Shell Oil Co.

SHELL OIL COMPANY Shell Oil Company and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 21- CA-9133 April 26, 1971 DECISION AND ORDER BY CHAIRMAN MILLER ANP MEMBERS FANNING AND JENKINS On December 15, 1970, Trial Examiner William F. Scharnikow issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and the Respondent filed cross-exceptions and a supporting brief and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its power in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions, cross-exceptions, and briefs and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent they are con- sistent herewith. The Trial Examiner finds that Respondent did not violate Section 8(a) (5) and (1) when it refused to com- ply with the Union's December 29, 1969, request for the names and addresses of employees in the unit which it represents. The General Counsel excepts to this finding. We find merit in this exception. The Trial Examiner finds that Respondent's fear that the list may be leaked and lead to the harassment of nonunion employees by rank-and-file employees is sufficient under the circumstances herein to justify Re- spondent's refusal to supply the list. We do not agree. The evidence in the record shows that from January 4, 1969, until March 17, 1969, the employees in the unit were on strike. The parties stipulated that during the course of the strike and for an indeterminative period thereafter, some of the striking employees engaged in violence in the form of mass picketing and harassment of individual employees who had returned to work, both at the gates of Respondent's struck facilities and at individual employees' homes. Respondent specifi- cally states that it does not contend that the Union was responsible for any of these acts. Nor does it contend that the Union seeks the list for other than legitimate 190 NLRB No. 3 101 reasons. It bases its position solely on the fact that because of the large number of union officers and em- ployees who would have access to the list the risk of leakage to persons prone to engage in violence is high. We do not believe that this risk under the circum- stances presented herein is sufficient to justify Respon- dent's refusal to supply the list. Any union receiving a list of union employees is under an obligation to take reasonable steps to see that the list is not improperly disclosed or used. There is nothing herein to indicate that the Union will fail to meet its obligation in this regard. Rather, the Union has given assurances that it will protect the list from improper disclosure.' Thus, we find Respondent was not justified in rejecting the Union's request for this reason. The parties have stipulated, and we find, that the Union's existing means of communicating with unit employees are ineffectual to reach all unit employees because of the scattered location of Respondent's facili- ties in the unit and the residential dispersion of unit employees. Under these circumstances the Union was entitled to the list in the absence of a showing that Respondent had some reasonable justification for with- holding the information. Respondent has not estab- lished any such reasonable justification. Accordingly, we find that Respondent's failure to supply the Union with the names and addresses of unit employees on request was in violation of Section 8(a)(5) and (1). CONCLUSIONS OF LAW 1. The Respondent, Shell Oil Company , is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO, is a labor organization within the meaning of the Act. 3. By refusing the Union's request for names and addresses of unit employees , the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ' W. L. McKnight, d/b/a Webster Outdoor Advertising Company, 170 NLRB No. 144, enfd. sub nom. Sign and Pictorial Union Local 1175 v. N.L.R.B., 419 F.2d 726 (C.A.D.C.), the case cited by the Trial Examiner is distinguishable in that (a) the threats were more severe and immediate and (b) the company never rejected the requested information as to strikebreak- ers, it merely expressed reluctance until the union gave it adequate assur- ances that there was a legitimate need for the information, following which expressions of reluctance the union failed to renew its request. 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY APPENDIX Having found that the Respondent , Shell Oil Com- pany, has engaged in violations of Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist from such unfair labor practices and to take certain affirma- tive action necessary to remove the effects of the unfair labor practices and to effectuate the policies of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Shell Oil Company, Los Angeles, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to furnish the Oil, Chemical and Atomic Workers International Union, AFL-CIO, with the names and addresses of all employees in the unit it represents. (b) In any like or related manner interfering with the efforts of the Union to bargain with it in behalf of the employees in the unit it represents. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, and at reasonable intervals, furnish the above-named labor organization with the names and addresses of all employees in the bargaining unit it represents. (b) Post at its installations in California where the Union is the bargaining representative copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's authorized representative, shall be posted by Respond- ent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 21, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. ' In the event that this 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." NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to furnish the Oil, Chemi- cal and Atomic Workers International Union, AFL-CIO, with the names and addresses of all employees in the bargaining unit it represents. WE WILL NOT in any like or related manner interfere with the efforts of the Union to bargain with Shell Oil Company in behalf of the employees in the unit it represents. SHELL OIL COMPANY (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, Eastern Columbia Building, 849 South Broad- way, Los Angeles, California 90014, Telephone 213- 688-5200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The com- plaint in the present case alleges that the Respondent, Shell Oil Company, has refused to bargain with Oil, Chemical and Atomic Workers International Union, AFL-CIO (herein called the Union), as the exclusive bargaining representative of an appropriate bargaining unit of the Respondent's em- ployees and has thereby committed unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Laobr Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. (herein called the Act), in that on and since about March 12, 1970, the Re- spondent refused to comply with the Union's request for a list of the names and addresses of all employees in the appropri- ate bargaining unit, which was "relevant to the Union's per- formance of its responsibilities in collective bargaining and the administration of collective-bargaining agreements be- tween the Union and the Respondent." In its answer to the complaint, the Respondent admits that it refused to provide the Union with a list of employees' names and addresses, but denies that it hereby committed an unfair labor practice within the meaning of the Act. It asserts: "(a) that such a refusal was for good cause and with legal basis, (b) that the union established no justification or need for such list or that existing means and tools available to the union are inadequate to discharge its functions, and(c) that SHELL OIL COMPANY 103 the union unreasonably rejected alternative proposals by Re- spondent, and, (d) that Respondent denies any implication . that such refusal has denied to the union any benefits, advantage or utility relevant to the union's discharge of any of its responsibilities in collective bargaining or the adminis- tration of the contract since Respondent offered to the union alternatives that would provide all benefits and advantages of a list of names and addresses to the full extent relevant to the union's discharge of its duties." Pursuant to notice, a hearing was held at Los Angeles, California, on July 9, 1970, before the Trial Examiner. The General Counsel, the Respondent, and the Union appeared by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing upon the issues. Since the hearing, I have re- ceived and considered briefs from the General Counsel and counsel for the Respondent. Upon the entire record in the case, and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, Shell Oil Company, is a corporation, maintaining various facilities throughout the State of Cali- fornia, and is engaged in the business of producing, refining, marketing, and distributing petroleum products. During the 12 months preceding the issuance of the complaint, the Re- spondent, in the normal course and conduct of its business operations, purchased and caused to be delivered to its Cali- fornia facilities materials of a value in excess of $50,000, which were shipped from points outside the State of Cali- fornia, either directly to the Respondent or directly to various firms located within the State of California which in turn shipped these same materials to the Respondent. During the same 12 months, the Respondent during the normal course and conduct of its business operations, sold products of a value in excess of $50,000 directly to firms located outside the State of California. And during the same 12-month period, the Respondent has derived gross revenue in excess of $500,000. I find and conclude that the Respondent is now and has been at all material times, an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to entertain jurisdiction in this case. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union, AFL-CIO (herein called the Union), is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Shown by the Record In 1939, the Board certified the Union as the exclusive bargaining representative of an appropriate bargaining unit consisting of all the employees in the Respondent's California production, pipeline, and refinery departments and the au- tomotive and telephone departments operated in conjunction therewith, but excluding clerical employees and supervisory empolyees, and guards.' Since 1939, the Union has repre- sented the employees in this appropriate bargaining unit and has been recognized by the Respondent as their exclusive bargaining representative. One of the contracts executed by the Respondent and the Union covering this unit during this lengthy period expired on December 31, 1968, and from January 4, 1969, until March 17, 1969, the Union and the employees in the unit engaged in a strike.' Accordin_- to a stipulation of the parties, during the course of the strike and for an indeterminative period thereafter, some of the striking employees (but not union officials nor union representatives) engaged in violence in the form of mass picketing and harass- ment of individual employees who had returned to work, both at the gates of Respondent's struck facilities and at the individual employees' homes. In the early stages of the strike, state court temporary restraining orders were issued ex parte against continued violence and picketing in Costa County and Curran County on January 10 and 18, 1969, respectively. And a preliminary injunction to the same effect was issued in Los Angeles County on January 7, 1969, after a hearing at which the Union appeared by its attorney. Following the strike, the Union and the Respondent executed a new con- tract which has been in effect since July 19, 1969, and will expire by its terms on December 31, 1970. The employees in the bargaining unit covered by this con- tract and the preceding contract work either in the Respon- dent's two refineries at Martinez and Dominguez, in a gas plant at Molino, in a drilling and production operation at Ventura, or in production facilities at Signal Hill, Bakersfield, Fellows-Taft, and Coalingua. In all, there are 1421 unit em- ployees, approximately 858 or 60 percent of whom are memebers of the Union and one or another of six of its Locals. The contracts have included maintenance of membership provisions, and voluntary dues checkoff provisions, but no general union-security clause. At the hearing, the parties stipulated that the Union's existing means of communicating with unit employees (including the customary methods of handbilling and contacts through union meetings, as well as other means recognized and facilitated by the contract such as the activities of adjustment committees and stewards and the use of bulletin boards) "are ineffective to reach all unit employees because of the scattered location of Respondent's facilities in the unit and the residential dispersion of unit employees." On December 29, 1969, V. L. McKendree, acting district director for the Union, wrote the following letter to F. W. Albers, the Respondent's west coast industrial relations manager: I have given an assignment to Representative D. D. Brymer to make a survey among the employees of Shell Oil Company on a Statewide basis, and those of the Shell Chemical Company's in all locations, for their expres- sion of opinion relative to their wishes for the 1970 Bargaining Policy matters, as well as their experience in the daily administration of our present Contract. If this Union is to fully meet its Legal and moral obliga- tions in representing those employees for which it is duly certified, it is necessary to request the names and mailing addresses of each of your employees in the above named Units. This request is made since your employees are scattered throughout the State of California, in many Counties, and there is no alternative method for direct contact on an individual basis to properly discharge the Legal and moral responsibilities this Union has to the total of the employees that are affected. ' Shell Oil Company, 9 NLRB 908, 912. See also paragraph 6 of the ' An error in the transcript (p. 19, 1. 4) is hereby corrected to show, as present complaint, the allegations of which have been admitted by the all the evidence clearly indicates, that the strike began on January 4, 1969, Respondent in its answer. rather than on January 4, 1968, as set forth in the transcript. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Union believes that some of the difficulties that have risen in past years has been caused by the inability of the Union to make contact with all of the affected em- ployees, since there is no central spot where such contact may be made. I would appreciate your supplying this information di: rectly to Representative Brymer at Suite 304, 3605 Long Beach Boulevard, Long Beach, California, 90807 by ap- proximately February 1, 1970. On January 30, 1970, Industrial Relations Manager Albers met with Union Representative Brymer. He told Brymer that the Respondent was concerned about granting the Union's request for the names and addresses of the employees "be- cause of the harassment of employees that had occurred and the possibility that more harassment would occur if the Un- ion had the names and addresses." He said that he was not implying that the Union would be involved in any such future harassment but wanted to speak with Brymer's superior, Un- ion District Director W. J. Forrester. On February 10, Albers met with Union Director For- rester. He told Forrester, as he had told Brymer, of the Re- spondent's "concern" about furnishing the name-and-address list, saying that "there had been harassment of employees who had returned to work during the strike." Forrester said he "was aware ... that some of this harassment had oc- curred," including one incident involving an employee who had crossed the picket line at the Martinez refinery and who, after securing a transfer to the Anacortes refinery in Wash- ington on July 1, 1969, finally quit in August 1969. Forrester said, however, "that he felt that the harassment was not as great" as the Respondent believed. But Albers still expressed the Respondent's "fear that ... the list [of names and ad- dresses] might be misused."' Albers and Forrester met again on February 27 to discuss arrangements for arbitration of grievances which had arisen in one of the Respondent's facilities. In the course of this meeting, Forrester referred again to the Union's request for the list ofnames and addresses and asked Albers to "confirm" the Respondent's answer in writing. Accordingly, in a letter to Forrester dated March 12, 1970, Albers reviewed what has just been found to have been the material substance of his conversations with Brymer and For- rester, and stated the Respondent's conclusions upon this basis and his understanding of the law, as follows: ... For these reasons, we have been reluctant to provide names and addresses of employees in the "Statewide" Unit although we do not mean to imply that the Oil Chemical and Atomic Workers International Union or its officials were, in any way, connected with such harassment. . [W]e have adopted for what we consider sound rea- sons the policy that we should not disclose, at least without the consent of our employees their names and addresses to anyone unless required by law and have adhered to this program consistently. Under these circumstances, We believe that it would not be in the best interest of both parties to provide the names and addresses at this time, particularly in view of our mutual efforts to improve relations and avoid further differences. On April 14, 1970, after receiving this letter, the Union filed its unfair labor practice charges in the present case, alleging that the Respondent had refused to bargain with the Union on or about March 12 and had thereby committed unfair labor practices within the meaning of Swtions 8(a)(1) and (5) of the Act. In an attempt to settle the charges, Albers asked Forrester to meet with him again and, as a result, the two men met in Forrester's office on June 1, 1970. There is no dispute as to the substance of their conversation and the following findings are accordingly based upon a composite of Albers' and Forre- ster's testimony including contributions of consistent material detail which each made to the other's version. Albers again expressed his "concern" about furnishing the Union with a list of the employees' names and addresses, referring specifically to "the unrest and the relationships that existed between the Company and the employees and the Union." Forrester said that he "was aware that we were having considerable problems," that there were "many com- plaints [which were] unresolved," and that the Union "felt that [its obtaining the employees' names and addresses] was a necessary means for ... determining the attitudes of all employees affected by these matters ... and that the failure on the part of the Union to reach those employees who were not members was considerably handicapping the Union in carrying out its responsibility." Albers thereupon proposed two alternatives to the Respon- dent's supplying all the employees' names and addresses to the Union, each of which he said he thought was sufficient for the Union's purposes. One was that the Respondent would furnish the names and addresses of employees who con- sented. The second alternative was that the Respondent would furnish the names and addresses of all unit employees to a mailing house or mailing service which, without disclos- ing this information to the Union, would mail to the em- ployees all material which the Union wanted to submit and then certify this fact to the Union. In making this second alternative proposal, Albers told Forrester that he knew that such mailing services were available, that the Respondent had used them to mail house publications and other material to employees and had found them to be reliable. He did not make any suggestion at this meeting as to who would bear the cost of the mailings including postage, nor did he otherwise amplify the proposal. But he did tell Forrester that he felt th'pt "mutually agreeable" details could be worked out and said the Respondent would be willing to consider any suggestions the Union might make. Forrester said at the June 1 meeting that neither of the alternatives proposed by Albers was acceptable to the Union and "that the Union felt that they needed the names and addresses and ... it was a matter of principle" that they got them. As to Albers' second alternative proposal specificall , Forrester said that, but for the 6-month delay, the Union "might have considered it in a different light," and that t e "delay" also raised a question of how promptly any request d mailings would be handled by the mailing intermediary. Fu thermore, according to the substance of Forrester's t timony, he told Albers in his criticism of the Respondent's second proposal that, unless the mailings submitted by the Union were to be first "edited" by the Respondent, he did not see how mailings through the intermediary would overcome the Respondent's "reluctance" to permit the Union to mare improper use of its letters to the employees' Although Fo - 'Forrester did not testify concerning his meeting with Albers on February 10 and the above findings are made upon , and the quotations are excerpted from, Albers' uncontradicted testimony. ' This is the only interpretation which seems possible for the following passage in Forrester's testimony: My response [to Albers' proposal] was, it didn't seem to me that th L approach was even satisfying the Company's reluctance to the type 4f (Cons) SHELL OIL COMPANY 105 rester testified that Albers made no reply to this criticism, it would appear that no direct reply was required since, not only had Albers made it clear that he was not fearful of an abuse by the Union itself in its or its representatives' contacts or communications with the employees and had made no suggestion that the Union' s mailings should be edited or ap- proved of by the Respondent, but the Respondent's proposal on its face obviously contemplated mailings by the intermedi- ary of any material the Union wanted to have mailed without disclosing its content to the Respondent. Finally, it appears from the evidence that, although invited to do so, Forrester made no suggestions of any union alternatives to the Respon- dent's proposals, and Albers told Forrester that he would confirm the Respondent's alternative proposals in a letter to the Unions Accordingly, under date of June 1, 1970, Albers wrote Forrester the following letter: This will confirm our discussions today to try to settle the'unfair labor practice charge (Case No. 21-CA-9133) filed by your organization on your request for the names and mailing addresses of the Shell Oil employees in the "Statewide" Unit. As you know, we have been concerned during the past months over the possible adverse effects that might oc- cur from providing such names and addresses. In our discussions today, we suggested several alternatives which we believed would continue to provide you with satisfactory means to communicate with all employees and at the same time avoid the problems we see. We suggested contacting the employees on their desire and supplying the addresses of those not objecting, or having a third party, such as a company performing mailing services, to mail the Union's material directly to the employees at the addresses provided separately by the Company. We indicated a willingness to provide the names and addresses under these alternatives and were willing to consider any suggested by you. However, you were not interested in any alternative other than the Company furnishing all names and addresses directly to the Union. Under these circumstances, we appear to be unable to settle the unfair labor practice charge. If you have any other thoughts, please let me know. Prior to the hearing in this case, there were no further contacts between the Respondent and the Union concerning the matter of mailing lists. At the hearing, the parties through the testimony of their respective representative witnesses, Albers and Forrester, amplified their positions in certain re- use that we might be making or the subject matters that we might be using letters for because they had repeatedly told me of their concern with respect to how these things would be handled and that would mean that we would be drafting a letter and submitting it to the third party for mailing of which the Company would have no knowledge and would not then cover their fear that we would be using correspondence im- properly. And then, I closed on that topic by saying, unless it was their thought that this matter that we would submit for mailing was going to be edited by somebody. The foregoing findings summarize the material substance of the conver- sation between Albers and Forrester at their meeting on June 1, 1970. At one point in his direct examination, Forrester's testimony suggested that at these meetings he also protested the Respondent's refusal to give the Union the name-and-address list because it prevented not only the Union's direct mailing of letters to the employees but also the Union's direct personal contact with the employees. But, from his testimony on cross-examination, it became clear that he did not tell Albers at this meeting that the Union wanted the list not merely for direct mailing but also to permit its represen- tatives to visit nonunion members of the unit. spects which, so far as the evidence shows, had not been discussed by them in their prehearing letters and meetings. As to the availability of a list of unit employees' names and addresses, Industrial Relations Manager Albers testified (1) that the Respondent had centrally located computerized em- ployment records from which it could supply either the Un- ion or a mailing agency with the names and addresses of all unit employees without any great difficulty; and (2) that these records, and the pertinent portions at each of the Respon- dent's facilities in the unit, were kept and were available for confidential use only by the Respondent's personnel and pay- roll departments. As to the feasibility of using the confidential mailing agency proposed by the Respondent to avoid leakage and abuse of any of this information beyond the Union's officials but at the same time to give the Union adequate and confidential mailing access to all employees in the unit, Alb- ers further testified (a) that his investigation had disclosed the availability of mailing services which would suit the parties' purposes; (b) that the union material could be submitted to the mailing agency in sealed envelopes; (c) that the union mailing could be made without limitation as to number; and (d) that the Respondent was willing to pay "the extra cost of the mailing service." Union Director Forrester also amplified the Union's posi- tion in the testimony given by him at the hearing. He testified in substance (a) that only the Respondent's disclosure to the Union of the names and addresses of all the unit employees would enable the Union fully to perform its function of repre- senting all the unit employees including nonunion members; (b) that for this purpose it was essential for the Union to be able not only to mail communications to the employees but also to permit "its leadership" to make personal visits to their homes in order to organize them and "close the ranks," to canvass their views and opinions on collective-bargaining po- sitions and working conditions, and to represent them on grievances and industrial accident claims; (c) that, if the Re- spondent merely permitted mailings through a confidential mailing service instead of giving the full name-and-address list directly to the Union, the Union was fearful that if nonun- ion employees replied to its mailings, the Union might be accused of bad faith in necessarily following up the em- ployees' replies by personal visits; (4) that it was not the Union's intent that a name-and-address list should be "given over to the so-called goons and others to go out and break windows" (if that actually were the Respondent's fear); and (5) that, on the contrary, it was the Union's intent to limit disclosure and the proper use of a full name-and-address list to the Union's "leadership" that is, its own officials and its six Locals' "president[s], secretar[ies] ... officers and those committees that are formed for these [proper] purposes" in- cluding also, of necessity, the clericals in each of the Locals who would process the mailings. During the course of his examination of Joseph Misbrener, the International representative of the Union assigned to ser- vice three of the Locals whose members are employed at Respondent's Martinez Refinery, the General Counsel re- ferred Misbrener to article X, section 4 of the uniform bylaws prescribed by the Union's constitution for all Locals, which provides a 6-month suspension from union membership and a 2-year disbarment from union office for disclosure of the union membership lists "to persons other than those whose official business requires such a list." Respondent's counsel objected to ensuing questions, and an accompanying offer by the General Counsel to prove through Misbrener, that these penalties would also be invoked by the Union against any disclosure of the names and addresses appearing on any gen- eral list of employees which might be submitted by the Re- spondent on the Union's request. In argument on these objec- 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions, it was conceded by the General Counsel (as it had also appeared from Forrester's and Albers' testimony) that no such assurance purporting to safeguard the confidentiality of an employees' name-and-address list had been given by the Union to the Respondent at the time the Union made and pressed its request for such a list. On this ground, I sustained the objections to the General Counsel's questions and his offer of proof. In any event it appears to me that the effective- ness of any such procedure to safeguard the name-and- address list from improper disclosure and possible abuse would be doubtful in view of the number of people to whom it would be available in each of the six Locals according to Forrester's testimony. B. Conclusions The General Counsel and the Union rely upon the Board's holdings in Standard Oil Company of California, 6 and several subsequent cases,' that the employer in each of these cases, by refusing to furnish an exclusive bargaining representative with the names and mailing addresses of the employees in a large, widely spread, multifacility bargaining unit, had with- held information relevant and essential to the bargaining rep- resentative's communicating with the unit employees and performing its statutory obligation and function of fairly representing all of them, and that the employer in these cases had thereby committed unfair labor practices within the meaning of Section 8(a)(5) of the Act. Contending that these decisions control disposition of the present case, the point out that, as in Standard Oil and the other cases relied upon by them, the Union's existing available means of communicating with the unit employees were inadequate because of the geo- graphical spread of the multifacility unit, the large number of unit employees and their residential dispersion, and the fact that a substantial percentage of them were not union mem- bers and therefore not known to the Union. The Respondent raises three defenses: (1) that, contrary to its limited request in its letter of December 29, 1969, for "mailing addresses," the Union sought the employees' ad- dresses not only for mailings but also to enable it to make personal contacts with the employees at their homes; (2) that the Respondent's offer to the Union of the use of a confiden- tial mailing intermediary was sufficient for the Union's pur- poses and eliminated the necessity for supplying the re- quested list of "mailing addresses" directly to the Union; and (3) that the Respondent's fear of a leakage and abuse of the name-and-address list through rank-and-file harassment of nonunion employees justified the Respondent's refusal to sup- ply the list to the Union. For the following reasons, although I reject the first two of these defenses, I find the third to be substantial and sound, and therefore on this basis alone recommend the dismissal of the complaint. In asserting the first of these three defenses, the Respond- ent points out that, in the Union's letter of December 29, 1969, and in Director Forrester's conferences with Industrial Relations Manager Albers, the Union's request was for the "mailing addresses" of the employees and argues that this constituted a limitation of the use of the list to mailings although, as appeared from Forrester's later testimony at the hearing, the Union actually intended to use the addresses if they were supplied, also for personal contacts with the nonunion as well as union employees at their homes in order to organize them, to canvass their views and opinions on collective-bargaining positions and working conditions, and to represent them on grievances and industrial accident claims . Certainly, such activity by the union representatives extending even to contacts at the homes of the employees if the Union thought it to be necessary, fell within the Union's statutory obligation and function as exclusive bargaining rep- resentative to give fair and effective representation to all the employees in the unit whether they were union members or not.' And, to preserve the Union's proper freedom in such activity, the Board will not lightly read any limitation of use into an exclusive bargaining representative's phrasing of a request made by it to the employer for the unit employees' names and addresses.' In the the present case, the fact that the Union asked for "mailing addresses" cannot realistically be regarded as an intentional and understood limitation of use. For, in its letter of December 29, 1969, and in Forrester's conferences with Albers, the Union gave no express indication that it would limit its use of the employees' addresses to mailings but broadly asserted in its letter as the basis of its request, the necessity of its having access to all employees in the unit in order "to fully meet its legal and moral obligations in repre- senting those employees for which it is duly certified." Ac- cordingly, contrary to the Respondent's contention, I find no basis for the Respondent's really believing that because the Union's request was for "mailing addresses," that the Union would use them only for mailing and not for personal con- tacts by the Union's authorized representatives. I have con- cluded therefore that the defense of the Respondent based upon an asserted limitation of the Union's request, is without merit. Nor do I find merit in the Respondent's asserted separate defense that the Respondent's offer to the Union of the use of a confidential mailing intermediary was sufficient for the Union's purposes and eliminated the necessity for supplying the requested list of "mailing addresses" directly to the Un- ion. In Excelsior Underwear, Inc.,10 the Board considered the adequacy of the use of such a mailing intermediary but, in order to permit the Union free access to unit employees and insure an "informed electorate" in a Board representation election under Section 9(c) of the Act, the Board required the employer to furnish the Union with a list of the names and addresses of all employees in the unit. In reaching this conclu- sion, the Board stated in the following language which in my opinion has equal application to the present type of case arising under the Standard Oil principle, that: . We do not limit the requirement of disclosure to furnishing employee names and addresses to a mailing service ... because this would create difficult practical problems and because we do not believe that the union should be limited to the use of the mails in its efforts to communicate with the entire electorate. (156 NLRB at 1246.) It is true that the Respondent's offer contemplated an un- limited number of mailings by the intermediary on an unin- spected and confidential basis and that the Respondent in- vited the Union's suggestions as to further details but the Union offered none. In these respects the Respondent's offer supplied salutary elements which were not specifically con- sidered by the Board in generally rejecting the sufficiency of mailing service intermediaries in Excelsior Underwear, and which were completely absent in the Southern Counties Gas Company case where the Board rejected the employer's offer of the use of its own mailing facilities because the offer appar- ently contemplated a single mailing by the union after inspec- 166 NLRB 343, enfd. 399 F.2d 639 (C.A. 9). Southern Counties Gas Company of California, 174 NLRB No. 11; General Electric Company, 176 NLRB No. 84. See also Prudential Insur- ance Company, 173 NLRB No. 117, enfd. 412 F.2d 77 (C.A. 2). ° Standard Oil Company of California, supra, 346. Ibid. 10 156 NLRB 1236. SHELL OIL COMPANY 107 tion and approval of the material by the employer." But, although perhaps sufficient as a substitute for the Union's direct mailing of material to employees in the unit , the Re- spondent's offer fell short of affording the Union such an opportunity for direct personal contacts with all the unit employees as would normally be desirable and permissible to enable it to perform its representative function adequately. (Standard Oil Company of California, supra, 166 NLRB at 346.) Furthermore , the Respondent's offer adds nothing to what I hereinafter find to be the Respondent 's sufficient inde- pendent defense based upon its fear of further harassment of nonunion employees . The most that can be said of it , is that, when considered in conjunction with the Respondent 's suffi- cient reason for refusing the Union's request for the names and addresses of the employees , it minimized the impact of the Respondent's refusal , by affording the Union with at least the opportunity of reaching the employees by mail . Conse- quently, I have rejected the Respondent's asserted, separate defense based upon the alleged sufficiency of its alternative proposal that the Union use a confidential mailing intermedi- ary. We come finally to a consideration of the remaining de- fense asserted by the Respondent, i.e., that the Respondent's fear of a leakage and abuse of the name -and-address list through rank-and-file harassment of nonunion employees jus- tified the Respondent 's refusal to supply the list to the Union. I have concluded that this defense has independent merit and that the complaint in the present case should therefore be dismissed. In Standard Oil, the Board held , as the General Counsel notes in his brief, that when the relevance of the names and addresses of employees to the bargaining representative's fair representation of the unit employees has been shown in a particular case, "the Employer's good-faith refusal to supply [the information] is not a defense." (166 NLRB at 345.) But the Board in concluding that the employer in Standard Oil had committed an unfair labor practice, also noted and relied upon "the Employer's failure to furnish a reasonable justifica- tion for withholding the information ." (166 NLRB at 345- 346.) Counsel have not referred me to any cases in which the Board or the courts have dealt with this question of what may be "reasonable justification for an [Employer's] withholding" unit employees' names and addresses in a situation like the present wherein the Standard Oil rule facilitating the fair representation of all employees in a bargaining unit would otherwise apply. Nor do I know of any . The General Counsel, however, argues that the situation in the Standard Oil type of case is analogous to the situation in the Excelsior Under- wear type of case in which the Board has held with judicial approval that, in order "to insure an informed electorate" in a Board representation election under Section 9(c) of the Act, the employer will also be required within 7 days after direc- tion of the election , to furnish to the union or unions on the ballot, a list of all the names and addresses of the employees in the bargaining unit.12 Applying the asserted analogy, the General Counsel points out the following language in Excelsior which, according to his contention , requires rejection of the Respondent's attempt in the present case to justify its refusal of the Union's request for the name-and-address list because of a fear of harassment of employees on the list: " Southern Counties Gas Company of California, 176 NLRB No. 84. " Excelsior Underwear, Inc., 156 NLRB 1235, 1239-1243. See also N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759, reversing 397 F.2d 394 (C. A. 1). Similarly, we reject the argument that to provide the union with employee names and addresses subjects em- ployees to the dangers of harassment and coercion in their homes . We cannot assume that a union , seeking to obtain employees ' votes in a secret ballot election, will engage in conduct of this nature; if it does, we shall provide an appropriate remedy. We do not, in any event, regard the mere possibility that a union will abuse the opportunity to communicate with employees in their homes as sufficient basis for denying this opportunity altogether. See Martin v. Struthers, 319 U.S . 141; Staub v. City of Baxley, 355 U.S. 133. ( 156 NLRB at 1244.) But the instant case presents more than such a "mere possibility that a union will abuse the opportunity to com- municate with employees in their homes ." For, as the parties stipulated, at the time of the Union 's requesting the list of employees' names and mailing addresses in the present case, striking employees whom the Union apparently could not control had in fact only recently engaged in violence in the form of mass picketing and harassment of employees who had returned to work during the strike, both at the gates of the Respondent's struck facilities and at the individual em- ployees' homes . This was not the abstract "mere possibility" about which the Board was speaking in Excelsior, but an actuality the repetition of which the Respondent might rea- sonably fear in the future should any list of employees' ad- dresses furnished the Union fall into the hands of rank-and- file employees . Yet, when the Respondent expressed this fear to the Union as the basis of its reluctance to supply the list, the Union gave the Respondent no assurance that this would not happen." In W. L. McKnight, d/b/a Webster Outdoor Advertising Company, the Board and the court of appeals were presented with a similar situation." The union in that case had accused the employer of paying higher wages to strike replacements than to strikers and, despite the employer's denial, requested the employer to permit an examination of payroll records. Replacements had been harassed , threatened , and assaulted by some of the striking employees . In reply to the union's request, the employer said that it was "rather hesitant to turn over to the Union a list of replacements without some assur- ances that [that] information is really necessary to the Union and, further that it won't be used to further facilitate harass- ment of replacements." The union did not reply nor did it renew its request. The Board dismissed the allegation of the complaint that the employer had violated Section 8(a)(5) of the Act by refusing the union 's request, stating that: . [T]he record indicates that replacements had been harassed, threatened, and assaulted by some of the strik- ing employees . One of the strikers , in fact, had been convicted in state court for assaulting a replacement with a gun . Under such circumstances , Respondent was justified in seeking assurances that the payroll informa- tion was necessary for legitimate union purposes and " Just recently and after the draft of the present Decision had been completed, the Court of Appeals for the Second Circuit enforced a Board order in United Aircraft Corp., requiring the employer to furnish the repre- sentative union with a list of employees' names and addresses despite the fact that during a strike 8 years earlier, striking employees had engaged in violence. United Aircraft Corp. v. N.L.R.B., 434 F.2d 1198, enfg. 181 NLRB No. 150. But the situation in the present case is distinguishable in that the harassment by striking employees had occurred only shortly before the Union made its request for a list of the employees' names and addresses, the Respondent immediately expressed its fear that this type of employee con- duct might be resumed, and the Union gave the Respondent no reassurance, much less any indication how it might be avoided. '° 170 NLRB No. 144, enfd. sub nom. Sign and Pictorial Union Local 1175 v. N.L.R.B., 419 F.2d 726 (C.A. D.C.). 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would not be used to facilitate further harassment of replacements. Moreover, Respondent did not categori- cally reject the Union's request. It merely expressed reluctance about turning payroll information over to the Union until adequate assurances had been given and legitimate need established. It is also significant that the Union, after receiving Respondent's explanation, did not renew its request. In these circumstances, we find that the Respondent's denial of the Union's request did not violate Section 8(a)(5). [170 NLRB No. 144.] In affirming the Board's dismissal of the complaint on these grounds, the Circuit Court of Appeals for the District of Columbia Circuit considered and rejected the union's argu- ment based upon the Board's language in Excelsior. The court dealt with the union's argument as follows: The Union cites Excelsior Underwear Inc., 156 NLRB 1236 (1966). It is true that there the Board held that an employer must supply the Union with a list of the em- ployees' names and addresses before an election. It re- jected the contention that union harassment of em- ployees at their homes would result. The Union fails to indicate, however, that the Board in the Excelsior Un- derwear case stated that it would not "assume" such union misconduct, and that "if it [occurred], we shall provide an appropriate remedy." Id. at 1244. That rea- soning supports the Board's action here, for here it is uncontested that such union misconduct did in fact take place. [419 F.2d 726, 738, fn. 8.] The Board's and the court's reasoning in this case impels the conclusion that, under the circumstances shown by the evidence in the present case, the Respondent's fear of a leak- age and abuse of the name-and-address list, through the rank- and-file harassment of nonunion employees, reasonably jus- tified the Respondent's refusal to supply the list requested by the Union. On this ground alone, I would dismiss the com- plaint in the present case. Accordingly, upon the foregoing considerations, findings and conclusions, I recommend the following: ORDER It is ordered that the complaint herein be and the same is hereby dismissed in its entirety.