United Technologies Corp.

National Labor Relations Board - Board Decisions

May 19, 1986

279 N.L.R.B. 973 (N.L.R.B. 1986)

UNITED TECHNOLOGIES CORP
United Technologies Corporation and District Lodge
91, International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 39-CA-
2157
19 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
Upon a charge filed 3 May 1984 by the Union,
the General Counsel of the National Labor Rela-
tions Board issued a complaint on 19 February
1985. The complaint alleges that the Respondent
violated Section 8(a)(1) of the National Labor Re-
lations Act by maintaining and enforcing a rule at
its Southington, Connecticut facility which inter-
feres with, restrains , and coerces employees in the
excercise of their Section 7 rights.
On 25 April 1985 the General Counsel, the
Union, and the Respondent filed a motion to trans-
fer the proceeding to the Board and a stipulation of
facts. The parties waived a hearing and the issu-
ance of a decision by an administrative law judge
and submitted the case directly to the Board for
findings of fact, conclusions of law, and decision.
The parties also agreed that their formal stipulation
of facts and the exhibits attached thereto would
constitute the entire record before the Board.
On 26 June 1985 the Board issued an order
granting the parties' motion, approving the stipula-
tion, and transferring the proceeding to the Board.
Thereafter, the General Counsel and the Respond-
ent each filed a brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
On the entire record and the briefs, the Board
makes the following
FINDINGS OF FACT
1. JURISDICTION
The Respondent , a Delaware corporation with
its main office in Hartford, Connecticut, and with
an office and place of business in Southington,
Connecticut, has been engaged in the manufacture
and nonretail sale and distribution of aircraft en-
gines and related products. During the 12-month
period ending 31 December 1984, the Respondent,
in the course and conduct of its business operations
described above, sold and shipped from its South-
ington facility products, goods, and materials
valued in excess of $50,000 directly to sources out-
side the State of Connecticut. We find that the Re-
spondent is an employer engaged in commerce
973
within the meaning of Section 2(6) and (7) of the
Act.
The Union coordinates the activities of several
local lodges within its jurisdiction including its
Local Lodge 1746-A. We find that the Union is a
labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Stipulated Facts
At all material times, the Respondent has main-
tained the following sign display rule for its South-
ington plant employees:
(1) Any employee who drives a vehicle onto
company property with any type of large sign
or banner, political or otherwise, should be no-
tified by the Guard Department that company
rules prohibit such practice, and he will not be
permitted to bring his vehicle onto the prem-
ises after that day until the sign has been re-
moved.
(2) Once an employee has been so notified,
he shall not be permitted to bring the vehicle
on the premises until the sign has been re-
moved.
(3) This rule is not intended to preclude em-
ployees from parking on company property
their vehicles bearing bumper stickers,
window stickers, or similar ornamentation or
devices commonly displayed on automobiles,
but rather to preclude purposely conspicuous
displays intended to attract attention to pro-
mote a candidacy, organization or product.
On 3 or 4 days during the first week in Decem-
ber 19831 and on 8 December, employee Joseph
Gallagher drove his van to the Respondent's
Southington facility and parked it in an employee
parking lot there. Affixed to one side of the van
was a 4- by 6-foot sign reading "Shortell for Local
1746-A President." Machinists Local Lodge 1746-
A (Local 1746-A) is within the Union's jurisdiction
and is the exclusive collective-bargaining represent-
ative for approximately 2200 production and main-
tenance employees at the Respondent's Southing-
ton facility. Employee William Shortell was one of
the candidates in the internal union election held 13
December.
On 8 December, pursuant to the Respondent's
sign display rule, Foreman Clarence Mattice2 in-
' All dates are in 1983 unless otherwise indicated
2 Mattice admittedly was a supervisor of the Respondent within the
meaning of Sec 2(11) of the Act and an agent of the Respondent within
the meaning of Sec 2(13) of the Act
279 NLRB No. 135
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
structed Gallagher to either remove or cover the
union election campaign sign on his van before en-
tering company property. From 9 December until
14 December, Gallagher followed Mattice's in-
structions. He parked his van, with the sign affixed,
off the Respondent's property. But, on 14 and 16
December, Gallagher once again parked his van,
with the sign affixed, on company property in one
of the Southington plant's employee parking lots.
On 16 December Mattice approached Gallagher
at his work station and informed him that he had
three options regarding his van: (1) remove the van
from the Respondent's property; (2) cover the sign;
or (3) remove the sign from the van. Again, Mat-
tice's instructions were pursuant to the Respond-
ent's sign display rule . Gallagher chose the first
option and removed his van from the Respondent's
property . In doing so, he lost 33 minutes of pay.3
Gallagher later grieved the Respondent 's refusal
to allow him to park his van, with the union elec-
tion campaign sign attached, on company property.
This grievance was denied at all the prearbitration
steps of the applicable contractual grievance proce-
dure. The Respondent has refused to submit this
grievance to arbitration.4
B. Contentions of the Parties
The General Counsel contends that the Respond-
ent violated Section 8(a)(1) of the Act by maintain-
ing and enforcing a rule which prohibited its em-
ployees from engaging in protected union solicita-
tion in nonwork areas on nonwork time. In support
of her position, the General Counsel asserts that
employee Gallagher was engaged in protected con-
certed activity when he parked his van, with the
union election campaign sign affixed , in one of the
Respondent's employee parking lots. The General
Counsel also points out that the stipulated record
contains no evidence whatsoever about any special
circumstances requiring the Respondent 's sign dis-
play rule, which permits "bumper stickers, window
stickers, or similar ornamentation," but which pro-
hibits "purposely conspicuous displays intended to
attract attention to promote a candidacy, organiza-
tion or product." The General Counsel further
points out that the stipulated record does not con-
tain any evidence that the Respondent 's rule and its
enforcement in Gallagher 's situation was required
to maintain production or discipline at the Re-
spondent's facility. Accordingly, and relying on the
a Mattice had told Gallagher that whatever option he chose , he would
have to "clock out" immediately to take the appropriate action. Galla-
gher filed a grievance concerning his pay loss for moving his van on 16
December . This grievance was resolved at step one of the applicable con-
tractual grievance procedure.
4 None of the parties seek deferral of this matter to the contractual
grievance procedure
Board's rationale in Firestone Tire & Rubber Co.s
and its progeny, the General Counsel argues that
the Respondent violated Section 8(a)(1) by main-
taining and enforcing this rule because Gallagher's
interest in displaying the sign on his van outweighs
the Respondent's interest in prohibiting the display
of the sign on its property.
The General Counsel takes the alternative posi-
tion that the Respondent's rule does not satisfy the
Board's well-established standards governing the
oral solicitation of employees. According to the
General Counsel's theory, the Respondent' s rule is
overly broad because it prohibits oral solicitation in
an employee parking lot, a nonwork area, while
employees are on their own time. The General
Counsel asserts that, inasmuch as there is no evi-
dence in the stipulated record which would justify
such an overly broad no-solicitation rule, the Re-
spondent's rule is clearly violative of Section
8(a)(1).
On the other hand, the Respondent contends that
the General Counsel failed to establish a prima
facie showing of a violation of Section 8(a)(1). The
Respondent asserts that, contrary to the complaint
allegations, the rule in question on its face does not
restrict "union" posters, but rather is directed to
any type of sign, union or nonunion, which is
"large," the only restriction imposed by the rule.
The Respondent denies that its action against Gal-
lagher was directed at union activity. For this
reason, the Respondent argues that Firestone, supra,
is distinguishable and that, accordingly, unlike in
Firestone, there is no need here to balance the em-
ployer's property interests with an employee's Sec-
tion 7 rights.6
The Respondent contends that the only issue
which legitimately can be raised on the basis of the
stipulated facts is whether or not its treatment of
Gallagher was discriminatory. The Respondent
claims that it should prevail on this issue because
the most shown by the stipulated facts is that the
rule was applied for the first time against an em-
ployee who happened to be engaged in union ac-
tivity at the time.7 The Respondent points out that
this evidence is insufficient to establish a violation
under the analysis of Westinghouse Electric Corp.8
Accordingly, the Respondent seeks dismissal of the
complaint.
° 238 NLRB 1323 (1978)
° The Respondent disputes that Gallagher was engaged in any protect-
ed activity on 16 December because the union election had already been
held
r Although the Respondent may be conceding in its brief that its rule
was applied for the first time in Gallagher's situation , the stipulation of
facts contains no information whether the rule had or had not ever been
enforced previously
8 204 NLRB 78 (1973)
UNITED TECHNOLOGIES CORP 975
C. Discussion
It is well settled that the exercise of protected
rights by employees must be balanced against the
exercise of property and managerial rights by em-
ployers. As the Supreme Court stated in Republic
Aviation Corp. v. NLRB, 324 U.S. 793, 797-798
(1945):
[A]n adjustment [is required] between the un-
disputed right of self-organization assured to
employees . . . and the equally undisputed
right of employers to maintain discipline in
their establishments. Like so many others,
these rights are not unlimited in the sense that
they can be exercised without regard to any
duty which the existence of rights in others
may place upon employer or employee. Op-
portunity to organize and proper discipline are
both essential elements in a balanced society.
Subsequently, in NLRB v. Babcock & Wilcox Co.,
351 U.S. 105, 112 (1956), the Supreme Court stated:
Organization rights are granted to workers by
the same authority, the National Government,
that preserves property rights. Accommoda-
tion between the two must be obtained with as
little destruction of one as is consistent with
the maintenance of the other.9
The instant case involves just such an adjustment
or accommodation between employee and employ-
er rights as suggested by the Supreme Court. We
agree with the General Counsel that displaying
union election campaign signs on a private vehicle
parked on the employer's premises during the
workday is protected concerted activity. See Swan
Coal Co., 271 NLRB 862, 867 (1984); Coors Con-
tainer Co., 238 NLRB 1312, 1319 (1978); Firestone,
supra; Pet Inc., 229 NLRB 1241, 1242 (1977). Thus,
we find that Gallagher was engaged in protected
concerted activity when he parked his van, with
the union election campaign sign attached, on the
Respondent's premises both before and after the 13
December union election. However, we disagree
with the General Counsel that the Respondent's
sign display rule is overly broad and unduly in-
fringes upon employees' Section 7 rights.
We first observe that the Respondent 's rule is
not a complete prohibition against the display of
union material on employees' vehicles parked on
company premises. Rather, the rule by its express
terms establishes only a very limited restriction on
the display of signs, prohibiting only "large sign[s]
or banner[s] . . . [to] preclude purposely conspicu-
9 Although Babcock & Wilcox, unlike Republic Aviation and the instant
case, involved nonemployee organizational activity, the above-quoted
passage is generally relevant to the instant issue
ous displays intended to attract attention to pro-
mote a candidacy, organization or product," while
expressly permitting the display of "bumper stick-
ers, window stickers, or similar ornamentation or
devices commonly displayed on automobiles." The
General Counsel does not dispute that Gallagher's
union election campaign sign on his van constitutes
a "large sign or banner" within the meaning of the
Respondent's sign display rule. There is also no in-
dication from the stipulated facts that, during the
13 December union election campaign, the Re-
spondent restricted union election campaign signs
or banners which would otherwise be expressly
permitted by the rule as "bumper stickers, window
stickers, or similar ornamentation or devices com-
monly displayed on automobiles."
Given the fact that the Respondent's rule is only
a partial restriction on displaying union signs, we
find Firestone, supra, and its progeny distinguish-
able from the situation presented here. In Firestone,
the employer had banned boycott signs on the em-
ployee's car parked on the company premises, re-
gardless of the signs' size, and without permitting
alternative means to display the same message on
the employee's private property. In light of this
complete prohibition, the Board required a show-
ing that the boycott signs displayed on private ve-
hicles on company premises had interfered with
production or otherwise threatened the disruption
of the employer's operations. In the absence of
such showing, the Board applied a balancing test,
finding that the employer's managerial interests did
not outweigh the employee's exercise of his Section
7 rights.
Here, we find that the Respondent's rule is a rea-
sonable accommodation between the Respondent's
managerial interest and employees' Section 7
rights.10 The Respondent has simply taken reason-
able measures to prevent its employee parking lots
from being transformed into havens for distracting
billboards for all causes imaginable . On balance, we
find that the Respondent's attempt to establish
some decorum, but still permitting the common dis-
play of union materials on employee vehicles, is
permissible. Accordingly, we shall dismiss the com-
plaint in its entirety. I t
10 Contrary to the assertion of our dissenting colleague, we do not
suggest that the Respondent 's property rights are at stake in the instant
case
i i Member Johansen finds Malta Construction Co, 276 NLRB 1495
(1985), relied on by the dissent , to be distinguishable , because that case
involved a complete prohibition against the display of insignia on company
hardhats, whereas the instant case involves only a very limited prohibi-
tion against large signs or banners affixed to cars parked on the Respond-
ent's property Chairman Dotson finds Malta Construction not to be con-
trolling on the instant case , because, for the reasons set forth in his dis-
senting opinion therein, he believes that case was wrongly decided.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSION OF LAW
The Respondent did not violate Section 8(a)(1)
of the Act.
ORDER
The complaint is dismissed.
MEMBER DENNIS , dissenting.
I disagree with my colleagues ' dismissal of the
complaint in this case and with the reasons they
offer for their decision. In my opinion, they fail to
apply the relevant legal principles and therefore
reach an erroneous result.
The majority concedes that employee Joseph
Gallagher engaged in protected concerted activity
when he parked his van bearing a union election
campaign sign in an employee parking lot on the
Respondent's property during the workday. Yet,
with no evidence that the Respondent 's managerial
rights were threatened , they find that the Respond-
ent acted lawfully in prohibiting the display of the
union sign . Apparently they rely on the fact that
the Respondent 's rules regarding employee displays
did not ban all displays, but permitted those which
the Respondent considered acceptable as a means
of employee expression.
The Board 's decision in Firestone Tire & Rubber
Co.' plainly states the governing principles , formu-
lated from Supreme Court decisions ,2 as follows:
[W]here an employee exercises his Section 7
rights while legally on an employer's property
pursuant to the employment [relationship], the
238 NLRB 1323 (1978)
z Eastex, Inc. v. NLRB, 437 US 556 ( 1978), Hudgens V. NLRB, 424
US 507 (1976), NLRB v Babcock & Wilcox Co, 351 U.S 105 (1956),
Republic Aviation Corp. v NLRB, 324 U S. 793 (1945)
balance to be struck is not vis-a-vis the employ-
er's property rights, but only vis-a-vis the em-
ployer's managerial rights . The difference is
"one of substance ," since in the latter situation
Respondent 's managerial rights prevail only
where it can show that the restriction is neces-
sary to maintain production or discipline or
otherwise prevent the disruption of Respond-
ent's operations. S
Furthermore, "[i]t is well established that the avail-
ability of other channels of communication does
not justify employer restraint of employees ' Section
7 rights in nonwork areas at nonwork times."4
Here the Respondent has furnished no evidence of
special circumstances that require restricting em-
ployee displays in order to protect managerial
rights . In the absence of such evidence , the Re-
spondent may not impair employee exercise of Sec-
tion 7 rights on its property in nonwork areas
during nonwork time . The majority's view that the
Respondent 's display rules represent an attempt to
establish "decorum" is not a substitute for such evi-
dence . And, as stated above , it is irrelevant that the
Respondent 's display rules permit other forms of
communication.
Applying the correct legal principles , I would
find that the Respondent violated Section 8(a)(l)
by maintaining and enforcing its rules restricting
the display of union material on employee vehicles.
8 The majority's suggestion that this case somehow involves an accom-
modation with the Respondent's property rights is therefore erroneous
4 Helton v. NLRB, 656 F 2d 883 , 896 (D C Cit. 1981). In Malta Con-
struction Co, 276 NLRB 1494 (1985), the dissenting opinion, contrary to
the majority , relied on the existence of alternative methods of communi-
cation to uphold an employer's restriction on the display of union msig-
ma