Ranco, Inc.

National Labor Relations Board - Board Decisions

Aug 25, 1954

109 N.L.R.B. 998 (N.L.R.B. 1954)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By causing and attempting to cause National Biscuit Company to discharge
Frank Borg, Respondent Union has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (2) of the Act.
3. By restraining and coercing employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (b) (1) (A) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
RANCO, INC., and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR-
CRAFT & AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW-
CIO. Case No. 8-CA-847. August 25,1954
Decision and Order
On March 8, 1954, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent and
the General Counsel filed exceptions to the Intermediate Report and
supporting briefs; the Respondent also filed a supplemental brief and
requested oral argument. The request for oral argument is hereby
denied as the record and the exceptions and briefs, in our opinion, ade-
quately present the issues and the contentions of the parties.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner to the extent that they are consistent herewith.
1. A majority of the Board finds, in agreement with the Trial Ex-
aminer, that the Respondent, by refusing to permit nonemployee
union organizers to distribute literature on its parking lot, violated
Section 8 (a) (1) of the Act.'
2. The Board unanimously agrees, contrary to the holding of the
Trial Examiner, that the Respondent did not, under the circumstances
of this case, unlawfully assist the activities of certain of its employ-
ees who were opposed to the Union. As found by the Trial Exam-
iner, certain of the Respondent's employees, who did not constitute
a labor organization within the meaning of the Act, requested the Re-
I Chairman Farmer and Member Peterson agree with the Trial Examiner 's conclusion,
but for the reasons set torth in their separate concurring opinion Member Beeson would
find, for the reasons set forth in his separate dissenting opinion, that the Respondent's con-
duct was lawful under the circumstances of this case
109 NLRB No. 149.
RANCO, INC. 999
spondent to reproduce literature , which they had prepared , urging
the Respondent 's employees to reject the Union. The Respondent
agreed to , and did, reproduce such literature , at a cost to it of approx-
imately $186 . Except for the letters which the Respondent mailed
directly to its employees , all of such literature was returned to and
distributed by the group which had prepared it. The Respondent,
moreover, posted a notice advising its employees that it was reproduc-
ing such literature at its own expense; the employees were therefore
fully informed as to the sources of such literature , and were thus in a
position properly to evaluate its contents.
In view of these circumstances , and particularly in the absence of
any deception , we are of the opinion that the part played by the Re-
spondent in the dissemination of the noncoercive views of such em-
ployees was too insubstantial to warrant a finding that the Respondent
thereby interfered with the rights of its employees , as guaranteed by
Section 7 of the Act.2 We shall therefore dismiss the complaint, inso-
far as it alleges that the Respondent , by virtue of such conduct, vio-
lated Section 8 (a) (1) of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Ranco, Inc., Dela-
ware, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from prohibiting the distribution of union lit-
erature by union representatives on its parking lot except pursuant to
reasonable regulations or controls not of such character as to deny
them access to employees for the purpose of effecting such distribution.
2. Take the following affirmative action which the Board finds will
.effectuate the policies of the Act :
(a) Rescind its plant rule respecting distribution of literature on
its premises, insofar as the rule prohibits the distribution of union
literature by union representatives on the Respondent's parking lot at
the Delaware plant; except pursuant to reasonable regulations or con-
trols not of such character as to deny them access to the employees
for the purpose of effecting such distribution.
(b) Post at its Delaware, Ohio, plant copies of the notice attached
hereto, marked "Appendix A." 3 Copies of said notice, to be furnished
2 This case is, in our opinion, distinguishable on its facts from The Cleveland Trust Com-
pany, 102 NLRB 1497, 1499-1501, and The Timken-Detroit Axle Company , 98 NLRB 790,
relied on by the Trial Examiner . Accordingly , we do not reach the question whether the
Respondent's conduct comes within the purview of Section 8 (c) of the Act . Cf. N. L R. B.
v The Cleveland Trust Co., 214 F. 2d 95 (C. A. 6).
3In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Regional Director for the Eighth Region, shall, after being duly
signed by the Respondent's representative, be posted by the Respond-
ent 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 employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Eighth Region, in writing,,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that except as otherwise found herei ni
the complaint be, and it hereby is, dismi ssed.
CHAIRMAN FARMER and MEMBER PETERSON, concurring :
While we agree with the result in this case, we feel that some ad-
ditional comment is necessary.
The single issue in this case is strictly limited to the extent of an,
employer's right to deny to nonemployee union representatives the
privilege of distributing union campaign literature on the company's
parking lot. As we view it, the rule in such situations is that an
employer may not enforce such a rule if in fact it is impossible or
unreasonably difficult for the union to distribute organizational lit-
erature to the employees entirely off the employer's premises.
We agree with the majority on the record before us that the Gen-
eral Counsel hz-s, by affirmative evidence, proved such inaccessibility
at this plant.
We do not, however, adopt the breadth of the rationale set out by
the Trial Examiner in his Intermediate Report, wherein he apparently
confuses the question of an employer's right to exclude nonemployees
from the parking lot and the employer's right to prohibit union solic-
itation and activity by its employees on company property during
nonworking hours. There is an implication in the Intermediate Re-
port that, whenever an employer would exclude nonemployees from
the parking lot, "the burden is upon the employer to show the exist-
ence of circumstances warranting the prohibition." That is not the
law as we understand it. An employer must justify, by carrying an
affirmative burden resting upon him, a blanket prohibition against
union activities or solicitation by his employees on company prop-
erty. However, when it comes to the exclusion of strangers from
the plant premises, the exercise of such privilege does not depend
upon an employer being able to affirmatively prove that the rule is
justified. Rather, as stated above, the affirmative burden rests upon
the General Counsel to prove inaccessibility off the premises, andl
RANCO, INC. 1001
failing this the outside organizers have no right, enforceable by this
Board, to come on the employer's premises for organizing purposes.
We concur in the majority decision because we are satisfied that the
General Counsel has sustained his burden of proof.
MEMBER BEESON, dissenting in part:
I cannot agree with my colleagues that the Respondent violated
Section 8 (a) (1) of the Act by refusing, under the circumstances
of this case, to permit nonemployees to distribute literature on its
parking lot. By affirming the Trial Examiner on this issue, they are
in effect converting an exception into the general rule.
It cannot be questioned that as a general rule, an employer may
control the use of his property as he wishes. It is only when the man-
ner in which he exercises that right of control substantially impinges
on the rights of others-in these particular circumstances on the
rights of employees as guaranteed by Section 7 of the Act-that his
right of control is subject to limitation. The question in each case is
one of fact; and the question in this case is: In the light of all the facts,
does the Respondent's prohibition constitute a serious impediment to
the right of employees to secure the information necessary for the
exercise of their rights as guaranteed by the Act?
What, then, are the facts? As found by the Trial Examiner, the
nonemployee union organizers were able to distribute literature out-
side the plant gates on some 25 different occasions. Concededly, the
conditions under which they worked were not ideal; concededly, dis-
tribution was not always 100 percent effective. Nevertheless, liter-
ature was distributed in substantial quantities by the nonemployee
organizers. And, in addition, no restrictions were placed on the dis-
tribution of literature in the parking lot by employees who did in
fact distribute literature there on a number of occasions, including
the very literature which the nonemployee organizers sought to
distribute.
I can perceive in these facts no serious impediment to the employees'
right to secure information. This being so, this case is clearly dis-
tinguishable from the Le Tourneau. case' and the other cases relied
on by the Trial Examiner and my colleagli ,s. In eac'i of those cases
which did not involve discriminatory application of the prohibition,5
the rule in force and its application effectively closed all avenues by
which the employees could receive the necessary information. ' Thus,
` Le Tournean Company of Georgia , 54 NLRB 1253, 1255-1262 , enfd. 324 U . S. 793.
6 Such as United Aircraft Corporation, 67 NLRB 594 , 600-608; Carolina Mills, Inc., 92
NLRB 1141, 1165-1166 ; Grand Central Aircraft Cc , Inc., 103 NLRB 1114, 1118, 1159.
Although these cases involved factual situations somewhat similar to Le Tourneau and the
other distinguishable cases , the added factor of discrimination between union organizers
and other outsiders , or between distribution of union and antiunion literature , in any event
vitiates their value as precedent in the factual situation involved herein.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Le Tourneau, no distribution of any kind was permitted on company
property, and the location of the plant and the other physical charac-
teristics made distribution off the property virtually impossible. And
in the other cases a similar broad no-distribution rule effectively closed
one avenue of access to such information, while the other avenues were
closed by the physical characteristics of the plant location.a In the
instant case, however, at least one effective avenue of access to informa-
tion has been left open, and the resulting situation is therefore more
nearly analogous to the cases in which no-distribution rules have been
held to be valid,7 than to the cases in which they have been held to be
-unlawful. In view of this situation, the facts that the plant may be
located in an isolated area, or that substantial numbers of the em-
ployees may live at points distant from the plant, lose their significance.
But by giving controlling weight to these physical characteristics,
and to the physical characteristics of distribution off the Respondent's
property, while failing to give proper consideration to other relevant
factors, including the facts showing the extent of actual distribution,
my colleagues have in substance established a general rule for parking
lot distribution. Such a rule goes beyond the necessities of the situa-
tion, and is therefore unwarranted.
As I agree with the Board's disposition of the other issue in this
case, I would dismiss the complaint in its entirety.
Appendix A
NOTICE TO ALL EMPLOYEES AT THE DELAWARE PLANT
Pursuant to a decision and order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT prohibit the distribution of union literature by
union representatives on our parking lot, except pursuant to
reasonable regulations or controls not of such character as to deny
them access to employees for the purpose of distribution.
RANCO, INC.,
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.
6 Caldwell Furniture Company, 97 NLRB 1501, enfd. 199 F. 2d 267 (C. A. 4) ; The Mon-
arch Machine Tool Co, 102 NLRB 1242, enfd. 210 F. 2d 183 ( C A. 6) ; Remington Rand,
The, 103 NLRB 152, 163-169. Monsanto Chemical Company, 108 NLRB 1110.
7 Newport News Children's Dress Co., Inc., 91 NLRB 1521 ; Mooresville Mills, 99 NLRB
572,1583-584
RANCO, INC.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
1003
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act (61 Stat. 136) upon charges filed by the above-named Union, complaint
issued by the General Counsel of the National Labor Relations Board, and answer
duly filed, was heard, pursuant to due notice, in Delaware, Ohio, on October 12
and 13, 1953.
The allegations of the complaint are that the Respondent , Ranco, Inc., engaged
in unfair labor practices at its Delaware, Ohio, plant in violation of Section 8 (a)
(1) of the Act by (1) preventing nonemployee union representatives from distribut-
ing union literature on the Respondent 's parking lot; and ( 2) sponsoring , assisting,
and contributing financial and other support to antiunion groups among its em-
ployees. The answer , admitting some factual allegations of the complaint and
supplying others, denied the commission of unfair labor practices.
All parties were represented by counsel , participated in the hearing, and were
afforded full opportunity to present and to meet evidence , to engage in oral argu-
ment , and to file briefs . A brief filed by the Respondent on November 16, 1953,
and a supplement thereto filed on November 25, 1953, have been duly considered.
From my observation of the witnesses , and upon the basis of the entire record in
the case, I make the following:
FINDINGS AND CONCLUSIONS
1. COMMERCE AND LABOR ORGANIZATION
It is admitted , and found , that the Union is a labor organization within the
meaning of Section 2 (5) of the Act, and that the Respondent is engaged in com-
merce within the meaning of Section 2 (6) of the Act.'
H. THE UNFAIR LABOR PRACTICES
A. The issues
Briefly stated there are two issues: (1) Whether the Respondent may prevent
nonemployee union organizers from distributing union literature on the Respond
-ent's parking lot at the Delaware plant; and (2) whether the Respondent may
legally assist a group of employees opposed to the Union , by printing their litera-
ture for distribution to the employees.
B. The literature distribution issue
1. The premises
The Respondent's Delaware plant is located in the town of Delaware, Ohio
(population 12,200) at the city limits, 1.7 miles from the center of the city. Nor-
mally the plant employs about 700 people; at the time of hearing it employed about
598; in January 1953 the number was approximately 900.
The Respondent's property occupies a 28- to 30-acre plot of ground on the south
side of United States Highway No. 42, a 20-foot, 2-lane heavily traveled interurban
roadway running roughly east and west. The entire property is. surrounded by an
8-foot high wire fence, broken by 2 gates about 30 feet part. The westerly gate
is 25 feet in width, the easterly one 36 feet. Both open on the highway and serve
as entrances to and exits from the Respondent 's premises . The gates are set back
30 feet from the highway. The plot of ground between the gates and the highway
is public property . There are no sidewalks . The surrounding neighborhood is
rural in character.
1 The Respondent is an Ohio corporation with principal offices located at Columbus, Ohio,
and operating 5 plants in Ohio : three in Columbus, 1 in Plainfield, and 1 in Delaware. At
the Delaware plant, the only one involved in the present proceeding, the Respondent manu-
factures thermostatic controls for refrigerators, automobile heaters, and other equipment.
In the course of its operations at Delaware the Respondent purchases annually raw mate-
rials valued in excess of $1,000,000, more than 50 percent of which is shipped to the Dela-
ware plant from points outside the State of Ohio. Respondent annually produces finished
products at the Delaware plant valued in excess of $1,000,000. of which in excess of 75
percent is shipped to points outside the State of Ohio.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Directly inside the entrances is a vehicular parking lot with a capacity of some
600 cars for the use of employees and visitors to the plant . Access to the plant
and offices is from the parking lot. However, in order to enter the plant or offices,
one must pass through either 1 of 2 smaller gates in another fence separating plant
and office buildings from the parking lot. These gates are flanked by guard-
houses, at which guards are stationed to check persons desiring to enter the plant and
office area . Employees wear identification badges. It is thus seen that access
to the parking lot does not insure access to the working areas.
Other than taxicabs , there is no public transportation in the city of Delaware.
A high percentage of the Respondent 's employees come to work in private auto-
mobiles; not over 1 percent arrive on foot. A survey made by the Respondent
on September 24, 1953, discloses that 220, or 36.8 percent of the employees live
in the city of Delaware . It further discloses that of the 598 total then employed:
335 (56 plus %) live within 5 miles of the plant.
25 (4 plus %) live within 5 to 10 miles of the plant.
123 (20 plus %) live within 10 to 15 miles of the plant.
97 (16 plus %) live within 15 to 20 miles of the plant.
16 (2 plus %) live within 20 to 25 miles of the plant.
1 lives over 25 miles.
The plant operates on a three-shift basis: 7:30 a. m. to 3:30 p . m., 3:30 p. m.
to midnight ; and the third shift on an irregular starting basis, sometimes beginning
during, sometimes at the end of, the second shift. On September 24, 1953, 401
employees worked on the first shift , 181 on the second, and 13 on the third. A
survey made by the Respondent on that day revealed 204 cars on the parking lot
during the first shift , 90 during the second , and 9 in the third.
The west gate opening on highway 42 is both an entrance and an exit , the east
gate is . used only as an exit. Opposite these gates, and on the farther (north) side
of the highway, is an entrance to Curtis Street, which runs into the town of Dela-
ware in a northerly direction.
Coming into the plant, cars approach from both directions on highway 42, as
well as from Curtis Street. Leaving the plant, they follow a similar pattern.
Thus cars exiting by either gate may turn either east or west on highway 42, or
cross the road to enter Curtis Street . It requires about 15 minutes to clear the
parking lot at the end of the first shift; 5 to 10 minues at the end of the second.
Thus, roughly 14 or more cars per minute pass the gates-at the east gate in a
double lane-and headed in any one of 3 directions . Highway 42 being a well-
traveled 2-lane roadway , the resultant traffic problem is apparent.
There is no traffic light at that point , and apparently no regular or systematic
police direction . However, there are State highway department stop signs inside
the gates , warning employees to stop before entering the highway, and the road
itself is patrolled by State highway policemen . Some employees , hurrying to get
home, have a tendency to ignore the stop signs, despite cautionary warnings given
by the Respondent . However, 90 percent comply. There is also a sign inside
the west gate warning incoming drivers to reduce speed to 10 miles an hour.
2. The rule
Since November 1950, the Respondent has had in effect a posted and publicized
rule to the following effect:
1. Delaware Plant employees are permitted to distribute literature on Com-
pany property, but not on Company time.
2. Any such distribution must be done in such a manner that the plant
buildings will not become littered.
Pursuant to the rule, the Respondent has uniformly permitted employees to dis-
tribute literature at the guardhouse gates between the plant and the parking lot.
Both union and antiunion literature has been passed out there by employees with-
out hindrance from the Respondent.
Within the plant the Respondent has permited employees to wear union badges
while at work , as well as T-shirts bearing the union emblem.
The Respondent , citing the distribution rule as justification , denied permission in
May 1953 to nonemployee representatives of the Ladies Auxiliary of the American
Legion and the Veterans of Foreign Wars to sell Buddy poppies at the plant gates.
On March 27, 1951, the IAM (International Association of Machinists) filed a
charge of unfair labor practices with. the Board , alleging that in November 1950,
at the request of the Respondent , IAM representatives (presumably nonemployees)
RANCO, 1N C. 1005
were prevented by city police from distributing literature on company property at
the Delaware plant. This charge was withdrawn on August 6, 1951 , with the
approval of the Regional Director . On March 30, 1952, another charge-withdrawn
on May 29, 1952, with the approval of the Regional Director-was filed by the
JAM, alleging that on February 28, 1952, the Respondent refused permission to
JAM representatives (presumably nonemployees ) to distribute union literature at
the plant entrances . The instant charge was filed by the UAW-CIO on May 8, 1953.
3. Exclusion of nonemployee union representatives
On January 11, 1953, the charging Union here-the UAW-CIO-began an or-
ganizational campaign among the Delaware plant employees, and commenced the
distribution of union literature at a point directly outside the east and west gates,
on the 30-foot strip of public property. On January 28, 1953, the Union, by letter,
requested permission of the Respondent to distribute union literature on company
property, citing as reason therefor, the "dangerous traffic hazard" at the entrance
gates.
Under date of January 30, 1953, the Respondent, by letter, denied the request.
The Respondent's letter stated:
This acknowledges receipt of your letter of January 28, 1953, requesting
permission to distribute union literature on Company property.
For your information, the long-standing policy of this company, which has
also been in effect during previous organizing campaigns, is to restrict distri-
bution of literature of any sort on Company premises to Company representa-
tives and employees of the plant. Your request is therefore denied.
Since that time nonemployee union representatives have distributed union litera-
ture to cars leaving the plant on some 25 different occasions outside the east and
west gates; the representatives generally taking their stand between the exiting lanes
,of traffic on the plot between the gates and the highway. On occasion, however,
they have been observed by Respondent's vice president, W. R. Opp, on company
property 30 feet within the gates-but the Respondent has tried to prevent this
encroachment when it observed it.
Success at distribution outside the gates has been variable. Thus, at times, Vice-
President Opp has observed 100 percent distribution of literature by the organizers
to the occupants of exiting cars desiring to receive it.2 On the other hand, Union
International Representative Peters has had the following difficulties in distribution
at the gates: Cars sometimes do not stop; when they do there is no opportunity for
,discussion with employees, because of the press of cars behind seeking to leave;
standing between the lanes, the distributor is both a traffic hazard and assumes the
risk of injury, particularly at night; though occupants of a car may desire literature,
the driver may not wish to stop; drivers behind, desirous of leaving, exhort the
,distributor to get out of the way. In the west gate, where there is both an incom-
ing and an outgoing lane, distribution to incoming cars creates an additional traffic
problem by reason of the fact that it halts cars entering behind-possibly stopping
them on the highway itself. The weather also, according to Peters' testimony,
affects the success of the distribution: In inclement weather cars are generally closed,
and acceptances fall substantially.
4. Conclusions as to the refusal to permit literature distribution by nonemployees
The right of employees or union representatives to carry on union activity on an
,employer's premises has come before the Board and the courts in a variety of
situations .3
2 Literature is given by the organizers only to those who indicate that they wish it.
3The following are illustrative, though not exhaustive, cases and situations: Republic
Aviation v N. L. N B., 324 U. S. 793 (employee solicitation of union membership inside
plant) ; Monolith Portland Cement Company, 94 NLRB 1358 (distribution of union litera-
ture inside plant) ; N. L. R. B v. LdTourneau Company of Georgia, 324 U. S. 793 (em-
ployee distribution of union literature in company parking lot) ; N. L. R. B v. Cities Serv-
ice, 122 F. 2d 149 (C. A. 2) (right of sailors to be visited aboard ship by nonemployee union
representatives, in the investigation of grievances) ; N. L R. B. v. Lake Superior Lumber
Corporation, 167 F. 2d 147 (C. A. 6) (right of nonemployee union representatives to visit
employees in lumber camp for union organizational purposes) ; N. L. R B. v. Stowe
Spinning Co., 336 U. S. 226 (right of nonemployee union organizer to use meeting hall in
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the right to distribute union literature on company automobile
parking lots connected with a plant, or at entrance gates, the question has been
before the Board and the courts in a number of cases, the following of which are
the principal ones: N. L. R. B. v. LeTourneau Company of Georgia, 143 F. 2d 67
(C. A. 5), 324 U. S. 793, 54 NLRB 1253; United Aircraft Corporation, 67 NLRB
594, 600, 606; Newport News Children's Dress Co., Inc., 91 NLRB 1521; Carolina
Mills, Inc., 92 NLRB 1141, enfd. 190 F. 2d 675 (C. A. 4); Caldwell Furniture
Company, 97 NLRB 1501, enfd. 199 F. 2d 267 (C. A. 4); Mooresville Mills, 99'
NLRB 572; Carthage Fabrics Corp., 101 NLRB 541, 546, 552, enfd. June 10, 1953
(C. A. 4); Monarch Machine Tool Co., 102 NLRB 1242, enfd. 33 LRRM 2488'
(C. A. 6); Remington Rand Inc. (Louisiana Ordnance Plant), 103 NLRB 152;
Grand Central Aircraft Co., Inc., 103 NLRB 1114.
The test laid down in the LeTourneau case, and since adhered to, is whether the
prohibition of distribution of union literature on the employer's premises places
"an unreasonable impediment on the freedom of communication essential to the
exercise of employees rights to self-organization." If the prohibition results in such
an impediment, it may not be enforced unless "special circumstances make the rule
necessary in order to maintain production or discipline." '
This principle has been explained as an accommodation, necessitated by the cir-
cumstances , between the employer's unquestionable right to control the use of his
property and the equally unquestionable right of employees under the Act to "freely
discuss and be informed concerning their collective-bargaining rights and the cor-
relative right of the union to discuss with and inform them concerning the matters
involved." N. L R. B v. Lake Superior Lumber Corp., 167 F 2d 147, 151
(C. A. 6)4
In the LeTourneau case the Board said the following (p. 1,260) :
.. . employees cannot realize the benefits of the right to self-organization
guaranteed them by the Act, unless there are adequate avenues of communica-
tion open to them whereby they may be informed or advised as to the precise
nature of their rights under the Act and of the advantages of self-organization,
and may have opportunity for the interchange of ideas necessary to the exercise
of their right to self-organization . speech is not the only mode of commu-
nication by which self-organization is effected, nor is it sufficient that this chan-
nel alone be free. Effective organization requires the use of printed literature
and of application and membership cards, and these modes of communication
are also protected by the Act.
The right to distribute under such a principle is not absolute, however As, I
think, the cases disclose, the accommodation must be adjusted to the circumstances
In sum, where it is impossible or unreasonably difficult for a union to distribute•
organizational literature to employees entirely off the employer's premises , distribu-
tion on a nonworking area, particularly one devoted exclusively to the parking of
automobiles , may be warranted, unless permitting the distribution will result in'
undue interference with business operations or prohibition is otherwise reasonably
necessitated . The burden is upon the employer to show the existence of circum-
stances warranting the prohibition. Caldwell Furniture Company, 97 NLRB 1501.5
"And the result reached is the same though the distribution is sought to be made
by outside organizers rather than by plant employees." Remington Rand Inc
(Louisiana Ordnance Plant), 103 NLRB 152.
Of the cases cited above involving the distribution of union literature on plant
parking lots, in all but two (Newport News Children's Dress Co, Inc. and Moores-
ville Mills) the circumstances were such that the right of distribution was upheld
In the Newport News case the employer's property measured 50 by 120 feet and its
approximately 60 employees left the premises by a single gate opening on a public
company-owned town for organizational purposes) ; Ifarshall Field & Co, 98 NLRB 88,
enfd 200 F. 2d 375 (C. A. 7) , Associated Dry Goods Corporation, 103 NLRB 271 (right of
nonemployee union organizers to gain access to non-public areas of department store for
organizational purposes).
b As has been indicated in footnote 3, sop; a, the bake Roper;or case involved a lumber
camp where employees lived as well as worked
In the Caldwell decision the Board said :
The Supreme Court in N. L. R. B. v LeTourneau Company of Georgia, 324 U. S. 793
(1945) held that the Board had properly placed the burden of proof on the employer
to show the existence of special circumstances relied upon to justify the existence of
such a rule No such showing was made in this case by the Respondent.
RANCO, INC. 1007
street. Busses loaded across the street from the plant. The Board found that union
literature could be "easily distributed to employees as they leave the gate."
In the Mooresville Mills case the facts were similar : busses loaded at the street
and literature , the Board found, could "easily be distributed to employees as they
enter and leave the gate."
The Respondent here cites no special circumstance or operational reason for the
exclusion of nonemployee distributors of union literature from the parking lot.
In my judgment, the precedents and the circumstances require the conclusion
that the Respondent's refusal to permit nonemployee union representatives to distrib-
ute union literature on the parking lot constituted an unreasonable impediment to
self-organization.
As has been seen , almost half of the employees live 5 or more miles from the
plant, and there is no public transportation other than taxicabs. All but a fraction
of the employees arrive by private car, and thus most are driven directly onto the
parking lot. Traffic conditions at the parking lot gates at the time of shift changes
as described in the testimony, indicate that the distribution of literature there is
highly impracticable. At best it is hazardous; in twilight and inclement weather it
could be dangerous. The busy entrance to a busy main highway seems neither a
safe nor a practicable location for the distribution of literature to the occupants of
passing automobiles. This is so even though the vehicles may, as required, stop be-
fore entering the highway. The driver intent on observing traffic conditions is not
likely to be in the position or mood to give his full attention to the distributor, who
thus becomes a traffic hazard himself.
That union representatives did distribute outside the entrance gates on some 25
occasions between January and October seems no more suggestive of the adequacy
of that technique than it is of the hardiness of the distributors and the ineffectiveness
of other available modes of communication.
The Respondent points, however, to one distinction between the situation here,
and that found generally in the prior Board decisions cited above. In most of those
cases dealing with parking lots, literature distribution was completely prohibited;
whereas in the instant case employees are allowed to distribute on the premises so
long as they do it on their own time without littering.
If this were a matter of first impression, this distinction might be substantial and
impelling. The decisions, however, seem contrary. In the Caldwell Furniture and
Carolina Mills cases (and in others as well) there were nonemployee distributors.
Enforcement decrees upholding the right of distribution were entered by the Fourth
Court of Appeals in the Caldwell and Carolina cases, on the basis of the LeTourneau
decision-which involved employee distributors and a general no-distribution rule.
And in Carolina Mills there was no evidence of any rule forbidding employee dis-
tribution. In the Remington Rand case, 103 NLRB 152, Caldwell Furniture is
cited as authority for the principle that "the result reached is the same though the
distribution is sought to be made by outside organizers rather than by plant
employees."'
The chronology of the cases seems to support the conclusion of the Remington
Rand decision. Thus, Newport News and Mooresville Mills-involving nonem-
ployee distributors-were dismissed, but on the premise that literature was easily
distributable at the gate or across the street. Carolina Mills and Caldwell Furniture
were decided after Newport News but before Mooresville Mills. If employee status
were the controlling-or even a relevant-factor, it would seem that some of those
decisions would have adverted to it. None do. Similarly, if complete prohibition
of distribution were the condition for finding exclusion of nonemployees improper,
the Fourth Circuit Court of Appeals should have denied enforcement in Carolina
Mills-where there was no evidence of any distribution rule affecting employees.
That the issue is not specifically raised in any of the cases seems, under the cir-
cumstances, more indicative of its irrelevance, than of failure to consider it.
Thus, in my judgment, the precedents require the conclusion that the Respondent's
refusal to permit nonemployee union organizers to distribute union literature on the
Respondent's parking lot constituted, tinder the circumstances, an unreasonable
impediment to self-organization, and an interference, restraint, and coercion of em-
ployee rights guaranteed in Section 7 of the Act.
e And see also Bonwit Teller, Inc , 96 NLRB 608, 632
That it is the right of union organizers to address the employees that [is] directly
involved, and not the right of individual employees to do it, does not seem to be a sig-
nificant distinction N L R. B v. Stowe 2ainninp Co., 336 U. S. 226
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is not to say that the Respondent may not impose reasonable and proper
regulations governing such distribution . Remington Rand , Inc., 103 NLRB 152;
Maryland Drydock Co., 183 F. 2d 538 (C. A. 4).
C. The assistance issue
In the early part of 1952, the International Association of Machinists (IAM)
sought to organize the employees of the Respondent's Delaware plant. During that
campaign some of Respondent's employees were active for and others against the
IAM. Some circ<