United States Steel Corp.

National Labor Relations Board - Board Decisions

May 3, 1976

223 N.L.R.B. 1246 (N.L.R.B. 1976)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Steel Corporation and Roberta Wood
United States Steel Corporation and Alfred Samter.
Cases 13-CA-14472 and 13-CA-14603
DECISION
STATEMENT OF THE CASE
May 3, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND
WALTHER
On January 8, 1976, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed a
brief in response to Respondent's exceptions, and the
Charging Parties filed a brief in opposition to the
Respondent's exceptions.
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 briefs
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, United States Steel Cor-
poration, Chicago, Illinois, and Gary. Indiana , its of-
ficers, agents, successors , and assigns , shall take the
action set forth in the said recommended Order.
'We note that the literature possessed by the two employees involved
were newsletters containing several articles intended to protest working con-
ditions or to question the effectiveness of the respective union locals . state-
ments that are clearly protected activity under Sec. 7 of the Act. The Singer
Company. 220 NLRB No. 172 (1975): Samsonite Corporation. 206 NLRB
343. 346 (1973).
2 Member Fanning disagrees with the Administrative Law Judge's find-
ings and recommended Order only insofar as they may be understood as
permitting restrictions on the distribution of such literature at the work
place during nonworking time. See his dissent in Stoddard-Quirk Manufac-
turing Co.. 138 NLRB 615. 625 (1962): Samsonite Corporation. supra. In. I.
Member Penello agrees with the Administrative Law Judge that Respon-
dent violated Sec. 8(axl) by enforcing a rule which prohibits distribution
anywhere on the company premises . In Member Penello's view, the fact that
employee Samter was off duty while attempting to distribute literature in a
parking lot is of no consequence since the rule in this case limits access to
more than just the plant itself and adjacent work areas . See Clear Lake
Hospital. 223 NLRB I (1976): Tri-County Medical Center. Inc.. 222
NLRB No. 174 (1976): Bulova Watch Company. Inc.. 208 NLRB 798 (1974):
GTE Lenkurt. Incorporated. 204 NLRB 921 (1973).
BERNARD J. SEFF, Administrative Law Judge : This is a
consolidated hearing involving allegations that Respon-
dent engaged in unfair labor practices in violation of Sec-
tion 8(a)(1) of the Act.
On July 9, 1975, Roberta Wood filed a charge (Case 13-
CA-14472) against United States Steel Corporation. On
August 15, 1975,' Alfred Samter filed a charge against the
Respondent (Case 13-CA-14603).
Respondent is a Delaware corporation with its place of
business located at 3426 East 89th Street , Chicago , Illinois
(hereinafter called the South Works), and the charge in
Case 13-CA-14603 concerning Respondent 's Gary Works
was filed by the Charging Party on August 15. On Septem-
ber 18 , an order consolidating cases was issued . Both cases
allege that Respondent maintained and enforced a broad
no-distribution rule which prohibits the distribution of lit-
erature anywhere on company premises , by refusing to al-
low such distribution by either of the Charging Parties.
Respondent, in its answer , admitted the existence of the
said rule and certain commerce information but denied the
commission of any unfair labor practices . The case came
on for a hearing before me in Chicago, Illinois , on October
20 and 21 . Briefs were submitted by the parties which have
been carefully considered.
Upon the entire record in the case , including the briefs
of counsel , and from my observance of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The business of the Respondent consists of manufactur-
ing of steel and related products. Respondent purchases
and receives in its Chicago, Illinois, facility materials and
supplies valued in excess of $50,000 from points directly
outside the State of Illinois. Respondent in the course and
conduct of its business operations purchases and receives
at its Gary, Indiana, facility materials and supplies valued
in excess of $100,000 which materials are shipped or trans-
ported directly from points outside of Indiana.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local 1014, is a labor
organization within the meaning of Section 2 (5) of the Act.
The Facts
There is no dispute as to the facts of the instant case. On
or about July 2, Respondent refused to allow Roberta
Wood to enter South Works because she had in her posses-
All dates occurred in 1975 unless otherwise indicated.
223 NLRB No. 183
UNITED STATES STEEL CORP. 1247
sion certain Section 7 literature . On or about August 11,
Respondent refused to allow employee Alfred Samter to
distribute Section 7 literature in one of the parking lots at
the Gary Works.
Respondent has had in effect a flat rule for approximate-
ly 20-plus years prohibiting the distribution of Section 7
literature anywhere on plant property , whether on working
time or on nonworking time.
The Company takes the position that the issues in these
cases should not be passed on initially by the National
Labor Relations Board but should be first passed on under
the doctrine of the Collyer case .2 Respondent argues that
the matters in the instant situation should be deferred since
the Company and the Union have had a continuous rela-
tionship for over 20 years in a series of collective -bargain-
ing contracts , each one of which contained detailed griev-
ance and arbitration procedures under the terms of which
the merits of the consolidated complaint should first be
heard and processed.
In support of this argument , Respondent calls attention
in its brief to the following provisions of the agreement
between the parties:
1. The provisions of this agreement constitute the
sole procedure for the processing and settlement of
any claim by an employee or the Union of a violation
of this agreement.
2. The Union and all employees are bound to ob-
serve the provisions of this agreement. [ Emphasis sup-
plied.]
3. The applicable procedures of the Agreement will be
followed for the settlement of all complaints or griev-
ances . [Emphasis supplied.]
Both the Board and the courts have consistently held
that , under Collyer, deferral of consideration by the Board
is dependent on the express language of the contract. Note
that nowhere in this said agreement are there any provi-
sions relating to distribution of Section 7 literature. The
authority of the arbitrator is limited to those matters ex-
plicitly contained in the contract . Thus, it can be readily
seen that there is no authority invested in an arbitrator to
hear or decide matters not covered in the contract . Also, it
should be added that no evidence was introduced at the
hearing that Respondent has any written rule covering the
subject of distribution which , by extension , could be con-
strued to be covered by the contract. I reject Respondent's
argument that the matters contained in the consolidated
complaint should be deferred by the Board until they are
first processed as a grievance through arbitration. It should
be noted that in its decision in Collyer, the Board limited its
new policy of deferment to:
A grievance is defined as any controversy between an
employee and his supervisor or any controversy be-
tween the Union and Respondent involving the inter-
pretation, application or violation of any provision of
this Agreement . [ Emphasis supplied.]
The landmark decision in Collyer also answers the ques-
tion as to when the Board should withhold its process. This
Z 192 NLRB 837 (1971).
should take place only when a set of facts may be present
which not only contain an alleged violation of the Act but
also an alleged breach of the collective-bargaining agreement
subject to arbitration.
It becomes necessary at this juncture to examine the no-
distribution rule in the light of both numerous decisions of
the Board and court adjudication of the problems which
arise under the rules relating to distribution of Section 7
material.
Respondent has had in effect for many years its rule that
no distributions may take place anywhere on the company
premises , whether on an employee's own time or on com-
pany time.
A. Respondent's No-distribution Rule Is Presumptively
Invalid
It has been held in a long line of cases that an absolute
ban of distribution of literature on company property is
presumptively invalid because such a prohibition is over-
broad in its reach . In the case of Stoddard-Quirk Manufac-
turing Company, 3 the Board decided that a rule barring dis-
tribution on all of the company's property is presumptively
invalid.
Having concluded that Respondent' s rule barring any
distribution on all of the Company's property on employ-
ees' nonworking time is presumptively invalid, it becomes
necessary to examine whether there are "special circum-
stances" present which rebut the presumption of invalidity.
Respondent contends first that all property. at the South
Works and Gary Works constitutes a work area from
which distribution of literature may be properly prohibited.
The General Counsel counters that this contention is
wrong based on the fact that the property consists of thou-
sands of acres which include large parking areas, road-
ways, walkways, and open spaces between the various
structures on the land . The buildings themselves contain
lockerrooms , restrooms , lunchrooms, and vending machine
areas. Such places have been found by the Board to be
nonwork areas . See Plant-City Steel Corporation4 (parking
lots, street passageways , and sidewalks on plant premises
very similar to Respondent's found to be nonworking ar-
eas); Rockingham Sleep Wear, Inc.5 (production area used
as a lunchroom found to be a nonwork area during lunch
break).
Respondent raises the additional point that because non-
production employees, such as janitors and security work-
ers, perform some tasks in nonwork areas, these locations
are converted into working areas for the purpose of ban-
ning distributions . In National Steel Corporation,6 under a
similar statement of facts, the existence of security guards
did not convert the parking lot, streets, passageways, and
sidewalks into working areas as Respondent contends. In
primarily nonworking areas the element of protecting the
production process is not present . Whether employees are
distributing literature or doing other nonwork functions
like washing up, loitering , or eating, on their own time in
areas designated for these purposes makes no difference to
138 NLRB 615 (1962).
4 138 NLRB 839 (1962), enfd . 331 F.2d 1231 (C.A. 6, 1964).
5 188 NLRB 698 (1971).
6 173 NLRB 401 (1968), enfd . 415 F.2d 1231 (C.A. 6, 1969).
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production or the tasks performed by employees in these
nonwork areas . Respondent's contention that all its prop-
erty is a work area is a contention that can be asserted by
every company, thus effectively destroying the right of em-
ployees to distribute literature. Some work tasks, whether it
be cleaning up, maintenance , or other incidental work, are
performed at some time in almost every area of every com-
pany.
In conclusion, it is clear that the Board has never found
a no-distribution rule which prohibits all distribution on
company property, as does Respondent's, to be presump-
tively valid.
B. Respondent Has No "Special Circumstances" To Rebut
the Presumption of Invalidity
Respondent has shown no "special circumstances " suffi-
cient to convert this presumptively invalid no-distribution
rule into a valid rule.
Respondent contends its "special circumstances " justify-
ing the ban on distributions to be litter prevention, securi-
ty, fire prevention, and the promotion of production effi-
ciency. These "special circumstances" are typically offered
by employers, and they are just as typically rejected by the
Board. Minneapolis-Honeywell Regulator Company, 139
NLRB 849 (1962) (fostering discipline, production and
housekeeping rejected); General Aniline and Film Corpora-
tion 7 (litter and safety considerations not sufficient); Cone
Mills Corporations (theft prevention and production effi-
ciency rejected); McDonnell Douglas Corporation, 210
NLRB 280 (1974) (security, theft, and maintenance of pro-
duction rejected).
"Special circumstances" as used throughout the cases
has become a term of art to denote circumstances under
which a presumption of invalidity might be overcome. The
term is derived from Stoddard-Quirk Manufacturing Com-
pany, supra, where the Board noted that there may be cir-
cumstances where the presumption of invalidity would be
overcome. As derived from Stoddard-Quirk, "special cir-
cumstances" in distribution cases means problems associ-
ated with distribution which go beyond the normal prob-
lems of litter and production efficiency which the Board
took into account in that case when it granted employers
the additional limitation of banning distributions from
work areas . Here Respondent has failed to show that distri-
butions have caused any problems , including the greater
burden that demonstrating special circumstances , to justify
its broad ban on distributions. All of Respondent's evi-
dence going to its alleged special circumstances is specula-
tive and irrelevant to the issue of distribution by employees
in nonwork areas.
In this connection it is significant to point out that Re-
spondent has had no in-plant nonwork area distributions
and therefore the problems encompassed in the Company's
"special circumstances" have existed in the absence of dis-
tribution in plant nonwork areas . Such occurrences as have
taken place are not attributable to distributions. What the
records show is that apprehensions on Respondent's part
as to what would happen in the absence of the prohibition
of such distributions are speculative. Such speculations
along the lines the Respondent wants to follow are not
sufficient to rebut the presumptive invalidity of its too
broad no-distribution rule. In Minneapolis-Honeywell Regu-
lator Company, supra, the Board rejected similar speculative
evidence, concluding that in the absence of actual litter
caused by such distributions the employer's apprehension
of litter was insufficient to justify a broad no-distribution
rule. With respect to the problem of litter, it is to be espe-
cially noted that Respondent has not imposed a prohibi-
tion against its employees bringing on to its property paper
bags or newspapers. It is abundantly clear that a single
copy of a daily newspaper has many more pages than num-
erous one or two page throwaways printed by employees.
When viewed against the admission of huge amounts of
newspapers from a working force of approximately 36,000
people, this litter problem is much more real than the imag-
ined litter caused by the distribution of Section 7 rights
material.
The record shows that some blatantly obnoxious litera-
ture is distributed outside of the plant by nonemployee
individuals. It is certain that the prohibition against in-
plant distribution would not reach outside the plant and
cover nonemployee individuals.
Insofar as the problem of littering is concerned, it is to
be further noted that Respondent had the means of attack-
ing this problem directly by enforcing its rule against litter.
Respondent introduced a large number of exhibits which
were presented as evidence of theft problems in the parking
lots and locker rooms. See LeTourneau Company of Geor-
gia.9
The Board held in Stoddard-Quirk Manufacturing Co.,
supra at 621 as follows:
We also find that the presumption of invalidity is not
overcome by the testimony of Carson Butcher,
Respondent's vice president, that the rules adopted
years ago for the purpose of "keep[ing] down the litter
. .. [and] fire hazards . . . in the plant." The mere
assertion that a broad no-distribution rule has this
purpose hardly proves that it is actually "necessary"
for the employer to prohibit union hand billing by his
own employees in nonworking areas in order to
"maintain production or discipline". ... 9
9The situation might be different and the presumption of invalidity
of the broad rule overcome if an employer could establish that the
particular operations of the company, e.g., a high explosives plant,
made the distribution of any inflammable material a menace . No such
proof. of course, was adduced or sought to be adduced here.
I find that the no-distribution rule in question is pre-
sumptively invalid on its face in that it forbids the distribu-
tion of literature in the plant by employees who are on
nonworking time and in nonworking areas in situations
where such distribution is an activity protected by Section
7 of the Act. I further find that Respondent has not rebut-
ted that presumption.
In conclusion, I find that Respondent's enforcement of
this overbroad no-distribution rule constitutes an interfer-
7 145 NLRB 1215 ( 1964).
e 174 NLRB 1015 ( 1969). 954 NLRB 1253 (1944).
UNITED STATES STEEL CORP. 1249
ence with the rights of the employees which are protected
by Section 7 of the Act and therefore is violative of Section
8(a)(1).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. Respondent has violated Section 8 (a)(1) of the Act by
seeking to implement an invalid too broad no-distribution
rule which forbids the distribution of Section 7 material
anywhere in the plant by employees on nonworking time.
3. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent has violated the Act in
the above-described respect, I shall recommend that it be
required to cease and desist therefrom, and from like or
related action, and to take certain affirmative action to
effectuate the policies of the Act.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
where on its property and during employees' nonworking
time.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
rights under the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its South Works and Gary Works copies of
the attached notice marked "Appendix." 11 Copies of said
notice, on forms provided by the Regional Director for
Region 13, after being duly signed by Respondent's repre-
sentative, shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60 consec-
utive days thereafter, in places conspicuous to employees
and supervisors, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that the said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.
11 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
ORDER 10
Respondent, United States Steel Corporation, its offi-
cers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Implementing its invalid too broad rule against dis-
tribution of material protected by Section 7 of the Act any-
10 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 herein shall, as provided in Sec.
102.48 of the 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.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT continue to prevent the distribution of
material protected by Section 7 of the Act in non-
working areas of the plants during. the nonworking
time of the employees.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of these rights.
UNITED STATES STEEL CORPORATION