Texaco, Inc. v. NLRB

• Decision Date: 04 May 1972
• Docket Number: No. 71-1281.,71-1281.
• Citation: 462 F.2d 812
• Parties: TEXACO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

462 F.2d 812 (1972)

TEXACO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 71-1281.

United States Court of Appeals, Third Circuit.

Argued January 3, 1972.

Decided May 4, 1972.

Robert H. Kleeb, Philadelphia, Pa., for petitioner.

Nancy Sherman, N.L.R.B. Washington, D. C., for respondent.

Before SEITZ, Chief Judge, and HASTIE and JAMES ROSEN, Circuit Judges.

OPINION OF THE COURT

HASTIE, Circuit Judge.

We here review an order of the National Labor Relations Board upon a petition of Texaco Inc. to set that order aside and a cross-application of the Board for its enforcement. In dispute is the Board's decision that Texaco violated Section 8(a) (1) of the National Labor Relations Act, as amended, 29 U. S.C. § 158(a) (1) by refusing to allow its employees to distribute certain union literature in a nonwork area of its premises during non-work time.

At all relevant times the employees were represented by Local 8638, Oil, Chemical and Atomic Workers. The distribution of union literature within the plant was covered by an outstanding agreement between the company and the union. It was agreed that union literature might be distributed during non-work time in a designated area near the entrance of the plant. The union asserted that it would not distribute "political, ethnic or other undesirable literature."

The episode that created the present dispute began when union officers requested time off to distribute a particular leaflet in the approved area of the company premises. A copy of the leaflet was left at the plant Employee Relations Office. After reading the document, an employee relations officer asked that distribution be postponed until he could confer with other management officers. The union complied with this request. Thereafter, management advised the union that the leaflet contained "undesirable" matter and asked that it not be distributed on company property. The union then distributed the leaflet on public property outside the entrance to the plant and filed an unfair labor practice charge based upon the company's refusal to permit this particular distribution on company property.

The portion of the leaflet to which Texaco objected reads as follows:

"In November, we attended a special Texaco Nationwide Union Council Meeting. Many problems were discussed and One requires your cooperation . . . . Over the past several months, Texaco has taken a position of non-recognition of OCAW at various locations, in particular, the Ventura Producing District in California and at Sales Terminals in Port Arthur, Houston, Dallas, San Antonio and Fort Worth, Texas, Tulsa, Oklahoma and Lake Charles, La. Attempts to decertify OCAW, have been made at many other locations, including Claymont, Delaware. This company is using their power, to influence members of our union to abandon the principle of unity . . . . Without a strong union, which we now have, a return to the so called good old days would only be around the corner. Enclosed, is a suggested letter that you may send along with your mutilated credit card to Texaco Inc. If we let this Company know that their policy of Divide and Conquer will not succeed, we will all have a Happy New Year in 1971."

The "suggested letter" attached to the leaflet charged that Texaco has embarked on an anti-union campaign by granting wage increases to non-union sales employees at a facility in Texas and refusing increases to union employees.

It is not disputed that Section 7 of the National Labor Relations Act sanctions the distribution of union literature on the employer's premises at appropriate times and places.¹ And in this case there is no denial that the proposed place and time of distribution were appropriate. Moreover, the employer's ban did not apply to the distribution of all union literature, or indeed any literature except a particular leaflet. We have to decide simply whether, as Texaco contends, the content of a particular leaflet placed its distribution outside the normally recognized privilege to distribute union literature on the premises.²

Texaco makes three points: that the leaflet, by recommending that employees mutilate and surrender their credit cards, urged the employees to boycott Texaco products and thus be "disloyal" to their employer; that the leaflet contained untrue statements amounting to false charges of anti-unionism against Texaco, and that the employer had properly found the leaflets "undesirable" within the meaning of the union's undertaking not to distribute "political, ethnic or other undesirable literature."

The argument that distribution of the leaflet was not privileged because it recommended "disloyal" action is bottomed upon the familiar Jefferson Standard Broadcasting case.³ But that decision turned upon the Court's determination that a public charge by employees, that the television station which employed them had inadequate equipment and broadcast inferior and uninteresting programs, was a type of disloyal activity unprotected by the Act because it was a disparagement of the employer's product not made in the context of an appeal for support in a labor dispute.

In contrast, the present leaflet, most broadly construed, did no more than to urge employees to put pressure on their employer to stop alleged anti-union activity by threatening to withhold their patronage as purchasers of the employer's products. Certainly the Act protects employees in appeals, by picketing or by the distribution of literature, to the public to withhold patronage from their employer in protest against his...