Monsanto Chemical Co.

National Labor Relations Board - Board Decisions

May 27, 1954

108 N.L.R.B. 1110 (N.L.R.B. 1954)

11 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MONSANTO CHEMICAL COMPANY and INTERNATIONAL AS-
SOCIATION OF MACHINISTS, LOCAL LODGE NO. 1933,
AFL. Case No. 19 -CA-918. May 27, 1954
DECISION AND ORDER
On February 15, 1954 , Trial Examiner Martin S. Bennett
issued his Intermediate Report in the above -entitled proceed-
ing, finding that the Respondent had engaged in and was engag-
ing in certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto. Thereafter , the Respondentfiled exceptions to the Inter-
mediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner
made at the hearing and finds that no prejudical error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the Respondent ' s excep-
tions and brief , and the entire record in this case , and hereby
adopt the Trial Examiner ' s findings , conclusions , and recom-
mendations.'
ORDER
Upon the entire record in this case, and pursuant to Sec-
tion 10 (c) of the National Labor Relations Act, as amended,
the National Labor Relations Board hereby orders that the
Respondent , Monsanto Chemical Company, Soda Springs , Idaho,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Enforcing its rule prohibiting the distribution of union
literature on its parking lot during the employees' nonworking
time.
(b) Engaging in any like or related acts or conduct which in-
terferes with, restrains , or coerces its employeesinthe exer-
cise of their right to self-organization, to form labor organiza-
tions , to join or assist International Association of Machinists,
Local Lodge No. 1933, AFL, or any other labor organization,
to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to the extent
that such right may be affected by an agreement requiring
'In his report, the Trial Examiner incorrectly found that during the morning of October
1, 1953, no car stopped at the highway intersection where union representatives were trying
to distribute literature and that during the afternoon of that day 4 cours stopped there. The
report is hereby corrected to show that 1 car stopped during the morning and 3 cars stopped
during the afternoon.
The Intermediate Report is further clarified by adding the words, "according to Phelan's
testimony," after the words "Dunlap acknowledged" on page 5, line 55.
108 NLRB No. 151.
MONSANTO CHEMICAL COMPANY 1 1 1 1
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board
finds will effectuate the policies of the Act:
(a) Rescind immediately its rule prohibiting the distribution
of union literature upon its parking lot during the employees'
nonworking time.
(b) Post at its plant at Soda Springs , Idaho, copies of the
notice attached to the Intermediate Report and marked "Ap-
pendix A." 2 Copies of said notice , to be furnished by the
Regional Director for the Nineteenth Region , shall, after being
duly signed by Respondent' s representative , be posted by
Respondent immediately upon receipt thereof, and maintained
by it for a period of sixty ( 60) consecutive days thereafter in
conspicuous places, including all places where notices to em-
ployees are customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, de-
faced, or coveredy any other material.
(c) Notify the Regional Director for the Nineteenth Region,
in writing , within ten (10) days from the date of this Order,
what steps Respondent has taken to comply herewith.
Member Beeson , dissenting:
Upon the particular facts in this case, I cannot agree that the
Respondent should be found guilty of having violated Section 8
(a) (1) of the Act.
The complaint in this case alleges that the Respondent inter-
fered with the rights guaranteed its employees by Section 7 of
the Act by refusing to permit the charging Union to distribute
its literature on company property.
The Respondent's chemical manufacturing plant involved in
this case is situated in the midst of a 500 - acre tract of land,
approximately 1 mile from the nearest town limit of Soda
Springs , Idaho , a community of about Z , 000 inhabitants. The
plant operates 7 days a week on a 3-shift basis around the clock
with a total complement of approximately 130 employees.
Bounded by the most part by a fence , the plant is reached by
means of a State highway which passes along the border of the
company property. The plant buildings are set back from the
State highway . They are approached by means of a two-lane
private company road which , meeting the State highway at a
curved angle , extends a distance of approximately four-tenths
of a mile to the nearest plant structure , the Respondent's office
building.
2 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a trial Examiner" and substituting in
lieu thereof the words "A Decision and Order." In the event that this Order is enforced by
decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant
to a Decision and Order" the words "Pursuant toaDecreeof the United States Court of Appeals,
Enforcing an Order."
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The private road, wholly on the Respondent's property, as
it nears the State highway, veers in a southerly direction toward
Soda Springs, the direction in which all but one of the Respond-
ent's employees reside; the State highway proceeds in a
southwesterly direction as it approaches Soda Springs. As a
result, the company road joins but does not cross the State
highway. On the right side of the company road, proceeding
from the plant, there is a stop sign, erected by the State of
Idaho, standing approximately 60 feet from the point where the
company road and the State highway meet. State law requires
automobiles to stop at the sign before proceeding onto the
State highway.
There is no public transportation system in the area for
travel to the plant. All employees ride to work either singly or
in groups in private automobiles.
Adjoining the plant office building is the sole gate for em-
ployees. Employees reporting for work drive along the com-
pany road and park their cars in a designated parking area,
the nearest point of which is approximately 50 feet from the
gate. After leaving their automobiles, arriving employees enter
the building housing the plant offices where they change
clothes and punch timecards. They leave the office building
by the same door, and enter the fenced- in area , where they
work, by means of the employee gate. On leaving work, this
procedure is reversed.
In August 1953, the Respondent promulgated , among others,
rules which prohibited solicitation of funds or distribution of
literature on its property. These rules were incorporated in
a manual circulated to employees , and read as follows:
SOLICITING
Soliciting funds and selling tickets or any article on
company property without approval of the plantmanager
is prohibited.
PEITITIONS
Circulating petitions or posting or distributing any litera-
ture on company property without approval of the plant
manager is prohibited.
Admittedly, the Respondent does not bar solicitation for
union membership by employees on company property, and the
rule forbidding distribution of literature on company property
has been uniformly enforced against outsiders, as well as
employees, on a nondiscriminatory basis.
The complaint alleges that, at all times since on or about
September 28, 1953, the Respondent has refused to permit the
Union to distribute union literature to employees upon property
of the Respondent located in the proximity of or adjacent to
MONSANTO CHEMICAL COMPANY 1113
the gate by which the Respondent ' s employees enter and leave
the fenced - in area of the Soda Springs plant.
On September 28, 1953 , union representatives sought per-
mission from the Respondent to distribute union literature "at
the gate where the employees came out from the plant." The
Respondent refused to grant permission on the ground that
distribution of literature on company property was contrary to
company policy . On October 1, 1953, when two union repre-
sentatives began to distribute union literature to employees
in the parking area , the Respondent ' s guard forbade such dis-
tribution under penalty of forcible removal, and the union
representatives left the parking area . However, on these and
other occasions , union representatives distributed union litera-
ture to employee occupants of automobiles at or near the stop
sign where the company road and the State highway meet. The
Respondent had no objection to such distribution and has never
interfered with it. In fact , the Respondent's plant guard, who
enforced the company ' s rule against the Union on one occasion,
invited the Union to make distribution of its literature at that
location.
Upon substantially these facts , the Trial Examiner found (1)
that the distribution of union literature to employees off of the
Respondent's property is virtually impossible , at times hazard-
ous, and that it cannot readily be conducted ; ( 2) that there are
no special circumstances which justify the necessity of the
Respondent ' s rule insofar as it prohibits the distribution of
union literature on its parking lot ; and (3 ) that such rule con-
stitutes an unreasonable impediment to the freedom of com-
munication in the exercise of its employees ' rights to self-
organization . In view thereof , the Trial Examiner concluded
that the Respondent violated Section 8 ( a) (1 of the Act by en-
forcing the rule forbidding the distribution of union literature
on its parking lot.
The underlying issue here is the proper accomodation, which
is necessitated in cases of this kind, between the employer's
right to control the use of his private property and the right of
his employees under the Act "fully and freely to discuss and
be informed" concerning their choice of representatives, as
well as the "correlative right of the union , its members and
officials to discuss with an inform its employees concerning
matters involved in their choice".' N. L. R. B. v. LeTourneau
Company of Geor gia, 324 U. S. 793 , 797-798.
By affirming the Trial Examiner, my colleagues apply the
rule of the LeTourneau case. That rule constitutes an excep-
tion to the fundamental doctrine that an employer has the
right to control the use of his own property . As an exception,
it should be strictly limited and not applied in the absence of
the overriding considerations given effectby the Supreme Court
in LeTourneau . So viewed, the LeTourneau case, in my opinion,
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is inapplicable here . Describing the LeTourneau property, the
Supreme Court said (324 U. S. 793, at 797):
The plant is bisected by one public road and built along
another . There is 100 feet of company-owned land for
parking or other use between the highways and the em-
ployee entrances to the fenced enclosures where the work
is done , so that contact on public ways or on non-com-
pany property with employees at or about the establish-
ment is limited to those employees , less than 800 out of
2100 , who are likely to walk across the public highway near
the plant on their way to work , or to those employees who
will stop their private automobiles , buses or other con-
veyances on the public roads for communications. The
employees ' dwellings are widely scattered.
It was because of these facts that the Board concluded in
LeTourneau (54 NLRB 1253, 1261) that
Distribution of literature to employees is rendered virtu-
ally impossible under these circumstances , and it is an
inescapable conclusion that self-organization is con-
sequently seriously impeded. ( Emphasis supplied.)
That is not the situation in the instant case . Here , distri-
bution of literature to employees was not virtually impossible.
The Union was free to distribute literature at or near the stop
sign. This afforded the Union access to all the employees as
they all rode home in automobiles which were required by law
to stop at the traffic sign. Indeed , on several occasions, the
Union distributed literature at that point . As brought out in
the record of this case , out of the 7 occasions on which union
representatives stationed themselves at the traffic sign to
distribute literature , employees failed to stop on only 2 occa-
sions , and this the Union could remedy by appeal to the sheriff to
enforce the State law . On these 7 occasions , and taking the
figures least favorable to the Respondent , of the approximately
103 cars which traveled outbound from the plant over the
company road onto the State highway, 36, or more than 33-1 /3
percent , stopped and accepted union literature .4 This cannot,
in my opinion , be characterized , as ineffectual distribution.
Much less can it fairly be said that it was virtually impossible
for the Union to distribute its literature to the Respondent's
employees . It may well be that union representatives, by
stationing themselves in the center of the roadway , exposed
themselves to traffic hazards , but this hazard was of their own
making as distribution could reasonably be effected by standing
at the side of the road and handing literature to occupants of
4 Contrary to the Trial Examiner , I do not regard it as significant that on one occasion a
higher percentage of cars stopped when the union representative happened to be wearing a
western type hat and a long leather jacket and may have been mistaken by the employees as
sheriff. The fact of the matter is that the employees stopped and accepted union literature
whatever may have been their reason for stopping.
MONSANTO CHEMICAL COMPANY 1115
cars as they stopped at the traffic sign without any substantial
risk of personal injury.
Moreover, the employees are accessible to the Union in the
nearby town of Soda Springs . Unlike the situation in LeTourneau,
the homes of the Respondent ' s employees are not widely
scattered . Eighty-eight, or 67.6 percent of the total number of
employees , reside in Soda Springs . At the hearing, the Union's
Grand Lodge representative admitted that the Union is in "com-
munication with some of the employees practically all the
time." Virtually all the employees, during all seasons of the
year, wear jackets , bearing the Respondent's name on the back,
in which they appear on the streets of Soda Springs . Thus, the
employees could readily be identified by the Union. No reason
appears why the Union could not distribute literature to the
employees when they appear in this nearby small town during
their nonworking time.
There is further reason for dismissal of the complaint. As
stated above , the Union demanded permission to distribute its
literature at the employee gate adjacent to the parking lot as
well as in the parking area. The plant operates on a 24-hour
basis. In the course of their employment duties , the Respond-
ent's employees , in a continuous stream , pass through the gate
back and forth from the operating plants to the office building,
where are located the laboratory, personnel office, lockers,
and first - aid room. Employees "move from a sample prepa-
ration room located inside the plant area back and forth to the
laboratory preparing samples and taking them back to the
laboratory for analysis." In addition , maintenance employees
perform duties in the parking area itself . Distribution of litera-
ture in these areas would have a tendency to interfere with the
performance of the employees' duties and thus disrupt the
Respondent ' s normal operations . Moreover, employees carry
samples of live phosphorous , a spontaneously combustible
chemical, in the area of the gate. Strangers present in the area
thus subject themselves to the risk of injury; and, in the case
of accident , the Respondent would be exposed to the liability of
lawsuits.
As this record fails to establish that this case comes within
the narrow exception of the LeTourneau case , it being clear
that it was not virtually impossible or hazardous for the Union
to distribute its literature to the employees , and, in view of the
fact that such use of the Respondent 's property by the Union
would result in interference with business operations and undue
hardship , I would find that the Respondent did not violate Sec-
tion 8 (a) (1) of the Act, and I would dismiss the complaint.
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding is brought under Section 10 ( b) of the National Labor Relations Act, 61
Stat 136, herein called the Act, and is based upon a charge duly filed by International As-
sociation of Machinists , Local Lodge No. 1933 , AFL, herein called the Union , against Monsanto
Chemical Company , herein called Respondent . The General Counsel of the National Labor
Relations Board thereafter issued a complaint dated December 17, 1953, against Respond-
ent, alleging that Respondent had engaged in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act Copies of the charge , complaint , and notice of hearing thereon
were duly served upon Respondent
Specifically , the complaint alleged that Respondent , at all times since on or about September
28, 1953, had refused to permit the Union to distribute union literature on company property,
including a parking lot, to employees of theSoda Springs plant of Respondent , thereby imposing
an unreasonable impediment to the employees ' right to self- organization The answer of
Respondent denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held at Soda Springs, Idaho , on January 20, 1954, before
the undersigned Trial Examiner , Martin S. Bennett , duly designated by the Associate Chief
Trial Examiner . The parties were represented by counsel who participated in the hearing and
were afforded full opportunity to be heard , to examine and cross - examine witnesses, and to
introduce relevant evidence . During the hearing, on motion by the General Counsel, con-
curred in by Respondent , a view was taken of those portions of the premises of Respondent
which are involved herein . At the close of the hearing the parties were given an oppor-
tunity to argue orally and to file briefs Oral argument was presented and a brief has been
received from Respondent
Upon the entire record in the case, and from my observation of the witnesses, I make the
following-
FINDINGS OF FACT
L THE BUSINESS OF RESPONDENT
Monsanto Chemical Company , a Delaware corporation with plants in several States of the
United States, is engaged in the manufacture of heavy chemicals , organic chemicals, and
intermedia tes. This proceeding involves solely Respondent ' s plant at Soda Springs , Idaho,
which annually purchases materials valued in excess of $ 100,000 , of which approximately
75 percent is shipped to the plant from points outside the State of Idaho . In addition , this plant
annually manufactures and ships products valued in excess of $ 100,000 to points outside the
State of Idaho I find that Respondent is engaged in commerce within the meaning of the Act
IL THE LABOR ORGANIZATION INVOLVED
International Association of Machinists, Local Lodge No 1933, AFL, is a labor organiza-
tion which admits the employees of Respondent to membership
III. THE UNFAIR LABOR PRACTICES
A. The issue
The sole issue herein is the accommodation between Respondent s right to control the use of
its private property and , on the other hand, the right of its employees to be informed con-
cerning a choice of a bargaining representative by the Union , together with the right of union
representatives to discuss with and inform employees of matters involved in this choice.
More specifically , this case involves only the right , claimed by the Union and denied by Re-
spondent , to distribute union literature to the employees of Respondent on an open parking lot
maintained on company property by Respondent for its employees adjacent to the plant proper
There are no substantial conflicts in the evidence
MONSANTO CHEMICAL COMPANY 1117
B. The situs
The Soda Springs plant covers approximately 500 acres and is bounded for the most part
by a fence. It operates 7 days a week on a 3-shift basis around the clock and has approximately
130 employees with the largest number on the first or daytime shift The plant went into
operation on or about December 1, 1952, and its employees are unrepresented by any labor
organization for the purposes of collective bargaining it is located in a nonbuilt - up area ap-
proximately 2 miles from the center of the town of Soda Springs, Idaho, a community of about
2,000. The town limits are located 1 and 4 miles respectively from the plant
There is no public transportation in the area for travel to the plant and employees ride to
work either singly or in groups in private automobiles The record does not disclose that any
employees walk to work and, in view of the location of the plant, this would appear unlikely
The plant is reached by means of a State highway which passes along the border of the com-
pany property. The i?lant buildings are set back some distance from the highway, however,
they are approached by means of a two-lane private company road which, intersecting the
State highway at a sharp angle, then extends a distance of slightly less than four-tenth of a
mile to the plant buildings. This company road is located entirely on company property
Employees reporting for work drive along the company road and then park their cars in a
designated parking area located immediately adjacent to and outside of a fenced area which
circumscribes the plant buildings There are no plant or other structures between the parking
area and the State highway After leaving their automobiles, arriving employees enter a
building located immediately outside the only plant gate , this building also houses the various
plant offices. Once inside, employees change to working clothes, punch their timecards, de-
part via the same door, and then enter the fenced area by means of the sole plant gate. On
leaving work this procedure is reversed. As stated, the sole issue herein evolves about the
right of union representatives to distribute literature to employees alighting from or entering
their automobiles in the parking area which is located some feet from the above-described
plant gate.
C. The company rule
The complaint attacks the restraint on distribution of union literature on and after Septem-
ber 28, 1953 In August of 1953, Respondent promulgated plant rules which, inter alia, state as
follows
SOLICITING
Soliciting funds and selling tickets or any article on company property without approval
of the plant manager is prohibited
PETITIONS
Circulating petitions or posting or distributing any literature on company property
without approval of the plant manager is prohibited
Respondent contends and I agree that there is no rule barring the solicitation for union
membership by employees on company property, nor is there any evidence that such a policy
has been followed. And the above-quoted rule, forbidding distribution of literature on com-
pany property, has been uniformly enforced. In addition to the attempt of the union repre-
sentatives to distribute literature described below, the record discloses that Respondent, on
two occasions, immediately stopped the distribution of other literature in this parking area,
once by an automobile dealer and once by high school students, soliciting purchases of auto-
mobiles and attendance at a school function respectively. No other distributions of any nature
have been attempted or permitted.
It may be noted at this point, despite the testimony of Plant Manager Whiteside to the con-
trary, that the record will not support a finding that this parking area was part of the plant
"operating unit." No production operations are carried on in the parking area and it is not
used for storage purposes While management contemplates utilizing a portion of the area in
the future for the storage of coke, this would be accomplished by extending the plant fence into
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a portion of the parking area and segregating that portion of the lot; the remainder of the
lot would continue to be used as at present.
It is true that company vehicles, on occasion, leave the fenced production area to perform
various operations in the parking area, but these are operations solely for maintenance of
the area such as grading , snow removal, removal of trash, or applying a topping to the
ground There is no logical basis for distinguishing this area from the company road con-
ceded by Whiteside not to be part of the operating unit. I find therefore that plant operations,
in the true sense of the word, are not carried on in the parking area
D. Sequence of events
Initially it may be helpful to describe the area at the intersection of the company road and
the State highway because it plays a part in the events that follow As stated, the distance from
the plant gate via the private company road to the intersection of that road and the State high-
way is slightly under four-tenths of a mile The company road, as it nears the State highway,
veers in a southerly direction toward Soda Springs the State highway proceeds in a south-
westerly direction as it approaches Soda Springs As a result, the company road joins but
does not cross the State highway at a sharp angle of roughly 300.
On the right side of the company road, proceeding from the plant, and approximately 60
feet from the intersection of the 2 roads, is a stop sign erected by the State. State law re-
quires cars to stop at this point before proceeding into the State highway. It may be noted
that as the driver leaving the plant property approaches the stop sign, there is no obstruction
to his vision in either direction along the State highway. The natural result, as will appear,
is that drivers tend in large measure to ignore the stop sign and merely slow down somewhat
before entering the State highway.
This practice was known by Respondent for, according to the uncontroverted testimony of
Grand Lodge Representative A. L. Phelan of the Union, Production Superintendent Dunlap
admitted to him on September 28, 1953, that the sheriff of the county had on occasion sta-
tioned himself at this intersection in order to combat this practice and some employees had
been fined for ignoring the stop sign. Another factor contributing to this practice is the fact
that the State highway, as Plant Manager Whiteside admitted, is very lightly traveled and
presumably the risk of collision at the intersection is therefore small
Turning to the organizational campaign, the Union first attempted to organize the plant on
January 22, 1953.1 Grand Lodge Representative Phelan visited thenResident Manager Gurvin.
He introduced himself, announced his intention to organize the plant in behalf of the Union,
and gave Gurvin copies of the literature he proposed to distribute. Phelan asked permission
to distribute this literature in the parking area described hereinabove so as to contact the
employees as they left the plant. Gurvin refused, stating that it was contrary to company
policy to permit the distribution of union literature on company property. Phelan left but
returned to the plant property that evening
It was to the intersection of the 2 roads that Phelan returned at midnight on January 22.
He stationed himself in the middle of the company road, midway in the 60-foot stretch between
the stop sign and the actual intersection of the 2 roads, in an effort to distribute literature to
departing cars either as they stopped for the stop sign or at the actual intersection; he also
hoped to distribute the literature to entering cars, hence his position in the middle of the
road. From 6 to 8 cars left the plant on this occasion and about the same number entered.
None stopped at the stop sign or the intersection and as a result he was unable to distribute
any literature. Of the cars that entered none stopped or slowed down, there is no sign or
other impediment to the progress of a car entering the company road from the State highway
On the morning of January 23, Phelan again attempted to distribute literature at the same
location He chose the hour of 8 a m. so as to contact the departing midnight shift and the
arriving day shift. None of the 25 to 30 cars that entered the company road from the State
highway stopped for literature, of the 5 to 7 cars that left, 3 stopped for the literature The
remainder of the departing cars did not stopat all He returned to the same location that after-
noon at 4 and all but 1 of the 25 cars that left stopped near Phelan it appears, however, that
iIn the findings that follow hereinafter no findings of unfair labor practices are predicated
upon events taking place more than 6 months prior to the filing and service of the charge
herein in October of 1953; they are considered only as background evidence. See N. L. R. B.
v. Sharples Chemicals, Inc., 209 F 2d 645 (C. A. 6).
MONSANTO CHEMICAL COMPANY 1119
Phelan, on this occasion, wore a western type hat and a long leather jacket and was mistaken
by at least some of the drivers as the sheriff of the county. None of the 7 or 8 cars that en-
tered the company road stopped for the literature that Phelan carried in his hand.
On February 9 Phelan again attempted to distribute literature at this location between 4 and
5 p. in. Of 25 cars that left, only 5 stopped for literature and several of the latter were com-
pelled to stop because the preceding car had stopped. Phelan did not wear the same apparel
as on the earlier occasion when he was mistaken for the sheriff. Seven or eight cars entered
the company road from the State highway but did not stop.
Due to the pressure of other duties Phelan was not able to devote additional time to the
organization of the plant for over 7 months. On September 28, he returned to the plant, ac-
companied by W. T. Wright, the newly appointed business representative of Lodge 1933. The
two men parked their car in the company parking area and approached the guard at the gate
which is guarded around the clock. They announced that they wished to distribute union litera-
ture, handing the guard a sample. He replied that a company rule forbade this. The union
representatives then asked to see the resident manager; in his absence they were taken to see
Production Superintendent W. P. Dunlap. Also present were several other management of-
ficials
Phelan asked for permission to distribute the literature in the parking area and Dunlap
refused, stating that the distribution of union or other literature on company property was
contrary to company policy and that if the Union were given permission other labor organi-
zations would also seek it. There is a conflict whether or not Dunlap added that the distribu-
tion was forbidden without the approval of the plant manager. Phelan's testimony did not
contain any reference by Dunlap to the obtaining of permission from the plant manager, and
Dunlap was uncertain whether or not he included the qualification. Phelan's testimony is
supported by that of Maintenance Superintendent Depp which is silent as to the seeking of
permission from the plant manager. I therefor credit Phelan's testimony. In any event,
Respondent uniformly refuses to permit the distribution of any type of literature in the parking
area and permission was sought and refused in this instance
Dunlap acknowledged that there were hazards connected with the distribution of literature
at the highway intersection and that Respondent was having difficulty in getting employees to
obey the stop sign Although not expressly stated, it is clear and I find that Respondent had
no objection to the distribution of literature at the intersection and has at no time interfered
therewith. The interview ended and the 2 union representatives returned to the intersection of
the 2 roads at approximately 4:30 p. in About 5 cars left the plant premises and none stopped
for the stop sign at which Wright stationed himself or at the actual intersection where Phelan
was standing.
On October 1, the two union representatives returned to the plant at 8 a. in. and parked
their car in the parking area. They split up and commenced the distribution of literature to
employees who entered the parking area. The guard on duty promptly approached them and
forbade the distribution of the literature under penalty of forcible removal from the com-
pany property. The two men agreed to leave peaceably and did so. None of the literature which
they succeeded in distributing on this occasion was discarded by the recipients. In fact, the
record discloses no littering of company property in any of the distributions attempted by
the Union and no such contention is raised by Respondent.
The union representatives returned to the highway intersection that morning and, of the
approximately 5 to 8 cars that left, none stopped. The men returned to the scene that after-
noon and of the 15 to 25 cars that left, 4 stopped for one or the other of the 2 union repre-
sentatives. Six to nine cars entered on this occasion but none stopped.I No further attempt to
distribute literature, either at the highway intersection or at the parking area, was made
by the Union.
E. Contentions, analysis, and conclusions
The foregoing recitation of facts discloses that the attempted distribution of literature at
the highway intersection was a failure due to the widespread practice of drivers leaving the
plant premises to ignore the stop sign at the highway intersection, a practice known to Re-
2 Findings concerning automobile travel to and from the plant on September 28 and October
1, are based upon a synthesis of the testimony of the two union representatives which is in
substantial agreement.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent. Moreover , the location was completely ineffectual in contacting drivers entering
the plant premises due to the absence of any impediment to their progress into the company
premises.
The record also warrants the finding that the distribution of literature at the intersection
of the two roads , under these circumstances , was a hazardous undertaking as it involved the
attempted distribution of matter to people in moving cars, particularly so where the union
representative stationed himself in the middle of the company road in order to pass literature
to the drivers passing on either side. See N. L. R. B. v Carolina Mills Inc., 190 F. 2d 675
(C. A, 4). It would seem that if distribution were to be successful at any location away from
the parking area, but in the general vicinity of the plant, the area selected by the union
representatives , at the stop sign , would have been the most promising . However , the record
of the attempts made by the union representatives discloses that the undertaking not only
was hazardous but virtually impossible of success in contacting the drivers.
The General Counsel's basic premise is that the decision in N. L. R. B. v. LeTourneau
Company of Georgia, 324 U. S. 793, is dispositive of the present issue There the Court
upheld the Board ' s finding that the application of a long standing and strictly enforced rule
against the distribution of any literature on company property without the permission of
management to the distribution of union literature by employees on a company -owned parking
lot adjacent to a fenced - in plant was an unfair labor practice . As is apparent , the surround-
ing facts in that case are substantially identical with those present herein.
Also supporting the position of the General Counsel are two cases whose facts are almost
identical with those in the present case. N. L. R. B. v. Carolina Mills Inc ., supra, and
N. L. R. B. v Caldwell Furniture Company, 199 F. 2d 267 (C. A. 4), cert denied 345 U. S.
907. In those cases, the court of appeals enforced Board orders setting aside company rules
forbidding the distribution of union literature by union representatives in a com-
pany parking lot and at a company gate, respectively , in effect following the LeTourneau
decision.
Respondent has raised a number of contentions to the general effect that the LeTourneau
rule should not be followed in this proceeding-
(1) Respondent contends that in view of recent Board decisions in related cases a fresh
look at the present problem is in order . It cites specifically Livingston Shirt Corp., 107
NLRB 400, and Peerless Plywood Co ., 107 NLRB 427. It is true that those decisions reflect
a change in Board policy by, in effect , rescinding the former right or privilege of a labor
organization to reply to preelection speeches by management on company property. How-
ever, that change of policy is on a totally different issue and I deem myself bound by exist-
ing Board policy, as reflected in the Supreme Court decision in the LeTourneau case as
well as recent Board decisions And while Respondent stresses that the LeTourneau case
was decided prior to the 1947 amendments to the Act , the Caldwell and Carolina Mills
decisions of the Fourth Circuit, cited above, were decided subsequent to those amendments,
involved conduct taking place after the amendments , and the court in the former decision
expressly followed the LeTourneau decision.
(2) Respondent raises the contention that the employees involved in the LeTourneau
decision constituted a large complement of personnel in a large plant and that the case is
therefore distinguishable from the present case. While it is true that Respondent had a
complement of 130 employees , as opposed to the much larger number of personnel involved
in the LeTourneau decision , I deem this a difference of no substance If the criteria behind
the LeTourneau decision are still valid , namely the virtual i lipossibility or unreasonable
difficulty of distributing literature off the premises of the employer , they would be equally
applicable irrespective of the size of the employer or the number of employees involved
The only difference would be in the number of personnel to be reached and the greater amount
of distribution required but not in the difficulty of distributing as such.
(3) Respondent also cites the fact that in the LeTourneau decision the would - be distributors
of literature were employees rather than union representatives, as in the instant case.
While this contention might have more appeal were this an issue of distribution by union
representatives within the plant proper and in the area of production facilities , and perhaps
particularly so in a plant devoted to military production , such is not the case here . The only
area involved is one removed from the production area and in fact outside the fenced-in
area. Significantly the Caldwell and Carolina Mills decisions , supra , involved attempts by
union representatives to distribute literature under circumstances similar to those present
herein.
MONSANTO CHEMICAL COMPANY 1121
(4) Respondent has cited several decisions where theBoard has not followed the LeTourneau
rule, in support of its contention that it should not be followed here. An inspection of those
decisions discloses however that they are distinguishable in their factual context from the
LeTourneau decision and the present case
Thus, in Monolith Portland Cement Co., 94 NLRB 1358, the Board held that a ban on the
distribution o union literature inside plant buildings during working and nonworking hours
and confiscation of such literature as was brought in was not an unfair labor practice, particu-
larly where the employees were permitted to distribute literature in the company parking
lot and near plant entrances. Moreover, the employer in that case permitted the labor
organization involved to utilize the plant bulletin board in order to post notices of meetings.
Actually, this decision supports the position of the General Counsel herein.
In Mooresville Mills, 99 NLRB 572, enfd. as modified 204 F 2d 87 (C. A. 4), the Board
found that it was not an unfair labor practice to refuse to permit a labor organization to
distribute literature on a driveway 15 or 20 feet long located on company property and
extending from a public sidewalk to the plant gate. The employer did not interfere with 3
other union adherents standing nearby on the sidewalk at a point where the driveway from the
null crossed it. It also appears that public transportation was available, that buses stopped
on the highway in the vicinity, and, as is apparent, the distance of the plant gate from the
highway was but a matter of 15 or 20 feet rather than almost four-tenths of a mile. Likewise,
and contrary to the present case, there was no evidence that this other distribution was not
effective and that the company policy was a serious impediment to the freedom of communi-
cation among employees.
In Newport News Children's Dress Company, 91 NLRB 1521, the Board held that the
denial to a labor organization of the right to distribute literature on the employer's property
was not an unfair labor practice. There however, the 60 employees involved left the em-
ployer's property, which in its entirety covered an area 50 by 120 feet, by means of a
single gate bordering on a public street An undisclosed number then boarded public trans-
portation consisting of a bus which loaded across the public street from the plant gate. The
Board specifically contrasted this procedure with the more than 60 percent of the personnel
complement in the LeTourneau case who boarded buses or entered private automobiles on
company property and could not be given literature as they left by means of the plant gate.
By contrast it would seem, in the Newport News decision, as the Board found, that literature
could effectively be distributed to pedestrians on the public street.
In Colonial Shirt Corp., 96 NLRB 711, the Board held it not to be an unfair labor practice
to bar the distribution of literature in the plant itself, in the interest of keeping the plant
clean and orderly. I deem that decision not in point because there is no issue in the present
case of maintaining plant tidiness; unlike the present case, there was not a showing that the
activities could not readily be conducted away from the employer's premises, and, the issue
there related to distribution in the plant proper and not, as here, in a nonproduction area,
namely the parking lot outside the fenced-in plant.
(5) Respondent adduced evidence with respect to the content of the pamphlets which the
Union sought to distribute, directing attention to cartoons which cast a hypothetical employer
in an unfavorable light. Without passing upon the temperateness or objectivity of the cartoons,
I do not deem the matter to merit substantial weight herein The simple answer is that
Respondent at no time raised any issue with respect to the content of these cartoons. Its
restriction of the distribution of union literature was predicated upon its belief, maintained
in good faith, that it could prohibit theuse of its property for the purpose sought by the Union.
In sum, the present case involves solely the claimed right of the Union, under the circum-
stances present herein, to distribute literature to employees during their nonworking time,
not in the plant or even in the fenced-in plant area, but solely on the adjacent open parking
lot maintained by Respondent for its employees The Board and courts have recognized that
employees and a labor organization do not have an absolute right to the use of company
property for the distribution of union literature But it has likewise been held that where, as
here, it is virtually impossible or unreasonably difficult for a labor organization to dis-
seminate literature to employees off the premises of the employer, the Act protects the right
to carry on such distribution on company property.
Respondent does contend that special circumstances, namely the use of the gate for
general business purposes, warrant its ban on distribution of literature by the Union, but
the record does not support this The fact is that the Union sought only to distribute matter
in the parking area, which is some feet from the gate and to one side of the traveled company
339676 0 - 55 - 72
1 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
road. While a showing of unusual circumstances pertaining to the operation of a particular
plant might well override the right of a labor organization to carry out such a distribution,
there is no such showing here; moreover , there is no evidence of littering of company
property.
The plant involved herein is located in a rural or semirural area several miles from a town
of 2,000. Its employees drive to work , there being no public transportation , and enter company
property at a point almost four -tenths of a mile from the sole plant gate. There is no pro-
vision or requirement for a stop by cars entering the company road from the State highway
and I find that, apparently due to the favorable view in either direction along the State highway,
drivers leaving company property , in large measure, ignore the stop sign at the intersection
of the company road and the State highway.
Respondent ' s records show, as it stresses , that 85 percent of all employees live within a
radius of 12 miles from the plant and that 67.6 percent live in the Soda Springs area, the
remaining 15 percent live at distances varying from 17 to 39 miles from the plant. Neverthe-
less, inasmuch as all drive to and from the plant in the manner described above, this serves
only to emphasize the extreme difficulty of an attempted distribution of literature at a
location other than the parking lot.
Respondent ably contends however, that literature can effectively be distributed at the high-
way stop sign ; the facts set forth above do not support this claim. Respondent also contends
that the Union had access to the mails for organizational work and that a majority of the
employees, residing in the Soda Springs area , could readily be identified by their alleged
practice of wearing jackets , furnished by Respondent , which bore Respondent 's name on the
back. A resort to the mails would obviously be impossible absent possession of a roster of
personnel , with respect to the wearing of company insignia , not all the employees reside
in Soda Springs and it would further be speculative to reach any conclusions on the matter
absent definitive evidence as to the extent the jackets are worn and the social proclivities
of their wearers . It is contended that the rule is warranted because of the possibility of
auto tampering and theft by strangers on the lot . There is no evidence that such incidents
had taken place or that they were feared . I find that this possibility was not an operative
factor in the imposition of the rule
I find , therefore , that the distribution of union literature to employees off of Respondent's
property is virtually impossible , at times hazardous , and that it cannot readily be conducted.
I further find that there are no special circumstances which justify the necessity of Re-
spondent ' s rule insofar as it prohibits the distribution of union literature on its parking
lot, and that such rule constitutes an unreasonable impediment to the freedom of communi-
cation in the exercise of its employees ' rights to self-organization . Respondent ' s claim that
its tolerance of the distribution desired by the Union would constitute unlawful assistance
to that organization has in effect been disposed of by the decisions which have expressly
permitted and sanctioned such distribution.
It follows , therefore , that Respondent ' s right to control the use of its private property,
which I find was asserted in good faith, should, in the circumstances of this case and upon
established precedent , accommodate itself to the exercise of its employees' rights to self-
organization and that Respondent , by enforcing a rule forbidding the distribution of union
literature on its parking lot , has engaged in conjuct violative of Section 8 (a) (1) of the Act.
See N. L. H. B. v. Caldwell Furniture Company , supra ; N. L. H. B. v. Carolina Mills, Inc.,
supra ; Remington Rand, Inc , etc , 103 NLRB 152; Grand Central Aircraft Co., Inc., 103 NLRB
1114, Monarch Machine Tool Co., 102 NLRB 1242, Glen Raven Silk Mills, Inc., 101 NLRB 239,
enfd. as modified 203 F. 2d 946 (C. A. 4); Carthage Fabrics Corp., 101 NLRB 541; and George
Norolan Company, 101 NLRB 1127.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection with
its operations described in section I, above , have a close , intimate , and substantial relation
to trade, traffic , and commerce among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices , I shall recom-
mend that it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the'Act.
MONSANTO CHEMICAL COMPANY 1123
Having found that Respondent has prohibited the distribution of union literature on its
parking lot during nonworking time, it will be recommended that Respondent cease and
desist from the unfair labor practice found and from any like or related acts or conduct
which would tend to interfere with, restrain, or coerce its employees in the exercise of the
rights guaranteed under Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Respondent , Monsanto Chemical Company, is engaged in commerce within the meaning
of Section 2 (6) and (7) of the Act.
2. International Association of Machinists, LocalLodgeNo 1933, AFL, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act
3. By denying the use of its parking lot for the distribution of union literature during the
nonworking time of its employees, Respondent has engaged in, and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board , and in order to effectuate the policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL cease and desist from enforcing our rule prohibiting the distribution of
union literature on our parking lot during our employees ' nonworking hours
WE WILL NOT engage in any like or related acts or conduct which interferes with,
restrains , or coerces our employees in the exercise of their rights to self-organization,
to form labor organizations , to join or assist International Association of Machinists,
Local Lodge No. 1933, AFL, or any other labor organization , to bargain collectively
through representatives of their own choosing, to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any and all such activities , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condition of em-
ployment as authorized by Section 8 (a) (3) of the Act
We hereby rescind our rule prohibiting the distribution of union literature on our parking
lot during nonworking hours of employees
MONSANTO CHEMICAL COMPANY,
Employer
Dated. . . . . ...... By ..................................... .... .......................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced , or covered by any other material.