Seamprufe, Inc.

National Labor Relations Board - Board Decisions

Jul 7, 1954

109 N.L.R.B. 24 (N.L.R.B. 1954)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent 's discriminatory action to the date of the offer of reinstatement. The
quarterly periods, herein called "quarters ," shall begin with the first day of January,
April, July, and October . Loss of pay shall be determined by deducting from a
sum equal to that which the employee would normally have earned for each such
quarter or portion thereof , his net earnings , if any, in other employment during that
period . Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter . It will also be recommended that the Respondent
make available to the Board , upon request , payroll and other records to facilitate
checking the back pay due.
Having found also that the Respondent discriminatorily deprived William Singleton
of customary overtime in the period August 6, 1952, to November 26, 1952, I shall
therefore recommend that the Respondent make William Singleton whole for any
loss of pay he may have suffered in such period through loss of overtime work,
by payment to him of a sum of money equal to that he normally would have earned
through overtime work in such period , based upon the average overtime weekly
hours of work of similar workers in such work period. It will also be recommended
that the Respondent make available to the Board , upon request , payroll and other
records to facilitate checking the amount of overtime pay due.
Upon the basis of the foregoing findings of facts and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. District 15, International Association of Machinists , is a labor organization
within the meaning of Section 2 (5) of the Act.
2. The Respondent is an employer engaged in commerce within the meaning of
Section 2 (2), (6), and (7) of the Act.
3. The Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) and (3) 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.
5. The Respondent did not violate Section 8 (a) (3) of the Act in the discharge
of John Darman on October 24, 1952, or in the alleged conditioned reinstatement
of Jack Bergenfeld on July 7, 1952.
6. The Respondent did not violate Section 8 (a) (1) of the Act in the actions
enumerated and set forth in paragraph 6 (a), (f), (g ), (h), and ( i) of the com-
plaint.
[Recommendations omitted from publication.]
SEAMPRUFE , INC. (HOLDENVILLE PLANT) and INTERNATIONAL LADIES'
GARMENT WORKERS U NION, AFL . Case No. 16-CA-677 . July
7, 195.
Decision and Order
On March 26, 1954, Trial Examiner Henry S. Salim 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
Intermediate Report attached hereto. Thereafter, the General Coun-
sel and the Respondent filed exceptions to the Intermediate Report
and the Respondent submitted a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
'The Respondent 's iequest for oral argument is hereby denied because - the record and
the exceptions and brief, in our opinion , adequately present the issues and the positions
of the parties
109 NLRB No. 2.
SEAMPRUFE, INC. 25
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions of the General Counsel and the Respond-
ent, the Respondent's brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings,2 conclusions a and rec-
ommendations with the corrections' and modifications 5 noted below.
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, Seamprufe, Inc.
(Holdenville plant), Holdenville, Oklahoma, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Enforcing its rule prohibiting the distribution of union litera-
ture and solicitation of union membership on and adjacent to its
parking lot during the employees' nonworking time, provided, how-
ever, that the Respondent may impose reasonable and nondiscrimina-
tory regulations in the interest of plant efficiency and discipline, but
not as to deny access to union representatives for the purpose of effect-
ing such distribution or solicitation.
(b) Engaging in any like or related acts or conduct which inter-
feres with, restrains, or coerces its employees in the exercise of their
2In its brief , the Respondent makes the following contentions to support its position
that it did not violate Section 8 ( a) (l) of the Act, each of which we find lacking in merit:
(a) Respondent asserts that it does not have a no-solicitation rule, but has a nondis-
criminatory no-trespassing rule 14 our opinion , this distinction is one without a difference
For, regardless of how the rule is described , the gravamen of the offense is that the
Respondent applies it so as to prohibit the distribution of union literature and solicitation
of union memberships by union iepresentatives on and near the parking lot during non-
working time (b) Respondent points out that , while there is evidence in the record to
suppoit the Trial Examiner ' s finding that in the evening employees depart the plant area
without stopping at any point in the vicinity of the plant , there is no evidence that this
also occurs in the morning when the employees repot to work In our opinion the Trial
Examiner has drawn a reasonable inference from the facts Thus, if the employees are
able to engage in this nonstop method of diving in the evening despite the fact that they
all finish work and leave at 4: 30 p in , it is very unlikely that they do not follow a similar
procedure in the morning when they undoubtedly do not reach the vicinity of the plant at
the same time , and (c) the Respondent directs attention to the fact that there is no evidence
that the union organizers actually attempted to distribute literature at the plant entrances
or exits However, we do not believe that it was necessary for the organizers to go through
the motions of making such an attempt as it is apparent that the nonstop method of driving
by the eniplgyees would have rendered the effort futile and abortive.
' Monsanto Chemical Compalizy , 108 NLRB No . 151. Although Member Beeson dissented
from the majority opinion in that case . lie nevertheless now considers himself bound by
that decision.
4 In his report , the Ti ial Examiner incorrectly stated that Sona Williams drove to the
Respondent ' s property on 3 occasions in the fall of 1952 and again on March 5, 1953 The
report is hereby corrected to show that she went to Respondent's property on 2 occasions
prior to March 5, 1953
6 The General Counsel excepts to the Trial Examiner 's failure to include in The Remedy,
Conclusions of Law, and Recommendations of the Intermediate Report his finding that the
Respondent 's rule also prohibited the solicitation of union memberships . We find merit in
this exception and the report is hereby modified accordingly.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to self-organization, to form labor organizations, to join or
assist International Ladies' Garment Workers Union, AFL, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as author-
ized 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 and solicitation of union memberships upon and
adjacent to its parking lot during the employees' nonworking time.
(b) Post at its plant at Holdenville, Oklahoma, copies of the notice
attached hereto marked "Appendix." 6 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent or its representatives, be
posted by the 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 employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Appendix
NOTICE TO ALL EMPLOYEES AT THE HOLDENVILLE 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, as amended, we hereby notify our employees that:
WE WILL cease and desist from enforcing our rule prohibiting
the distribution of union literature and solicitation of union mem-
berships on and adjacent to our parking lot during our employees'
nonworking hours.
WE WILL NOT engage in any like or related acts or conduct
which interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to form labor organ-
izations, to join or assist International Ladies' Garment Workers
6 In 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."
SEAMPRUFE, INC. 27
Union, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, 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 membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of
the Act.
We hereby rescind our rule prohibiting the distribution of union
literature and solicitation of union memberships on and near our
parking lot during nonworking hours of employees, except pursuant
to reasonable controls not of such character, however, as to deny full
access to union representatives for the purpose of distribution.
SEADIPRUFE, INC. (HOLDENCILLE PLANT),
Employer.
Dated---------------- By-------------------------------------
(Repiesentative) (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.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act, was heard pursuant to due
notice at Holdenville, Oklahoma, before Henry S. Salim, the undersigned Trial Ex-
aminer. The complaint issued on December 31, 1953, by the General Counsel of
the National Labor Relations Board, and based on charges duly filed and served,
alleges that the enforcement by Seamprufe, Inc., hereinafter called both Respondent
and the Company, of a rule which, among other things, prohibits distribution of
union literature and solicitation of union membership by representatives of the In-
ternational Ladies' Garment Workers Union, AFL, herein called the Union, in and
around Respondent's parking lot of the Holdenville Plant constitutes a violation of
Section 8 (a) (1) of the Act. Respondent filed an answer admitting the jurisdictional
allegations of the complaint but denied that it had committed any of the unfair labor
practices alleged in the complaint.'
All parties were represented at the hearing by counsel and were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, to introduce relevant
evidence, to argue orally, and to file briefs and proposed findings of fact and
conclusions of law. The Respondent offered no testimony. Briefs have been filed
by the General Counsel and the Respondent.2
Upon the entire record in the case, and from his observation of the demeanor of
the witnesses, the Trial Examiner makes the following:
1. FINDINGS OF FACT
It is conceded and found that the Union is a labor organization within the mean-
ing of Section 2 (5) of the Act. It is conceded also that the Respondent employs
approximately 200 employees at its Holdenville, Oklahoma, plant where it is engaged
in the manufacture, sale, and distribution of lingerie. During the year 1953, Re-
1 No issue was piesented or tied with iespect to the exclusion of union repiesentatives
from Respondent's property on a discriminatory basis
'The record does not show General Counsel's Exhibit No 4 was received in evidence.
It is hereby admitted.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent purchased raw materials exceeding $200,000 in value of which more than
90 percent was shipped in interstate commerce to its Holdenville plant from points
outside the State of Oklahoma. During the same period, Respondent sold products
valued in excess of $250,000, of which more than 90 percent was shipped in interstate
commerce from its Holdenville plant to points outside the State of Oklahoma. Re-
spondent admits, and it is found, that the Respondent is engaged in commerce within
the meaning of the Act.
The Issue
The only issue in this case is the asserted right of a union which does not represent
the employees in a plant to distribute union literature, outside of working hours, not
in the functional part of the plant itself but solely on and about an adjacent parking
lot maintained for the employees. What makes this novel is the fact,that the union
solicitors are not employees of the Respondent. Nor is there any evidence that any
of the Respondent's employees were members of the charging union. The Respond-
ent contends that there is a distinction between a situation in which prohibition of
union activities on an employer's premises is directed against employees, and a situ-
ation in which it is directed against union representatives who are not employees
and have no right to be on the employer's premises by virtue of their employment.3
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
Respondent's plant is built on a 25-acre tract of land located on the outskirts of
Holdenville, Oklahoma, a town of approximately 6,000 people. It operates on a
1-shift basis and employs approximately 200 employees of which two-thirds reside in
Holdenville, the remaining one-third residing in communities within 5 to 10 miles
around Holdenville, with a few of the employees living as far as 30 miles from the
plant. The employees, none of whom appear to be represented by any union for
purposes of collective bargaining, ride to work in privately owned automobiles either
singly or in groups.
The plant property is bounded on the east by a public road which runs along the
front of the property. The building that houses the factory, cafeteria, and offices
faces in an easterly direction. This east side of the property is bounded by a fence.
Access to the front entrance to the building is from the public roadway along the
east side of the property. The property is bounded on the south by a public thor-
oughfare called the Airport Road. Access to the rear or west entrance, which is
normally used by production workers (as distinguished from officials and office per-
sonnel who use the east or front entrance) is from a private road on the west side of
the Respondent's property. This private road 4 runs in a northerly direction from
the public road (hereinafter referred to as the Airport Road) on the south side of the
property and west of respondent's building to a point northwest of the plant building
where it turns east and continues to and joins the public road near the northeast
corner of the property.
The employee's parking lot is situated on Respondent's property adjacent to the
private road directly behind and west of the Respondent's plant. The parking lot
and sidewalk referred to hereinafter as the situs of where the union representatives
distributed their literature are on Respondent's property and are some distance
north of the Airport Road which runs along the south side of the property.
Employees coming to work drive in a westerly direction along the Airport Road
on the south side of the property, turn right into the private road on the west side,
proceed north and then park their cars in the parking area adjacent to the rear or west
entrance of the plant. After their automobiles are parked, the employees walk east
from the parking lot across the private road onto a sidewalk and enter the plant.5
On leaving the plant at 4:30 p. m., the employees leave the parking area by driving
north on the private road to a point where this road turns east and then proceed on
this private road along the north side of the plant premises to where the private
3 A facet of this situation is where employees both work and live on company property.
In such cases, a certified union representative is allowed to enter upon the premises for
the purposes of engaging in proper union activities. N. L. R. B. v. Stowe Spinndng Co.,
336 U . S. 226 ; N. L. R. B. v. Lake Superior Lumber Corp., 167 F. 2d 147 (C. A. 6)
N. L. R. B. v. Cities Service Oil Co., 122 F. 2d 149 (C. A. 2).
4 This private road, which is graveled, is entirely on Respondent's property.
5 The union representatives distributed literature to the employees on the parking lot
and in the vicinity of where the sidewalk adjoins the private road.
SEAMPRUFE, INC. 29
road intersects the public road running along the east side of Respondent's property.6
The automobiles then proceed in a southerly direction on this public road to where
it intersects the Airport Road at the southeast corner of the plant property at which
point they turn left in an easterly direction toward the center of Holdenville.
Traffic on the public roads adjoining the plant is light because the plant is located
in a rural or semirural area. As automobiles approach the plant in the morning when
the employees report for work, they normally do not stop at any point in the vicin-
ity of the plant until they park their cars on the Respondent's lot. When leaving at
4:30 p. in., the automobiles normally do not stop from the time they leave the park-
ing lot until they leave the vicinity of the plant area. It was testified that about 4:30
p. in., on January 29, 1954, 80 cars containing 225 employees left-the plant's parking
lot, driving at maximum distance from each other of approximately one car-length
and at speeds varying from 5 to 20 miles per hour. From the time they began to
leave the parking lot, in this caravan fashion, until all 80 cars left the vicinity of the
plant consumed approximately 10 minutes and they did not stop anywhere in the
vicinity of the plant area. The record warrants the finding that this nonstop method
of driving to and from the plant area is the normal manner in which the employees
invariably arrived at the plant area in the morning and departed in the evening. It
is found, therefore, that the difficulty of reaching prospective union members and
distributing union literature to employees off Respondent's property is virtually im-
possible because of the special circumstances above described.
Sometimes subsequent to July 2, 1953, and prior to January 29, 1954, Respondent
posted "No Trespassing" signs at the southeast corner of its property and near the
points at which the private road intersects with the public roads on the south and
east sides of the property. There are also "Private Road" signs at the latter two
points which also were posted on Respondent's premises sometime between July 2,
1953, and January 29, 1954.
As stated above, the sole issue in this case is the Union's asserted right to use the
parking lot and the adjoining sidewalk outside the west or rear entrance of the factory
building to distribute union literature and solicit union memberships.
Sona Williams, a representative of the charging Union, drove to Respondent's
property on 3 occasions in the fall of 1952 and again on March 5, 1953. On these
4 occasions, she parked her car on Respondent's lot, walked a short distance to a
point approximately where the private road on the west side of the plant intersects
the parking area and the sidewalk leading to the employees' entrance and then pro-
ceeded to distribute union literature to Respondent's employees who were reporting
for work.
On the last occasion, March 5, 1953, and while accompanied by Irving Krantz, an-
other union representative, the manager of Respondent's plant, Robert Nichols, came
out of the factory and told them, "You are trespassing on company property and you
must leave now." After some further conversation, Nichols continued, "You heard
what I said leave now." Krantz then replied that he did not know they were on
company property and that he would check and see if this were so, whereupon
Nichols replied, "Are you going now or shall I call the cops?" Whereupon Williams
and Krantz departed reluctantly.
Georgia Sukenis, also a representative of the charging Union , first went upon the
Respondent's property in February of 1953,7 at which time she stationed herself in
the vicinity of the parking lot, at a point near the sidewalk, equidistant from the
parking lot and the employees' entrance. At that time and place she handed em-
9 Signs posted on the property direct all traffic on the private road to proceed in one
direction; namely, north from the Airport Road and then east where the private road runs
along the north side of the plant property
7 The charge in this case was filed on September 17, 1953. Therefore, the proceedings
herein, insofar as considering alleged unfair labor practices, are limited to such alleged
practices occurring on and after March 17. 1953 Section 10 (b) of the Act. The Respond-
ent contended at the hearing that evidence relating to events occurring prior to March 17,
1953, was inadmissible Respondent's objection was overruled on the ground that such
evidence would be received and considered only as background "To the extent that the
Respondent's activity in connection with the committee occurred more than 6 months
before the filing and service of the original charge, Section 10 (b) of the Act prevents
such activity from being utilized as a basis for an unfair labor practice finding. However,
such conduct may be, and has been, considered as background evidence to assist us in
evaluating the Respondent's conduct which occurred after the 6-month period " McCann
Steel Co., 105 NLRB No. 30 (not reported in punted volumes of Board Decisions and
Orders), footnote 10. See also N. L. R B. v. Sharpies Chemicals Co, 209 F 2d 645
(C A 6).
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees union literature as they left their parked cars and proceeded to enter the
plant. The next time she stationed herself at the place described above was on May
27, 1953. On that occasion she did not distribute union literature but merely
greeted the employees as they entered Respondent's plant
She returned to the plant on July 2, 1953, parked her car in the parking area,
and distributed union literature to the employees as they left their parked automo-
biles and walked toward the employees' entrance. As she was distributing this
literature, Earl Dean, the plant watchman, approached her and said: "I'm sorry
but the company doesn't allow no leaflets to be handed out and you have to leave
here." Sukenis agreed to leave and did so.
On July 23, 1953, Sukenis, accompanied by Union Representative Krantz,
returned to Respondent's property. As they parked their car on the Airport Road,
and while walking to the same situs described above for the purpose of distributing
union literature to those employees who were entering the plant, they noticed a
police car stationed at the east or main entrance of the plant which leads to the
executive offices of Respondent. After they had handed two pamphlets to employees,
a policeman of the Holdenville Police Department, who had in the meantime driven
the police car referred to above, around to the west or employees' entrance, appre-
hended Sukenis and Krantz and said, "Georgia, we have two warrants for your
arrest.8 . . . You have violated Ordinance No. 413." 9 Thereupon Sukenis and
Krantz were taken to the Holdenville police station
After Sukenis and Krantz left the police station, they returned to the plant the
same day, and again began to distribute union literature to the employees at a point
near the employees' entrance.10 They were again arrested by a city policeman
identified as Kyle, who said that he did not have warrants for them but "We are
arresting you again. You have to go back." Sukems testified that "We went back
[to the police station] and give them twenty dollars more a piece, cash." 11
The next time Sukenis returned to Respondent's property was on August 27, 1953.
At that time she merely greeted the employees as they entered the plant to go to
work. She was not distributing union literature on this occasion but was again
arrested by a Holdenville police officer and taken to the police station. When
asked on direct examination if, after leaving the police station, she returned to
the plant that same day she answered: "No, sir, I couldn't. They wouldn't let me."
8 Sukenis' name 1nas already on the warrant served on her but Krantz' name was inserted
later on the warrant served upon him
8 This ordinance as herein pertinent, pi ovides
An ordinance defining trespass, providing the penalties therefor, and declaring an
emergency '
Be it ordered by the Mayor and councilmen of the City of IIoldenville, Oklahoma, in
regular session assembled'
Section 1. Trespass, as used in this ordinance, shall include going upon, or occupying
any public or private property or entrances thereto without the express or implied consent
of the owner, lessee, or custodian
Section 2 It shall be an offense for any person to trespass upon, or enter upon any
public or private property, within the City of Ioldenville, Oklahoma, against the wishes
or consent of the owner, lessee, custodian, or the person rightfully in possession thereof.
[Conviction is punishable by a maximum fine of $20.]
Passed and approved, this, the 21st day of July, 1953
loOn all these occasions heiembefore described, the literature was distributed on the
Respondent's property
"The General Counsel moved for the admission into evidence of General Counsel's
exhibit marked for identification No 2 which is a copy of a transcript covering the trial
of Sukenis and Krantz in the municipal court of the city of Holdenville on August 3, 1953.
Respondent objected to the receipt in evidence of this exhibit and the Trial Examiner
reserved ruling This exhibit is hereby admitted in evidence for the limited purpose of
corroborating other testimony to the effect that Respondent prevented the union repre-
sentatives from distributing their literature on its property. Nashville Corporation, 94
NLRB 1567 at 1568, 1569 Oklahoma provides expressly by statute for the admission of
the official reporter's certified transcript of notes of testimony "in all cases" with like
effect as testimony taken by deposition Comp St 1921 Sec 3071, Stats 1931, Sec 3827;
S 1921, Sec 7324, St. 1931, Sec 13390 ; Young v. Travelers Insurance Co., D. C., N. D
Okl., 2 Fed. Supp 624 (Oki Comp Stat. 1921, Sec. 3071, applied to admit a court reporter's
certified transcript) ; St 1951, May 7, Tit 11, a 18, Sec. 4 (municipal and city courts ;
"Such reporter shall have power to certify all transcripts and records of evidence and
proceedings taken before him"). Rule 43 (a), Rules of Civil Proc. for U. S Dist. Cts.
SEAMPRUFE, INC. 31
The next time Sukenis was on Respondent 's property was on October 1, 1953.
She did not distribute any union literature at that time, but merely greeted the
Respondent 's employees as they entered the plant . While she was there, Nichols
came out of the plant and said, "Here you are, Georgia. You are asking for trouble,
and you are going to get it. Get the hell away from here." She waited "a while"
and then left the Respondent 's property.
She next drove to the plant on September 26, 1953, in the company of Althea
Covey, another representative of the charging Union. They parked their automobile
on the Airport Road and proceeded to the same place on Respondent 's property that
the union representatives had stationed themselves on the previous occasions
described above. They had no union literature with them. Nichols , the plant
manager, came out of the factory while they were standing in the vicinity of the
employees ' entrance and told them to leave the plant premises . They did not leave
and, about 10 minutes later, a Holdenville police officer who accosted them said,
"Well, I am not going to arrest you because you are not trespassing , but you have
to.
Althea Covey , a union representative , accompanied Sukenis to the plant Septem-
ber 26, 1953, and on January 29, 1954, Covey went to the plant with Sona Williams,
another union representative . Her testimony corroborates Sukenis and Williams
insofar as it pertains to what they testified occurred on those dates.
Upon a study of the evidence on the record as a whole, and based upon the relia-
ble, probative , and substantial testimony taken in the case, it is concluded and found
that:
1. Respondent prevented the union representatives from distributing union litera-
ture and soliciting union memberships on Respondent 's property during the em-
ployees' nonworking time, not in the plant, but in and about the parking area.
2. Access to Respondent 's employees , either upon arrival at or departure from
the plant, can only be effectively accomplished on the parking lot and the sidewalk
leading to the employees ' entrance.
3. It is virtually impossible to distribute union literature to employees or solicit
union memberships off Respondent ' s property.12
4. Respondent enforced a rule forbidding the distribution of union literature on
its property.
5. No showing was made that the Respondent 's no-solicitation rule was necessary
in order to maintain production or preserve discipline in the plant.
B. Contentions, analysis, and conclusions
An employer may lawfully forbid union solicitation on his property if such pro-
hibition is nondiscriminatorily promulgated in good faith in order to maintain
cleanliness , production , safety, or discipline in the plant and not to interfere with
the employees' rights of self-organization . In fact, this can be done in the func-
tional part of the plant, even during the employees ' nonworking time, in the interest
of keeping the plant clean and orderly , at least where it is not evident that such
activity cannot readily be conducted somewhere off the employer 's premises.13
The fundamental problem involved in the present case consists of the adjustment
of the undisputed right of a property owner to govern the use of its own property,
and the employees ' undisputed rights of self-organization and collective bargain-
ing." The rights of self-organization and collective bargaining guaranteed employees
by the Act include the right "to receive aid, advice , and information from others,
concerning these rights and their enjoyment ." 1" Correlatively , the Union has the
right "to discuss with and inform the employees concerning matters involved in their
choice." Thomas v. Collins , 323 U. S. 516, 534. In some circumstances , however,
employees might find it virtually impossible to exercise these rights off the employer's
premises . On the other hand, if the exercise of these rights were conducted on the
ii In United Aircraft Coi p , 67 NLRB 594, 606, it was found that the employees did not
stop their cars to receive literature , so that "distribution to these employees is virtually
impossible "
"N L R B v Le Tourneau Co. 324 U S 793 ; Monolith Portland Cement Co, 94
NLRB 1358 , Caldwell Furniture Co., 199 F . 2d 267 ( C. A. 4), certiorari denied, 345 U S
907 ; N L R 13 v Amei scan Furnace Co , 158 F. 2d 376 , 380 (C. A. 7 ) ; N L R. B. v
Illinois Tool Woibs . 153 F 2d 811 , 816 (C A. 7) As to retail department tores, see
Eighteenth Annual Repoit of the National Labor Relations Board at page 31
14 The primary purpose of the Act is to p-inote collective bargaining. N. L. R. B v.
Sands Manufacturing Co., 306 U S 332
1 5 Wegei haeuaer Timber Co, 31 NLRB 258, 264.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer's property, not on company time, it might , at most , be merely an incon-
venience to the employer. Consequently, the Supreme Court has held that where it is
necessary to balance this clash of interests between the employees' rights to self-
organization and inconvenience to the employer's use of his property, the employees'
privilege is weighed more heavily" Moreover, under the facts of this case , the rights
accorded to employees by Section 7 of the Act cannot be curtailed by the ordinance,
supra, which was enacted by the city of Holdenville. See N. L. R. B. v. Hearst Publi-
cations, 322 U. S. 111, 123, 124; Automobile Workers v. O'Brien, 339 U. S. 454,
458, 459.
While a showing by the Employer that "unusual circumstances" pertaining to the
operation of his particular plant might override the Union's right to distribute its
literature on company property, no such evidence is present in this case" Respond-
ent's contention (which is contrary to the finding made above) that since the Union
has adequate means of communication with its employees outside of company prop-
erty the enforcement of its no-solicitation rule does not improperly restrict the em-
ployees' rights under Section 7 of the Act is answered by the Board's holding in the
Le Tourneau case, which was approved by the Supreme Court, supra, that "It is no
answer to suggest that other means of disseminating union literature are not fore-
closed." (54 NLRB 1253, 1261.) The Court of Appeals for the Second Circuit
expressly followed this principle in Bonwit Teller, Inc. v. N. L. R. B., 197 F. 2d
640, certiorari denied 345 U. S. 905, wherein the Court said on page 645:
Normally, an employer cannot forbid union solicitation on company property
during nonworking time even where there is no showing that solicitation away
from the plant would be ineffective. Republic Aviation Corp. v. N. L. R. B.,
324 U. S. 793. This is so because the place of work has been recognized to be
the most effective place for the communication of information and opinion
concerning unionization.
Respondent contends, however, that the Le Tourneau case, supra, is not control-
ling because in that case employees were distributing union literature whereas here,
nonemployee solicitors (union representatives) are involved. A study of the legisla-
tive history of Section 8 (a) (1) and the cases interpreting solicitation of employees
by a union on the employer's property have persuaded the Trial Examiner that this
asserted distinction is one without a difference. To differentiate between employees
soliciting on behalf of the Union and nonemployee union solicitors would be a
differentiation not only without substance but in clear defiance of the rationale
given by the Board and the courts for permitting solicitation. This conclusion is
based on the belief that the rationale enunciated by the Supreme Court in the
Le Tourneau case, supra, is equally applicable in the case of solicitation by union
representatives as well as where the solicitation is done by employees.i$
Respondent's argument that to compel it to furnish the Union a place on its
property for the Union's use in trying to solicit members would be to compel it to
violate the provisions of the Act which prohibits such interference and contribution
of support misconceives the type of situation to which this argument has reference.
This principle applies only where the employer prohibits one union from conducting
organizational activities on its premises while, at the same time, he permits a rival
union to engage in such activities. See Carter Carburetor Corp. v. N. L. R. B.,
140 F. 2d 714, 716 (C. A. 8).
The Board in Livingston Shirt Corporation, 107 NLRB 400, in speaking of the
union's customary means for communicating with employees, stated: "These [ means]
include individual contact with employees on the employer's premises outside working
hours (absent, of course, a privileged broad no-solicitation rule), solicitation while
entering and leaving the premises, at their homes, and at union meetings ." (Empha-
sis supplied.) This comment seems directly applicable here.
It is found, therefore, that the Respondent's rule prohibiting the distribution of
union literature and the solicitation of union membership in and around its parking
lot and the employees' entrance, constitutes an unreasonable impediment to the
freedom of communication essential to the exercise of its employees' rights of
id N. L. R. B. v. Le Tourneau Co., supra, footnote 8 at page 802 See N. L. it. B. v. Cities
Service Oil Co., supra, at page 152, where the court held that in some circumstances
property rights must yield "in order to safeguard the right to collective bargaining."
17 N. L. it. li. v. Le Tourneau, supra, at page 797.
is Respondent's citation of Maryland DrVdock Co. v. N, L. R. B., 183 F. 2d 538 (C. A. 4)
is inapposite as there the court held that where conduct, the natural tendency of which is
to impair discipline or efficiency, is found, it may be forbidden by the company where it
takes place on company property.
CONTINENTAL BAKING COMPANY 33
self-organiza1tion , and that Respondent 's maintenance and enforcement of the rule
violated Section 8 (a) (1) of the Act.19
Ill. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
'The activities of Respondent set forth in section II, above, occurring in connection
with its operations described in section I, above, have a close, intimate, and sub-
stantial 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.
IV. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent has prohibited the distribution of union literature
on and near 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, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Respondent, Seamprufe, Inc. (Holdenville plant), is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. International Ladies' Garment Workers Union, AFL, is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By denying the use of its parking lot and adjacent area 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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
19 N. L. R. B. v. The Monarch Machine Tool Company, 210 F. 2d 183 (C. A. 6) ; Carolina
Mills, Inc., 92 NLRB 1141, enforced 190 F. 2d 675 (C. A. 4) ; Remington Rand, Inc., 103
NLRB 152; Grand Central Aircraft Co., 103 NLRB 1114.
CONTINENTAL BAKING COMPANY, WONDER BAKERY and OFFICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL No. 2, AFL, PETITIONER.
Case No. 5-RC-1457. July 7,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before M. Louise Felton,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certaisl
employees of the Employer.
109 NLRB No. 14.