Westinghouse Electric Corp.

National Labor Relations Board - Board Decisions

Oct 17, 1972

199 N.L.R.B. 783 (N.L.R.B. 1972)

WESTINGHOUSE CORP.
Westinghouse Electric Corporation , Tampa Division
and International Brotherhood of Electrical Work-
ers, AFL-CIO. Case 12-CA-5413
October 17, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 24, 1972, Administrative Law Judge 1
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Decision in light of the exceptions and brief and has
decided to affirm the Administrative Law Judge's rul-
ings, findings, and conclusions, as modified below,
and to adopt his recommended Order.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) by maintain-
ing and enforcing a broad nonaccess rule so as to
preclude off-duty employees from ever distributing
union literature on any part of Respondent's proper-
ty. We further agree that Respondent has not fur-
nished sufficient justification for so broad a
prohibition, as interpreted and applied in the context
of this case. However, as we stated in McDonnell
Douglas Corporation, 194 NLRB No. 75, we do not
intend our holding to be construed as precluding em-
ployers from adopting rules regulating the use of their
property which in clear and unmistakable terms de-
fine the rights of employees and do not infringe on
those rights to a greater extent than necessitated by
legitimate employer interests in such matters as secu-
rity, traffic, and littering. We therefore find it appro-
priate to clarify the Order in the light of these
considerations.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, West-
inghouse Electric Corporation, Tampa Division,
Tampa, Florida, its officers, agents, successors, and
assigns , shall:
1. Cease and desist from:
783
(a) Maintaining and enforcing at its Tampa, Flo-
rida, plant its rule which totally prohibits its off-duty
employees from entering or remaining on any portion
of its premises for the purposes of distributing union
literature in the nonworking areas of the plant prem-
ises during their nonworking time.
(b) Promulgating, maintaining, and giving effect
to any rules which limit its employees' rights to dis-
tribute literature on its premises during nonworking
time in nonwork areas, unless the limitations imposed
on such activities are clearly defined as to times and
areas and are demonstrably necessary to maintain
production, discipline, or security.
(c) Disciplining employees, warning them of the
imposition of further discipline, or placing written
reprimands in their personnel files because they have
engaged in activities protected by Section 7 of the Act.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act:
(a) Expunge from the personnel records of em-
ployees Ronald W. Thomas, Richard E. Slane, and
Gerald Ackley the written reprimands placed therein
on January 24, 1972.
(b) Post at its plant at Tampa, Florida, copies of
the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 12, after being duly signed by the
Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 12,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Member Jenkins agrees , for reasons fully set forth by the Administrative
Law Judge , that Respondent violated Sec . 8(a)(1) of the Act. He finds it
unnecessary to further clarify such findings or speculate upon circumstances
or rules not presently before the Board in this case . Similarly , he would adopt
the Administrative Law Judge's recommended Order , an order limited to the
unlawful conduct found herein.
3 In the event that this 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 be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
199 NLRB No. 101
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT maintain or enforce at our
Tampa, Florida, plant our rule which totally pro-
hibits our off-duty employees from entering or
remaining on any portion of the plant premises
for the purpose of distributing union literature in
nonworking areas of the plant during their non-
working hours.
WE WILL NOT promulgate, maintain, or give
effect to any rules which limit our employees'
right to distribute literature on our premises dur-
ing nonworking time in nonwork areas, unless
the limitations on such activities are clearly de-
fined as to times and areas and are demonstrably
necessary to maintain production, discipline, or
security.
WE WILL NOT discipline our employees, warn
them of the imposition of further discipline, or
place written reprimands in their personnel files,
because they have engaged in activities protected
by Section 7 of the National Labor Relations
Act, as amended.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act, as
amended.
WE WILL expunge from the personnel files of
employees Ronald W. Thomas, Richard E.
Slane, and Gerald Ackley the written reprimands
placed therein on January 24, 1972.
Dated By
WESTINGHOUSE ELECTRIC CORPO-
RATION, TAMPA DIVISION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Room 706, Federal Office Building,
500 Zack Street, P.O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7227.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Trial Examiner: This case
came on to be heard before me at Tampa, Florida, on
March 15, 1972, on a complaint I issued by the General
Counsel of the National Labor Relations Board and an
answer filed by Westinghouse Electric Corporation, Tampa
Division, hereinafter called the Respondent. The issues
raised by the pleadings related to whether or not the Re-
spondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended, by certain practices, acts, and
conduct hereinafter detailed. At the conclusion of the hear-
ing all parties waived oral argument, but briefs have been
received from the General Counsel, the Respondent, and
the Charging Union, and have been duly considered.
Upon the entire record in this proceeding, and from my
observation of the testimony and demeanor of the witness-
es, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Pennsylvania corporation and
maintains, among others, a plant at Tampa, Florida, where
it is engaged in the manufacture of nuclear steam genera-
tors. During its fiscal year 1971, the Respondent manufac-
tured, sold and shipped products from its Tampa plant
valued in excess of $50,000 to customers located outside the
State of Florida. During the same fiscal year, the Respon-
dent purchased goods and materials valued in excess of
$50,000 from sources located outside the State of Florida.
The complaint alleges, the answer admits, and I find that
the Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint also alleges, the answer admits, and I
find that the International Brotherhood of Electrical Work-
ers, AFL-CIO , hereinafter called the Union, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges that at all times material to this
case the Respondent has had in effect a "housekeeping"
rule and a "non-access" rule, which the Respondent has
maintained, interpreted, and enforced to prohibit its off-
duty employees from entering on to the Respondent's prem-
ises during their nonworking time to solicit union support
and to distribute union literature in nonwork areas. As
amended on March 2, 1972, the complaint further alleges
that in January 1972, the Respondent issued written repri-
mands to certain of its off-duty employees because they had
returned to the plant to distribute union literature. The
I The complaint in this case , as amended on March 2, 1972, is predicated
on a charge filed on December 3, 1971, and served on the Respondent on
the same date
WESTINGHOUSE CORP.
General Counsel alleges that by the above described prac-
tices, acts, and conduct, the Respondent violated Section
8(a)(1) of the Act.
By its answer the Respondent admits to most of the
factual allegations of the complaint, but denies that it has
committed any unfair labor practices.
There is little or no dispute over the factual issues of
this case, and essentially no necessity for the resolution of
credibility issues. The singular legal conclusion to be drawn
from the facts is whether, either on their face, or as con-
strued and applied, the Respondent's "housekeeping" and
"non-access" rules, or either of them, interfere with, re-
strain, or coerce its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
The Respondent's Tampa plant opened in March 1968,
and, as related above, the primary operations of this plant
are devoted to the manufacture of steam generator pressur-
izers for nuclear power plants. The plant and surrounding
premises occupy an area of about 250,000 square feet, and
access to the premises is via a private entrance road, which
is located off a public street, which will hereinafter be refer-
red to as Westshore Boulevard.
The Respondent's operations are conducted on a 5-day
workweek, with three shifts during each 24-hour period. A
total of about 800 employees are employed at the Tampa
plant, of which about 450 are hourly rated employees and
approximately equally divided among the three shifts. The
record reflects that the Respondent's employment rules re-
quire hourly rated employees to be present at their work
stations when their shift begins, and to remain at their work
stations until the shift ends.
The Respondent admits that at all times since the open-
ing of the Tampa plant in 1968, it has maintained the
"housekeeping" rule in effect. The rule is published and is
distributed to the Respondent's employees through an em-
ployee handbook, which is entitled, "You and Your Job at
Westinghouse." The rule recites:
HOUSEKEEPING
To keep the Division and property orderly, clean and
free of litter, non-employees are not permitted to dis-
tribute advertising material, handbills, printed or writ-
ten material of any kind on Westinghouse property.
Likewise, in the interest of maintaining an attractive
and litter free plant, employees are not permitted to
distribute any such materials in working areas of the
Division.
The General Counsel concedes that the second part of
the "housekeeping" rule is a presumptively valid nondistri-
bution rule .2 He appears to contend, however, that the fore-
part of the rule, on its face applicable only to nonemployees,
has in fact been construed to prohibit off-duty employees
from entering on the premises for purposes of distributing
union literature. For the reasons related below, I find the
General Counsel's contention unmeritorious.
Robert J. Johnson, the Respondent's Employee Rela-
tions Manager, testified as a witness for the General Coun-
sel pursuant to the provisions of Section 43(b) of the Federal
Rules of Civil Procedure. Johnson's testimony, which is
2 The General Counsel also concedes that the Respondent's "no solicita-
tion-no distnbution" rule recited at p F-5 of its employee handbook is
presumptively valid , and not contended in this case to be violative of the Act
785
uncontradicted, reveals that the forepart of the "house-
keeping" rule is applicable only to nonemployees, and has
no applicability to the Respondent's employees, whether on
duty or off duty. There is no evidence in this record, more-
over, that the "housekeeping" rule, or any part of it, has
been enforced, construed, or applied contrary to its literal
and valid language. Accordingly, I find that the
Respondent's "housekeeping" rule is in all respects, includ-
ing its prohibition on distribution by nonemployees,3 a valid
no-distribution rule. The General Counsel concedes this
much in his brief, and I will recommend that this allegation
be dismissed.
The Respondent's "non-access" rule has also been in
effect since the date the Tampa plant opened, but unlike the
"housekeeping" provision, it has not been made known to
the employees through publication in the employees hand-
book. The "non-access" rule is published by the Respon-
dent only in its guard manual, and is distributed only to the
eight individuals who comprise its contract guard force.
Insofar as this record reflects, the "non-access" rule was
generally unknown to the Respondent's employees, at least
until after the events upon which the complaint here is
predicated had transpired. The "non-access" rule provides
in pertinent part as follows:
EMPLOYEE ACCESS
The GREEN (or tan) photo background on the
Employee Identification Card designates an HOUR-
LY or NON-EXEMPT SALARIED EMPLOYEE.
This employee is permitted access to his work area
during his regular shift hours or when authorized by his
supervisor to work overtime.
If an Hourly or Non-Exempt Salaried Employee
is scheduled to work overtime, he should have in his
possession a salmon colored, IRREGULAR HOUR
PASS (Westinghouse Form 23154 B), signed by his
supervisor. The Security Guard will mark the time on
the pass and allow the employee to enter . When the
employee departs, the Security Guard will note the
time out, initial the pass and hold in the Guard Station
for the day shift Lieutenant who will forward the passes
each morning to the Security Manager.
If the employee is reporting for work at a time
other than his regular shift and for any reason does not
have an Irregular Hour Pass, the guard shall properly
identify the employee, log his entrance in the Daily
Log, and insert a notation that there was no pass. The
employee shall then be allowed to proceed to his work
station. When employee departs, he should furnish an
Irregular Hour Pass or he should be logged out.
Other than for work duties , Hourly or Non-Ex-
empt employees will not be admitted onto the property.
A literal reading of the Respondent's "non-access" rule
requires the construction that it prohibits hourly rated em-
ployees from entering or remaining on Company premises
for any reason other than the performance of their regular
duties. The necessity for this construction is advanced by
the testimony of Employee Relations Manager Johnson,
3 N L R B v Babcock & Wilcox Company, 351 U S 105.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who related that the Respondent has construed the "non-
access" rule to prohibit any hourly rated employee , without
an irregular hour pass , from entering on the premises more
than one-half hour before the beginning of his shift, and
similarly prohibits any hourly rated employee , without an
irregular hour pass , from remaining on the premises more
than one-half hour after the conclusion of his shift . As John-
son admitted , both on its face and as construed and applied
the "non-access" rule precludes off-duty employees from
entering or remaining on Company property , including
nonwork areas , for the purpose of distributing union litera-
ture . The record further reflects that on three occasions
during December 1971, and January 1972, the Respondent
enforced its "non -access" rule to prohibit certain of its off-
duty employees from distributing union literature in non
work areas on its premises . When the employees persisted
in this conduct , they were given written reprimands, and
warned that any continuation of the conduct could result in
the imposition of further discipline.
According to a composite of the testimony of employ-
ees Ronald W. Thomas , Richard E. Slane , and Gerald Ack-
ley, all of whom are employed as maintenance servicemen
on the Respondent 's 3:30 to 11 : 30 p.m . shift , they were
directed to leave the Respondent's property on each of the
three occasions when they attempted to distribute literature
on behalf of the Union to employees leaving the plant at the
end of the third shift , as well as to employees entering the
plant for the first shift.
On December 3, 1971, employees Thomas and Slane
entered the company premises about 6 : 45 a.m ., and sta-
tioned themselves at a walkway 15 to 20 feet from the main
entrance to the factory building . At this location Thomas
and Slane passed out union handbills to employees entering
the plant for the first shift. About 6 : 50 a.m . the employees
were approached by John Goff , the Respondent's plant
operations manager for the third shift . Goff told the em-
ployees that they were within their rights to distribute the
handbills, but asked them to please move back because they
were creating congestion. Thomas and Slane complied,
moved back, and continued to pass out handbills . Within a
few minutes Willard Staples, the Respondent 's manager for
security and employee services, approached and asked
Thomas and Slane , "What have we here ?" Staples picked up
the package of handbills, looked at them, and asked the
employees to follow him.
Inside Staples ' office he expressed surprise at the em-
ployees conduct, and stated that he thought Thomas and
Slane knew they couldn 't pass out literature on company
premises . Thomas and Slane expressed the belief that the
rule only applied inside the plant, but Staples assured them
that the rule applied anywhere on Westinghouse premises.
Staples added that he intended to take the handbills and
destroy them . Slane argued that the handbills were his prop-
erty, and Staples relented to the extent he kept only two
copies and returned the remainder to the employees . Staples
told Thomas and Slane to leave the premises and destroy
the handbills . The employees complied , left the premises,
and then handbilled at a location adjacent to the intersec-
tion of Westshore Boulevard and the access road leading to
the Respondent 's plant.
On December 10, 1971, Thomas and Slane, accompa-
nied by employee Gerald Ackley , again entered the
Respondent's premises about 6 : 45 a.m . On this occasion the
employees were stopped by a guard , who inquired the rea-
son for their entering the plant during their off-duty hours.
Thomas told the guard that they were going in to pass out
literature , and the guard allowed them to proceed . The em-
ployees stationed themselves at the same location as on
December 3. Within a few minutes the guard approached
and told the employees that because they did not have an
overtime pass , he had been instructed by management to
tell them to leave the premises . The employees left, and
again passed out their literature at the intersection of West-
shore Boulevard and the access road.
Thomas , Slane, and Ackley again attempted to hand-
bill at the entrance to the main plant on January 24, 1972.
Within a few minutes Goff approached and asked the em-
ployees, "What, you here again?" Goff pointed to the gate,
and said, "I'm sure you don't have an overtime pass. OUT!"
The employees complied , and resumed their handbilling at
the intersection of Westshore Boulevard and the access
road.
At the beginning of their regular shift on the afternoon
of January 24, Thomas , Slane, and Ackley were told that the
Respondent's manager for hourly and salaried employee
relations, William T. McLean, wanted to see them. -The
employees met with McLean and Works Engineer Richards
in a small conference room . McLean informed the employ-
ees that they had been told repeatedly on two or three
occasions to leave the company property, but that the em-
ployees kept coming back . McLean added that the purpose
of the meeting was to inform the employees that a written
reprimand would be placed in their personnel files, and if
they returned to company property again , further discipli-
nary action would be taken . Thomas stated that the employ-
ees believed that they were within their legal rights in
distributing union literature on company premises, to which
McLean replied , "That's where we differ ." The employees
asked to see copies of the written reprimand to be placed in
their files , and copies were furnished to them several days
later . A week or so after the reprimands to Thomas , Slane,
and Ackley , the Respondent held work area meetings, at
which the employees were told that in accordance with the
Respondent 's longstanding policy they were prohibited
from being on the premises more than one-half hour before
or after their regular shift, unless they had an overtime pass.
It is the Respondent 's contention that its "non-access"
rule was promulgated and has been enforced as a means of
protecting the Company with respect to security and insur-
ance liability , as well as a means of encouraging adequate
production . Although the "non-access" rule has been in
effect since the Tampa plant opened in 1968 , Employee
Relations Manager Johnson testified to a number of inci-
dents of theft or damage to company property and the
property of its employees . Johnson also testified to the ne-
cessity of protecting the Respondent's records , its computer,
and its confidential product designs, as well as the desirabil-
ity of protecting the Company against workmen 's compen-
sation claims arising as a result of the injury of employees
on the premises.
The evidence in support of the Respondent's conten-
tions with respect to the reasons for the creation and en-
WESTINGHOUSE CORP.
forcement of the "non-access" rule is not at all persuasive.
Insofar as the whole of the relevant evidence in this record
reflects, the "non-access" rule has been ignored by the Re-
spondent for all purposes other than prohibiting its off-duty
employees from distributing union literature on nonwork
portions of its premises.
The "non-access" rule on its face is applicable only to
hourly rated and nonexempt employees, and has no appli-
cability to the many other employees on the Respondent's
payroll who are salaried and exempt under the provisions
of the wage and hour laws. It is clear that the "non-access"
rule has never been published for the benefit of the employ-
ees' knowledge, and, contrary to the Respondent's conten-
tion, the existence of the rule and its applicability were
generally unknown to the hourly rated employees until after
the occurrence of the incidents which gave rise to this com-
plaint. There is, moreover, a plentitude of evidence in this
record to support the conclusion that the Respondent has
generally ignored the enforcement on the "non-access" rule
for most all work and nonwork-related purposes, but has
rigidly enforced the rule to bar its premises to the distribu-
tion of union literature. The uncontradicted testimony of
the employees who testified in this proceeding reflects that,
except for overtime on weekends when regular shifts are not
scheduled, they have been allowed without benefit of any
overtime pass to both enter and remain on company prem-
ises for overtime work. Similarly, the uncontroverted testi-
mony of the employees reveals that they have been allowed
on the Company premises during nonworking time for non-
work-related reasons, such as visiting the nurse, inquiring
about insurance, and making purchases at the company
store. On such occasions the employees were not required
to have an irregular hour pass, and they were not warned
or reprimanded for violating the "non-access" rule. In the
light of all this evidence I cannot accept the Respondent's
assertion that its "non-access" rule is a universally applica-
ble rule of employment designed and enforced to protect the
Company solely against the eventualities which can ensue
from trespass, theft, and its legal and insurance liabilities.
Even if I were to assume, arguendo, that the
Respondent's "non-access" rule was promulgated and
maintained for legitimate business considerations, I would
still be required to find that the rule, both on its face and
as construed and enforced, is an unlawful and unreasonable
impediment to the exercise by the Respondent's employees
of the rights guaranteed them by Section 7 of the Act.' In
the absence of evidence of special circumstances necessitat-
ing the rule to maintain production or discipline, a burden
which the Respondent has not met in this record the "non-
access" rule is discriminatory and unlawful.5
In its brief the Respondent acknowledges the general
rule promulgated by the Board in Peyton Packing Company,6
and approved by the Supreme Court in Republic Aviation,
supra. The Respondent argues, nevertheless, that Peyton and
Republic Aviation dealt with employees who were at the
employer's premises pursuant to work obligations, and that
the thrust of those decisions was directed to employees'
rights within the parameter of their workday. Because this
787
case involves off-duty employees, as opposed to on-duty
employees during nonwork time, the Respondent asserts
that a proper balancing of the interests of the employees and
the Employer requires that the doctrine of the "alternate
means of communication" be applied. As factual support
for this contention the Respondent relies on some evidence
in the record which it argues supports a finding that both
unions and employees have had adequate opportunities for
solicitation and distribution on Westinghouse premises. As
to legal precedent in support of its argument for application
of the doctrine of the "alternate means of communication,"
the Respondent relies on the Decisions of the United States
Supreme Court in N.L.R.B. v. Babcock & Wilcox Company 7
and N.L.R.B. v. United Steelworkers of America,' as well as
the decision of the Third Circuit Court of Appeals in Dia-
mond Shamrock Co. v. N.L.R.B.9
As to the facts, the record in this proceeding does re-
flect that during the current and prior organizing campaigns
union representatives and employees did distribute litera-
ture along the access road from where it intersects with
Westshore Boulevard to a point within several feet of the
guard shack. There is also evidence in the record that on
three occasions commensurate with the incidents of this
case, employees Thomas, Slane, and Ackley handbilled em-
ployees on the Respondent's premises during a one-half
hour period after the conclusion of their regular work shifts.
On the basis of this evidence I find little merit in the
Respondent's contention that its employees have had, or
can have, adequate opportunity to engage in organizational
activities on the nonwork areas of its property. Whatever
leeway the Respondent has allowed in the enforcement of
the "non-access" rule, the rule on its face prohibits off-duty
employees from entering or remaining on the whole of its
property for any reason unrelated to their regular duties.
There is nothing in the rule to put the employees on notice
that they are permitted to distribute union literature on the
access road, and the rule is equally silent on like conduct
during the one-half hour periods preceding and following
the employees' regular shifts.
Nor do I find great merit in the Respondent's reliance
on the decisions of the Supreme Court in the Babcock &
Wilcox and United Steelworkers cases. It is granted that in
both cases the Supreme Court expressed its concern for the
necessity to balance the rights of workers to organize
against the rights of the employer to protect and utilize his
property. In Babcock & Wilcox the Court applied the test of
the availability of alternate means of communication in
determining whether an employer was obligated to open up
his premises to allow distribution of union literature by
nonemployee union organizers. In the United Steelworkers
case the Court applied the same test in determining whether
the enforcement against employees of a presumptively valid
no-distribution rule was nevertheless discriminatory be-
cause the employer violated his own rule in the course of
conducting an antiunion campaign. The facts of Babcock &
Wilcox and the United Steelworkers cases are not the facts
of this case. At issue here is a total prohibition against
off-duty . employees to enter any portion of the
4 Republic Aviation Corporation v. N.L.R.B., 324 U.S. 739. 351 US 105.
5 Republic Aviation, supra 8 357 U.S. 357.
6 Peyton Packing Company, Inc., 49 NLRB 843. 9 443 F.2d 52 (C.A. 3).
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's premises for purposes of union solicitation
or distribution. This case does not concern the rights of
nonemployee union organizers, does not concern the en-
forcement of a presumptively valid no-distribution rule,
and, in my view, does not require application of the doctrine
of the "alternate means of communication." 10
As to the Respondent's reliance on the decision of the
Third Circuit Court of Appeals in Diamond Shamrock Co.,
supra, even if I were obligated to be bound by the court's
decision, rather than the decision of the Board, I would find
the rationale of that case inapplicable to the facts before me
in the instant proceeding. Unlike the Respondent's "no ac-
cess" rule, the no-solicitation rule in Diamond Shamrock was
applicable only to production areas and certain secured
nonproduction areas, thus leaving the employees free to
solicit during nonworking time on all other nonwork por-
tions of the employer's premises.
In summary, I find and conclude that by maintaining
and enforcing its "non-access" rule to prohibit its off-duty
employees from entering or remaining on the Company's
premises for the purposes of distributing union literature
during nonworking time in nonworking areas, the Respon-
dent has violated, and is violating, Section 8(a)(1) of the
Act. II In arriving at this disposition of the issue before me,
I have considered the evidence that Respondent has allowed
the distribution of union literature at some times and at
some places on its premises. I have also considered the
absence of evidence in the record that employees have ever
requested, or that the Respondent has ever denied, permis-
sion to them to enter its premises for the purpose of distrib-
uting union literature . I find both considerations
immaterial.12
I also find and conclude that by reprimanding its em-
ployees for distributing union literature on its premises, by
warning them that any repetition of this conduct would
result in the imposition of further discipline, and by placing
written reprimands 13 in the employees' personnel files, the
Respondent engaged in additional violations of Section
8(a)(1) of the Act.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III
above, occurring in connection with its operations de-
scribed in section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow, of commerce.
Upon the foregoing findings and conclusions, I hereby
make the following:
CONCLUSIONS OF LAW
1. The Respondent, Westinghouse Electric Corpora-
tion, Tampa Division, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union, International Brotherhood of Electrical
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By maintaining and enforcing a rule prohibiting its
off-duty employees from entering or remaining on its prem-
ises for the purposes of distributing union literature in non-
working areas during their nonworking time, the
Respondent has violated, and is violating, Section 8(a)(1) of
the Act.
4. By reprimanding its employees Ronald W. Thomas,
Richard E. Slane , and Gerald Ackley because they distrib-
uted union literature in nonworking areas on its premises
during their off-duty hours; by warning said employees that
any repetition of such conduct would result in the imposi-
tion of further discipline; and by placing written reprimands
in said employees personnel files, the Respondent violated
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in unfair labor practices I will recommend that
it cease and desist therefrom and take certain affirmative
actions to effectuate the policies of the Act.
Having found that the Respondent's "non-access" rule
has been maintained and enforced in contravention of Sec-
tion 8(a)(1) of the Act, I shall recommend that the Respon-
dent cease and desist from maintaining and enforcing said
rule to prevent its off-duty employees from entering or re-
maining on its premises during their nonworking time for
the purpose of distributing union literature in nonworking
areas. Having also found that the Respondent violated Sec-
tion 8(a)(1) of the Act by reprimanding its employees, warn-
ing them, and placing written reprimands in their personnel
files because they engaged in conduct protected by Section
7 of the Act, I will further recommend that the Respondent
expunge from the personnel files of employees Ronald W.
Thomas, Richard E. Slane , and Gerald Ackley the repri-
mands placed therein on January 24, 1972.
Upon the foregoing findings and conclusions, and the
entire record, and pursuant to Section 10(c) of the Act, I
hereby issue the following recommended:
ORDER15
'o Diamond Shamrock Co, 181 NLRB 261, enforcement denied 443 F.2d
52 ^C.A. 3).
McDonnell Douglas Corporation, 194 NLRB No. 75, Cone Mills Corpora-
tion
;
White Oak Plant, 174 NLRB 1015; and Bauer Aluminum Company, 152
NLRB 1360.
12 Diamond Shamrock Co, supra, and Bauer Aluminum Company, supra.
13 I find no ment in the Respondent's assertion that the memorandums
placed in the files of employees Thomas, Slane , and Ackley were for informa-
tion purposes only, and not for purposes of reprimand.
14 Bauer Aluminum Company, supra
The Respondent, Westinghouse Electric Corporation,
Tampa Division, its officers, agents , successors , and assigns,
shall:
15 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all obj ections thereto shall be
deemed waived for all purposes.
WESTINGHOUSE CORP.
1. Cease and desist from:
(a) Maintaining and enforcing at its Tampa, Florida,
plant any rule which prohibits its off-duty employees from
entering or remaining on it's premises for the purposes of
distributing union literature in the nonworking areas of the
plant premises during their non-working time.
(b) Disciplining employees, warning them of the impo-
sition of further discipline, or placing written reprimands in
their personnel files because they have engaged in activities
protected by Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Expunge from the personnel records of employees
Ronald W. Thomas, Richard E. Slane, and Gerald Ackley
the written reprimands placed therein on January 24, 1972.
(b) Post at its plant at Tampa, Florida, copies of the
attached notice marked "Appendix."16 Copies of said no-
tice, on forms provided by the Regional Director for Region
789
12, after being duly signed by the Respondent's representa-
tive, shall be posted by the Respondent immediately upon
receipt thereof, and shall be maintained by it for 60 consec-
utive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by
other material.
(c) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the receipt of this Decision, what
steps have been taken to comply herewith.17
3. It is further recommended that all other allegations
of unfair labor practices in the complaint be dismissed.
16 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
17 In the event that this recommended Order is adopted by the Board after
exceptions have been filed , this provision shall be modified to read : "Notify
the Regional Director for Region 12, in writing , within 20 days from the date
of this Order, what steps the Respondent has taken to comply herewith "