-05 (C.A. 2, 1970), cert. de-
nied 401 U.S. 993 (1971); Prudential Insurance Company of
America v. N.L.R.B., 412 F.2d 77, 83-84 (C.A. 2, 1969),
cert. denied 396 U.S. 928; Standard Oil Co. of California,
Western Operations, Inc. v. N.L.R.B., 399 F.2d 639, 640
(C.A. 9, 1968). The existence of a duty thus depends on the
factual circumstances in each case." N.L.R.B. v. Pearl
Bookbinding Company, Inc., 517 F.2d 1108, 1113 (C.A. 1,
1975).
Under the circumstances presented, including a bargain-
ing unit consisting of over 1,000 employees, the rapid rate
and substantial extent of unit work force turnover, the rela-
tively small percentage of union members, the Employer's
restriction of distribution of union literature as well as its
limitation on union use of bulletin boards, the significant
geographic distance and dispersion of the unit employees'
residences from the plant, the unfeasibility of alternative
methods of communication not involving knowledge of the
unit employees"addresses,9 the Employer's failure to pro-
vide information to the Union as to new hires (as well as to
many if not most terminations), and the Union's demon-
strated need to know the addresses of unit employees in
connection with its administration of the collective agree-
ment as well as for proper execution of its legal obligations
as statutory exclusive bargaining representative, it is found
and concluded that the Union is entitled to this informa-
tion from Respondent, which has demonstrated no proper
justification for refusing to supply it. See Pearl Bookbinding
9 Respondent 's personnel manager, Hallbauer, testified to a substantial
density of traffic through the plant gate-for practical purposes the only
method of access to or from the fence-surrounded plant-with as many as
300-400 employees moving in and at the same time as equivalent number
moving out during a 10- to 15--minute period, or 600 -800 clearing the gate
in 10-15 minutes for an effective flow of around 60-80 employees per min-
ute, at each shift change time . The gate itself, as well as the nearby parking
lot, is on Company property.
KELLY-SPRINGFIELD TIRE CO. 881
Company, Inc., 213 NLRB 532 (1974), enfd. 517 F.2d 1108
(C.A. 1, 1975); Prudential Insurance Company of America v.
N.L.R.B., 412 F.2d 77 (C.A. 2, 1969), cert. denied 396 U.S.
928 (1969); Standard Oil Co. of California, Western Opera-
tions, Inc. v. N.L.R.B., 399 F.2d 639 (C.A. 9, 1968); Henry
M. Hald High School Association, 213 NLRB 463 (1974);
Reserve Enterprises, d/b/a Coit Eagle, 210 NLRB 495, 496,
(1974); Magma Copper Company, San Manuel Division, 208
NLRB 3329 (1974); United Aircraft Corporation, 181
NLRB 892 (1970), enfd. 434 F.2d 1198 (C.A. 2, 1970), cert.
denied 401 U.S. 9933 (1971); Southern Counties Gas Com-
pany of California, 174 NLRB 19 (1969); General Electric
Company, 176 NLRB 605 (1969).10
C. Employer's No-Distribution Rule
It is undisputed that the parties' collective agreement (G.
C. Exh. 2, p. 44, "18"), copies of which are distributed to
the unit employees as well as to Respondent's supervisors,
contains a provision, under its "Rules of Conduct ....
violation[s] of which may result in disciplinary action in-
cluding . dismissal," proscribing "The distribution of any
type of literature on plant property without the approval of
the Personnel Manager." Since such an absolute proscrip-
tion 11 would presumably be invalid 12 in the absence of its
10 Respondent has failed in any way to substantiate its alleged fear that
employees will be harassed or their privacy improperly invaded (cf. Shell Oil
Co. v. N.L.R.B., 457 F.2d 615, 620 (C.A. 9, 1972)-involving clear and
present danger of "harassment and violence ") if it provides such informa-
tion. Cf. United Aircraft Corp. (Pratt & Whitney) v. N. L. R. B., 434 F.2d 1198,
1207 (C.A. 2, 1970). In this connection, I view Respondent 's argument or
allusion to the request of Union President Lee that the Company not fur-
nish his own (i.e., Lee's) home address to employees, as frivolous as well as
irrelevant, it being conceded that the Union maintains a business address,
and there being no reason for Respondent 's routine disclosure of Lee's
home address for night and round-the-clock visits and phone calls from
potentially over a thousand other employees . Respondent 's further conten-
tion that it would be an onerous, inconvenient , and expensive task to supply
such information is not well taken in view of its failure to assert such a
reason at any time for its refusal to supply the requested information, and
its concession at this hearing that this is not the basis for its refusal, but
rather the "confidentiality" of the information ; and, atop this, its further
concession ( testimony of its Employment Manager Elkins on cross-exami-
nation) that the Company maintains a current mailing list to its employees
for its newsletter, which is addressed through a computerized addressing
system or machine print-out. Finally , with respect to a letter (with 2-page
attachment) to the Administrative Law Judge from Respondent 's attorney,
dated October 17 and received October 29, 1975 (added to exhibits as
Judge 's Exh . 1), stating that this subject arose during contract "negotiations
. recently concluded" (presumably posthearing and around the expira-
tion of the previous collective agreement), whether or not the subject was
definitively covered by those negotiations for a future period-and it is by
no means clear from the indicated communication that it was, since agree-
ment to supply a seniority list does not cancel out a statutory right to other
appropriate bargaining/collective agreement administrative information
such as unit employees ' addresses ; and no demonstration has been made
that this phase of the instant proceeding has abated or been settled by the
parties-in any event, this proceeding would not be rendered moot nor the
Board be deprived of the power to decide the issues and to provide effective
remedies . See N.L.R.B. v. Mexia Textile Mills, 339 U.S. 563, 567 and fn. 4
(1950); N.L.R.B. v. Gulf Atlantic Warehouse Company, 291 F.2d 475 (C.A. 5,
1961).
11 I regard Respondent 's Personnel Manager Hallbauer 's, as well as its
counsel 's on brief, characterization of the foregoing rule as one "permitting"
(i.e., with "approval" ) rather than "prohibiting" distribution as a semantical
inversion or euphemism which leaves the problem at a standstill.
12 The rule in question is clearly much too broad, proscribing as it con-
cededly does even distribution by employees in nonworking areas during
inclusion in a collective agreement, the issue here presented
is whether inclusion of the provision in a collective agree-
ment validates it. Resolving disharmony among the circuit
courts of appeals, this question has been answered in the
negative by the Supreme Court. The rationale for invalidat-
ing the rule even though included in a collective agreement
is that as a general proposition parties cannot by agree-
ment render lawful that which is unlawful ; 13 and that such
an agreement between an employer and an incumbent
union is calculated to insulate employees from dissemina-
tion to them of communications from other labor organiza-
tions , to say nothing of employees ' dissemination of their
own communications directed against the incumbent
union , and thus, through stifling communication channels
guaranteed to employees under the Act, to "freeze" into
place an incumbent union by its own agreement with the
employer in effect waiving an unlawful no-distribution
rule. N.L.R.B. v. The Magnavox Company of Tennessee, 415
U.S. 322 ( 1974), reversing 474 F.2d 1269 (C.A. 6, 1973),
and affg . 195 NLRB 265 (1972). See also N.L.R.B. v. Mid-
States Metal Products, Inc., 403 F.2d 702 (C.A. 5, 1968);
General Motors Corp., 212 NLRB 133 (1974), modified 512
F.2d 447 (C.A. 6, 1975); General Motors Corp., 211 NLRB
986 (1974), modified 512 F.2d 447 (C.A. 6, 1975); John H.
Swisher & Son, Inc., 211 NLRB 777 (1974); Yellow Cab,
Inc., 210 NLRB 568 (1974); McDonnell Douglas Corp., 210
NLRB 280 (1974). Under the circumstances, the provision
in question and Respondent's maintenance thereof must be
adjudged improper and in violation of the Act.14
nonworking periods . The Contract Knitter, Inc., 220 NLRB No. 30 (1975);
Pepsi-Cola Bottling Co. of Los Angeles, 211 NLRB 870 (1974); Stoddard-
Quirk Manufacturing Co., 138 NLRB 615 (1962).
13 It is noted that the parties' collective agreement (G.C. Exh . 2) provides
that its terms are to be deemed conformed to all requirements of law (art. I,
sec. 6).
14 Respondent's attempted showing at the trial that its application of the
proscription in question has been beneficent is beside the point . Granting
that Respondent has indeed at times, in the sole and undefined discretion of
its Personnel Manager, permitted distribution of certain Union literature on
its property , it has at other times refused to permit distribution of other
union literature , and, of course , it remains free at any time to convert benef-
icence into severity and even despotism . Thus, by its letter of February 18,
1975 (G.C. Exh. 5), Respondent's manager warned Union President Robert
E. Lee not to attempt to distribute the union newspaper at or "in the area
of" the plant gate, which Respondent had refused to authorize , purportedly
as potentially creating an undescribed "serious plant housekeeping prob-
lem." (Respondent had also refused , and continues to refuse , to permit the
union newspaper to be posted on the plant bulletin board-not because it
would create a "housekeeping problem" but because it is not "educational"
or otherwise within the categories of material authorized for display under
section 6 of article IX of the collective agreement (G.C. Exh. 2).) Neverthe-
less, by its letter of April 29, 1975, Respondent 's personnel manager indi-
cated that it might-under undefined standards-permit distribution of
such union material "on Company property" as is submitted to and meets
with the personnel manager's "approval prior to actual distribution ," adher-
ence to this procedure being mandated by him as "imperative" (G.C. Exh.
6). Such an undefinedly selective precensorship system does not legitimatize
the invalidity of the described ban on distribution , the mere maintenance of
which is coercive . Cf. Marinette Marine Corporation, 179 NLRB 627, 629-
630 (1969). Nor would "beneficent" administration , or even "nonenforce-
ment," of an invalid requirement or rule, constitute a defense to continued
maintenance or noncancellation thereof . Cf., e.g ., N.L.R.B. v. Mexia Mills,
339 U.S . 563, 567 ( 1950); Sunbeam Corporation, 184 NLRB 950, 960-961
(1970), enfd . sub nom. James Moore v. Sunbeam Corporation , 459 F.2d 811
(C.A. 7, 1972); N. L. R. B. v. Lexington Chair Company, 361 F.2d 283 , 286, 295
(C.A. 4, 1966); G & W Electric Specialty Company v . N. L. R. B., 360 F.2d 873,
874 (C.A. 7, 1966); N.L.R.B. v. Walton Manufacturing Company, 289 F.2d
Continued
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's concern over pollution or contamination
of its tires through the possibility of introduction of foreign
substances is unpersuasive here , in view of its refusal to
permit distribution or posting in nonwork areas (outside
plant gate; bulletin boards) and the obvious feasibility of
limiting distribution to appropriate nonwork areas and re-
gulating its modus operandi so as to avoid the same kind of
cluttering which can result from any kind of papers care-
lessly discarded.
In view of the foregoing, there are accordingly, upon
these findings of fact and the entire record , hereby stated
the following:
REMEDY
Respondent having been found to have violated Section
8(a)(5) and (1) of the Act in the respects enumerated,
should be required to cease and desist from continuing or
furthering such violations, and to take appropriate affirma-
tive actions to repair such violations, including the posting
of the usual notice in cases of this nature.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record, and pursuant to Section
10(c) of the Act, there is hereby issued the following:
ORDER 15
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By its failure and refusal to provide the Union with
requested information as to the names and seniority of all
unit employees at its Fayetteville, North Carolina, plant as
of January 1, 1975, Respondent has engaged and is contin-
uing to engage in unfair labor practices in violation of Sec-
tion 8(a)(5) and (1) of the Act.
3. By its failure and refusal to provide the Union with
the names and addresses of its said unit employees, under
the circumstances described and found in section III, su-
pra, Respondent has engaged in and is continuing to en-
gage in unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act.
4. By its promulgation , maintenance, and enforcement
of its rule forbidding distribution of any type of literature
on its Fayetteville, North Carolina, plant property without
the approval of its personnel manager, Respondent has en-
gaged in and is continuing to engage in unfair labor prac-
tices in violation of Section 8(a)(l) of the Act.
5. Said unfair labor practices have affected, are affect-
ing, and, unless permanently restrained and enjoined, will
continue to affect commerce within the meaning of Section
2(6) and (7) of the Act.
177, 180-181 (C.A. 5, 1961). Concerning an unenforced but invalid no-
solicitation rule, the court took occasion to state in Jas. H. Matthews & Co.
v. N.L.R. B., 354 F.2d 432, 441 (C.A. 8, 1965 ), cert . denied 384 U.S. 1002
(1966):
In regard to this contention [ that the no-solicitation rule was not en-
forced as written], we point out, first, that it is well established that
"(w)hether (an employer) infringed upon its employees ' freedom to en-
gage in union or concerted activity ... depends upon the reasonably
foreseeable effects of its conduct upon its employees ." N.L.R.B. v. Wal-
ton Manufacturing Co., 289 F.2d 177, 180 (5 Cir.). As the no solicitation
rule involved herein , on its face would ban perfectly legal Union solici-
tation on nonworking time, and as the Company never gave notice of
any rescission of the rule (see Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d
96, 101 (7 Cir.)) or a purpose not to so interpret it, an employee desir-
ing to engage in Union solicitation "might well be deterred , or else
reasonably assume that he acted at his peril." N.L.R.B. v. Walton Man-
ufacturing Co., supra. As aptly stated by the Second Circuit in holding a
similar rule unlawful because of its breadth (N.L.R.B. v. Miller, 341
F.2d 870, 871, 874): "The true meaning of the rule might be the subject
of grammatical controversy . However, the employees of respondent are
not grammarians. The rule is at best ambiguous and the risk of ambigu-
ity must be held against the promulgator of the rule rather than against
the employees who are supposed to abide by it."
Respondent, The Kelly-Springfield Tire Company, of
Fayetteville, North Carolina, its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Failing and refusing to furnish to United Rubber,
Cork, Linoleum and Plastic Workers of America, Local
959, AFL-CIO, as the exclusive bargaining representative
of Respondent's production and maintenance employees at
Respondent's Fayetteville, North Carolina, plant a list of
the names and seniority, plantwide as well as by depart-
ment and job classification, of said bargaining unit em-
ployees, as of January 1, 1975, including all unit employees
on layoff as well as those actively employed.
(b) Failing and refusing to supply said Union with a list
of the names and addresses of the employees in said bar-
gaining unit.
(c) Maintaining in effect and enforcing Respondent's
rule forbidding the distribution of any type of literature on
Respondent's Fayetteville, North Carolina, property with-
out the approval of its personnel manager.
(d) Promulgating, maintaining , giving effect to, or en-
forcing any rule which prohibits employees from distribut-
ing literature in nonworking areas on nonworking time on
behalf of any labor organization relating to the selection or
rejection of a labor organization as the exclusive bargain-
ing agent of the employees in a unit appropriate for collec-
tive bargaining, or relating to other matters involving the
exercise by employees of their rights under Section 7 of the
National Labor Relations Act, as amended.16
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right of self-organization.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act:
(a) Forthwith furnish to the foregoing Union a written
list of the names and addresses of the employees in the
foregoing bargaining unit, together with their seniority,
plantwide as well as by department and job classifications,
as of January 1, 1975; and furnish to the Union each 6
months from January 1, 1975 (including as of July 1, 1975),
15 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order which follows herein shall, as provid-
ed in Sec . 102.48 of those Rules and Regulations , be adopted by the Board
and become its findings , conclusions , and Order, and all objections thereto
shall be deemed waived for all purposes.
16 Cf. Magnavox Company of Tennessee, 195 NLRB 265, 267 (1972), affd.
415 U.S. 322 (1974).
KELLY-SPRINGFIELD TIRE CO.
a currently updated list.
(b) Forthwith rescind its "Rule of Conduct" numbered
"18," set forth on page 44 of its collective agreement of
January 22, 1973, with the foregoing Union, and any modi-
fication , extension , or renewal of said agreement, or any
similar rule or requirement forbidding distribution of any
type of literature on its Fayetteville, North Carolina, plant
premises without the approval of its personnel manager.
(c) Post in Respondent's Fayetteville, North Carolina,
plant copies of the attached notice marked "Appendix." "
Copies of said notice, on forms provided by the Board's
Regional Director for Region 11, after being duly signed
by Respondent's authorized representative, shall be posted
by Respondent immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
n In the event this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the Notice "Posted by Order of the National
Labor Relations Board" shall be changed to "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
883
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After hearing before an Administrative Law Judge, at
which all sides had the opportunity to present evidence and
arguments, the decision has been announced that we, The
Kelly-Springfield Tire Company, have violated the Nation-
al Labor Relations Act at our Fayetteville, North Carolina,
plant; and we have been required to post this notice and do
what it says.
WE WILL forthwith furnish to United Rubber, Cork,
Linoleum and Plastic Workers of America, Local 959,
AFL-CIO, as the exclusive bargaining representative
of our Fayetteville, North Carolina, plant production
and maintenance employees, a list of the names, ad-
dresses, and seniority of the employees in that produc-
tion and maintenance employees bargaining unit, as
of January 1, 1975, and furnish to the Union each 6
months thereafter a currently updated list.
WE WILL forthwith rescind our rule forbidding distri-
bution of any type of literature on our Fayetteville,
North Carolina, plant property without the approval
of the personnel manager; and WE WILL not promul-
gate, maintain, give effect to, or enforce any rule pro-
hibiting employees from distributing literature in non-
working areas .on nonworking time, relating to any
lawful labor organizational or other matters within the
rights of employees under the National Labor Rela-
tions Act, as amended.
THE KELLY-SPRINGFIELD TIRE COMPANY