National Labor Relations Board v. Monarch Tool Co., 11899.

• Decision Date: 08 February 1954
• Docket Number: No. 11899.,11899.
• Parties: NATIONAL LABOR RELATIONS BOARD v. MONARCH TOOL CO.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F.2d 183 (1954)

NATIONAL LABOR RELATIONS BOARD v. MONARCH TOOL CO.

No. 11899.

United States Court of Appeals Sixth Circuit.

February 8, 1954.

Fannie M. Boyls, Washington, D. C., George J. Bott, David P. Findling, A. Norman Somers, Alan R. Waterstone, Washington, D. C., on brief, for petitioner.

Stanley H. Fulton, Detroit, Mich., Nancy Jean Ringland, Goddard, McClintock, Fulton & Donovan, Detroit, Mich., on brief, for respondent.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

MARTIN, Circuit Judge.

This cause comes here for review on the petition of the National Labor Relations Board for enforcement of its order, issued February 11, 1953, directed against the respondent company in consequence of respondent's violation of section 8(a) (1) of the National Labor Relations Act, as amended, 61 Stat. 136, 29 U.S.C.A. §§ 151, et seq., 158(a) (1).

The decisive issues presented are (1) whether the Labor Board properly found a violation of the Act by respondent in maintaining and enforcing a rule prohibiting the distribution of union literature and pamphlets on the parking lot of its plant; and (2) whether the board properly found that, in maintaining a rule prohibiting the solicitation of union membership in the cafeteria of the company's plant during non-working hours, respondent violated the aforementioned section of the Act.

Upon review of the entire record in the case, the Labor Board adopted the rulings, findings, conclusions and recommendations of the Trial Examiner. 102 N.L.R.B. 134. The findings of the Trial Examiner adopted by the Labor Board, which are found to be supported by substantial evidence, will be reviewed in some detail.

The respondent company, in 1938, promulgated rules, incorporated in subsequent manuals published and circulated by it in 1941, 1942, and 1946, which contained the following provision:

"Promotion in the shop by employees of outside interests of a social, business, religious, trade, or political nature is prohibited. The use of company property for such purposes is not allowed.

"No subscription for flowers, presents, or any other purpose will be allowed unless first approved by the department superintendent.

"Factory bulletin boards are intended as an official means of communicating information that concerns every employe * * * it is important that you read each notice as soon as it is posted."

The foregoing prohibitions were recognized in the collective bargaining agreements between respondent and a local independent union for the years from 1945 to 1950 by providing against the solicitation of union membership during working hours. However, the current contract executed on May 24, 1950, effective for three years, does not contain this prohibition against solicitation of union membership during working hours.

The Trial Examiner thus described the premises of respondent and set forth relevant facts and evidence:

"Respondent's plant, operated by 1600-1650 production and maintenance employees, is located approximately 7/10 of a mile from `the public square' in Sydney, Ohio, a town having a population of approximately 12,000 inhabitants. About half of Respondent's employees reside outside the town limits and at various distances within a radius of 50 miles. The town has no public transportation system other than taxicabs. Employees, except those living within walking distance, reach and leave the plant by private automobiles for which Respondent has provided private parking lot facilities. Prior to November 8, 1951, a substantial number of employees were provided such accommodations on a lot known as the South parking lot, south of and adjacent to the plant. On that date, the Company opened its West parking lot with a capacity of 721 cars. Respondent thereafter discontinued the use of the South parking lot and erected an addition to its shop thereon.

"The West parking lot with which we are concerned, hereafter referred to merely as the parking lot, is located west of the plant and separated therefrom by railroad tracks of the B & O Railroad. It is entirely within company property lines and is completely fenced, except for gate entrances. The only ingress to the plant from the parking lot is by means of a pedestrian bridge leading from approximately the center of the east border of the parking lot, over the railroad tracks, to the west entrance to the plant. Except in case of emergency, automobile entrance to, and exit from, the parking lot is permissible only through two gate entrances, approximately 20 feet wide, known as the South gate and the North gate. Traffic to these gates is brought from two main arteries — from Michigan Avenue to the South gate, and from Park Street to the North gate. Entrance to the South gate from Michigan Avenue, which runs in an easterly-westerly direction, is obtained by travel on Linden Avenue, approximately 18 feet wide, running in a northerly and southerly direction from Michigan Avenue, approximately 450 feet distant. The North gate borders directly on Park Street which runs east and west. Michigan Avenue, used not only for city traffic but also a designated State highway, has a hard surfaced roadway approximately 30 feet wide. Park Street, used by city traffic, has a similar roadway about 25 feet wide.

"For some time past, Respondent has employed 3 eight hour shifts — 7 a. m. to 3 p. m., 3 p. m. to 11 p. m., and 11 p. m. to 7 a. m. Late in August 1952, when the plant employed about 1600 production and maintenance employees, a count of automobiles and their occupants entering or leaving the lot one hour prior to the beginning, or after the close, of each shift was made. The count disclosed that during such three hourly periods 275 automobiles, carrying 510 occupants, entered the North gate, and 340 automobiles, containing 641 occupants, entered the South gate, most of them concentrated in periods of 15-20 minutes prior to the beginning of each shift. The remaining 550 employees entered through the front entrance to the plant on Oak Street, or came by foot and entered either the North or South gates and then proceeded to the plant by means of the bridge crossing the railroad tracks. * * *

"Prior to November 8, 1951, and while employees were using the South parking lot, Union workers, whenever they found occasion to do so, took their posts at the north end thereof near the door forming the south entrance to the plant and there distributed circulars and leaflets pertaining to Union activities. Similar distributions took place on company property at the front entrance of the plant on Oak Street. During inclement weather, however, the distributions at both places were made in the presence of guards and foremen who not only refrained from objecting thereto, but on a number of occasions, during bad weather, invited the distributors to carry on their work inside the entrance. After the West parking lot was opened and until about February 22, 1952, principal distribution of Union literature and circulars was made by Respondent's employees in, or closely adjacent to, the vestibule entrance of the plant located at the east end of the bridge over the...