Texaco, Inc.

National Labor Relations Board - Board Decisions

Mar 25, 1971

189 N.L.R.B. 343 (N.L.R.B. 1971)

TEXACO, INC. 343
Texaco, Inc. and Oil, Chemical & Atomic Workers
International Union, AFL-CIO, Westville Local
8-638 . Case 4-CA-5117
March 25, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 8, 1970, Trial Examiner Gordon J.
Myatt issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Deci-
sion and a supporting brief. The General Counsel and
the Union filed briefs in answer to Respondent's
exceptions and in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner, and hereby orders
that Respondent, Texaco, Inc , Philadelphia, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.'
CHAIRMAN MILLER, dissenting:
During negotiations for a new collective-bargaining
contract in December 1968, the Union and the
Respondent orally agreed that the former would be
permitted to distribute union literature to its members
in certain nonwork areas of Respondent's premises
during nonwork time provided that the literature did
not contain political references, reflections on any
ethnic group, or material that was "undesirable."
In January 1970, the Union requested time off for
several employees so that they might distribute union
literature to union members on company property.
Respondent granted permission, but asked for a copy
of the literature to be distributed. The Union
furnished the copy requested. The literature con-
tained a criticism of Respondent's labor relations
conduct at other of its plants, which criticism
contained certain untrue statements. It also conclud-
ed with a suggestion that the employees mutilate and
return their Texaco credit cards to Respondent as a
protest. On becoming aware of the contents of the
literature, Respondent prohibited its distribution on
plant property for the stated reason that the literature
was "undesirable" within the meaning of the oral
agreement with the Union, in that it contained
inaccurate statements about Respondent's labor
practices and was encouraging employees to engage
in disloyal acts by mutilating and returning their
credit cards. Although Respondent refused to permit
the distribution in the area sought by the Union, it
placed no obstacles in the way of such distribution at
the intersection of the plant road and public highway.
At this point employees distributed the literature to
persons entering and leaving company property. In
making the distributions the employees sometimes
stood on public property, at other times on company
property No employee was disciplined for distributing
the literature at the intersection.
The Trial Examiner and my colleagues conclude
that these facts add up to a violation of our Act. I do
not.
The evidence establishes the existence of an oral
agreement that the Union would not distribute
"undesirable" literature on plant premises. That is a
lawful agreement. I find reasonable Respondent's
interpretation that the literature here was
"undesirable" within the meaning of that agreement. I
do not understand how the Act is effectuated by
requiring Respondent to deem "desirable" and
therefore suitable for distribution literature which is
not only inaccurate, but which urges employees to
mutilate and return their'credit cards, thus encourag-
ing, in effect, a boycott by employees of their
Company's own product.
I would dismiss the complaint.
i In footnote 15 of the Trial Examiner's Decision substitute "20" for
"10- days
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GORDON J. MYATT, Trial Examiner: Upon a charge filed
January 13, 1970,' by Oil, Chemical & Atomic Workers
i Unless otherwise indicated, all dates herein refer to the year 1970
189 NLRB No. 51
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union, AFL-CIO, Westville Local 8-638
(hereinafter called the Union), against Texaco, Inc 2
(hereinafter called the Respondent), a complaint and notice
of hearing was issued by the Regional Director for Region 4
on April 30. The substantive allegations of the complaint
alleged, inter alia, that the Respondent violated Section
8(a)(1) of the Act by refusing to permit its employees to
distribute union literature to other employees during
nonworking time in nonworking areas at its Eagle Point
plant in Westville, New Jersey on or about January 2. The
Respondent's answer denied the commission of any unfair
labor practices and affirmatively stated that it was not
required as a matter of law, to permit the distribution of the
type of literature which the Union sought to hand out.
This case was tried before me on June 11 in Philadelphia,
Pennsylvania. All parties were represented by counsel and
were afforded full opportunity to be heard and to introduce
relevant evidence on the issues. Briefs were submitted by all
counsel and they have been fully considered by me in
arriving at my decision in this case.
Upon the entire record herein, including my evaluation
of the testimony of the witnesses, based upon my
observation of their demeanor and upon consideration of
the relevant evidence, I make the following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
The Respondent is a Delaware corporation engaged in
the production, refining, and marketing of petroleum and
related products. In the course of its business operations the
Respondent maintains a number of refineries and other
facilities throughout the United States. One such refinery is
located in Westville, New Jersey, and is known as the Eagle
Point plant. This is the only facility of the Respondent
involved in this case.
During the past calendar year, the Respondent's gross
volume of sales far exceeded $500,000 and it shipped
products to customers in various States of the United States
well in excess of $50,000. On the basis of the foregoing, I
find that the Respondent is, and has been at all times
material herein, an employer within the meaning of Section
2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical & Atomic Workers International Union,
2 The name of the Respondent appears as amended at the trial
' Although Ross testified that he thought he contacted Dill on
December 30, 1969, it was apparent from his testimony that he was
uncertain of the exact date Dill manifested no such uncertainty and
placed the date of the request as December 31
a The other two union officials were Mannar, secretary of the Union,
and Branowsky, second vice president
This building housed the employees' locker and shower facilities and
also contained an auditorium it was located a short distance from the gate
house which was the main entrance to the enclosed portion of the plant
property The employees were required to enter through the gate house to
clock in or out as they entered or left the premises
F Under the arrangement with the Respondent, the union officials were
not paid their hourly wages for time that they were excused from work to
perform business on behalf of the Union Ross testified that he felt that the
Respondent should pay the men their regular wages because they had not
accomplished their mission on behalf of the Union and hence were not
AFL-CIO, Westville Local 8-638 is, and has been at all
times material herein , a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Events Involving the Distribution of
Literature on January 2
There is no substantial dispute concerning the facts
involved in this case . On December 31, 1969, Herbert Ross,
an hourly paid employee of the Respondent and president
of the Local Union, contacted Johnson Dill,3 assistant
supervisor of employee relations, to request time off during
working hours on January 2, for himself and two other
union officials.4 Ross explained to Dill that the union
official intended to distribute literature to their members on
company property on that date. Dill granted permission for
the employees to be excused from 7:30 a.m. to 8:30 a.m.
and 3 p.m. to 4 p.m. as requested. He also asked for a copy
of the literature which the Union intended to distribute,
and Ross agreed to provide him with a copy as a matter of
courtesy and cooperation.
On January 2 the union officials arrived early to make
preparations for the distribution of the material to the
employees Marinari went to Dill's office and gave him a
copy of the union leaflet while the other two officials
remained in the vicinity of the employees' building.5
When Dill read the bulletin issued by the Union, he asked
Marinari to delay the distribution until he had an
opportunity to discuss the contents of the leaflet with
higher management officials Shortly thereafter, he instruct-
ed Rentz, an employee relations assistant, to go to the
union officials to ask them to hold off on the distribution of
the literature that morning Rentz returned and informed
Dill that the union officials agreed to do so provided the
Respondent paid them for the time they were excused from
their duties that morning.6
Dill conferred with Dore, supervisor of employee
relations, and Tenney, plant manager, concerning the
union bulletin. The management officials concluded that
the bulletin was "undesirable" because in their opinion the
last paragraph contained inaccurate statements about the
Respondent's labor practices with the parent union at other
facilities and because they felt the Union was encouraging
employees to engage in disloyal acts by mutilating and
returning their credit cards to the Respondent.?
The management officials concluded that the union
entitled to receive payment from the Union for time lost from work
7 The final paragraph of the union bulletin to which the management
officials strongly objected read as follows
In November we attended a Texaco Nationwide Council Meeting
Many problems were discussed and One [sic] requires your
cooperation if it is to succeed Over the past several months, Texaco
had taken a position of non-recognition of OCAW at various
locations in particular , the Ventura District in California and at Sales
Terminals in Port Arthur, Houston, Dallas. San Antonio and Fort
Worth Texas Tulsa. Oklahoma and Lake Charles, La Attempts to
decertify OCAW have been made at many other locations, including
Claymont, Delaware This Company is using their power, to influence
members of our Union to abandon the principal of unity We all
know . I am sure, what the ultimate aim is Without a strong Union.
which we now have a return to the so-called good old days would
only he around the corner Enclosed. is a suggested letter that you may
send along with your mutilated credit card to Texaco Inc If we let this
TEXACO, INC. 345
bulletin was "undesirable" within the meaning of an
understanding reached between the Union and the
Respondent on December 27, 1968. A decision was then
made not to allow the Union to distribute the bulletin to the
employees on Respondent's property Dill verbally commu-
nicated management's decision to Ross in the plant. Ross
took the position that the union officials intended to see
that the bulletin reached the employees and that they would
have to make the distribution at the intersection of the
plant road and the public highway.8 Ross also told Dill that
it was entirely possible the copies of the bulletin would get
into the hands of the general public since there would be no
way to insure that it would be handed only to employees if
the distribution were made at this point.
At approximately 1 p.m., Ross sent a written communica-
tion to the plant manager, asking for a written statement of
Respondent's reasons for refusing to allow the distribution
on plant property. The management officials did not reply
to Ross' request. At approximately 3 p.m. the three union
officers left their jobs and went to the intersection of the
plant road and the public highway and shortly thereafter
began distributing the material to persons entering and
leaving Respondent's premises 9 There is some uncertainty
in the record as to whether the stop sign at the intersection
is on public property or whether it is on the Respondent's
property. It is clear, however, that the stop sign is
positioned near the point of intersection between the
Respondent's road and the public thoroughfare. In order to
make the distribution, the union officials moved back and
forth handing out the literature to occupants of cars
entering and leaving the plant. Their movements caused
them to be on public property on occasion and at other
times they were standing on the Respondent's property
The union officials remained at the intersection of the two
roads, passing out the literature, until approximately 5 p.m.
B. The Understanding of December 27, 1968
On December 27, 1968, during contract negotiations, the
Respondent and the Union dealt with the matter of the
distribution of literature on company property in nonwork-
ing areas on nonworking time. The Respondent introduced
into evidence a copy of its version of the understanding as
contained in its minutes of that particular meeting.
According to the Respondent's mmutes,10 the Union
indicated that it had a desire to communicate with its
members by means of "hand-outs" on company property
during nonworking hours in nonworking locations. The
Company know that their policy of Divide and Conquer [sic l will not
succeed, we will all have a happy new year in 1970
The suggested blank letter attached to the bulletin stated that the
employee was returning the credit card because the Company was
embarking on an antiunion campaign by refusing to extend customary
union conditions of employment to production employees whojoined the
Union at Ventura. California, and because the Company was rewarding
unorganized employees, over and above members of the Union by granting
additional wage increases to sales employees at Houston , Texas, who
rejected the Union and by refusing to grant such increases to' sales
employees at Port Arthur, Texas
8 The testimony indicates that prior to December 27, 1968, union
literature and material was always distributed to the employees at this
intersection
9 The plant road intersected the public highway at right angles This
road was wide enough to contain a median strip dividing traffic moving in
minutes reflected that the Union did not intend to
distribute political, ethnic or other undesirable literature
but only "what [was] allowed by law." The minutes stated
that the Union had received complaints from the local
police because of the traffic congestion which resulted when
material was given out at the intersection of the plant and
public roads. According to the minutes, the Respondent
agreed to allow the Union to distribute literature to the
employees between the gate house and the employees'
building, or inside the employees' building during incle-
ment weather, provided the Union did not litter the
premises and the literature was in keeping with the Union's
stated intent The minutes further indicated that the
distribution of literature to the employees in this area would
not require prior approval by Respondent's officials, but
that they would be given a copy of each handout.
Because of an apparent existing dispute between the
Union and the Respondent over the distribution of
literature on company property, V. K. Brandeburg, then
plant manager, forwarded a copy of the Respondent's
summary of the minutes to L. J. Blair , chairman of the
Union's workmen' s committee .ii In his covering letter,
Brandenburg indicated that the minutes were being sent to
confirm the understanding reached with the Union
concerning the distribution of literature on Respondent's
property. Blair did not respond to the letter, but the
evidence indicates that the Union withdrew an unfair labor
practice charge which was based on this matter
Blair testified that he was present during the discussion
on December 27, 1968, and he recalled that the parties
agreed the Union could distribute material in nonworking
areas on nonworking time without prior approval of the
Respondent. Further, as a matter of courtesy, the
Respondent would be given a copy of any literature
distributed. Blair also stated that it was his understanding
that the Union agreed not to distribute any material which
contained political references or cast reflections on any
ethnic group or contained material which was
"undesirable." He explained that he understood the term
"undesirable" to mean material which was profane, vulgar,
or socially unacceptable. Blair did not respond to
Brandenburg's letter because he felt that the Union should
rely upon its own minutes setting forth the understanding,
and because he felt that there was no need for further
correspondence on the subject since the parties had agreed
that the Union could distribute literature on company
property without prior approval by management.12
After the understanding of December 27, 1968, the
opposite directions and there was a stop sign at the point of intersection
with the public highway The speed limit on the public road, which was a
major thoroughfare, was 65 miles per hour When the shifts changed at the
plant, a township policeman was usually stationed at the intersection to
expedite the flow of traffic
10 The testimony clearly indicates that the Union had no control over
the content of the minutes taken by management These minutes
represented the Respondent's version of what took place during the
bargaining sessions between the parties, and they were not presented to the
Union for editing, review, or approval
ii The workmen' s committee was the negotiating arm of the Union
it The understanding between the parties concerning the distribution of
literature on Respondent's property was never embodied in the
collective-bargaining agreement The only portion of the
collective-bargaining agreement relating to union material involved posting
notices on the plant bulletin board This section of the contract (article
(Continued)
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and the Respondent had no difficulty with the
distribution of union literature and material to the
employees until January 2, 1970. The Union made
distributions to its members on the Respondent's premises
without incident, and on several occasions solicited
contributions in support of labor disputes involving
employees of other employers at other plants. The
testimony also indicates that on occasion the Respondent
made use of the area between the gatehouse and the
employees' building to solicit contributions for charitable
purposes from the employees.
Concluding Findings
The Respondent argues that it could lawfully prohibit the
distribution of the literature by the Union on plant
premises because the material incited the employees to
engage in an act of disloyalty to the employer and because
the literature contained "outright and blatant untruths."
The Respondent contends that under the terms of the
"understanding" of December 27, 1968, it could declare the
bulletin undesirable and prohibit its distribution on plant
property. As a secondary argument the Respondent claims
that the understanding of December 27, 1968, constituted a
waiver by the Union of the right to distribute material on
company premises which the Respondent deemed undesir-
able, even though entitled by law to make such distribution.
The Respondent further urges that the dispute rests upon
the interpretation of the word "undesirable" as contained
in the understanding, and the matter should be resolved
under the arbitration provisions of the collective-bargain-
ing agreement rather than by the decisional processes of the
Board. The Respondent also points out in its brief that the
Union had an alternative means of making the distribution
to the employees, and did so, by passing out the literature at
the intersection of the company road and the public
highway
The General Counsel and the Union contend that the
distribution of the leaflet in nonworking areas on
nonworking time could not lawfully be proscribed by the
Respondent in the absence of a showing that it would
interfere with plant discipline and production. The General
Counsel and the Union further urge that any inaccurate
statements contained in the bulletin, absent a showing of
willful and malicious intent , were not sufficient to remove
its distribution from the protection of Section 7 of the Act.
The development of the law on the general proposition of
union solicitation and distribution of the literature on an
employer's premises has, of necessity, been an effort to
achieve a reasonable balance between the statutory right of
employees to organize and assist unions and the right of an
employer to control the use of his property.
"Accommodation between the two must be obtained with
as little destruction of one as is consistent with the
maintenance of the other" N.L R B v Babcock & Wilcox
Company, 351 U.S. 105, 112. It is to this end that the Board
and courts have developed various guidelines and presump-
tions against which the facts of a given case must be
measured; with the obvious caveat that the standards must
not be applied in a mechanical fashion , but must take into
account the peculiar circumstances of each case considered.
Thus, in Peyton Packing Co, 49 NLRB 828, enfd. 142
F.2d 1009 (C.A. 5), the Board held:
The Act, of course, does not prevent an employer from
making and enforcing reasonable rules covering the
conduct of employees on company time . Working time
is for work. It is therefore within the province of an
employer to promulgate and enforce a rule prohibiting
union solicitation during working hours. Such a rule
must be presumed to be valid in the absence of evidence
that it was adopted for a discriminatory purpose. It is no
less true that time outside the working hours, whether
before or after work, or during luncheon or rest penods,
is an employee's time to use as he wishes without
unreasonable restraint, although the employee is on
company property. It is therefore not within the
province of an employer to promulgate and enforce a
rule prohibiting union solicitation by an employee
outside of working hours, although on company
property. Such a rule must be presumed to be an
unreasonable impediment to self-organization therefore
discriminatory in the absence of evidence that special
circumstances make the rule necessary in order to
maintain production or discipline.
This language was approved by the Supreme Court in
Republic Aviation Corporation v N.L.R.B, 324 U.S. 793,
and specifically reaffirmed, with respect to employees, in
that Court's later decision in Babcock & Wilcox, supra
However, in the Babcock case the Supreme Court made a
distinction between union solicitation and distribution by
employees as contrasted with similar activity by nonem-
ployees. The Court found that except where it might be
shown that the employees were inaccessible, an employer
need not allow nonemployees to solicit or to distribute
material on behalf of a union on company property.
Subsequently the Board developed a further refinement,
taking into account for the first time the distinction
between oral solicitation and the distribution of literature
to employees on company property. The Board held that
the written message was designed for reading or rereading
at the employees' convenience, and this purpose would be
achieved as long as the literature was received. From this
evolved the rule that the statutory right to organize would
be satisfied insofar as the distribution of literature was
concerned when the employees had access to nonworking
areas of the plant premises. Stoddard-Quirk Manufacturing
Co, 138 NLRB 615, 621.
Considering the facts of the instant case in the light of the
above general principles developed by the Board and the
Courts, it is clear that here the union officials, as employees,
had the protected right to distribute the matenal on
January 2, in the nonworking area on the Respondent's
premises absent a showing that the distribution would in
some manner be destructive of plant production or
discipline. Furthermore, the facts clearly refute any claim
that the distribution would have been detrimental to
production or discipline The testimony indicates that from
the time of the understanding on December 27, 1968, until
Xl I paragraph i) provided as follows
The Lnion shall he provided exclusive space on a bulletin hoard for
its use All notes and bulletins must he approved by the Plant
Manager before being posted
TEXACO, INC 347
the date of the refusal on January 2, both the Union and the
Respondent customarily utilized this area to make oral
solicitations and to effectuate distribution of literature of
various kinds to the employees.
But the Respondent argues that the issues go beyond the
maintenance of production and discipline on its property.
The Respondent claims that the last paragraph of the union
leaflet encouraged employees to engage in acts of disloyalty
by urging them to mutilate and return their credit cards to
the Respondent. In support of this argument, the Respon-
dent relies heavily on the Jefferson Standard Broadcasting
Company case.13 In that case the union represented the
broadcasting company's technicians and was engaged in a
bitter dispute with the employer over contract negotiations
for an extended period of time. After the parties were
unable to resolve their differences, the employees began to
picket the employer's establishment with signs criticizing
the content of the employer's broadcasts and television
programs and indicated that the community was being
treated as "a second class city" by the company. The
employer considered the picket sign legends and the
handbills to be a demonstration of "detrimental disloyalty"
which gave him the right to discharge the picketing
technicians for cause. The Supreme Court, in a divided
opinion, held that the employees' criticism of the programs
did not relate to the company's labor practices but, rather,
was a [disloyal ] attack by the employees upon the very
interest which they were being paid to conserve and
develop. The court reasoned that this constituted sufficient
"cause" under the Act to sustain the discharges.
By analogy, in the instant case, the Respondent contends
that the appeal to the employees to mutilate and return
their credit cards was sufficiently disloyal to allow it to
conclude that the bulletin was undesirable and to remove
its distribution from the protection of the Act. I find the
Respondent's reasoning in this regard to be faulty. As
pointed out in the Union's brief, the employees' appeal to
the general public in Jefferson Standard was entirely
unrelated to the labor dispute which the Union had with the
employer. Indeed, the court goes to great lengths to
demonstrate that the criticism of the program content of
the employer's broadcasts was completely divorced from
the labor practice of the employer and made no reference to
wages, hours, or working conditions. Ibid p. 476. In the
instant case, however, the Union was urging the employees
to make common cause with other employees of the
Respondent who were represented by sister locals of the
same International Union. In these circumstances, it is
clear that the Union was concerned about the Respondent's
overall labor practices which could conceivably have impact
upon the treatment of the employees represented by the
Union at the Eagle Point facility. Furthermore, the union
bulletin was not critical of the Respondent's products or
services, but rather of the labor practices followed by the
Respondent at other facilities
Thus, I find that Jefferson Standard is inapposite to the
issues presented by the facts of this case. Here the Union
was seeking to have its members demonstrate their
displeasure with the unsatisfactory treatment they felt
members of sister locals of the same Union were receiving
from the Respondent at other facilities . The appeal to
mutilate and return the credit cards as a means of
registering their protest against these practices at other
facilities was nothing more than an appeal for a symbolic
gesture to make the Respondent aware of their dissatisfac-
tion . The Union 's appeal was limited to employees and did
not contemplate support from the public at large, nor was
the leaflet in any way critical of the products produced by
the Respondent . Moreover , under the Respondent 's theory,
it could classify any union literature undesirable because it
contained statements against the Respondent 's interest,
and thus take from the employees a right granted by
statute. Indeed , Dill testified that management considered
any adverse action by an employee against the Company to
be disloyal . This is hardly an acceptable standard to be
applied in the give and take found in the arena of labor
relations . As Mr . Justice Frankfurter stated in his dissent in
Jefferson Standard, -[m] any of the legally recognized
tactics and weapons of labor would readily be condemned
for `disloyalty' were they employed between man and man
in friendly personal relations ." Ibid. pp. 479-480. 1 find
therefore , that the last paragraph of the Union's leaflet did
not call for the type of "disloyal " conduct condemned in
Jefferson Standard, and further that the distribution of the
leaflet on the Respondent 's premises was in no way
removed from the protection accorded such activity by
Section 7 of the Act. Cf. Sears, Roebuck & Co., 168 NLRB
No. 126.
The Respondent's other major contention that the union
leaflet contained untruthful statements and thus justified
the prohibition of its distribution is, in my judgment, also
without merit . There is no question concerning the fact that
the leaflet was not artfully drafted . In the last paragraph the
Union accused the Respondent of having taken a position
of "nonrecognition of OCAW" at various other facilities
when in fact the Respondent had recognized the Union at
some of these locations but had been engaged in hard
bargaining . Ross testified he meant by "nonrecognition"
that the Respondent had refused to reach agreements or
negotiate in good faith with the locals representing the
employees at the locations stated in the leaflet . However, it
was not his subjective meaning, as explained at the trial, but
rather the plain meaning of the words contained in the
leaflet which prompted the Respondent 's officials to react.
But even though the leaflet was worded in such an
inaccurate fashion so as to convey an impression that the
Respondent had refused to recognize other locals of the
International Union , it does not necessarily follow that the
distribution of the document loses the protection of the Act.
It is well settled that misstatements made in the course of
concerted activity which denounce an employer for his
conduct in labor relations, or in affairs germane to the
employment relationship , only forfeit the statutory protec-
tion when it is evident that the statements are deliberately
or maliciously false. Owens-Corning Fiberglas Corporation,
172 NLRB No. 20 , Bowling Green Manufacturing Co., 169
NLRB No. 15; El Mundo Broadcasting Corp., 108 NLRB
1270; Schnell Tool and Die Corp. v. N. L. R B, 359 F.2d 39,
i 94 NLRB 1507, enfd sub nom N L R B v Local Union No 1229,
International Brotherhood of Electrical Worberc, 346 U S 464
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
44 (C.A 6), Walls Manufacturing Company v. N L R.B., 321
F.2d 753, 754 (C A D.C.), cert. denied 375 U.S. 923.
It is apparent here that the Union's statements were not
deliberately or maliciously inaccurate. This finding is not
based on Ross' testimony as to the meaning he intended to
convey, but by examination of the form letter attached to
the leaflet. This letter was a suggested model for a covering
letter, when and if the employee returned his credit card to
the Respondent. The letter stated with specificity that the
sender of the credit card was doing so in protest of an
alleged refusal of the Respondent to extend union
conditions to employees represented by the International
Union at Ventura, California, and because of an alleged
claim that the Respondent gave benefits to unorganized
employees at one installation in Texas and refused to grant
similar increases to members of the Union at another
installation in Texas. Thus, it is quite evident that the
attached letter qualified the imprecise use of the word
nonrecognition in the leaflet, and spelled out to the
recipient the precise complaint which the union officials
were making known to its members. In these circumstances,
it can hardly be said that the statements in the union leaflet
were deliberately or maliciously false Accordingly, I find
that this was not a legally valid reason for the Respondent
to proscribe distribution of the union leaflet on its premises
The Respondent also argues, however, that the under-
standing on December 27, 1968, constituted a waiver on the
part of the Union of the statutory right to distribute any
literature which the Respondent deemed undesirable. This
position is predicated upon the Respondent's summary of
its minutes, which it is claimed constitute an agreement
between the parties. The Respondent contends that when a
copy of the minutes was sent to the Union as confirmation
of the understanding, the Union's failure to respond to the
covering letter indicated acquiescence and acceptance of
the agreement as the minutes stated it. The General
Counsel, on the other hand, states that the right to
distribute literature on an employer's premises is an
individual right of the employees which cannot be waived
by a collective-bargaining representative. In this connec-
tion the General Counsel cites N L R B. v. Mid-States Metal
Products, Inc, 403 F.2d 706 (C.A 5), and General Motors
Corp, 158 NLRB 1723 As attractive as this theory may be,
I find no need to tread in this thicket. In my judgment it is
not necessary to the resolution of the issues here to
determine whether the Union could waive this particular
statutory right by agreement. I find that the understanding
of December 27, 1968, does not constitute a waiver in any
respect Blair's testimony made it quite clear that the
Union's interpretation of the term "undesirable" differed
materially from that of the Respondent's officials The
Board has repeatedly said that a waiver of a statutory right
will not be lightly inferred and that it must be expressed in
"clear and unmistakable terms." Timken Roller Bearing
Company v. N. L. R B., 325 F 2d 746 (C.A. 6), Unit Drop
Forge Division, Eaton Yale & Towne, Inc, 171 NLRB No.
73, C & C Plywood Corporation, 148 NLRB 414, 416. The
record here amply demonstrates that the parties were not in
agreement regarding the definition and the scope of the
term "undesirable." Hence, it cannot be said the under-
standing was elevated to a clear and unmistakable
agreement which waived an important right conferred by
statute.
In rejecting the Respondent's waiver argument, I also
reject the claim that differences over the understanding
should be resolved under the arbitration provisions of the
contract rather than by the Board. The understanding
concerning the distribution of union literature on the
Respondent's property was never embodied in the
collective-bargaining agreement or memorialized in any
way except in the minutes of the parties-and this is in
dispute I find that the Board's jurisdiction over this matter
is properly asserted here because the issues do not involve
construction of the terms of the collective-bargaining
agreement in effect between the parties.
One final argument merits mention here. The Respon-
dent indicates that the Union did in fact make its
distribution at the intersection of the public highway and
the company road. Thus the Respondent argues that there
was an alternative method of distribution available to the
Union. This misconceives the distinction between the rights
of employees and nonemployees as set forth in Babcock &
Wilcox, supra. As employees, the union officials had the
right, in the absence of a showing that it would interfere
with production or discipline, to distribute the literature
to the employee-members on nonworking time in non-
working areas on the Respondent's premises. To require
them to leave the company property and make the
distribution at the intersection of the public highway is an
unlawful abrogation of these rights.
On the basis of the above, I find that the Respondent
violated Section 8(a)(1) of the Act by refusing to allow the
Union to distribute the leaflet to the employees on
Respondent's premises during nonworking time in non-
working areas on January 2, 1970.
CONCLUSIONS OF LAW
I Texaco Inc, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Oil, Chemical & Atomic Workers International
Union, AFL-CIO, Westville Local 8-638, is a labor
organization within the meaning of Section 2(5) of the Act.
3 By prohibiting employees who were officials of the
Union from distributing union leaflets to employees in
nonworking areas on nonworking time on January 2, 1970,
the Respondent interfered with , restrained , and coerced its
employees in the exercise of rights guaranteed under
Section 7 of the Act and violated Section 8(a)(I) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , I shall recommend the issuance of an order
that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the
Act.
Accordingly, upon the basis of the foregoing findings of
fact and conclusions of law , and upon the entire record in
this case, pursuant to Section 10(c) of the Act, I make the
following
TEXACO, INC
RECOMMENDED ORDER
Respondent , Texaco Inc., its officers , agents, successors,
and assigns , shall.
1. Cease and desist from:
(a) Prohibiting employees who are officials of Oil,
Chemical & Atomic Workers International Union,
AFL-CIO, Westville Local 8-638 , from distributing union
literature to employees at the Respondent 's Eagle Point
plant in nonworking areas on nonworking time.
(b) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which I find
will effectuate the policies of the Act :
(a) Post at its Eagle Point plant in Westville , New Jersey,
copies of the attached notice marked "Appendix ." 14 Copies
of said notice, on forms provided by the Regional Director
for Region 4, shall, after being duly signed by the
Respondent , be posted immediately upon receipt thereof
and be maintained by it for a period of 60 consecutive days
thereafter , in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable
steps shall be taken to insure that said notices are not
altered , defaced or covered by any other material.
(b) Notify the Regional Director, in writing , within 20
days from the date of the receipt of this Decision, what
steps have been taken to comply herewith.15
14 In the event that no exceptions are filed as provided by Section
10246 of the Rules and Regulations of the National Labor Relations
Board, the findings, conclusions. recommendations and Recommended
Order herein shall, as provided in Section 102 48 of the Rules and
Regulations be adopted by the Board and become its findings, conclusions,
and Order, and all objections thereto shall be deemed waived for all
purposes In the event the Board's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
iS In the event that this Recommended Order is adopted by the Board.
this provision shall be modified to read "Notify the Regional Director for
349
Region 4. in writing within 10 days of this Order, what steps have been
taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify all of our employees that:
WE WILL NOT prohibit employees who are officers of
Oil, Chemical & Atomic Workers International
Union, AFL-CIO, Westville Local 8-638, from
distributing union handouts and bulletins to employees
on our plant premises during nonworking hours in
nonworking areas.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in exercise of
their rights guaranteed by Section 7 of the National
Labor Relations Act, as amended
TEXACO INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1700
Bankers' Securities Building, Walnut and Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone 215-597-7601.