National Labor Relations Bd. v. Monsanto Chemical Co.

• Decision Date: 27 July 1955
• Docket Number: No. 14472.,14472.
• Citation: 225 F.2d 16
• Parties: NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONSANTO CHEMICAL COMPANY, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

225 F.2d 16 (1955)

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONSANTO CHEMICAL COMPANY, Respondent.

No. 14472.

United States Court of Appeals Ninth Circuit.

July 27, 1955.

George J. Bott, Gen. Counsel, David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, NLRB, Washington, D. C., Patrick Walker, Frederick U. Reel, Margaret M. Farmer, Washington, D. C., for petitioner.

Elton L. French, St. Louis, Mo., Alfred J. Schweppe, Seattle, Wash., Peter W. Bauman, Jr., St. Louis, Mo., for respondent.

Before STEPHENS, HEALY and POPE, Circuit Judges.

POPE, Circuit Judge.

The General Counsel of the above named Board filed a complaint against respondent charging it with unfair labor practices within the meaning of § 8(a) (1) of the National Labor Relations Act.¹ The complaint arises out of the refusal of the respondent to permit the representatives of a labor union to distribute union literature to company employees on a parking lot which respondent provided for the use of its employees on company property adjacent to the company's chemical plant near Soda Springs, Idaho.

Respondent owns a 500 acre tract of land approximately one mile from Soda Springs, a town of some 2000 inhabitants. Its chemical manufacturing plant is located upon that tract of land and the buildings are approximately half a mile from the state highway which runs past the tract. Its private road leads from the highway to the plant structures. Near the plant office building the respondent has provided a parking area for the use of its employees. It is separated by a fence from the plant buildings. There is no public transportation available and all the employees ride to work in private automobiles. After they leave the automobiles in the parking area they enter a building where they change clothes and punch time cards and then pass through a gate to the plant buildings. The company employs approximately 130 employees and operates seven days a week on a three shift basis.

In August, 1953, the respondent promulgated a rule which was incorporated in a manual circulated to its employees reading as follows: "Soliciting: Soliciting funds and selling tickets or any article on company property without approval of the plant manager is prohibited. Petitions: Circulating petitions or posting or distributing any literature on company property without approval of the plant manager is prohibited." On September 28, 1953, an organizer for the union here involved, accompanied by a union business representative, went to the parking area and there requested of the guard in charge of the area the privilege of distributing union literature. They were told that the company rule forbade this. They then interviewed management representatives who refused to grant permission to distribute literature in the parking area stating that the distribution of union or other literature on company property was contrary to the company policy. The union representatives then returned to a point where the private road from the company plant approached the state highway and stationed themselves there for the purpose of undertaking to distribute union literature to employees who drove away from the plant toward the highway. Although a stop sign was placed at this location, yet because there was little traffic on the highway, most of the employees' automobiles did not stop there. Hence on this occasion as on previous occasions when distribution had been attempted at this point by the union representatives they found little or no opportunity to distribute their literature for the employees simply drove past without stopping. It is conceded that the respondent had and expressed no objection to the distribution of literature on the private road and at that highway intersection. Later the two union representatives returned to the parking area and commenced distribution of literature there. They were then approached and ordered to leave the place and they did so. Again they attempted to distribute literature at the highway intersection but again found that their efforts were unsuccessful because the cars moving toward or from the highway would not stop.

The Board approved the following finding of the Examiner: "Respondent contends and I agree that there is no rule barring the solicitation for union membership by employees on company property; nor is there any evidence that such a policy has been followed. And the above-quoted rule, forbidding distribution of literature on company property, has been uniformly enforced. In addition to the attempt of the union representatives to distribute literature, described below, the record discloses that Respondent, on two occasions, immediately stopped the distribution of other literature in this parking area, once by an automobile dealer and once by high school students, soliciting purchases of automobiles and attendance at a school function respectively. No other distributions of any nature have been attempted or permitted."

Respondent's plant began operation about December 1, 1952. At the time here in question its employees had never been represented by any labor organization. 85% of the employees lived within a radius of 12 miles from the plant and over 67% lived at Soda Springs. The Board found that the respondent asserted its right to control the use of its private property in the manner indicated in good faith, but nevertheless found that by enforcing the rule in question, it had been engaged in conduct violative of § 88(a) (1) of the Act.

Recently two other courts of appeals have had occasion to consider petitions for enforcement where the facts cannot be distinguished from those present here, and in each case enforcement was denied. In N. L. R. B. v. Babcock & Wilcox Co., 5 Cir., 222 F.2d 316, 317, the respondent had a rule prohibiting distribution of literature on its premises including its parking lot, walkways and drive. In that case, as here the persons seeking to make distribution of literature were union representatives "not employed by or otherwise connected with the company and not working in concert with or upon the solicitation of any of its employees." Distinguishing the case of National Labor Relations Board v. Le Tourneau Company of Georgia, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372,² on the ground that in that case it was company employees who were seeking and who had been forbidden to distribute literature upon company premises, the court said 222 F.2d 318: "We find ourselves in full agreement too with the contention of the respondent that the orders of the board in this case are not in accordance with but in direct violation of the letter and spirit of the Labor Management Act, as amended. Indeed we are at a loss to understand how on this record, which contains neither findings, nor evidence furnishing a basis for findings, that the rights or interests of respondent's employees are involved or will be furthered by compelling the respondent to institute a discriminatory application in favor of a particular labor union of its non-distribution rule, the board can take to itself the power to accord the union rights which the statute does not accord it by imposing against the respondent, in favor of a particular union, a servitude on its property which the law, neither in terms nor in spirit, accords to it, in a case, too, where no employee is involved, no employee is complaining, and no rights of employees have been invaded or abridged by the respondent."

In National Labor Relations Board v. Seamprufe, Inc., 10 Cir., 222 F.2d 858, the facts were substantially the same in that the complaint charged the respondent with prohibiting the use of its private parking area and adjacent areas by a non-employee union organizer for distribution of union literature and solicitation of employees to union membership during the employees non-working hours. There also it appears that the manufacturing plant was located near a small town; it employed approximately 200 persons, two-thirds of whom lived in town and the balance within a radius of five to thirty miles from the city. All employees rode to and from work in privately owned automobiles. There also the non-stop method of driving from and to the plant made it virtually impossible for the union representative to communicate with the employees as they drove on or off the property. The court refused to enforce the board's order requiring the employer to desist from prohibiting the use of its parking lot by non-employee union organizers and said: "As we have seen, the fundamental basis for permitting the solicitation of union membership on company property is to vouchsafe the guaranteed right of self-organization. N. L. R. B. v. Le Tourneau, supra. When conducted by employees the solicitation amounts to the exercise of a right subject only to the correlative right of the employer to maintain plant production and discipline. An employee on company property exercising the right of self-organization does not violate a company no-trespass rule. * * * But a non-employee labor organizer who comes upon company property in violation of a non-discriminatory no-trespass rule can justify his presence there only insofar as it bears a cogent relationship to the exercise of the employees' guaranteed right of self-organization.

"Here the union which the non-employee solicitors represented was not the bargaining agent for the employees. * * * Indeed the employees did not belong to any union, and the solicitors were therefore strangers to the right of self-organization, absent a showing of non-accessibility amounting to a handicap to self-organization."

It is to be noted that the Court of Appeals for the Fourth Circuit in N. L. R. B. v. Caldwell Furniture Co., 199 F.2d 267, apparently enforced an order of the Labor Board where the order had been directed at the application of a rule prohibiting distribution of union literature by non-employee union representatives. The...