NLRB v. Walton Manufacturing Company
| Decision Date | 17 March 1961 |
| Docket Number | No. 18345.,18345. |
| Citation | 289 F.2d 177 |
| Parties | NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WALTON MANUFACTURING COMPANY, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Russell Specter, Atty., N.L.R.B., Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Dominick L. Manoli, Associate Gen. Counsel, Stuart Rothman, Gen. Counsel, Melvin Pollack, Attys., N.L.R.B., Washington, D. C., for petitioner.
Robert T. Thompson, Alexander E. Wilson, Jr., Wilson, Branch & Barwick, J. Frank Ogletree, Jr., Atlanta, Ga., for respondent.
Before RIVES and WISDOM, Circuit Judges, and CHRISTENBERRY, District Judge.
This petition seeks enforcement of a cease and desist order of the Board based upon findings that respondent violated Section 8(a) (1) of the Act1 by promulgating rules which (1) forbade its employees from engaging in union solicitation in the plant during nonworking time, and (2) required its employees to conduct collective bargaining through a management-employee committee sponsored by respondent.
The findings rest entirely upon a nine-page, mimeographed document which the respondent issued and distributed to its employees on or about April 10, 1959,2 entitled:
"Employment Policies and Rules for Employees of Walton Manufacturing Company, Loganville, Ga."
That document starts with a declaration of policy:
The document is then divided into five main parts, the contents of which are fairly indicated by their captions and principal subcaptions:
The alleged violations involve particularly the following parts of the document:
The unfair labor practice charge was filed only two weeks after the respondent had issued and distributed the document to its employees; and at the time of the hearing before the Trial Examiner the management-employee committee had not been established.
The Board concluded that respondent, in violation of Section 8(a) (1) of the Act,3 had unlawfully interfered with the organizational rights of its employees guaranteed by Section 7 of the Act,4 by (1) promulgating a rule prohibiting employees from soliciting union membership or distributing union circulars and handbills in the plant during their nonworking time; and (2) imposing a requirement that employees bargain collectively through a management-employee committee sponsored by respondent.
The Board's order requires respondent to cease and desist from engaging in the unfair labor practices found, or from in any like or related manner interfering with its employees' organizational rights; to distribute to each employee a written notice rescinding the rules found unlawful by the Board; and to post appropriate notices.
Company rules prohibiting organizational solicitation on company property may serve production, order, and discipline, and are not necessarily violative of the Act.5 In this connection, a distinction must be observed between rules applicable to employees and those applicable to nonemployees. A no solicitation rule applicable to employees during their non-working time unlawfully interferes with their right to discuss self-organization among themselves, unless the employer proves special circumstances that make such a restriction necessary to maintain production or discipline.6 No contention is made in this case of the existence of any such special circumstances.
Respondent's contention on this charge is that the document prohibits solicitations of membership only when that is a part of the conduct of "outside business," and that union activity by employees cannot properly be considered as "outside business." According to respondent's brief,
Whether respondent infringed upon its employees' freedom to engage in union or concerted activity guaranteed by Section 7 of the Act depends upon the reasonably foreseeable effects of its conduct upon its employees. An employee notified by his employer that "conducting outside business on company property * * * includes solicitations of * * * memberships," and that doing so "shall furnish cause for immediate discipline, including discharge," might well be deterred, or else reasonably assume that he acted at his peril. At least that inference was open to the Board.7
The Board could reasonably believe that the employees would understand the proscription to be directed against the solicitation of union memberships. It is not limited to working time, and no showing is made of special circumstances which might justify the breadth of the prohibition. In that state of the record, we agree with the Board that it is unlawful on its face.
As to Part II of the document, "Joint Committee on Safety, Sanitation and Advisory Matters," the Board found that respondent's announcement of such a management-employee committee also violated Section 8(a) (1) of the Act, by unlawfully interfering with the organizational rights of its employees guaranteed by Section 7 of the Act. Section 7 guarantees to employees "the right to self-organization" and "to bargain collectively through representatives of their own choosing."
The Board's view was that Part II would be reasonably understood by the employees to require them, as a condition of employment, to conduct any collective bargaining they might desire through a management-employee committee, sponsored, formed and assisted by the employer — a clear violation. See N. L. R. B. v. Cabot Carbon Co., 360 U.S. 203, 79 S.Ct. 1015, 3 L.Ed.2d 1175.
It is true that the committee never came into being, but respondent's announcement was more than an expression of desire to create the committee. It was a positive and unequivocal statement that, "There will be a joint Management-Employee Committee etc.," and a requirement that, "the representative from each department shall serve etc." That the unfair labor practice charge was filed almost as soon as the document was distributed, and that the management-employee committee was not actually established, do not detract from the coercive effect of the document itself.
Respondent's more plausible defense is that the...
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...time as well as to working time); N. L. R. B. v. Linda Jo Shoe Co., 307 F.2d 355, 357 (5 Cir. 1963); N. L. R. B. v. Walton Mfg. Co., 289 F.2d 177, 180-181 (5 Cir. 1961). I have been unable to find any decision which has enforced a Board order based on a finding of a company no-solicitation ......
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