Petition by District Lodge 91, International Association of Machinists and Aerospace Workers, AFL-CIO, for review of a National Labor Relations Board order issued on May 19, 1986, finding that United Technologies Corporation had not violated section 8(a)(1) of the National Labor Relations Act by enforcing a company rule prohibiting display of large signs in the company parking lot.
Kaufman, Kearse and Altimari, Circuit Judges. Kearse, Circuit Judge, dissenting.
Petitioner District 91, International Association of Machinists and Aerospace Workers, AFL-CIO ("the Union") seeks review of an order issued by respondent National Labor Relations Board ("the Board") on May 19, 1986, dismissing an unfair labor practice complaint against intervenor United Technologies Corporation ("the company" or "the employer"). The complaint charged that the company had violated section 8(a)(1) of the National Labor Relations Act ("the Act"), 29 U.S.C. § 158(a)(1), by enforcing a company ban on on-premises displays of large signs so as to require an employee to remove from the company's parking lot a campaign sign favoring a candidate for local union office. The Union seeks to have the Board order vacated, on the ground that the Board erred as a matter of law in balancing the company's interests against the statutorily protected rights of the workers. We agree with petitioner, and thus we grant the petition for review, vacate the Board's order, and remand for entry of an appropriate cease and desist order.
The unfair labor practice complaint was submitted directly to a three-member panel of the Board, on the stipulated facts summarized here. A company foreman ordered employee Joseph Gallagher to remove his van from the employee parking lot. The foreman directed Gallagher not to park there unless he took down from the side of the van a 4' x 6' sign endorsing a candidate for presidency of the union local. Gallagher's open and repeated displays of the sign directly controverted the following company rule:
1. Any employee who drives a vehicle onto company property with any type of large sign or banner, political or otherwise, should be notified by the Guard Department that company rules prohibit such practice, and he will not be permitted to bring his vehicle onto the premises after that day until the sign has been removed.
2. Once an employee has been so notified, he shall not be permitted to bring the vehicle on the premises until the sign has been removed.
3. This rule is not intended to preclude employees from parking on company property their vehicles bearing bumper stickers, window stickers, or similar ornamentation or devices commonly displayed on automobiles, but rather to preclude purposely conspicuous displays intended to attract attention to promote a candidacy, organization or product.
Joint Appx. 6. This rule, by its own terms, applies exclusively to employees' activity in nonwork areas on nonwork time.
After Gallagher was disciplined for violating the rule, the Officer-in-Charge of the Board's Subregion 39 issued a complaint alleging that the sign display rule violated section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1). The parties prepared a stipulation of facts and jointly requested that the case be submitted directly to a three-member panel of the Board, thus avoiding a hearing before an administrative law judge.
The Board, in a 2-1 decision, found that Gallagher was engaged in protected concerted activity under section 7 of the Act, 29 U.S.C. § 157, when he displayed the union election campaign sign on company premises. After noting that section 7 protection for on-premises expression is not absolute, the Board determined that the company's rule represented a permissible balancing of the company's managerial interests and the employees' rights. United Technologies Corp., 279 NLRB No. 135 (1986).
The Board noted with approval that the company's rule is not a complete ban, but "only a very limited restriction on the display of signs." Id. at 7. The Board distinguished cases involving bans that precluded alternative means of communicating on company property. Id. at 8 (distinguishing Firestone Tire & Rubber Co., 238 N.L.R.B. 1323 (1978)). In declining to find a violation of section 8(a)(1), the Board concluded that the company "has simply taken reasonable measures to prevent its employee parking lots from being transformed into havens for distracting billboards for all causes imaginable . . . . The [company's] attempt to establish some decorum, but still permitting the common display of union materials on company vehicles, is permissible." Id. at 8-9.
The dissenting Board Member insisted that the majority had confused two separate lines of cases: those where an employer's property rights are threatened by non-employees' presence on company property, and those where employees' on-premises activities implicate managerial interests only. Noting that the employer had not asserted any recognized managerial justification for its rule, the dissenter ...