McDonnell Douglas Corporation v. NLRB
| Decision Date | 26 January 1973 |
| Docket Number | No. 71-1720.,71-1720. |
| Citation | 472 F.2d 539 |
| Parties | McDONNELL DOUGLAS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Veryl L. Riddle, St. Louis, Mo., for petitioner.
Jay E. Shanklin, Atty. N. L. R. B., Washington, D. C., for respondent.
Before MATTHES, Chief Judge, MEHAFFY, Circuit Judge, and VAN PELT, Senior District Judge.*
This case presents the petition of McDonnell Douglas Corp.1 to review and set aside the order of the National Labor Relations Board which found McDonnell had committed unfair labor practices. The Board has cross-applied for enforcement of the order. The Board's decision and order, issued on December 14, 1971, is reported at 194 N.L.R.B. No. 75, 78 LRRM 1705. The main issue presented by the contested order is the validity of McDonnell's rule limiting solicitation and distribution on company property by off-duty employees.
This controversy is limited to McDonnell's production facility located adjacent to Lambert St. Louis International Airport in St. Louis, Missouri. The pertinent facts relevant to the physical facilities and the operations of McDonnell are fairly reflected in Board member Kennedy's dissenting opinion. For the purposes of this opinion and in order to properly understand the genesis of the no-solicitation, no-distribution rule, the following discussion of the facts will suffice. At the St. Louis plant there are several buildings which occupy 500 acres. There are 31,000 employees engaged in the manufacture of all types of aircraft, including but not limited to missiles, space vehicles and military airplanes. Of primary importance here is that much of this production is militarily sensitive and thus is classified by the United States government in varying degrees of secrecy.
In order to protect these national security interests, as well as its own proprietary interests in its plant and its nonsecret production, McDonnell employs a somewhat elaborate security system. The St. Louis facility is encircled by two barriers, known as the outer and inner perimeters respectively, and within the inner perimeter the high security areas are further cordoned off and guarded with admission limited to those with proper clearance. The outer perimeter consists of a seven-foot, chain link fence topped with barbed wire. The inner perimeter is composed largely of the same type fencing, but in some places consists of the outer walls of buildings. Between the two perimeters are parking lots adequate to accommodate 18,000 cars. During the day, the gates of the outer perimeter leading to the parking lots are open and unguarded, whereas the inner perimeter gates are guarded and admission is conditioned upon presentation of a computer-punch badge bearing one's picture and insertion of the badge into the proper machinery to verify its validity. At night, however, only one gate through the outer perimeter is open and it is guarded. Similarly, the security force is deployed on a ratio of one guard per 300 employees and thus is drastically decreased at night since there are 25,000 employees on the day shift but only 5,000 on the second shift and 1,000 on the third shift.
Also important to note is the presence within McDonnell's plant of a substantial amount of non-working space. In addition to the many restrooms, smoking and vending areas, etc., which accompany so large a work-force, McDonnell operates seven cafeterias for its employees. Since these cafeterias are open for breakfast, McDonnell opens its parking lots one and one-half or more hours before the morning shifts are commenced — the starting and quitting times of the morning shifts being staggered to facilitate traffic flow.
This case was generated by an incident which occurred on September 17, 1970. On that day, Boyd Masterson, Vice-President of Technical Employees of Aerospace Manufacturers TEAM, the perennial insurgent union at McDonnell's St. Louis plant, attempted to distribute TEAM literature on one of the parking lots a few minutes prior to his shift. A plant guard, erroneously believing this conduct violated McDonnell's distribution rule, forced Masterson to cease distributing the leaflets.2
Warren Flynn, McDonnell's manager of labor relations, learned of this incident. Shortly thereafter, Flynn and Ivan Rutherford, McDonnell's Director of Security, promulgated the subject rule, and on September 21, 1970 Flynn circulated among the guard force the memorandum detailing McDonnell's rule. The rule as stated in this memorandum — which would in fact permit the activity in which Masterson had engaged — provides in pertinent part:
Appendix pp. 15-16 (emphasis original).
As a reading of the rule will indicate, it conforms with the Board's settled doctrine, discussed infra, insofar as it allows on-duty employees to distribute literature in non-work areas and times and to engage in oral solicitation during non-work time. The portion of the rule contested by the General Counsel, and ultimately voided by the Board, was that which allows solicitation and distribution by off-duty employees only during a "reasonable time" before and after their shift and otherwise classifies them as non-employees who are barred from the company premises and thus from soliciting and distributing thereon.
The posting of the rule precipitated the filing of the complaint by the General Counsel on December 1, 1970. Briefly, the complaint alleged a violation of § 8(a)(1) both in the Masterson Incident and in the promulgation of that part of the rule discussed in the preceding paragraph. McDonnell defended on the ground that the Masterson Incident was an isolated, remedied, and therefore de minimis occurrence and that the contested portion of the no-distribution, no-solicitation rule is necessitated by McDonnell's size and security considerations.
The trial examiner found against McDonnell and recommended an order so broad in scope that the majority of the three-member panel declined to adopt it, stating that it might be interpreted to preclude adoption and promulgation of reasonable rules designed to implement McDonnell's legitimate concerns. However, the Board adopted the examiner's findings of unfair practices and, by a divided vote, issued a remedial order which required McDonnell to:
Appendix p. 56 (emphasis supplied).
We read this order as compelling recission of parts of McDonnell's rule with the result that, unless McDonnell can at some unnamed time and place establish the necessity of doing so, McDonnell can no longer bar off-duty employees (1) from soliciting or distributing anytime in the parking lots and the other non-work areas of the plant or (2) from soliciting on-duty employees anywhere during the on-duty employees' non-work time. The rationale of this order is that the rule's "reasonable time" standard is too vague and because McDonnell "had not established sufficient justification for" the rule and it is therefore "unnecessarily destructive of employee rights."
This decision and order, however, were not adopted without dissent. Member Kennedy agreed that McDonnell had violated § 8(a) (1) because of the Masterson Incident. However, he dissented...
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