TRW, Inc., TRW Michigan Division v. NLRB, 17538.

• Decision Date: 24 April 1968
• Docket Number: No. 17538.,17538.
• Parties: TRW, INC., TRW MICHIGAN DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, Intervenor.
• Court: U.S. Court of Appeals — Sixth Circuit

393 F.2d 771 (1968)

TRW, INC., TRW MICHIGAN DIVISION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, Intervenor.

No. 17538.

United States Court of Appeals Sixth Circuit.

April 24, 1968.

Harry E. Smoyer and Eugene B. Schwartz, Cleveland, Ohio, Carl H. Clark, Stanley, Smoyer & Schwartz, Cleveland, Ohio, on brief, for petitioner.

Laurence H. Silberman, N. L. R. B., Washington, D. C., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Elliott Moore, Attorney, N. L. R. B., Washington, D. C., on brief, for respondent.

Before WEICK, Chief Judge, and PECK and COMBS, Circuit Judges.

COMBS, Circuit Judge.

The National Labor Relations Board held that TRW, Inc., Michigan Division, violated Section 8(a) (1)¹ of the National Labor Relations Act by publishing and enforcing a rule prohibiting during working hours solicitation of its employees in a union organizing campaign. 161 NLRB No. 63; 1967 CCH NLRB ¶ 20,848. The company was ordered to cease and desist from enforcement of the rule and to post notices to that effect. The company has filed petition for review and the Board has filed cross-petition for enforcement of its order. United Automobile Workers, AFL-CIO, is an intervenor.

In November, 1964, the company received a letter from the union announcing that eight named employees were members of a union organizing committee in the company's plant and were engaged in self-organization. The letter contained a reminder that any attempt to interfere with the employees in the exercise of their right to organize would be in violation of the Labor-Management Relations Act. The company on the same day posted the following bulletin:

"This morning\'s mail brought me the notification that eight of our employees are organized into a committee to unionize this plant.

"I do not like to see this development. I feel this can only lead to hard feelings, arguments, and future difficulties.

"The letter further points out that the law protects such people who are engaged in this activity; be assured that no malice or prejudice will ever be directed toward these employees.

"As you can appreciate, union organizing activity cannot be carried on during hours of work on company property. This type of solicitation is in violation of company rules and violators will be disciplined, including discharge.

"As you know, employees are free to converse on any subject during breaks and lunch periods."

A trial examiner found, and the Board agreed, that the publication and enforcement of the rule announced in this bulletin violated the Act. There is no dispute about the facts and there is not much dispute about the applicable law. The disagreement is in regard to the inferences which should be drawn from the application of the law to the admitted facts. Section 7 of the Act gives employees the "right to self-organization." Section 8(a) (1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7."

While the Act created new rights for employees, it reaffirmed the right of an employer to secure the production for which he pays. The Board held in Matter of Peyton Packing Co., 49 NLRB 828, 843 (1943):

"Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose."

In Republic Aviation Corp. v. National Labor Relations Board, 324 U.S. 793, 803, 65 S.Ct. 982, 89 L.Ed. 1372 (1945), the foregoing rule was quoted with approval.

Judge Miller of this Court said in his concurring opinion in National Labor Relations Bd. v. F. W. Woolworth Co., 214 F.2d 78, 85 (1954):

"Neither the Constitution, the common law, nor the Labor Management Relations Act confers upon employees the right to use for union purposes the property of their employer during working hours, over the objections of the employer."

Judge Miller's concurring opinion is cited with approval in National Labor Relations Board v. United Steelworkers of America, 357 U.S. 357, 364, 78 S.Ct. 1268, 1272, 2 L.Ed.2d 1383 (1958).

It is clear therefore that the challenged rule is a valid one unless there is evidence in the record to overcome the presumption of validity. The Board relies on the rule stated by it in Peyton and by the Supreme Court in Republic Aviation that a rule prohibiting union solicitation, even during working hours, will not be upheld if it is "adopted for a discriminatory purpose." That is, if the rule is promulgated for the purpose of interfering with, restraining, or coercing employees in the exercise of their "right to self-organization" it is invalid. The Board adopted the trial examiner's findings that the rule here was adopted for a discriminatory purpose.

It is rightly pointed out in brief for the Board that a reviewing court is bound by the Board's findings of fact and by reasonable inferences drawn from those facts providing they are supported by substantial evidence in the record as a whole. Universal Camera Corp. v. National Labor Relations Bd., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); N.L.R.B. v. Power Equipment Co., 313 F. 2d 438 (6th Cir. 1963).

Now we look to the evidence. The company had operated its Michigan plant without published rules since 1954. Its policy was to formulate a rule and post it only when in its opinion there was need for such a rule. The company has maintained a permissive attitude toward talking by employees during working time and has permitted some selective soliciting activities. Talking among employees was challenged only when it became excessive to the point of possibly interfering with production. Enforcement for both formal and informal rules was the same. On the first offense the employee was warned by his foreman that his actions were objectionable. No record was made of this warning. On the second offense, if it followed closely after the first, the employee was given a blue memorandum in the nature of a reprimand. He was expected to read, sign, and return the memorandum, and it was then placed in his personnel file.

Special permission was given to a few selected organizations to solicit funds during working time. In this category were the TRW employees' Consolidated Welfare Fund and the Pioneer Club. The welfare fund had permission to conduct an annual solicitation drive of about one week's duration for funds for charitable purposes, including both plant and community projects. A twice-yearly raffle was conducted by the Pioneer Club, an employee recreation organization. The club handled such things as picnics, dances and sports activities for the employees. Permission has also been granted on at least three occasions since 1954 for the sale of Government bonds to employees during working hours. Employees in one department were asked, with the approval of a company foreman, on at least one occasion to contribute to a flower fund for a deceased fellow employee. The trial examiner placed considerable emphasis on the company's approval of these solicitations during working hours as contrasted with its disapproval of solicitations for union membership. It is shown by the evidence, however, that the company was very careful in giving permission to solicit during working hours. No organizations other than those mentioned above were given such permission and politicians who requested permission to visit the plant during working hours were refused.

There was testimony that for the duration of the union campaign, a period of about two months, employees discussed the subject freely during working hours without objection by the company. It was also shown that union buttons were worn by some employees during working hours.

On the subject of enforcement of the challenged rule, disciplinary action was taken against...