The Babcock and Wilcox Co.

THE BABCOCK AND WILCOX COMPANY 485 THEE BABCOCK AND WILCOX COMPANY and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 16-CA-671. July 08, 195 a Decision and Order On April 15, 1954, Trial Examiner Alba B. Martin issued his Inter- mediate Report in the above-entitled proceeding, dismissing certain allegations of the complaint, and sustaining others. He found, as is set forth more fully in the copy of the Intermediate Report attached hereto, that the Respondent had engaged in and was engaging in unfair labor practices violative of Section 8 (a) (1) of the Act by its maintenance and enforcement of a rule prohibiting distribution .of literature on its premises to the extent that such rule barred union representatives from making distribution of union literature on its parking lot, walkways, and drive. He recommended, accordingly, 'that the Respondent cease and desist from the unfair labor practices found, and take certain affirmative action. Thereafter, the Respond- ent filed exceptions to the Intermediate Report and 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 rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and brief of the Respondent, and the entire record in this case, and hereby adopts, with the corrections and additions noted below, the Trial Examiner's findings,' conclusions 4 and recommendations.' 1 The Respondent's request for oral argument is hereby denied, as the record and excep- tions and brief adequately present the issues and the positions of the parties. 2 In its exceptions the Respondent has renewed certain claims made before the Trial Examiner in support of a motion to dismiss the complaint . Among other things, the Respondent contended that Section 10 (b) of the Act required dismissal of that portion of the complaint alleging the Respondent 's no-distribution rule, as maintained and enforced, to be violative of Section 8 (a) (1) of the Act, for the reason that the charge did not spe- cifically mention this rule, and for the further reason that at the beginning of the hear- ing, the General Counsel dropped from the complaint the allegations incorporating the particularized acts contained in the charge-namely the Respondent 's discharge of one T. G. Ray. We find , in agreement with the Trial Examiner 's ruling denying the motion to dismiss , that the complaint's incorporation of the Respondent's maintenance and enforcement of the no-distribution rule , was a valid particularization of that portion of the charge attributing to the Respondent , in general terms, its commission of "acts" viola- tive of Section 8 (a) (1) of the Act. See N L. R. B. v. Wester Boot Co., 190 F. 2d 12, 15 (C. A 5) ; N L. R. B. v. Globe Wireless Ltd., 193 F. 2d 748, 752 (C. A. 9) ; N. L. R. B. v. Star Beef Company, 193 F. 2d 8 (C. A. 1). 3 Contrary to the suggestion made by the Respondent in its brief and exceptions, the record plainly establishes the accuracy of the Trial Examiner 's statement of a stipulation between the parties with respect to certain instructions given by police officers to union representatives relating to the distribution of literature at the point where the State high- way connected with the Respondent's parking lot driveway . Specifically , the record shows that the parties stipulated that the following language contained in a letter sent by the Union to the Respondent in August 1953, correctly reflected the facts such language pur- ported to set forth : We [the union representatives ] have been instructed by both State Highway Patrol- man Bob Ashmore and Sheriff Dan Bills that distribution of union information in 109 NLRB No. 82. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, The Babcock and Wilcox Company, Paris, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Prohibiting the distribution of union literature by union rep- resentatives on its parking lot and alongside the walkways from the gatehouse to the parking lot and the drive, provided, however, that the Respondent may impose reasonable and nondiscriminatory regu- lations in the interest of plant efficiency and discipline, but not as to deny access to union representatives for the purpose of effecting such distribution. (b) Engaging in any like or related acts or conduct which inter- feres with, restrains, or coerces its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to re- frain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a leaflet form at the point where the State highway links with the company 's parking lot road is hazardous to traffic and must be discontinued. In view of the facts thus stipulated to, and the other facts set forth in the Intermediate Report, we find without merit the Respondent 's contention that the 31-foot highway right- of-way between the paved portion of the highway and the entrance to the Respondent's, plant is a "practicable" or "safe" place for the distribution of union literature. In its brief, the Respondent also described as erroneous the Trial Examiner 's statement that the Respondent operates on a "three -shift" basis, contending that, in fact, the Re- spondent operates on a "two-shift" basis. The error, if any, is not material to the issues. It is noted , however, that employee C H. Beard, who is employed as a gateman , responded to a question of Respondent's counsel as to what hours he worked , as follows : "Well the hours vary. There are three shifts . . . [designating hours of same ]." However, other production employees' testimony suggested that there were only two shifts-a day shift and a night shift. It may well be that the Respondent's gatemen work on a 3-shift basis, and that the remaining employees work on a 2 -shift basis. If this be so, the Intermediate Report is corrected accordingly. We note also , that the Respondent has directed our attention to the Trial Examiner's statement that "Lamar County, Texas, which includes Paris-extends a distance of about 75 to 100 miles out around Paris." As the Respondent's counsel points out, the maps introduced into evidence show the distance which the county in question extends around Paris to be about 25 miles . Accordingly, we hereby correct the Intermediate Report in this respect. 4 Monsanto Chemical Co., 108 NLRB 1110, and cases there cited ; Seamprufe, Inc, 109 NLRB 24. Although Member Beeson dissented from the majority opinion in the Mo-n- santo Chemical case, he now considers himself bound by the majority opinion in that case. 5 We find no merit to the Respondent's objection to the provisions of the remedy which require the Respondent, in effect, to permit the union representatives to distribute litera- ture not only at the parking lot but also alongside the walkways from the gatehouse to the parking lot and the drive. THE BABCOCK AND WILCOX COMPANY 487 labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act. (a) Rescind immediately its rule prohibiting the distribution of union literature by union representatives on its parking lot at its Paris, Texas, plant, and alongside the walkways from the gatehouse to the parking lot and the drive. (b) Post at its plant at Paris, Texas, copies of the notice attached hereto as an "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 Respondent 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 PARIS, TEXAS, 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 prohibiting the distribution of union literature on our parking lot and alongside the walkways from the gatehouse to the parking lot and the drive. WE WILL NOT engage in any like or related conduct which inter- feres with, restrains, or coerces our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of em- ployment as authorized in Section 8 (a) (3) of the Act. 0 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." 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We hereby rescind our rule prohibiting the distribution of union literature on our parking lot and alongside the walkways from the gatehouse to the parking lot and the drive except pursuant to rea- sonable controls not of such character, however, as to deny access too union representatives for the purpose of distribution. THE BABCOCK AND WILCOX COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the Labor Management Re- lations Act, 1947, 61 Stat. 136 (herein called the Act), was heard in Paris, Texas, from November 16 to November 21, 1953, pursuant to due notice to all parties- The complaint, issued on October 13, 1953, by the General Counsel of the National Labor Relations Board,' and based on charges duly filed and served, as amended at the hearing, alleged that Respondent had engaged in and was engaging in unfair labor practices proscribed by Section 8 (a) (1) of the Act. Prior to hearing, Re- spondent moved to dismiss the entire complaint and to strike certain paragraphs of the complaint, both of which motions were denied in an order issued by Trial Examiner Robert E. Mullin. Prior to hearing, Respondent also moved for a bill of particulars which was granted in part by Trial Examiner Mullin. The Gen- eral Counsel then furnished the particulars. In its answer, duly filed, Respondent conceded certain facts alleged in the complaint, but denied the commission of the unfair labor practices. At the hearing the General Counsel and Respondent were represented by counsel. The Union was represented by staff representatives. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs and proposed findings and con- clusions. Oral ai gument was waived. During the hearing, on the motion of Re- spondent, certain paragraphs of the complaint were dismissed. Upon objection of Respondent, the General Counsel's motion to conform the pleadings to the proof was denied. Subsequent to the hearing Respondent submitted a brief, which has been carefully considered. After the hearing the General Counsel filed a motion to reopen the record, which was denied. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Babcock and Wilcox Company, Respondent herein , is a New Jersey corpora- tion with plants in Alliance, Ohio; Augusta, Georgia; Barberton , Ohio; Beaver Falls, Pennsylvania ; West Point, Mississippi; Wilmington, North Carolina; and Paris, Texas. The only plant involved herein is the Paris, Texas, plant, which Respondent began operating in March 1953. Since April 9, 1953, the personnel manager for the Paris plant has been telling all applicants and new employees that Respondent began as a partnership in 1867 and was incorporated in 1881 . As found by the Board in an earlier decision,2 The Babcock and Wilcox Company, which was incorporated under the laws of New Jersey in April 1881 and which I find to be the same corporation as Respondent here- 'The General Counsel and his representative at'the hearing are referred to herein as the General Counsel , and the National Labor Relations Board as the Board. The Babcock and Wilcox Company is referred to as the Respondent , and United Steelworkers of America, CIO, is referred to as the Union. 28 NLRB 514. THE BABCOCK AND WILCOX COMPANY 489' in, is engaged in the manufacture and sale of boilers and auxiliary products and in the erection and servicing of its products. The Board found further that the Company ranks first in the United States in the sale of boilers and accessories, and that in 1937, its sales of boilers and auxiliaries, including erection and repairs at customers' plants, amounted to approximately $30,000,000. Respondent ships to its Paris, Texas, plant, headers and tubes. On some of the headers two or more pieces are welded together at the Paris plant; and holes are cut in all of them to receive steam tubes to be fitted into them at a different time and place. The tubes received at the Paris plant are bent and welded into sections at that plant. Following these operations at the Paris plant, the headers and sec- tions are shipped, usually with Respondent as the consignee, to the point where they are to be used in the erection of or as parts of boilers. From March 1953, until this hearing in November 1953, headers and tubes valued in excess of $50,000 were shipped to the Paris plant from outside of Texas, and headers and sections valued in excess of $50,000 were shipped from the Paris plant to points outside of Texas. Based on the above evidence and the previous Board decision, of which I take judicial notice, I hold that Respondent, having plants in the Eastern, Southern, and Southwestern sections of the United States, is engaged in an interstate enterprise with which its Paris plant, where only a few operations are performed, as found above, is closely integrated . It is held that at its Paris, Texas, plant, Respondent is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES AND THE UNFAIR LABOR PRACTICES The complaint as amended at the hearing, and the evidence brought by the Gen- eral Counsel, left the following issues in the case for my determination: (a) Whether during April and May 1953, Respondent's personnel manager, Louis B. Williams, made statements to 2 employees which violated Section 8 (a) (1) of the Act; (b) whether on June 30, 1953, as the Union was passing out union literature on com- pany property to employees leaving their days' work, Williams made statements which violated Section 8 (a) (1) of the Act; (c) whether on August 22, 1953, Williams went several times to a drinking fountain in the lobby of the Gibraltar Hotel in Paris, Texas, for the purpose while there of learning the identity of and/or coercing 3 of Respondent's employees who could be seen from the drinking fountain then sitting at a table in the hotel's coffeeshop with several union representatives; and (d) whether Respondent's nondiscriminatorily adopted and enforced rule prohibit- ing distributions on company property and its refusal to grant the Union permission to distribute union literature on the Company's parking lot were an unreasonable impediment to the freedom of communication and a violation of Section 8 (a) (1) of the Act. These issues are considered seriatim below. (a) Robert E. Briggs, who worked for Respondent for about a month from May 25 to June 23, 1953, and was then discharged for a reason undisclosed in the record, testified that during one of his early interviews with Williams when Briggs was seeking employment or had just beep hired , Williams said to him in substance that Williams believed only two of Respondent 's plants had unions , that Briggs would find agitators and troublemakers around the corners but that he should pay no attention to them . John F. Babb, an employee who has worked for Respondent since May 1953 , was a confused witness. At the beginning of his testimony when asked to relate one of his application interviews with Williams, he started out by stating that he hardly remembered how it went . On direct examination he needed a prior affidavit executed by him to refresh his memory, and even then was con- fused. At first, on direct examination, Babb's testimony indicated that nothing about a union was mentioned at his first interview with Louis B. Williams on April 19, 1953, and that at his second interview on May 25, Williams told him in sub- stance that the Company did not need a union at the Paris plant. Then, refreshed by his affidavit, Babb added in substance that on April 19, "I was asked was I a member of the union." On cross-examination Babb had Williams saying during the second interview that it was not a union company , but nothing about a union not being needed. At the end of his cross-examination Babb testified that the Union was not mentioned at his first (April 19 ) conversation with Williams , and that the Union was mentioned only in the second conversation . Louis B. Williams denied the testimony of Briggs and Babb . In addition he testified credibly that beginning on April 9, 1953, which was prior to any alleged violation of the Act by him in 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the testimony of Briggs and Babb, he started using, while informing and instruct- ing new employees concerning the Company, a written set of notes, and that he expressed to them those ideas covered in the notes and no other ideas. The written notes, consisting of 41 double-spaced, letter-size pages, were put in evi- dence. According to them, after telling new employees about the Company 's insur- ance, retirement, and vacation programs, Williams told them what kind of employees the Company wanted, namely, among other things, "people who can think for themselves and who will be forever loyal to themselves, their work and this company and who will not be disturbed by any troublemakers or complainers that may be around or among them." After stating what other attributes Respondent wished to find in its employees, Williams gave something of the Company's history and pointed out that its insurance and retirement programs were old and were not started because of any government demand or "by reason of any union." Then, accord- ing to the written notes, Williams told them that the Company knows how to pay and treat people, and in view of that, "we don't see that an employee has anything to gain when working for B & W and belonging to the union." The notes contain no other references to unionism. Louis B. Williams impressed me as a credible witness. On crossexamination as well as direct, he answered all questions in a direct and forthright manner. In re- sponding to some embarrassing questions I put to him at the conclusion of his testi- mony, his demeanor in no way changed. It is held, on the basis of all the evidence in the case, that Williams did not make the remarks attributed to him by Briggs and Babb, and that nothing he said to them was a violation of the Act. (b) On June 30, 1953, as the day shift of approximately 250 employees was leaving work in automobiles, 2 union representatives and an exemployee passed out union handbills to them. The testimony indicated that the momentary hesitation of some of the cars, to accept the proffered handbills, resulted in a traffic jam in the driveway from Respondent's employees' parking lot to the road in front of the plant. During the traffic jam, the cars at the rear of the long line impatiently honked their horns. While the cars were thusly jammed up, Louis W. Williams and a company gateman went near the front of the line and motioned the front cars along. As Wil- liams motioned he shouted to the cars to keep moving and not block the driveway. During the few moments Williams was out there he had a few words with one of the union representatives, Peter P. Haubner. He told Haubner to get off of company property while distributing the handbills, and a few words were passed between them as to where the property line was. About then, according to Haubner's testimony, Williams, while motioning the cars along and telling them to keep moving, shouted in substance to the employees, "Don't take that stuff, we'll fire you." Williams denied making this statement. There was no testimony that any employee heard it. Coun- sel stipulated that some 63 occupants of all the cars in the line would testify, if called as witnesses, that they did not hear Williams make this statement. In the confusion attendant upon being told to get off of company property and a discussion of where the line was, and in the confusion of blocked traffic and honking horns, it is possible that Haubner incorrectly heard what, insofar as the testimony shows, no one else heard Williams say. Or it is possible that while testifying Haubner did not cor- rectly remember what Williams said on the occasion several months before. On this record as a whole it seems improbable to me that on that occasion Williams made the threat attributed to him by Haubner, a bald threat that Respondent would fire any who accepted the proffered union literature. As stated above, Williams was a credible witness. His denial is credited. (c) After a meeting the Union held for Respondent's employees in the Gibraltar Hotel in Paris, Texas, during the morning of August 22, 1953, two square tables in the hotel's coffeeshop were put together and several union representatives, the wife of one and a friend of hers, and several of Respondent's employees, sat at the tables for an hour or more. The tables and the persons sitting at them could be seen from the drinking fountain in the lobby, some 20 feet or so away. While they were sit- ting there, according to the testimony of Henry M. Rabun, one of the union repre- sentatives, Louis B. Williams came to the water fountain 4 or 5 times, 3 to 5 minutes apart, and each time looked in the direction of the two tables while at and as he was leaving the fountain. Thus, if Rabun's testimony is correct, Williams was at or near the water fountain and the hotel for a consecutive period of from 12 to 20 minutes. Rabun placed this period at sometime between 11:15 and 12 o'clock that noon. Respondent's plant was situated about 10 minutes' driving distance from the hotel. If Williams was at the plant that morning and drove to the hotel, remained at the hotel some 12 to 20 minutes, and then returned to the plant, he was absent from the plant this 12 to 20 minutes plus the 20 minutes' driving distance both ways, or a total of approximately 32 to 40 consecutive minutes. THE BABCOCK AND WILCOX COMPANY 491 Williams testified positively that he was not in the Gibraltar Hotel on the day in question, and accounted for his entire morning until about 2 p. m. at Respondent's plant. In addition a number of witnesses testified credibly that they saw and/or talked with Williams for periods of a few moments up to 15 or 20 minutes at different times between about 10:15 that morning and about 1 o'clock that afternoon. Even though most of them relied upon the fallible human memory as to the times, they had as reference points the completion of taking photographs of employees on horse- back for eastern consumption at about 10:30 a. m., and luncheon eaten at about noon. All together, they accounted for Williams' presence at the plant from his arrival somewhat after 10 a. m. until about 1 o'clock noon. Under their testimony Williams could not have been absent that morning a period of 32 to 40 minutes. Although Henry M. Rabun impressed me as a credible witness, the preponderance of the evidence does not bear out that it was Louis B. Williams he saw at the drink- ing fountain several times on the morning of August 22, 1953. Williams testified that he had never seen Rabun until at this hearing. Rabun testified that he had previously seen Williams but had not met him. On the basis of all the evidence in the case, I hold with the preponderance of the evidence that Rabun was mistaken in his identity of Williams at the water fountain because Williams was not there. I conclude that Williams did not by any actions at the Gibraltar Hotel on August 22, 1953, vio- late the Act. (d) Respondent's Paris plant is.located a few miles from downtown Paris, Texas, and about 1 mile from the city limits. Paris has a population of about 21,000 inhab- itants. At its Paris plant Respondent employs about 500 people on a 3-shift basis. Respondent has about 100 acres of land situated on one side of a State road the right-of-way of which is 80 feet wide, the paved blacktop portion of which, in the middle of the right-of-way, is 18-feet wide. The right-of-way extends 31 feet on each side of the blacktop. This is the only public road which goes by Respondent's plant. There is no public transportation to or from the plant. Taxi fare each way from Paris is 50 cents. Over 90 percent of the employees regularly drive to and from work in automobiles, which they park in a parking lot provided by Respondent near the plant for that purpose. The parking lot is located about 100 yards from the highway, to which it is joined by a concrete drive,3 30-feet wide, running perpendicularly from the right-of-way to the parking lot. From where the drive meets the right-of-way, the right-of-way extends 31 feet to the edge of the blacktop. The parking lot is about 400 feet by 325 feet in size, and is located outside the fence which incloses the plant buildings where the employees-work. The entrance to the parking lot is about 200 feet from the gate employees use when entering or leaving the fenced-in area, and the gatehouse alongside where employees punch a time clock in and out. About 40 percent of Respondent's approximately 500 employees live in Paris,. Texas. About 75 percent of its employees live in Lamar County, Texas, which. includes Paris and extends a distance of about 75 to 100 miles out around Paris. The other 25 percent live in adjoining counties. Louis B. Williams estimated that the 60 percent of the employees who do not live in Paris live an average 10 to 12 miles from the plant-although it is clear many of them live much farther than that. Coming into Respondent's driveway, most employees come from the direc- tion of Paris, north, and turn to the right. Leaving Respondent's driveway, most employees turn left, north, and head in the direction of Paris. From Respondent's drive going north, it is about three-quarters of a mile to the first crossroad; going south, it is about 2 or 3 miles. About 60 percent of the employees have telephones, of which about 90 percent are on the Paris telephone exchange. Along the right-of-way, as it passes Respondent's plant, on Respondent's side of the blacktop are 3 State highway department "no parking" signs, one "speed limit 60 miles per hour" sign, one "curve 30 miles per hour," and one "R R crossing."' On the opposite side of the blacktop in the right-of-way there is a State highway department sign reading "Curve 40 MPH." The maintenance engineer of district No. 1 of the State highway department testified that the no parking zone was established "to make it safer for the people who are using the highway." There is no traffic light at the point where Respondent's drive enters the State road and no regular police direction. State highway patrolmen drive by the plant at irregular intervals. s Respondent has 3 driveways, but only the 1 to the parking lot is of concern and referred to herein. 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's rule and its application: Since the beginning of production at its Paris plant, Respondent has had a written employee rule making it a discharge offense to fail to keep good housekeeping, which Respondent interprets as prohibiting dis- tributions by employees on company property. Since that time also, it has had and enforced an oral rule prohibiting outsiders from making distributions on company property; in the exercise of which it has denied requests to pass out literature in the parking lot made by the Paris Junior Chamber of Commerce, the Odd Fellows, the church with which Louis B. Williams is associated, and the local Goodyear store. On three occasions the Union has distributed union literature to Respondent's employees at the point where the driveway meets the right-of-way. On June 15, at the change of shifts in the afternoon, union representatives distributed about 300 pieces of literature as some 325 employees were driving in and out of the driveway. On June 30, they distributed at least 195 pieces as 250 employees were driving out. On July 13, they passed out over 225 pieces as 250 employees were leaving work. During the distribution on June 15, Louis B. Williams telephoned one of Re- spondent's attorneys, and soon a highway patrol car drove into Respondent's property, turned around, and left. On June 30, as stated above, Williams went out to where the literature was being passed out and told Haubner to get off of company property. On that occasion, at the point where the driveway emptied into the right-of-way, there were 3 lanes of cars driving out and 1 of the union representatives was standing between 2 of the lanes. During the distribution on July 13, Williams telephoned the Sheriff's office for the highway patrol, and soon the sheriff and two assistants drove into Respondent's prop- erty. Williams testified that he did this because the traffic situation had been so bad on June 30 that on July 13, "I thought maybe we should have the Highway Patrol there to help regulate the traffic and try to keep from getting anybody run over. One day in midsummer the operator of the local Goodyear store, having been refused permission to distribute literature on Respondent's property, had several high school girls pass it out at the highway end of the driveway. According to Williams' testimony, "He made an effort to pass it out but as it was very hazardous for those little girls to be out there at that time, why, he soon withdrew them and left." At the hearing the parties stipulated that union representatives have been in- structed by both State Highway Patrolman Bob Ashmore and Sheriff Dan Bills that "distribution of union information in leaflet form at the point where the State highway links with (Respondent's) parking lot road is hazardous to traffic, and must be discontinued." On August 31, 1953, Respondent received from the Union a written request that union representatives be allowed to distribute "union information in leaflet form to your plant employes [sic] on the parking lot or on plant property, at a time when the employes [sic] are coming to and/or leaving work." The letter cited the United States Supreme Court decision in N. L. R. B. v. Le Tourneau Company of Georgia, 324 U. S. 793, 54 NLRB 1253. The letter pointed out that union repre- sentatives had been barred by the Company from passing out literature on the Com- pany's property, and had been prevented by the sheriff's office and the State highway patrol from passing out literature at the point where Respondent's drive joins the State road. The letter closed by stating that if the Union did not hear from the Company within 5 days, it would take that fact as a denial of its request by the Company. Respondent did not reply to this letter. On October 1, 1953, Peter P. Haubner asked Louis B. Williams in the latter's office for permission to distribute union literature to employees on Respondent's parking lot. Williams refused on the ground that he had refused similar permis- sion to business people, and also on the ground that permitting distributions would litter up the property. In its answer Respondent admitted "that on or about October 1, 1953, it refused to grant permission to union representatives to go on its property for the purpose of soliciting union membership and that it still refuses to grant such permission." On the above evidence it is held that Respondent's rule against allowing distribu- tions on its parking lot was nondiscriminatorily adopted and has been nondiscrim- inatorily enforced. Other union contacts with employees: In addition to distributing literature to some of the employees, as shown above, during the period of concern herein the Union has had other contacts with some of the employees. It has communicated with over 100 employees of Respondent on 3 different occasions by sending literature to them through the mails. Union representatives have communicated with many of THE BABCOCK AND WILCOX COMPANY 493 Respondent's employees by talking with them on the streets of Paris, by driving to their homes and talking with them there, and by talking with them over the telephone. All of these contacts have been for the purpose of soliciting the adherence and mem- bership of the employees in the Union. Conclusions: Whether nonemployee union representatives have any right under the Act to carry on union activity on an employer's premises has come before the Board in the courts in a variety of situations.` 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 prin- cipal ones: N. L. R. B. v. LeTourneau Company of Georgia, supra; United Aircraft Co., 67 NLRB 594, 600, 606; Newport News Dress Co., 91 NLRB 1531; Carolina Mills, 92 NLRB 1141, enfd. 190 F. 2d 675 (C. A. 4); Caldwell Furniture Co., 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. (C. A. 4) June 10, 1953, No. 6590; Monarch Machine Tool Co., 102 NLRB 1242, enfd. 210 F. 2d 183 (C. A. ,6); Remington Rand Inc, 103 NLRB 152; Grand Central Aircraft Co., 103 NLRB 1114. In all of these cases but two (Newport News and Moorseville Mills) the right of distribution was upheld. In those two cases the Board found the circumstances to be such that distributions could easily be made at the employer's gate. 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 im- pediment, it may not be enforced unless "special circumstances make the rule nec- essary in order to maintain production or discipline." The underlying issue here is the proper accommodation between Respondent's right to control the use of his property and the right of employees under the Act to "freely discuss and be informed concerning their collective bargaining rights and the correlative right of the union to discuss with and inform them concerning the matters involved." N. L. R. B. v. Lake Superior Lumber Co., 167 F. 2d 147 (C. A. 6). In the LeTourneau case the Board said (54 NLRB 1253, 1260) : It is clear that employees cannot realize the benefits of the right to self-organiza- tion guaranteed them by the Act, unless there are adequate avenues of communi- cation 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 opportunities for the interchange of ideas necessary to the exer- cise of their right to self-organization. It must also be noted that speech is not the only mode of communication by which self-organization is effected, nor is it sufficient that this channel 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. As the cases indicate, the right to distribute is not absolute, but must be accom- modated to the circumstances. Where it is impossible or unreasonably difficult for a union to distribute organizational literature to employees entirely off of the em- ployer's premises, distribution on a nonworking area, such as the parking lot and the walkways between the parking lot and the gate, may be warranted, unless permitting the distribution would result in undue interference with the operation of the business. The burden is upon the employer to show the existence of circumstances warranting the prohibition. Caldwell Furniture Co., 97 NLRB 1501, 1502. "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., 103 NLRB 152. As noted above, on July 13, Williams recognized the possibility of danger at the point where the highway joins the right-of-way, and therefore called for someone to regulate traffic "and try to keep from getting anybody run over. ..." Williams 4For example: N. L. R. B. v Cities Service, 122 F. 2d 149 (C. A. 2) (right of sailors to be visited aboard ship by union representatives in the investigation of grievances) ; N. L R. B v. Lake Supertior Lumber Co, 167 F. 2d 147 (C A. 6) (right of union repre- sentatives to visit employees in lumber camp for union organizational purposes) ; N. L R B v Stow Spinning Co , 336 U. S. 226 (right of union organizers to use meeting hall in company-owned town for organizational purposes) ; Marshall Field Co., 98 NLRB 88, 200 F 2d 375 (C. A 7) ; Associated Dry Goods Corporation (Lord & Taylor Division), 103 NLRB 271 (right of union organizer to gain access to nonpublic areas of department stores for organizational purposes). 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated also that it was hazardous for high school girls to pass out literature at that point. Both the sheriff and the highway patrol took the position that distributions. at the point where the "highway" links with the drive was hazardous to traffic. The no parking zone on the right-of-way and the highway opposite Respondent's, plant area was established "to make it safer for the people who are using the high- way." On this evidence it is held that the right-of-way between the blacktop and the Respondent's drive is neither a safe nor a practicable location for the distribu- tion of literature to Respondent's employees at shift change when most of them are passing that point in automobiles. Nor is Respondent's driveway a safe or prac- ticable point, for, as the evidence indicates, distributions along the driveway re- sult in a pileup of the cars behind and the formation of additional lanes of traffic, thereby increasing the hazard to those on foot, including those passing out the leaf- lets. Likewise the right-of-way across the blacktop opposite Respondent's drive, and alongside the blacktop as it leaves Respondent's property to the north and south, are not suitable or safe places for distributions because distributing at those points would slow up the entering or exiting traffic at the mouth of Respondent's drive, and slow up and possibly jam up the faster moving traffic on the State road. In this connection it should be noted that the 60-mile speed limit sign is on Respond- ent's side of the road a little more than 1,000 yards north of Respondent's drive, the 30-mile speed limit sign on the same side about 100 feet north of Respondent's. drive, and the sign reading, "Curve 30 MPH," on the opposite side of the road about 50 feet north of Respondent's drive. It is clear, also, that the distribution of litera- ture cannot readily be conducted away from Respondent's premises. In my judgment there are two places on Respondent's premises where the dis- tribution of literature by union representatives would be safe and practicable: on the parking lot, and alongside the walkways leading from the gatehouse to the park- ing lot and the drive. As employees punch in and out at the gatehouse, they are on their own time going between it and the parking lot before and after their work hours; so that distributions at those points would not interfere with the operation of Respondent's business. In substance Respondent contended that the Union had other means of communi- cating with the employees-such as through the mails, on the streets of Paris, at their- homes, and over the telephone-and that therefore Respondent's prohibition against distributions on the parking lot was not an impediment on the freedom of communi- cation essential to the exercise of employees' rights to self-organization. In the Le- Tourneau case, upheld by the Supreme Court, the Board considered this contention and, as quoted above, held that "effective organization requires the use of printed literature and of application and membership cards, and these modes of communica- tion are also protected by the Act." In the LeTourneau case the Board also said, "It is no answer to suggest that other means of disseminating Union literature are not foreclosed." In Bonwit Teller, Inc. v N. L. R. B., 197 F. 2d 640, 645, cert. denied 345 U. S. 905, the Court of Appeals for the Second Circuit said: Normally, an employer cannot forbid union solicitation on company property during non-working 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, 65 S. Ct. 982, 89 L. Ed. 1372. 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. In my judgment the precedents, and the circumstances of this case, require the conclusion, hereby made, that the Respondent's refusal to permit nonemployee union representatives to distribute union literature on the parking lot constituted an un- reasonable impediment to self-organization, and that no special circumstances were shown to make the rule on the subject necessary in order to maintain production or discipline. Under the circumstances it is held that Respondent's maintenance and enforcement of the rule barring union representatives from making distributions on the parking lot interfered with, restrained, and coerced employees in the rights guaran- teed in Section 7 of the Act, Respondent thereby violating Section 8 (a) (1). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with Respondent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. PETROLEUM CARRIERS, INC. 495 V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I recommend that it cease and desist therefrom and that it take the following described remedial action designed to effectuate the policies of the Act: 1. Rescind its rule respecting distribution of literature on its premises, insofar as the rule prohibits the distribution of union literature by union representatives on its parking lot at its Paris, Texas, plant, and alongside the walkways from the gate- house to the parking lot and the drive. 2. Post an appropriate notice informing the employees of its action. In view of the nature of the violation, I deem a narrow cease and desist order appropriate and warranted. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, CIO, is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of right guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. 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.] PETROLEUM CARRIERS, INC. and LOCAL 749, GENERAL DRIVERS, WARE- HOUSEMEN AND HELPERS UNION, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, A. F. OF L. Case No. 18-CA-557. July 28, 1954 Decision and Order On February 18, 1954, Trial Examiner James A. Shaw 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 In- termediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' 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 Inter- mediate Report, the exceptions and brief, and the entire record in the =case, and finds merit in the exceptions. The Board, accordingly, adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. 1 The Respondent's request for oral argument is hereby denied as the record and the ,exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. 109 NLRB No. 40.