N.L.R.B. v. United Technologies Corp., AFL-CI
| Decision Date | 21 April 1983 |
| Docket Number | I,AFL-CI,D,No. 226,226 |
| Citation | 706 F.2d 1254 |
| Parties | 113 L.R.R.M. (BNA) 2326, 97 Lab.Cas. P 10,069 NATIONAL LABOR RELATIONS BOARD, Petitioner, and District 91, International Association of Machinists and Aerospace Workers,ntervenor, v. UNITED TECHNOLOGIES CORPORATION, Respondent. ocket 82-4086. |
| Court | U.S. Court of Appeals — Second Circuit |
John D. Burgoyne, Asst. Gen. Counsel, N.L.R.B., Washington, D.C. (William A. Lubbers, Gen. Counsel, John E. Higgins, Jr., Deputy Gen. Counsel, Robert E. Allen, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington, D.C., on the brief), for petitioner.
Edward J. Dempsey, Hartford, Conn. (Joseph C. Wells, Farmer, Wells, McGuinn & Sibal, Hartford, Conn., on the brief), for respondent.
Before LUMBARD, MANSFIELD, and KEARSE, Circuit Judges.
United manufactures airplane engines, helicopters, electronic components, and related products at various plants. It maintains two divisions in Connecticut: the Pratt & Whitney Division ("Pratt & Whitney"), which has facilities in East Hartford, Manchester, Southington, and Middletown; and the Hamilton Standard Division ("Hamilton Standard"), which has facilities in Broad Brook and Windsor Locks. Lodge 743, International Association of Machinists and Aerospace Workers ("IAM"), AFL-CIO, is the bargaining agent for various employees at the Windsor Locks facility run by Hamilton Standard. Lodges 700 and 1746, IAM, are the bargaining agents for various employees of Pratt & Whitney. All three lodges are affiliated with District 91, IAM, which coordinates the activities of various IAM locals.
In 1969, the Board heard charges against the Pratt & Whitney Division of United, filed by Lodges 700 and 1746 of District 91, growing out of United's 1968 discharge of two union stewards and suspension of a third because of their alleged solicitation of other employees for union membership during working time. The unions alleged, inter alia, that Pratt & Whitney had "discriminatorily, coercively and excessively enforc[ed] and administer[ed] its rule and contract prohibition barring union solicitation during working hours." United Aircraft Corporation (Pratt & Whitney Division), 180 N.L.R.B. 278, 278 (1969). The "contract prohibition" referred to was Article IV of the 1968 collective bargaining agreement between Pratt & Whitney and Lodges 700 and 1746, which provided as follows:
There shall be no solicitation of employees for union membership or dues conducted upon the premises of the company during working hours by the union, its representatives or by employees.
Id. at 288. The company rule in question listed the following practices among those that were "strictly forbidden":
Gambling, taking orders, selling tickets, or soliciting money or any other type of solicitation.
After a hearing, the trial examiner found that United's discipline of the three union stewards had been unlawful because they had not violated the company's rule; but he declined to rule that the limited no-solicitation rule and contract provision had been "coercively and excessively enforc[ed]." The trial examiner found that all parties understood the concept of "working time" to include periods during which employees were not engaged in actual work but for which they were paid, id. at 291, and that "the Union and the Respondent ha[d] agreed to a contract provision barring solicitation of union membership or conducting union business on working time," id. at 290. He concluded that there was no undue restriction of fundamental employee rights:
[T]he concept that "working time" is the equivalent of "paid time" appears to have been established as the "common law" of the shop, both by the Respondent's action and by arbitration decisions. Despite the long-continuing practice in the Respondent's plants of tolerating or permitting As to the contention that the no-solicitation rule and contract provision were "coercively and excessively" enforced, I am persuaded that the General Counsel has not established this to be the fact.
nonunion-oriented solicitations during working time, the parties have several times executed contracts barring solicitation of union membership during working time. I do not perceive that this concession or waiver constitutes an "interference with the employees' statutory rights ... so great as to override any legitimate reasons for upholding the waiver, or would unduly hamper the employees in exercising their basic rights under the Act." [Citation omitted.] The Union has agreed that union solicitation is to be treated differently from other types of solicitations. I cannot say, in the circumstances of this case, that it lacks capacity to make such an agreement
Id. at 291. The Board adopted the trial examiner's decision in its entirety. Id. at 278.
On the union's petition for review, this Court upheld the Board's determination that the limited no-solicitation rule and contract provision did not violate employees' Sec. 7 rights. United Aircraft, supra. We noted that the contractual prohibition of union solicitation during working hours had appeared in United's collective bargaining agreements for many years, 440 F.2d at 95, and that the term "working hours" had been interpreted by all concerned, including an arbitrator as early as 1958, as including all time for which employees were paid, id. at 95-96. We concluded that "the testimony at trial, arbitration decisions, and past practice of the parties have eliminated any ambiguity that might otherwise exist" in the phrase "working hours," id. at 96, and that United and the union had consistently interpreted working hours to include rest periods and exclude lunch hours, id. at 95. Accordingly, the barring of solicitation during working hours, as so interpreted, neither deprived employees of rights that were fundamental under Sec. 7 of the Act, nor implicated public policy concerns that were overriding, because the employees remained "free to solicit on company property before and after work and during the lunch hour." Id. at 96 (footnote omitted). In light of that freedom, we concluded that it was permissible for the union to agree to the limited no-solicitation provision in the collective bargaining agreement:
We see no reason to invalidate the clear agreement of the parties.... [T]here are 25,000 employees and over 500 stewards in the plants involved. The company probably considered the no-solicitation ban to be an important bargaining objective, and the agreement should not lightly be overturned.
... As stated earlier, we do not think the ban on solicitation during working hours unduly restricts the unions' access to its members, and the isolated instances of permitted solicitation--charities and gifts--[are] not the "discrimination" with which the cases cited in the unions' brief are concerned. We therefore conclude that the Board properly found that company Rule 5 and the contract can be applied to prohibit solicitation for the union during working hours, whether or not the employee is working or resting.
We found misplaced the union's reliance on cases such as International Association of Machinists, District 9 v. NLRB, 415 F.2d 113 (8th Cir.1969) ("IAM, District 9"), and NLRB v. Mid-States Metal Products, 403 F.2d 702 (5th Cir.1968), which had invalidated more restrictive rules, since those cases were concerned with "broad bans on solicitation or distribution anywhere in the plant," 440 F.2d at 97 n. 9, and with "the effect of those agreements on the workers' rights to change their bargaining agent," id. In United Aircraft, we recognized that "we [were] not dealing with agreements prohibiting all solicitation on company premises, and no claim [was] made that a rival union [was] being favored." Id. In short, this Court upheld the determination that the limited no-solicitation rule and contract provision at issue in United Aircraft did not seriously dilute employees' Sec. 7 rights.
The present proceeding arose out of United's interrogation and threatened discipline of two employees at the Hamilton Standard plant at Windsor Locks in 1979. Since at least 1964, Hamilton Standard's collective bargaining agreements with Lodge 743 of District 91 have included in Article IV a limited no-solicitation clause identical to that at issue in United Aircraft. 2 Since at least 1964, Hamilton...
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