The Maryland Drydock Co.

National Labor Relations Board - Board Decisions

Mar 21, 1950

88 N.L.R.B. 1305 (N.L.R.B. 1950)

In the Matter of THE MARYLAND DRYDOCK COMPANY and LOCAL
No. 31, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS
OF AMERICA, C. I. O.
Case No. 5-CA-77.Decided March 21, 1950
DECISION
AND
ORDER
On December 23, 1949, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.'
The Board 2 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 In-
termediate Report, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the modifications set forth below.
We agree with the Trial Examiner that the Respondent's prohibi-
tion of the distribution of the union newspaper during the employees'
nonworking time, outside the gates of the plant but on the Respond-
ent's property, constituted interference, restraint, and coercion of its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Maryland
3 The Respondent filed a motion to introduce additional evidence showing that the Union
did in fact know why the Respondent stopped the distribution of the Union 's newspaper
on its property . Such evidence is not relevant to the issue in this case . We therefore
deny the Respondent ' s motion.
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor
Relations Board has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Styles].
88 NLRB No . 230. 1305
1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drydock Company, Baltimore, Maryland, and its officers, agents, suc-
cessors, and assigns, shall:
1., Cease and desist from :
(a) Prohibiting the distribution of union literature to its em-
ployees during the employees' nonworking time outside the entrance
gates, including' parking lots and areas adjacent to the entrance gates;
(b) Engaging in any like or related conduct which interferes with,
restrains, or coerces its employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist Local
No. 31, Industrial Union of Marine and Shipbuilding Workers of
America, C. I. 0., or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activi-
ties except to the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Rescind immediately any rules or orders prohibiting the dis-
tribution of union literature to its employees during the employees'
nonworking time outside the entrance gates, including parking lots
and areas adjacent to the entrance gates;
(b) Post at its Baltimore, Maryland, plant copies of the notice
attached to the Intermediate Report, marked Appendix A.3 Copies
of said notice, to be furnished by the Regional Director for the Fifth
Region, shall, after being signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt thereof and
maintained by it 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 Respond-
ent to insure that said notices are not altered, defaced, or covered
by any other material ;
(c) Notify the Regional Director for the Fifth Region (Baltimore,
Maryland) in writing, within ten (10) days from the date of this
Order, what steps the Respondent has taken to comply herewith.
3 Said notice, however, shall be, and it hereby is, amended by striking from line 3
thereof the words "The recommendations of a Trial Examiner" and substituting in lieu
thereof the words "A Decision and Order." In the event that this Order is enforced by a
decree of a United States Court of Appeals, there shall be inserted before the words,
"A Decision and Order," the words, "A Decree of the United States Court of Appeals
Enforcing."
THE MARYLAND DRYDOCK COMPANY 1307
INTER 1iiiDIATE REPORT AND RECOMMENDED ORDER
Mr. Harold G. Biermann, for the General Counsel.
Mr. William D. Macmillan (Semmes, Bowen and Semmes), of Baltimore,
Md., for the Respondent.
Mr. M. H. Goldstein, of Philadelphia, Pa., for the Union.
STATEMENT OF THE CASE
Upon a charge filed March 30, 1948, by Local No. 31, Industrial Union of
Marine and Shipbuilding Workers of America, C. I. 0., herein called the
Union, the General Counsel of the National Labor Relations Board,' by the
Regional Director of the Fifth Region (Baltimore, Maryland), issued a com-
plaint dated August 19, 1949, against The Maryland Drydock Company, 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 (a) (1) and Section 2 (6) and (7) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act. Copies of the complaint,
the charge, and the notice of hearing were duly served on the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent had on or about October 31, 1947, and since, continuously
interfered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act by prohibiting the Union, its repre-
sentatives and members, and other employees, from distributing union liter-
ature and union papers in an area near the main gate of Respondent's plant
and by forcibly excluding such persons from the use of such area for proper
union and concerted activities.
By its ans\ver filed at the hearing,' Respondent admitted the acts alleged
in the complaint to constitute unfair labor practices, but pleaded that it pro-
hibited the distribution of the Union's newspaper, "The Maryland Drydocker,"
For the reason that it contained scurrilous and libelous attacks on the Respond-
ent and its management officials and that the Union's conduct deprived it of any
right to distribute said.newspaper upon Respondent's property ; ' and Respondent
therefore denied that it had committed unfair labor practices, as alleged.
Pursuant to notice, a hearing was held on October 4, 1949, in Baltimore, Mary-
land, before George A. Downing, the undersigned Trial Examiner, duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Respondent, and
the union were represented by counsel. Full opportunity to be heard, to examine
I The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
2 The Trial Examiner overruled objections of the General Counsel and the Union to
the filing of the answer and denied a motion of the General Counsel based on Section
203.20 of the Regulations of the Board, that the Trial Examiner summarily find that
the allegations of the complaint be taken to be admitted as true because of Respondent's
failure to file its answer within the time prescribed by the regulations.
8 The Trial Examiner denied the General Counsel's motion to strike said affirmative
defense but reserved ruling on the question whether as a matter of law it constituted
a defense to the complaint.
1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and cross-examine witnesses, and to introduce evidence pertaining to the issues
was afforded all parties.'
At the conclusion of the hearing on October 4, 1949, the Union moved that the
Trial Examiner reconsider his ruling receiving in evidence copies of the Union's
newspaper which contained alleged libelous and scurrilous matter, and that
alternatively the Trial Examiner grant a recess for the purpose of enabling
the Union to marshall witnesses and evidence to rebut the affirmative defenses
in Respondent's answer. Ruling was reserved. The Trial Examiner ordered
that briefs on the question of the legal sufficiency of Respondent's defenses be
filed by October 24 and recessed the hearing indefinitely. Thereafter briefs
were received from the General Counsel and the Respondent, and after considera-
tion thereof, the hearing was ordered resumed on December 5.
The Examiner announced as the hearing was resumed that upon a considera-
tion of the briefs and of the entire record he bad come to the conclusion that
the Respondent's answer and the evidence offered in support thereof did not
constitute or establish a legally sufficient defense to the allegations of the
complaint and that detailed findings and conclusions would be set forth in the
Examiner's Intermediate Report and Recommended Order.
Thereupon no further evidence was offered, and the hearing was closed.
Respondent's request to file a supplemental brief was granted, and it was
allowed until December 16 to file one. However, none was received within
the specified time.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT '
1. THE BUSINESS OF THE RESPONDENT
The Maryland Drydock Company is a Maryland corporation, incorporated in
1922. It has two offices located in the City of Baltimore, Maryland, and its
main shipyards and facilities are located at Fairfield, in Baltimore, Maryland.
The Company employs approximately 1,700 employees. It is engaged primarily
in the repair of seagoing vessels, though in the period since the war it has
engaged extensively in reconverting merchant shipping from wartime to peace-
time use.
During the calendar year 1947, the aggregate value of materials used by the
Company amounted to approximately $5,000,000 to $9,000,000. These materials
consisted mainly of iron and steel products and numerous nonferrous metals,
such as copper, brass, etc. Approximately 50 percent of the above materials
delivered to the Company was delivered from sources outside the State of Mary-
land. During the year 1947, the aggregate bills by the Company for work per-
formed upon shipping amounted to approximately $28,000,000. The ships upon
which this work was performed are used in the coastal and foreign trade of the
United States.
4 At the opening of the hearing, the Union, for the purpose of supporting an objection
to the action of the General Counsel in ' excluding from the complaint certain of the
alleged unfair labor practices contained in the charge, moved that there be incorporated
in the present record its request for review of the General Counsel's action and certain
evidence represented to be in the hands of the General Counsel. Said motion was denied.
(See Sec. 3 (d) of the Act and Sections 202.4-202.6 and 203.19 of the Board's Regula-
tions ; Times Square Stores, Corp'n, 79 NLRB 361; A-1 Photo Service, 83 NLRB 564; Hale-
s ton Drug Stores, Inc., 86 NLRB 1166.
5 There is no conflict in the evidence on any of the facts set forth under this division
of the report.
THE MARYLAND DRYDOCK COMPANY 1309
On these facts it is found that the Respondent was, at all times covered by
the complaint, engaged in interstate commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 31, Industrial Union of Marine and Shipbuilding Workers of America,
C. I. 0., is a labor organization admitting to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The events
1. The physical setting
Respondent's plant and premises occupy a large tract of land abutting on the
waterfront at Fairfield, in Baltimore; Maryland. The plant is not located in or
near a residential section. Though there is a small "settlement" from 600 to 700
yards away, no substantial proportion of Respondent's 1,700 employees live there
or elsewhere in the vicinity of the plant.
The premises occupy a tract of land shaped roughly as a right-angle triangle,
with its base on the waterfront ° (its northern or northeasterly boundary) and
coming to a point at its southerly end. The western boundary forms the hy-
potenuse of the triangle. The southeastern boundary is paralleled by Childs
Street until it reaches a jut in the property line, and thereafter follows the south-
eastern boundary of Childs Street extended.
Most of the property is enclosed by a fence, except for a triangular lot at the
southern end which fronts approximately 1,000 feet on Childs Street and ap-
proximately 650 feet on a paved roadway. That roadway is immediately south
of and parallel to the fenced portion of the premises and runs across Respond-
ent's property at right angles from the northern terminus of Childs Street to the
various employee and public entrances. The employee entrance gates (used by
all employees except office workers and supervisory employees) open onto that
drive and are approximately 450 feet from Childs Street.
The unfenced lot is covered with crushed stone and slag and is used as a parking
lot exclusively by employees of the Respondent, the great majority of whom are
transported by private cars and by a public bus line. There is no ditch between
the parking lot and Childs Street, and cars are able to drive from it into Childs
Street at any point. There is a shed approximately 40 feet long at the northeast
corner of the parking lot which is used as a waiting station by passengers of the
public bus line, and there the buses pick up and discharge passengers on Company
property after turning off of Childs Street. The waiting shed is the only structure
on the parking lot.
Childs Street affords the only approach to Respondent's premises and the closest
intersection with other streets is approximately 250 to 300 feet south of the
southern end of Respondent's property, or over 1,200 feet from the terminus of
Childs Street.
The public does not use the employee entrance gates nor the parking lot. Any-
one having business with the Respondent continues past the employee entrance
from 100 to 200 feet to the employment office or to Gate House No. 6, beyond it,
and thence to Respondent's office building.
9 Respondent 's docks, derricks , and piers also extend for substantial distances into the
river.
1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The distribution of the "Drydocker"; its content
The Respondent had no rule against the distribution of union literature, and
the Union had distributed on company property its official newspaper, "The Mary-
land Drydocker," since it was first published in January 1943. The newspaper is
published roughly at monthly intervals. Prior to October 31, 1947, distribution
bad been made, without objection by Respondent, at a point immediately outside
the employee entrance gates by passing out copies to employees, both members and
nonmembers, as they reported for or left their work.
Respondent had, both before and since October 31, 1947, permitted other or-
ganizations and the public generally ' to use the same portion of the premises
for the distribution of literature and advertising material and for soliciting and
selling generally.
On October 31, 1947, Charles A. Russell, executive secretary of the Local (and
editor of the "Drydocker"), in company with Delmar L. Jeeter, the Local's presi-
dent, began the distribution of the "Drydocker" about 3 p. in., immediately outside
the main gates at the employee entrance. The issue was one of that date, fresh
from the printer, and had received no earlier distribution. After 2 or 3 minutes,
a lieutenant of the guard force informed them that be had orders not to allow
the distribution of union literature on company property and if they persisted,
he would "have to take them in." When Russell and Jeeter stated they did not
intend to stop the distribution, the lieutenant took them to the reception center.
Two city policemen later came in and informed Russell and Jeeter that Re-
spondent's vice president would not permit further distribution of union litera-
ture and if theplersisted, the police would have to arrest them. When Russell
and Jeeter reiterated their intention to continue the distribution, the police
arrested them and took them to the police station where they were charged with
trespassing.'
On December 29, 1947, John F. Bemrich and Frank Plogman, two union mem-
bers, while off duty and on their own time, again attempted distribution of the
"Drydocker" at the same point immediately outside the entrance gates. Again
the issue was a fresh one which had received no prior distribution. They had
barely begun the distribution when a lieutenant of the guard came out and
stopped them. Without examining any of the papers, the guard stated that
Respondent had forbidden the distribution of union literature, and he ordered
them ,off company property. They immediately desisted, took their papers down
to Childs Street to a point off company property, and continued the distribu-
tion from there.°
After the arrest of Russell and Jeeter on October 31, the Union has made such
distribution of its newspaper as was possible by passing it out in Childs Street
at various points outside Respondent's property line.
? The Salvation Army, the Sisters of Charity, notion salesmen , real estate salesmen,
. newsboys , used car salesmen and advertisers , correspondence schools, etc.
- 8 The case was disposed of in December 1. 948, on pleas of not guilty with the follow-
ing result as shown by a certified copy of the docket entries received in evidence.
"Verdict : Without a verdict as to each.
"Judgment:. Probation without a verdict as to each."
Russell testified without dispute that the condition of the probation was that he and
Jeeter sign a release waiving their rights to sue the Company for false arrest, and that
they did so. Russell testified further that probation was not conditioned on their ces-
sation of future distribution of the newspaper on Respondent 's property.
° It is not disputed that Respondent 's prohibition of distribution related to any part
of its property.
THE' MARYLAND DRYDOCK COMPANY 1311
. The General Counsel and the Union contended that in the physical setting just
described, distribution of the newspaper off plant property was not an effective-
means of reaching all the employees, member and nonmember, for whom the'
Union vas the statutory bargaining representative. They pointed to the follow-
ing facts which are established by the record
The distribution in Childs Street afforded the Union no effective access ,to the
employees who patronize the public bus lines since they board and alight at the
waiting shed within Respondent's property line. Similarly access to the occu-
pants of private cars is ineffective and well nigh impossible since such cars enter
Childs Street at any point along a 1,000-foot front and frequently accelerate
rapidly and proceed homeward without stopping. Indeed, distribution under
these conditions has been found to be definitely hazardous.
Distribution by mail is also not feasible. Many union members fail to keep,
their mailing addresses current and approximately 25 percent of first class mail.
addressed to them is returned. A greater proportion of second and third class:
mail would be undelivered since it would not be forwarded. The Union has no.
access to Respondent's personnel records for the purpose of keeping a current
record of member addresses nor of nonmember addresses.
On these facts it is found that the alternative media of distribution available
to the Union are ineffective to enable it to reach the employees whom it repre--
sented.10 United Aircraft Corporation, 67 NLRB 594.
Indeed, Respondent makes no contention to the contrary but rests its defense,
on the alleged scurrilous and libelous content of some of the published statements.
In order that the full flavor of the published matter may be understood, there
is set forth below the portions of the publication which Respondent empliasizeck
in its brief as especially objectionable :
Issue of September 26, 194711
[From an article entitled "What is the Association," referring to an organi-
zation of Respondent's supervisors] :
To our way of thinking it ought to be called the Maryland Drydock Scab,
Association, because it was formed with the help of turncoats who after it
was founded scabbed against you, the rank and file of Local 31, and against-
many of the supervisors who joined it and voted not to cross our picket lines..
[From an article entitled "What is a Scab-The Case against the Scab,
Supervisors"] :
After God had finished the rattle snake, the toad and the vampire, lie had.
some awful substance left, with which he made a SCAB : A SCAB is a two-
legged animal with a cork-screw soul, a water-logged brain and a combination..
backbone made of jelly and glue. Where rats have hearts he carries a tumor-
of rotten principles. When a SCAB comes down the street, men turn their
backs, angels weep in heaven, and the devil shuts the gates of hell to keep'
him out. No man has a right to SCAB, so long as there is a shore of water
10 In any event , as the Board pointed out in its Decision in the LeTourneau case
(LeTourneau Company of Georgia, 54 NLRB 1253 ), "It is no answer to suggest that,
other means of disseminating union literature are not foreclosed."
11 This was the earliest issue introduced in evidence by Respondent. Respondent took;
no exception to the contents of earlier issues and pointed to no particular statement in.
any of them which it considered objectionable.
1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
deep enough to drown his body or rope long enough to hang his carcass with.
Judas Iscariot was a gentleman compared to a SCAB. For betraying his
.Master, he had enough character to hang himself, a SCAB hasn't.
Esau sold his birthright for a mess of pottage. Judas Iscariot sold his
Master for thirty pieces of silver. Benedict Arnold sold his country for a
commission in the British Army.
Esau was a traitor to himself. Judas Iscariot was a traitor to his God.
Benedict Arnold was a traitor to his country. But a SCAB is a traitor to
himself, his God, his country, to his wife and children, his fellowmen of his
class ; for an unfulfilled promise. from his corrupted employer.
Issue of October 20, 1947
[From an article entitled "Mail Bag"]
Almost anything would be better than what we have now. You know
French [Respondent's president] as well as I do. He should not be called
Goosie-I would say he is more like a vulture. He will pick us clean
when he uses us for what he can.
I have been ashamed to admit it before, but now I will tell you. I was
only thinking of myself and nobody else. And that is what the rest of them
thought. We thought we could trust French, but now I do not trust him
any more. He is a double crosser. For 60 more than you got, we gave up all.
[From an article entitled "Supervisors railroaded."]
The Union has been double-crossed once again by The Maryland Drydock
Company, but it certainly had not been defeated.
Issue of October 31, 1947"
[From an article entitled "4 More Supervisors Purged."]
Contrary to all of his pious promises, phoney assurances, and expressions
of good faith, William Purnell Hall [Respondent's vice-president] has per-
mitted several more supervisors to be discharged by the Maryland Drydock
Company.
Parading around in his cloak of pseudo-liberalism, he and George French
have, it seems, embarked on a campaign of revenge that closely parallels
some of the atrocious reprisals which were inflicted on a defenseless people
by super-madman, Adolph Hitler.
From a column headed "Witch Hunt Still On."]
Some people believe that George H. French is a labor-hating, Union-busting,
tyrannical reactionary of the worse kind.
They believe that he looks upon all union men as foes of his soft, luxurious
way of life. . . .
George H. French (popularly known as Goosie) takes great pride in his
wonderful memory. He has stated that he had a memory like an elephant
and a hide like a rhinoceros.
12 This was the issue whose distribution was prohibited without prior examination of Its
contents.
THE MARYLAND DRYDOCK COMPANY 1313
Respondent also objected to a poem entitled "A Goose," appearing in the same
issue. Obviously aimed at French, Respondent's president, it caricatured him in a
ridiculous light, referred to his "stench," and called him a "vulture" and a "bird
of prey." 18
The article entitled "What is a Scab" was reprinted in full in the issue of
December 5, 1947.
The issue of December 29, 1947,4 contained an announcement of a prize contest
to obtain suitable music for the poem entitled "A Goose." Respondent took
particular exception to the poem and to the announcement of the contest as
constituting scurrilous attacks on French.
Respondent cites fewer and less flagrant statements in the issues since De-
cember 29, 1947, and admits in its brief that "the Union has temporarily abated
its scurrilous attacks." It excepts, however, to the continued ridiculing of its
management officials, to the continued scurrilous attacks on the supervisors, and
to the following statement which appeared as late as August 19, 1949:
That the Company "stole" 30 minutes each day from the "snappers" to try
to offset the cost of their "stooges" who are working with tools and still
getting $1.84 per hour, plus, of course, a round badge.
B. Concluding findings
The principle is now definitively established that employees, as an incident to
their rights to self-organization, may engage in the distribution of union litera-
ture on company property on their own time. N. L. R. B. v. LeTourneau Company
of Georgia, 324 U. S. 793. The Supreme Court there broadly approved the
Board's handling of employer rules prohibiting the solicitation of members and
the distribution of union literature. Such rules, the Board had held, must
be presumed to be an unreasonable impediment to self-organization where they
prohibited such activities outside of working hours on company property, in
the absence of evidence that special circumstances made the rules necessary in
order to maintain production or preserve discipline. LeTourneau Company
13 Respondent also contended at the hearing that an article in the issue of October 31,
1947, advocating a slowdown was expressly in conflict with Article XX of the collective
bargaining agreement which provided:
The Union agrees that it will not take, authorize, or condone any action which may
interfere with the attainment of the Company's objective to secure and maintain
maximum productivity. The Union hereby expressly confirms the assurance it has
given the Company that it will cooperate fully with the Company in every way possible
to achieve the highest level of employee performance and efficiency.
The Union objected that such defense was outside the issues raised by Respondent's answer ;
and its counsel, in supporting the objection. made a statement in the nature of an offer of
proof (stipulated by Respondent to be correct), that the article in question had formed the
basis of a grievance by the Company which had been submitted to arbitration and on which
an award had been rendered.
In its brief, Respondent makes no reference to its earlier contention and presumably has
abandoned it. However, in order that the natter may be definitely disposed of on the
record, the Trial Examiner hereby sustains the Union's objections on the grounds above
stated to the admissibility in evidence of the article in question ( cf. Timken Roller Bearing
Co., 70 NLRB 500; Paramount Pictures Inc., 79 NLRB 557, 575-576).
14 The distribution of which was also forbidden without prior examination of its contents.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Georgia , 54 NLRB 1253 ; Republic Aviation Corporation , 51 NLRB 1186;
Scullin Steel Co., 49 NLRB 405; Peyton Packing Company, 49 NLRB 828.15
The Supreme Court held that the Board had properly placed the burden of
proof on the employer to show the existence of special circumstances relied upon
to justify the necessity of its rules in the situation referred to, pointing out that
the presumption of invalidity which the Board attached to such rules "was a
product of the Board 's appraisal of normal conditions about industrial establish-
ments."
The'parties agree that the principles established by the Supreme Court's de-
cision in the LeTOurneaae case are controlling here, Respondent asserting that the
evidence establishes the existence of "special circumstances " which justify its
denial of the right of distribution.
The circumstances so relied upon by the Respondent are not the method of, or
the other circumstances attending , the distribution, but the content of the pub-
lished matter . However, the record is bare of affirmative evidence" that either
the distribution or the content of the newspaper had injuriously affected produc-
tion or the maintenance of proper discipline in the plant.
The latter factor is of course a weighty one, since the balancing of interests 17
between "the undisputed right to self -organization assured to employees under
the [Act] and the equally undisputed right of employers to maintain discipline
in their establishments " ( LeTourneau case , 324 U. S. at p . 797) necessarily in-
volves questions of the degree to which the employer 's operations have been dis-
located or disrupted by the activities sought to be prohibited on plant property.
Thus, as the Board held in the Scullin Steel case , supra, the mere showing that
union solicitation or discussion had resulted in occasional and isolated instances
of disorderly conduct which did not interfere with production was not sufficient to
justify a rule prohibiting all solicitation or discussions on nonworking time.
In so holding , the Board said ( 49 NLRB at pp. 411-12) :
.. . it is neither necessary nor reasonably calculated to insure plant
discipline that employees be required to refrain from orderly union discus-
sion and activity when they are on plant property on their own time . . .
15 The Court quoted as illustrative of the Board's holdings the following language from
the latter case (49 NLRB at 843-844) : "The Act, of course, does not prevent an employer
from making and enforcing reasonable rules covering the conduct of employees on company
time. Working time is for work. It is therefore within the province of an employer to
promulgate and enforce a rule prohibiting union solicitation during working hours. Such
a rule must be presumed to be valid in the absence of evidence that it was adopted for a
discriminatory purpose. It is no less true that time outside working hours, whether before
or after work, or during luncheon or rest periods, is an employee's time to use as he wishes
without unreasonable restraint, although the employee is on company property. It is
therefore not within the province of an employer to promulgate and enforce a rule pro-
hibiting union solicitation by an employee outside of working hours, although on company
property. Such a rule must be presumed to be an unreasonable. impediment to self-
organization and therefore discriminatory in the absence of evidence that special circum-
stances make the rule necessary in order to maintain production or discipline."
16 Respondent offered no evidence save a copy of its agreement with the Union and copies
of the newspaper which contained claimed objectionable matter.
17 "We have held, and the Supreme Court of the United States has confirmed the view,
that when an employer's right to regulate the use of his own property comes into conflict
with the employees' right to receive information to enable them to exercise their right to
self-organization, which it is the policy of the Act to encourage, the conflicting rights must
be balanced to determine which right, in a given situation, is paramount." Stowe Spinning
Co., 70 NLRB 614, 622.
THE MARYLAND DRYDOCK COMPANY 1315
While . . . an employer may . . . promulgate and enforce nondiscriminatory
reasonable rules designed to maintain plant discipline, and to that extent:
limit the exercise of the employees' statutory rights, lie may not further-
encroach upon these rights by outlawing union activity under circumstances.
which present no clear or convincing expectancy that such activity will affect:
discipline of employees in the performance of their work.
In the present case, the natural assumption and expectancy might well have-
been that the intemperate and invidious nature of some of the published state-
ments would have injuriously affected Respondent's ability of preserve discipline..
Certainly, the maligning of the supervisors and the holding of the managing-
officers up to continual ridicule would seem normally calculated to have such
an effect. Yet, though the Union persisted in publishing for a period of 2 years.
statements which Respondent considered highly objectionable, Respondent offered,
no evidence at the hearing that discipline and efficiency were thereby one whit
affected.
The presumption which Respondent inferentially invokes is therefore not to,
be indulged. Instead, its failure to produce affirmative evidence of the degree.
or extent to which production and discipline had suffered supports the contrary.
inference that the publication and distribution of the objectionable statements.
was without injurious consequences. This inference is supported by the fact
that though Respondent carried to arbitration under the contract its grievance-
concerning the "slow-down" articles, published contemporaneously with others-
now excepted to (see footnote 13, supra), it did not assert that the matter now-
objected to had affected production or employee performance or efficiency.
It is unnecessary, however, that the ultimate conclusions in this case stand-
alone on the foregoing narrow findings since there are other significant facts.
which prevent the acceptance of Respondent's defense and which preclude the.
upholding of Respondent's prohibition on the broad and absolute basis on which
it was promulgated.
Of first significance is the fact that the prohibitive edict was issued without
warning or prior consultation with the Union and without prior warning to.
or attempt to discipline any employee for engaging in the distribution of earlier
issues which Respondent now claims to have been objectionable. Furthermore,
Respondent had had no opportunity and had made no attempt to examine the-
particular issues the distribution of which was summarily forbidden.
Equally significant is the fact that Respondent neither prior to, at the time
of, or since the issuance of the original edict, acquainted the Union with the-
nature of its objections or requested that it print corrections of misstatements;
or retractions." Cf. Illinois Tool Works, supra, at pages 1151-1153. Certainly
the charge upon which Respondent procured the arrest of the distributors-i. e.,
trespass-wholly failed to apprise the Union that Respondent's objections were
as now asserted. Nor did the judgment of probation do so. If Respondent's
18 Cf. Illinois Tool Works, 61 NLRB 1129, where the respondent challenged, immediately
after the publication by the union, the accuracy of certain figures on comparative pay rates
and offered evidence at the hearing that the publication had disrupted the morale of the
employees. And see Chicopee Mfg. Corp., 85 NLRB 1439, footnote 4 ; and I. F. Sales Co.,_
82 NLRB 137.
11 Union counsel represented at the hearing (without denial by Respondent) that the first-
time the Union learned that Respondent was relying on the alleged scurrilous and abusive
contents of the newspapers was in a conference with representatives of the Respondent and!
the General Counsel on the Friday before the hearing began.
882191-51 84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
:present objections had then existed and had been the real reason for the ban,
probation was reasonably to be expected to be conditioned upon the cessation
of the distribution on Respondent's premises of claimed defamatory matter.
Instead Respondent seemed interested only in protecting itself against legal
action in a situation in which it had apparently become doubtful of its position.
'These circumstances strongly indicate that Respondent's banning of distribu-
tion was not for the reason belatedly made known to the Union and pleaded in
its answer at the hearing. Certainly they indicate that Respondent's real in-
terest was not in a "truthful representation of facts" (cf. Illinois Tool Works,
.supra; and see Atlantic Towing Co., 75 NLRB 1169, 1173), because Respondent
withheld from the Union any inkling of the reasons for the prohibition and gave
no opportunity for corrections or retractions. Indeed, Respondent seemed in-
iterested only in banning completely and permanently the distribution of all
tunion literature , without regard to its content or to its actual or assumed effect
.on efficiency and discipline. Such a broad and absolute prohibition cannot
be sustained.
Even assuming that Respondent had shown a resultant disruption of morale,
efficiency, or discipline sufficient under a balancing of interests to turn the scales
in Respondent's favor, a blanket prohibition would have been without justi-
fication. For even if the Union's misconduct be conceded arguendo, there is
no warrant for assuming that if Respondent had made known its objections and
had expressed exception to specified misstatements, the Union would not have
immediately desisted from its objectionable conduct and printed, if requested,
appropriate corrections, retractions," and apologies. Cf. Illinois Tool Works,
61 NLRB at pages 1151-1152.
What has been observed in another connection seems apposite here. "Though
the union may have misconducted itself, it has a locus poenitentiae." N. L. R. B.
v. Remington Rand, Inc., 94 F. 2d 862, 873. There was no warrant here for as-
suming that it would have been useless for respondent to voice its objections and
to call upon the union to desist from its objectionable conduct. And if the
union had offered in good faith to comply, respondent could not then have
invoked a permanent and unqualified prohibition because of the union's past
sins. Cf. Ibid.
This. is not to hold, of course, that the union or union members are protected
by the collective-activity cloak against punishment for distribution of legally
defamatory matter, Illinois Tool Works, supra, at p. 1153, or that a union or
its members may justify slanderous and inflammatory charges against manage-
ment officials and the supervisory staff that are unfounded in fact or are de-
signed to incite to insubordination or to the flouting of discipline. Howard
Foundry Company, 59 NLRB 60, 72; and see Thompson Products, Inc., 57 NLRB
935, 970, where it was found that an employee's speeches on company property
on his own time were of such an inflammatory character and so severely criti-
cal of management that they "transcended an employee's undoubted freedom
to engage in discussions to his own liking on his own time, and . . . that
the respondent was justified in demanding a cessation of this conduct."
The conclusions herein stated have been reached after full consideration of
the statutory guarantees of freedom of speech and assembly to employees on
20 Indeed, Respondent admitted in its brief that the Union retracted in its issue of March
2, 1948, an alleged scurrilous attack on one of Respondent's guards which had appeared in
the issue of January 23, 1948.
THE MARYLAND DRYDOCK COMPANY 1317
platters affecting self-organization and collective bargaining ." That those
guarantees are not unlimited , however, is implicitly recognized in the Board and
Court decisions first above cited which uphold the employer 's right to make and
enforce reasonable rules covering the conduct of employees on company prop-
erty which are necessary in order to maintain production or to preserve discipline.
Further implicit recognition of such limitation is contained in the Thompson
Products , Howard Poundry , and Illinois Tool Works cases last referred to; and
see Atlantic Towing Co ., 75 NLRB 1169.
Indeed, explicit recognition is accorded in Westinghouse Electric Corporation,
77 NLRB 1058, where the board held ( citing Bettcher Mfg. Corporation, 76
NLRB 526) that "The statute does not protect everything an employee may do
or say in the course of union or concerted activity ." And see the quotation
from the Scullin Steel case , p. 1314, supra.
It is unnecessary to decide whether as a matter of law some of the objec-
tionable statements are libelous per se as now contended by Respondent. As-
suming the correctness of that claim , Respondent could have sought appro-
priate remedies at law or in equity against the Union and/or its officers, the
editor, and other persons responsible ( cf. Pullman Standard Car Manufacturing
Company v. Local Union, 152 F. 2d 493 C. A . 7), for damages and to restrain
further threatened publications . Certainly Respondent could not justify an abso-
lute ban on distribution without first voicing its objections , demonstrating an
injurious effect upon discipline or production , requesting appropriate corrections
and retractions , and giving the Union an opportunity to comply.
Upon a consideration of the entire record, it is therefore concluded and found
that Respondent 's prohibition of the distribution of the union newspaper on Re-
spondent's property under the circumstances herein found constituted inter-
ference, restraint , and coercion of its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the Respondent set out in Division III hereof,
occurring in connection with the operations of the Respondent described in
Division I hereof, have a close, intimate , and substantial relation to trade, traffic,
and commerce among the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of commerce.
21Such guarantees have been recognized by Congress and by the Supreme Court to be
coextensive with the freedoms guaranted by the First Amendment.
11. . . The right to self-organization and collective bargaining is a complex
whole , embracing the various elements of meetings , speeches , peaceful picketing, the
printing and distribution of pamphlets , news and argument , all of which, however, are
traceable to the fundamental liberties of expression and assembly . So compounded,
the right to self-organization and collective bargaining is fundamental , being one phase
of the process of free association essential to the democratic way of life ." Violations
of Free Speech and Rights of Labor, 77th Cong ., 2d Sess ., Senate Report No. 1150,
Part 1, pp. 4-5.
"Those guarantees [ Section 7 of the Act ] include the workers' right to organize
freely for collective bargaining . And this comprehends whatever may be appropriate
and lawful to accomplish and maintain such organization . . . It included their
right fully and freely to discuss and be informed concerning this choice , privately or
in public assembly . Necessarily correlative was the right of the union, its members
and officials . . . to discuss with and inform the employees concerning matters
involved in their choice. These rights of assembly and discussion are protected by
the First Amendment . Whatever would restrict them, without sufficient occasion,
would infringe its safeguards." Thomas v. Collins, 323 U. S . 516, 533-4.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that the Respondent, The Maryland Drydock Company,
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act (61 Stat. 136), it will be recommended that it cease and desist there-
from and that it take certain affirmative action in order to effectuate the policies
of the Act.
It having been found that Respondent engaged in interference, restraint, and
coercion of its employees in the exercise of the rights guaranteed in Section 7
of the Act by prohibiting the Union, its representatives and members, and other
employees from distributing the union newspaper on Respondent's property dur-
ing employees' nonworking time, it will be recommended that Respondent be
ordered to rescind its said prohibition. Cf. J. H. Rutter-Rex Manufacturing Co.,
Inc., 86 NLRB 470.
The evidence in this case was confined to establishing the prohibition by
Respondent of the distribution during employees' nonworking time of the union
newspaper on Respondent's property, and that was the single unfair labor prac-
tice charged in the complaint. Under the circumstances and in view of the
absence of any evidence that danger.of other types of unfair labor. practices is
to be anticipated from the Respondent's said act, it will not be recommended that
Respondent be enjoined from the commission of any and all unfair labor practices
proscribed by the Act, but that it cease and desist from the unfair labor practice
found and from any like or related act or conduct which would tend to interfere
with, restrain, or coerce its employees in the exercise of the rights guaranteed
by Section 7.
CONCLUSIONS OF LAW
1. Local No. 31, Industrial Union of Marine and Shipbuilding Workers of
America, C. I. 0., is a labor organization within the meaning of Section 2 (5)
of the Act.
2. By prohibiting on or about October 31, 1947, and at all times thereafter dis-
tribution of the union newspaper on Respondent's property during employees'
nonworking time, Respondent has engaged in and is 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
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record of the case, the undersigned recommends that The Mary-
land Drydock Company, its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Enforcing its rule prohibiting the distribution of the union newspaper
upon its property during employees' nonworking time;
(b) Engaging in any like or related act or conduct which interferes with,
restrains, or coerces its employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist Local No. 31, Industrial
Union of Marine and Shipbuilding Workers of America, C. I. 0., or any other
labor organization, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any and all such
activities except to the extent that such rights may be affected by an agreement
THE MARYLAND DRYDOCK COMPANY 1319
requiring membership in a labor organization as a condition of employment, as
authorized in Section S (a) (3) of the Act as guaranteed in Section 7 thereof.
Take the following affirmative action which the undersigned finds will effectu-
ate the policies of the Act :
(a) Rescind immediately its rule prohibiting the distribution of the union
newspaper upon Respondent's property during employees' nonworking time ;
(b) Post at its Baltimore, Maryland, plant copies of the notice attached
hereto marked Appendix A. Copies of said notice, to be furnished by the Re=
gional Director for the Fifth Region, shall, after being signed by the Respondent's
representative, be posted by the Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material; and
(c) Notify the Regional Director for the Fifth Region (Baltimore, Mary-
land) in writing, within twenty (20) days from the receipt of this Intermediate
Report and Recommended Order what steps the Respondent has taken to comply
herewith.
It is further recommended that unless on or before twenty (20) days from
the date of the receipt of this Intermediate Report and Recommended Order
Respondent notifies said Regional Director in writing that it will comply with
the foregoing recommendations, the National Labor Relations Board issue an
order requiring Respondent to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
.of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order or to any other part of the
record or proceeding (including rulings upon all motions or objections) as he
relies upon, together with the original and six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Im-
mediately upon the filing of such statement of exceptions and/or briefs, the party
filing the same shall serve a copy thereof upon each of the other parties. State-
ments of exceptions and briefs shall designate by precise citation the portions
of the record relied upon and shall be legibly printed or mimeographed, and if
mimeographed shall be double spaced. Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Sec-
tion 203.85. As further provided in said Section 203.46 should any party desire
permission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days from the date of service of the order
transferring the case to the Board.
In the event no Statement of Exceptions'is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said 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.
Dated at Washington, D. C., this 23rd day of December 1949.
GEORGE A. DOWNING,
Trial Examiner.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL cease and desist from enforcing our rule prohibiting the dis-
tribution. of the union newspaper on our property during employees' non-
working time.
WE WILL NOT engage in any like or related act or conduct which interferes
with, restrains, or coerces our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist LOCAL No.
31, INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA,
C. I. 0., or any other labor organization, to bargain collectively through
representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized by Section 8 (a) (3) of
the Act.
WE hereby rescind our rule prohibiting the distribution of the union
newspaper on our property during employees' nonworking time.
THE MARYLAND DRYDOCK COMPANY,
Employer.
By ------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.