Diamond Shamrock Co.

National Labor Relations Board - Board Decisions

Feb 20, 1970

181 N.L.R.B. 261 (N.L.R.B. 1970)

DIAMOND SHAMROCK CO 261
Diamond Shamrock Co. and Oil, Chemical and
Atomic Workers International Union , AFL-CIO.
Cast 4-CA-4702
February 20, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 23, 1969, Trial Examiner Ramey
Donovan issued his Decision in this proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint, and
recommending that the allegations be dismissed in
their entirety , as set forth in the Trial Examiner's
Decision . Thereafter, the General Counsel filed
exceptions to the Trial Examiner ' s Decision, and a
supporting brief that incorporated the General
Counsel ' s brief to the Trial Examiner. The
Respondent filed a brief in opposition to the
General Counsel ' s exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision, the exceptions and briefs, and
the entire record in this case , and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner only to the extent consistent
herewith.
The basic facts are not in dispute . Respondent
manufactures chlorine, caustic soda, and other
chemicals at its plant in Delaware City, Delaware.
All production , storage, and employee -service
buildings are enclosed by a chainlink fence. An
administration building and an employee parking lot
are located outside the fence . Access to the plant is
by a vehicular gate into the fenced area, a
pedestrian gate into the same area, and an
employee's gate into the employee lockerroom
building ' The gates are separated by a guard house,
from which all gates may be observed . Employees
reporting for duty park in the parking lot and enter
the lockerroom through the employee's gate,
without any show of identification . From the
lockerroom , one enters easily into the production
areas of the plant , again without any show of
identification.
The work force is divided into maintenance
workers of several types, and shift (or production)
workers. Maintenance workers work primarily on
'The room in question herein is a combination lockerroom , lunchroom,
lounge, basketroom , etc. For sake of convenience , we will refer to it as the
lockerroom
an 8 a.m.-4:30 p.m. schedule. The production
workers rotate by the week on shifts of 8 a.m.-4
p.m., 4 p.m.-12 midnight, and 12 midnight-8 a.m.,
each spending at least I week each month on each
shift.
In September 1968, the Union began an
organizational campaign in a unit of all production
and maintenance employees at Respondent's plant.
On Friday, September 20, three maintenance
workers left the Company property at the end of
their shift. They returned at about 11:30 p.m., and
began soliciting signatures on cards in the employee
lockerroom. They were observed by a supervisor of
the oncoming (12-8) shift, who, after conferring with
a supervisor of the 4-12 shift, called the Company's
employee-relations director. He was instructed to
tell the men to leave. He did so, and the three men
left without incident. The same three men returned
to the lockerroom on Sunday, a nonwork day for
them, and solicited employees to sign union
authorization cards. However, they were not
observed by any supervisor, and no member of
management became aware of this activity. On
Monday, the three were called into the plant
manager's office and told that there was a company
rule against returning to the plant or lockerroom
building when not required by work to be there, and
that if they continued to do so, drastic action would
be taken. They were told that they could solicit in
any nonproduction area on their breaks and on the
way to and from duty, and at any time on the
parking lot and at the gates, but could not enter the
enclosed building areas otherwise without
authorization.
The Trial Examiner found first that Respondent
had a general rule that off-duty employees were not
allowed within the enclosed areas of the plant,
including the lockerroom, without prior permission
from management, and that the employees were
aware of the rule He therefore found that the rule
here alleged to be unlawful was not discriminatorily
promulgated. We agree. The Trial Examiner went
on to find that, while on-duty employees on
nonwork time have the right to solicit union
membership and distribute union propaganda in
nonwork areas, off-duty employees do not have a
right to be on company property for such purposes
(except the parking lot, or any similar areas that are
not part of the plant areas) unless it be shown that
absent such access, the employees would have no
other reasonably adequate means of communicating
with fellow employees. We do not agree.
In Peyton Packing Co., 49 NLRB 828, enfd. 142
F.2d 1009 (C.A. 5), the Board stated:
The Act, of course, does not prevent an
employer from making and enforcing reasonable
rules covering the conduct of employees on
company time. Working time is for work. It is
therefore within the province of an employer to
promulgate and enforce a rule prohibiting union
solicitation during working hours. Such a rule
181 NLRB No. 43
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be presumed to be valid in the absence of
evidence that it was adopted for a discriminatory
purpose. It is no less true that time outside
working hours, whether before or after work, or
during luncheon or rest periods, is an employee's
time to use as he wishes without unreasonable
restr0int, although the employee is on company
property. It is therefore not within the province of
an employer to promulgate and enforce a rule
prohibiting union solicitation by an employee
outside of working hours, although on company
property. Such a rule must be presumed to be an
unreasonable impediment to self-organization and
therefore discriminatory in the absence of
evidence that special circumstances make the rule
necessary in order to maintain production or
discipline
Shortly after, in Republic Aviation Corporation v.
N L.R.B , 324 U.S. 793, the Supreme Court
specifically approved that quoted language, pointing
out that the validity of employer rules restricting
union solicitation or distribution of union literature
on plant premises depends upon "an adjustment
between the undisputed right of self-organization
assured to employees under the Wagner Act and the
equally undisputed right of employers to maintain
discipline in their establishments." Later reviewing
that case, the Supreme Court, in N L.R B. v.
Babcock & Wilcox Co., 351 U.S. 105, pointed out
that, while it had agreed with the Board in Republic
Aviation, supra, as to employees, it felt that a
distinction must be made between employees and
nonemployees As to nonemployees, the Court found
that, except in extreme cases, where it might be
shown that employees are inaccessible otherwise, an
employer need not allow nonemployees to solicit or
distribute on company property However, as to
employees, the Court specifically reaffirmed its
Republic Aviation holding that "No restriction may
be placed on the employees' right to discuss
self-organization among themselves, unless the
employer can demonstrate that a restriction is
necessary to maintain production or discipline." See
NL.R.B. v. Babcock & Wilcox Co., 351 U.S. 105,
113.
The Trial Examiner was not correct, then, in
applying to the right of the employees to solicit the
test applied only to nonemployees; that is, the test
of no reasonably adequate alternative means of
communication. Rules which prohibit union
solicitation or distribution of union literature on
company property by employees during their
nonworking time are presumptively invalid. The
presumption may be rebutted by a showing that
such a rule is necessary in order to maintain
production or discipline, or for the safety of the
plant.
Respondent contends that in any event, the rule in
question is valid, as it is necessary for plant security
and safety, and the maintenance of plant
production. It points to incidents of thefts and
dangerous gas leakages to support its argument. We
are not persuaded. Respondent has not shown that
any of the incidents were in fact perpetrated by
off-duty employees, that any off-duty employee was
injured as a result of unauthorized presence in the
production areas of the plant, or that production has
been in fact interrupted by such unauthorized
presence. In fact, it does not point to any incident
where an off-duty employee has been found in
production areas. Although it argues that protection
of the production areas is necessary to maintain
conditions set by its insurance carrier, it has no
system of identification or of checking unauthorized
personnel in any area of its plant or buildings.
Indeed, the instances of solicitation herein were
confined to the lockerroom, and apparently to the
periods when shifts were coming and leaving,
periods which Respondent contends are
unencumbered by rules for those coming and
leaving, but not for off-duty employees.
Respondent argues that the Board should not find
the rule herein invalid because Respondent has been
completely permissive regarding solicitation and
distribution in all other respects, and that the
Union, despite the rule, was able to wage a vigorous
campaign. We find these considerations to be
nothing more than a furtherance of the argument
that adequate alternative means of communication
were available, a test we have rejected above Nor
are we persuaded by the argument that the rule was
applied without regard to the purpose of solicitation.
If that were the test, then restrictions with regard to
lunchtime, breaktime, etc., would also be valid. We
have recognized the fact that the rule here was
known to employees, and Respondent postulates
that permission might well have been granted if
sought, but we do not agree that the exercise of a
Section 7 right can be predicated upon the obtaining
of management's permission.' Accordingly, we find
that the General Counsel has proved by a
preponderance of the evidence that Respondent has
violated the Act by application and enforcement of
the no-solicitation rule here in question.3 On the
basis of the record before it, the Board makes the
following:
CONCLUSIONS OF LAW
1. By applying and enforcing at its Delaware City,
Delaware, plant a rule which prohibits employees
from entering or returning to the premises of the
plant during their nonworking time to solicit union
support in nonworking areas of the plant,
Respondent has engaged in and is engaging in unfair
'See J R Simplot Company Food Processing Division 137 NLRB
1552, 1553
'See, e g ., Bauer Aluminum , 152 NLRB 1360, enfd 394 F.2d 405,
vacating 374 F.2d 183 (C A. 5) Lou De Young's Market Basket, Inc , 159
NLRB 854, enfd . 406 F 2d 17 (C A 6), remanded 395 U S 828 on other
grounds, Casey Mfg Co. 167 NLRB No 13, Walker Process Equipment,
Inc, 163 NLRB 615, 619, The Sardis Luggage Company, 170 NLRB No
187; Sylvania Electric Products. Inc, 174 NLRB No. 159
DIAMOND SHAMROCK CO.
labor practices within the meaning of Section 8(a)(1)
of the Act.
2. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
3. Diamond Shamrock Co. has not engaged in
any other violations of the Act alleged in the
complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Diamond Shamrock Co., Delaware City, Delaware,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Applying and enforcing at its Delaware City,
Delaware, plant any rule which prohibits its
employees from entering or returning to the
premises of the plant during their nonworking time
to solicit union support in nonworking areas of the
plant.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at its plant in Delaware City, Delaware,
copies of the attached notice marked "Appendix."4
Copies of said notice, on forms provided by the
Regional Director for Region 4, shall, after being
duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to 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
(b) Notify the Regional Director for Region 4, in
writing, within 10 days of the date of this Decision
and Order, what steps Respondent has taken to
comply herewith.
It is hereby further ordered that the complaint
herein be, dismissed, insofar as it alleges that
Diamond Shamrock Co. has engaged in any unfair
labor practices other than the conduct herein above
specifically found to have constituted a violation of
Section 8(a)(1) of the Act
in the event this Order is enforced by a judgment of the United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
263
WE WILL NOT apply or enforce any plant rule which
prohibits employees from entering or returning to the
premises of our Delaware City, Delaware, plant during
their nonworking time to solicit union support in
nonworking areas of the plant.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations Act, as amended
DIAMOND SHAMROCK CO
(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 complaince
with its provisions may be directed to the Board's Office,
1700 Bankers Securities Building, Walnut and Juniper
Streets, Philadelphia, Pennsylvania 19107, Telephone
215-597-7601
TRIAL EXAMINER'S DECISION
RAMEY DONOVAN, Trial Examiner - The charge in this
case was filed by Oil, Chemical and Atomic Workers
International Union , AFL-CIO, herein the Union, on
September 25, 1968. A complaint under date of December
31, 1968, was issued by the General Counsel of the Board
by the Regional Director of Region 4 of the Board. The
complaint alleged that Respondent on September 20,
1968, prevented employees from soliciting for the Union
in Respondent ' s "change house" and ordered the
employees to leave Respondent's premises ; and that on
September 23, 1969, Respondent threatened employees if
they engaged in union solicitation on Respondent's
premises during nonworking time The aforementioned
conduct is alleged to have violated Section 8(a)(1) of the
Act. Respondent in its answer denies the commission of
the alleged unfair labor practices.
With all parties represented by counsel the case was
tried in Wilmington, Delaware, on February 18 and 19,
1969.
I JURISDICTION
Diamond Shamrock Co., the Respondent, is an Ohio
corporation, with its principal office in Cleveland, Ohio It
is engaged in the manufacture and sale of chemicals and
has plants throughout the United States, including a plant
in Delaware City, Delaware, which is the plant involved in
this proceeding. Respondent's gross volume of business in
a representative year exceeded $500,000 and its sales to
customers across State lines exceeded $50,000
Respondent is an employer engaged in commerce
within the meaning of the Act and the Union is a labor
organization within the meaning of the Act
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II THE ALLEGED UNFAIR LABOR PRACTICES
Contentions of the Parties
The General Counsel contends that Respondent's rule
prohibiting employees from returning to the plant after
the end of their shift which was applied to employees
whose shift ended at 4.30 p.m , and who returned to the
plant and entered the change house (locker room -
restroom - eating area building), to distribute union
literature and to solicit signatures on union cards in the
change house between 11:15 pm. and 12 midnight among
employees on the 4 p.m to 12 and the 12 to 8 a.m. shifts
was illegal because of the principle set forth in the Board's
Peyton Packing and Walton decisions' It is further
contended that the existence and use of alternative means
for union solicitation and distribution are irrelevant on the
question of the legality of Respondent's rule and that, in
any event, there was no other effective means equivalent
to the particular means used by the union employees in
the case Further contentions are that safety and security
of plant, equipment, and personnel are not valid
justifications for Respondent's rule; and that the rule,
apart from its validity or invalidity, was applied in a
discriminatory manner against union solicitation.
Respondent's contention is that it has long maintained
a nondiscriminatory company rule prohibiting access to
the plant after working hours without company
permission; and that neither the existence nor the
enforcement of the rule, having been promulgated to
maintain plant security, safety, and discipline, is illegal
where the rule and its enforcement has no effect on the
union's ability to solicit, and to communicate with
employees
The Facts
Respondent's plant was constructed in 1964 and it
manufactures chlorine, caustic soda, caustic potash,
hydrogen, polyvinylchloride resins and anhydrous caustic
soda The plant property occupies 20 acres enclosed by a
wire fence. All buildings on the property are within the
fence with the exception of the office building which is
located just in front of, and outside, the main gate to the
plant. The company parking lot is immediately behind the
office building and is also outside the fence although
adjacent to and parallel with the fence. The parking lot
measures approximately 400 feet by 140 feet
What may be termed the front of the plant property
runs parallel to a public highway, River Road From
River Road a dirt road on company property runs directly
to the main gate of the plant. Before reaching the main
gate, coming from River Road, a vehicle could turn left
off the plant dirt road and enter the parking lot. A
concrete walkway leads from the parking lot and then
runs for a short distance parallel to but outside the plant
fence. The first point of ingress through the fence for a
person walking from the parking lot is an opening in the
fence about 10 or II feet from the main gate. At the
latter point, the main gate plant entrance, there is a
guardhouse which vehicles or persons coming directly
along the plant road to enter the plant, would have to
pass. This guardhouse likewise commands a view of
pedestrians coming from the parking lot along the
walkway and entering the plant through the opening in the
'Citations , rnfra Other decisions of the courts are also cited for their
asserted adoption of the Peyton formulation
fence aforedescribed Since virtually all employees drive to
work and park in the parking lot, they enter the plant, the
fenced in area, by the aforementioned means via the
walkway
When the employee thus passes within the fenced area,
he walks a short distance, perhaps 15 or 20 feet, to the
door of a building and enters the building which will be
referred to as the change room The change room building
is approximately 83 feet by 55 feet Within this change
room are locker rooms, basket rooms (rooms with
facilities for hanging work clothes so that they may dry),
showers, toilets, and lunchrooms with vending machines
and drinking fountains Once having entered this change
room building, an employee can and does have access to
the entire plant since there are two doors in the rear of
the building that open up to the balance of the in-plant
areas. There is no guard at these doors. At the rear of the
plant property, as distinguished from the front entrance,
aforedescribed, there is a railroad gate covering ingress
within the plant area via railroad tracks and railroad cars
Although this gate can be locked, it is normally kept
open.
Respondent's plant manager, Noce, testified that the
plant employs approximately 240 people. Since the
question of an appropriate bargaining unit or its
composition was not involved in this proceeding, we do
not know the job descriptions of the 240 persons referred
to by Noce. It appears to be a reasonable conclusion that
Respondent employed some technical and engineering
personnel and possibly others who would not customarily
be regarded as production and maintenance employees In
any event, the record in this case, by reason of
information introduced by Respondent, indicates that the
issues in the case relate to approximately 80 "day
workers" and 80 "operational [production] workers," the
latter group also being referred to as "shift workers" by
various witnesses.
As far as appears, the day workers are principally
maintenance employees of two types. There are regular or
general maintenance employees who have individual
competence in various craft-like skills, such as, one man
may be in electrical maintenance , another in welding and
pipefitting and so forth. Then there are cell maintenance
workers who rebuild cells and maintain equipment in the
cell rooms 2 Both of these types of maintenance employees
have working hours of 8 a.m to 4:30 p.m. The
operational or shift employees work on three shifts on
which they rotate These shifts are 8 a.m to 4 p m.; 4
p.m. to 12; and 12 to 8 a.m., and we can refer to the
workers on the first shift as A group and the second and
third shift workers as B group and C group, respectively
The exact method of rotation is not spelled out;
presumably it works as follows or with some other
variation
A - B - C
C -A-B
B-C-A
The witnesses agree that by reason of the rotation of
shifts, each shift works from 8 a.m. to 4 p m , I week per
month.
With reference to the working hours of the maintenance
employees, the day workers , and the working hours of the
shift workers, it therefore is evident, considering hours
The cellrooms are part of the chemical processing or manufacturing
activities carried on by the plant
DIAMOND SHAMROCK CO. 265
alone, that 8-4:30 maintenance employees can contact
shift workers on the 8-4 shift on company property before
8 a.m. in the parking lot and in the change house, as well
as on morning and afternoon coffeebreaks and on
lunchtime. However, because the operational or shift
workers customarily take their break periods and lunch at
their place of work and not in the change room -
lunchroom as do the maintenance employees, contact
during these periods is minimal. Shift workers may come
to the change room during a break period to change
clothes if, for instance, a garment has become torn while
at work or if some chemical had been spilled on the
garment; they may also come to the change room area
during break or lunch periods to secure coffee or
something from the vending machines but they
customarily return to their work area to drink or consume
their purchases
There is no perceivable contact on company property
between the 8 a.m.-4.30 p.m., maintenance workers and
shift workers when the latter are working the 4 p.m to 12
shift. Shift workers on the 12-8 a.m shift would, we
believe, at least encounter maintenance workers as the
former were entering the change room at the end of their
shift and the latter were in the change room or leaving
that room to commence their shift These encounters
might be brief and transitory but not necessarily so.
Overlap of personnel on contiguous shifts would depend to
a great extent on the precision with which management
operated its shifts While not designedly directed to this
point, we have certain testimony in the record which tends
to show that work on the shifts did not commence or
cease precisely on the hour. Thus McCuen, a shift worker,
testified that on September 20, 1968, he was on the 4 to
12 shift and had completed his shift and was in the change
room at 11:50 or 11:52 p m. There is no indication that
this time element was unusual and, presumably, when,
through shift rotation, McCuen was on the 12 to 8 shift
he would be in the change room changing to street clothes
at approximately the same relative time, namely 7:50 a.m
Jackson, another shift worker was also on the 4-12 shift
on September 20. He was in the change room between
11.50 and 11.55 p.m., and preparatory to changing his
clothes to leave the plant. As in the case of McCuen, we
would infer that it would be normal for an employee, such
as Jackson and others, when on the 12 to 8 shift to be in
the change room at the same relative time, 7:50-7 55 a m.,
before changing to street clothes One of the General
Counsel's witnesses, maintenance employee Stevenson,
testified, in substance, that the shift workers customarily
are relieved 10 minutes before the hour which is of course
10 minutes before the end of the shift.'
In this case and in most organizational situations, the
union adherents did hand out and do hand out union
authorization cards and union leaflets to other employees
directly and also by having these materials in lockers or
on benches in such places as the change room --
lunchroom or on car windshields in the parking lot. With
respect to direct manual passage of a card or leaflet from
one employee to another on company property, these
self-explanatory cards and leaflets can be handed from a
union activist to another employee in a very brief interval
in such a place as the change house as shifts are changing,
and the material may be rejected, read, or pocketed by the
recipient and, in the case of a union card, may be quickly
signed or returned another day or mailed to the Union. In
short, almost any contract with, or access to, employees,
however brief, may be sufficient for the type of
organizational activity described above.
What emerges, therefore, in the instant case, is that a
rotating shift of 20-30 shift workers, when they were on
the 4 p.m to 12 Shift were not normally contactable by
day shift maintenance employees on company property
when the rotating shift workers were on the 4-12 shift.'
However, when shift workers were on other shifts,
pursuant to rotation, they would be accessible.'
Supervision in the plant, insofar as it concerns us, is
headed by plant manager, Noce. There is a production
superintendent, Fonner. McDonald is "over all of the
maintenance" and is the maintenance supervisor or
possibly maintenance superintendent.` Nuzzle is a
maintenance supervisor and, according to Stevenson, who
works in electrical maintenance, Nuzzle is his immediate
supervisor. Bungori is a shift supervisor and Hall is a shift
supervisor. Shanor is employee relations manager at the
plant.
By letter of September 20, 1968, Matwey, the union
representative, wrote to Noce, advising him that
employees Stevenson, Pleasanton, and Mohring were
"active members" of the Union and "are exercising their
lawful rights" under Section 7 of the Act and the letter
quoted Section 8(a)(1) of the Act. A covering copy was
sent to Samoff, the Board's Regional Director, Region 4.
Another letter, virtually the same as the September 20
letter was sent by Matwey to Noce under date of
September 27 but stating that added active members of
the Union were employees, Fulton, Mason Jr., and Baker.
A covering copy was sent to Samoff.
On September 20, at about 7:50 a.m , a group of
maintenance employees composed of Pleasanton, Mohring
and Stevenson, with Pleasanton as spokesman, informed
McDonald that they "were going to try to organize a
union in the plant " There was no further elaboration and
as far as appears McDonald made no comment
After completing their regular 8 a.m. to 4.30 p m shift
on Friday, September 20, the three employees
aforementioned, returned to the plant that night at 11.15
p m., pursuant to Matwey's instruction, in order to engage
in organizational activity As Stevenson testified, "we
wanted to talk to those people [employees] coming on and
'On the matter of precise timing regarding going on and off shifts, the
Examiner notes that apparently the plant does not use timeclocks We have
testimony in the record about where employees enter the plant and what
they do when they enter but there is no mention of anyone punching a
timeclock Employees come into the plant in the change room to which
they have walked from the parking lot Several witnesses described change
room and its contents and there is no mention of timeclocks A detailed
blueprint of the change room and its equipment and appurtenances,
including the location of doors, benches, lockers, drinking fountains,
baskets, vending machines , toilets, vestibules, air-conditioning units, and
everything else shows no timeclocks and there is no indication of
timeclocks at the doors leading from the change room to other parts of the
plant or elsewhere
'The record indicates that maintenance employees may be called upon to
work beyond their normal shift or are called back to the plant to work
some period between 4 30 p m , their normal quitting time , and sometime
thereafter There is no indication that this occurs either regularly or
frequently and, in any event , it cannot be said that the maintenance man
or men thus called upon would necessarily be the persons who were seeking
to organize on behalf of the Union
'The employees normally come to the plant 15-30 minutes before start of
their shifts Before-shift access is available between 8-4 30 maintenance
employees and 8-4 shift workers, maintenance employees between 7 30 and
8 a m , would also have access to 12 to 8 shift workers since the latter are
relieved and in the change room at approximately 7.50 a m
'His exact title is not clear from the record
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off the shifts "' The three employees were initially in the
change room sometime around 11.30 p.m. and they
engaged in organizational activity with employees coming
to work Later, as the 4-12 shift people began coming off
work, they were also solicited. According to Stevenson,
Jr., the activity consisted of handing out union literature,
talking "union" to the employees, handing out union
cards, and securing signatures on some of these cards.
Hall was the shift supervisor on the 4-12 shift on
September 20 and Bungori was the shift supervisor on the
12-8 shift. As Bungori was walking through the change
room at about 11.50 p m on his way to the production
office, he observed the presence of Stevenson, Pleasanton
and Mohring, whom he knew to be maintenance
employees Bungori states that when he first saw them he
was not sure what they were doing or why they were
there. As Stevenson states, he and his colleagues were, at
about this time, standing and talking to a "couple" of
employees. Continuing through the room, Bungori was
shown or handed a union card by employee Nye who
asked Bungori to sign it. Bungori took the card and
looked at it and asked, "who does it belong to " Either
Pleasanton or Mohring said, "It belongs to me." Bungori
continued to the production office without comment In
the office, he began changing his clothes preparatory to
relieving Hall as shift supervisor At this point, Hall came
in. Hall testified that Bungori "kidded" him about not
being able to run the plant on his shift without calling in
maintenance men.' Hall replied that he did not call in any
maintenance men. Bungori then told Hall about his
experience as he came through the change room and both
supervisors concluded that the maintenance men were in
the change room to engage in union organizing. They
decided to call Shanor Hall telephoned Shanor at the
latter's home. In substance , the situation as presented to
Shanor was that there were three named maintenance men
in the change room who had not been called to the plant
to work and that they were distributing union material
Hall asked Shanor if the men had a right to be there and
what should he do Shanor replied that the men had no
authorization to be on the premises at the time since they
had not been called in to work and that they should be
told to leave.
Hall and Bungori then went to the change room and, in
substance, told the three employees that if or since they
were not there on company business , for work, they must
leave the change house and take their material to the
parking lot or on top of the hill.' The three employees
then left the change room and the entire company
property 11
The same three persons returned to the plant on
Sunday, September 22, a nonwork day for them, and went
to the change house where they engaged in organizational
activity among employees going on or coming off shift
The record indicates that no supervisor saw them or was
aware of their activity.
'The 4-12 shift employees would be coming off about 11 50 p in The
12-8 shift employees would be coming to the plant from about 11 30 p in
on
'Bungon's testimony is about the same, he states that he asked Hall if
he had been having trouble with the equipment or machinery because
Bungori had seen three maintenance men in the change room
'The plant road, leading from the public highway to the company
property, crests as the plant road rises from the parking lot area and other
portions of the plant At the crest or top of the hill the property is still that
of the Company but it is at this point that the plant road leads into or
abuts the highway
"Any conversation between the two supervisors and the three employees
was very brief and of no materiality herein other than as described above
On Monday, September 23, Shanor summoned
Pleasanton, Stevenson, and Mohring to McDonald's
office, where in addition to McDonald and Shanor, Noce
made an appearance. Shanor and Noce spoke. In
substance, the employees were told that a company rule
prohibited them from coming to the plant at times not
connected with their work and that they were not to come
into the plant after they had finished their shift and that if
they persisted some action (unspecified) would have to be
taken." Shanor testified that Noce informed the men that
they could carry on their organizing activities in the plant
on nonwork time in nonwork areas, such as on lunchtime,
breaktime, coming and going to and from work, and the
parking lot. Noce recalled having mentioned lunch
periods, parking lot and breaktime but did not remember
if he further elaborated at the time The employees state
that only lunchtime and breaktime were mentioned.
Pleasanton testified that they were not told that they
could not engage in union activity in the parking lot and
that they did so without molestation. Pleasanton also
admitted that it was understood that they could contact
the day workers in nonwork areas such as the change
house as they were reporting and preparing for work and
after work, preparatory to leaving, as well as during the
lunch hour and break period. He also stated that the same
was true as to the shift workers, although explaining that
the shift workers customarily took their lunch and
coffeebreaks where they worked.' 2
Considering all the evidence, the Examiner is satisfied
that it was generally understood that the employees could
engage in union activity on company property on nonwork
time in nonwork areas, such as the change house,
lunchroom, parking lot, plant road leading to the parking
lot, and the approximately 60 by 8 foot concrete walkway
from the parking lot to the change house The nonwork
time during which such activity was permitted was the 30
minutes or less when the employee organizer and others
were preparing for work as well as a comparable period
after work had been completed on the shift, and lunch and
break periods in the course of the shift. At periods
unconnected with their work, employee organizers had
access to areas on company property outside the fenced
buildings, such as the plant road leading to the parking
lot, and the walkway from the lot to the plant, as well as
the lot itself."
Respondent asserts that it has had a well established
rule prohibiting access to the plant and areas within the
plant by employees who had completed their work and
who had no work connected reason for coming to or being
in the plant From the evidence, the Examiner finds that
there was no such rule in written form and Respondent
produced none. Respondent's witnesses, however, testified
that there was such a rule or policy. Bungori testified that
company rules do not permit employees to come into the
plant after they have checked out unless they have
permission. Hill testified to the same effect Employee
McCuen, a 3-year employee, testified that he understood
that an employee was not supposed to be in the plant
unless he was going to work or unless he had permission.
Employee Hornbarger, employed in the plant since 1965,
"Just before the meeting Shanor had spoken to Stevenson, with Mohring
nearby , to substantially the same effect and had said that if the rule
continued to be violated some action would have to be taken Noce states
that at the meeting itself no statement was made about action to be taken
but that the men were told that the rule must be complied with
"This aspect has been discussed earlier in our decision
"The practical or impractical aspects of these areas will be discussed,
infra
DIAMOND SHAMROCK CO. 267
testified that there has been such a rule throughout his
employment
Noce, plant manager since 1964, testified that the rule
was based on considerations of safety and security. This
included the protection of plant equipment and materials
and the protection of individuals. In the past, 18 mercury
flasks valued at $11,000-$18,000 had been stolen from the
plant and the Company believed that only someone
familiar with the plant could have known the location and
the problem of carrying 18 flasks slightly larger than a
quart but weighing 76 pounds each. Another attempt at
major theft had been apprehended. Both Noce and Shanor
as well as others testified to the hazards or potential
hazards from chlorine and other chemicals manufactured
in the plant. Although safety equipment need not be worn
in the change house, employees and other persons entering
the fenced portion of the plant (the office and parking lot,
as we have seen, are outside the fence) are issued hard
hats, goggles and gas masks or respirators.
The General Counsel's witnesses, Stevenson,
Pleasanton, and Mohring were not asked directly whether,
prior to September 23, they were aware of any rule or
policy such as the Company claims it had about access to
the plant. Nor did they testify that there was no such rule.
Their testimony, however, as we view it, was intended to
show either that there was no such rule or if there was
such a rule it was enforced neither strictly nor uniformly
except as to their activity on September 20
Mohring testified that on several occasions he had
come to the plant on nonworking time for scrap lumber in
the rear portion of company property On some of these
visits he was alone and on two occasions his neighbor, a
nonemployee, accompanied him. The most recent
illustration was in January 1969, and the procedure was
typical of prior occasions. Mohring applied for
beforehand, and received, a written note from Shanor to
the effect that Mohring and neighbor were to be permitted
on plant property to pick up scrap lumber on a particular
Sunday On the Sunday, Mohring came to the plant with
his neighbor in a truck or car Mohring showed the note
from Shanor to the guard. After this, they were issued gas
masks by the guard and they then drove down the plant
road to the rear of the company property. No one
accompanied Mohring and his neighbor. They took about
an hour to load the lumber then left as they had entered
Pleasanton's testimony is that in June 1968, his
immediate maintenance supervisor, Nuzzle, gave him
permission to bring his boat trailer within the fenced
company property in order to perform some welding on
the trailer. This was evidently on Pleasanton's nonworking
time He states that Nuzzle met him when he came into
the plant area and was with him throughout the period he
was on company property performing the welding on the
trailer.
Stevenson testified that a designated supervisor or
employee, customarily, at certain times of the year,
solicited for the Red Feather (Community Chest) charity
fund. This took place in the working area of the plant and
Stevenson states that he was solicited during working
time The witness also states that in the past he has
engaged in trapping muskrats on company property on his
own time and in the course of such activities he has
dropped into the change house and has drunk a cup of
coffee there and then left On several such occasions a
supervisor has entered the change house and has said,
hello, or, how are you doing, or some such words to
Stevenson and has not querried him or directed him to
leave.
The General Counsel, in arguing that Respondent had
no such rule as it claims existed, points to Bungori's
testimony regarding the September 20 incident When
Bungor i and Hall were talking among themselves about
the three men in the change room who had not been
called in to work by either supervisor, Bungori was so
uncertain that he had said that he did not know whether
the men belonged in the plant or not. It is also pointed
out that while Hall telephoned Shanor at midnight, Hall
and Bungori were still so uncertain about the situation
that Hall, after telling Shanor that the men had not been
called to work but were in the change room engaging in
union activity, asked Shanor whether the men were
entitled to be there and what should Hall do
We regard the foregoing as inconclusive on the matter
of the existence of a rule or policy since the September 20
presence of the men was in a context of union activity on
their part This plant, although unorganized, had been the
subject of union organizational efforts in the past.
Supervisors, in such a plant, while probably not experts in
labor law, would be aware that employee activity, while
subject to fairly clear employer control ordinarily, might
have more complex aspects when the same action was in a
context of union activity. The two supervisors were
therefore uncertain of the relative rights of supervision
and the employees as to the presence of the men in the
plant that night to engage in union activity In fact, the
issue is a complex one as many cases (and this case)
attest We therefore do not regard the uncertainty of Hall
and Bungor i as equating with the absence of a company
rule concerning access to the plant on nonworking time.
The boat trailer welding and the scrap lumber incidents,
earlier described, do not indicate that either the Company
or the employees were operating on a basis that employees
on their nonworking time, unconnected with work, were
free to come into the plant when they wished. We doubt
that Mohring and Pleasanton if they had simply come to
the plant between 11 15 p.m and 12, as they did on
September 20, to gather scrap in the rear of the property
or to weld a trailer would have been allowed to do so, if
detected, or that they would have been considered coming
to the plant believing that they could do so
With regard to Stevenson's muskrat trapping on
company property, the Examiner has looked at Resp.
Exh. 5 which is a rather clear picture of the plant and the
entire plant property from above. We have also looked at
Resp. Exh. 7, a blueprint of the property layout. Since
Stevenson's testimony was not controverted we accept his
statement about trapping muskrats on company property.
However, if there are any muskrats on the property shown
in the exhibits, we believe it would only be in the extreme
rear of the property and quite isolated from the plant
complex 11 It appears doubtful that anyone in the plant
would be aware of an individual being present in the far
rear of the property or, if there was awareness, that it
would be acted upon in view of the remoteness from the
plant Stevenson's presence in the lunchroom area of the
change house drinking coffee in the course of a trapping
expedition may indicate a laxness in security, tolerance,
albeit not a waiver, or unawareness of the full situation on
the part of a supervisor or supervisors who saw him and
greeted him as he was drinking coffee.
"We take notice that a muskrat is a large rodent , substantially larger
than a domestic rat, squirrel , or mink Muskrats have rear webbed feet
and their normal habitat is wet or marshy terrain They are relatively slow
on land and unless there is a strain of industrial muskrats , 95 percent of
company property as shown on Resp Exh 5 would be, in our opinion,
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for possibly a few very paternalistic employers,
who provide employee lounges, pool tables, and so forth
on plant property and encourage use of such facilities by
employees on their own time unconnected with regular
work assignments, most employers and most industrial
employees in our contemporary society, in the Examiner's
opinion, do not expect or intend that employees have,
access to in-plant property except in connection with their
work assignments. Some have detailed written rules to this
effect and some do not Employees, likewise, in our
opinion, normally have the same understanding, and the
plant where they work is generally the last place they wish
to be when not obliged to be there pursuant to their work
status The problem of employee presence on company
property unconnected with the employee's work seldom
arises, and certainly, very rarely, when such presence is
asserted to be a matter of the employee's right 11
In the instant case, the evidence persuades us that
Respondent did have a general policy or rule that
employees on their own time, unwork-connected, did not
have free access to the plant area within the fence.
Generally speaking both the Company and the employees
recognized the rule. The rule and plant security, however,
were not rigid, and security of the plant was not total.
Property could be entered in the rear through the open
railroad gates where no guard was stationed. An employee
could enter the change house without difficulty at least
during normal work shift periods. Once in the change
house, two doors lead therefrom to the rest of the plant
There was no guard within the change room or at the
doors. Respondent's permissiveness in the trailer, scrap
lumber, and coffee in the lunchroom by an employee
muskrat trapper incidents, do not, in our opinion,
establish either that Respondent had waived its rule or
recognized that employees on their own time had access to
company property at all times, or that Respondent
discriminatorily applied a rule or policy prohibiting such
employee access on September 20. There is no evidence of
an employee or of three employees who, having completed
their work and having left the plant, returned to the plant
(or were permitted to) at some later time unconnected
with going to or coming from work, to engage in activities
involving solicitation or distribution among other
employees, such as selling insurance, shoes, candy,
cigarettes, or magazine subscriptions. There is no evidence
of an employee returned at such times to the plant to
engage in a campaign for local political office, or to
engage in religious missionary activity on behalf of his
religious organization, or to solicit membership in and
support for the antivivisection league, all the foregoing
normally entailing both solicitation and distribution of
circulars.- On the evidence in this record albeit projected
with a measure of speculation, the Examiner inclines to
believe that Respondent would not have permitted such
activities aforementioned, occurring under the same
circumstances as the union activities of September 20.
There is no evidence in this record of separate union
animus on Respondent's part i'
nonmuskrat territory
"We are, at this juncture, not considering the union activity aspect and
Sec 7 rights.
"The community chest solicitation under Respondent 's aegis, we regard
as sui generis This generally accepted and recognized charitable activity is
virtually in the position of a civic duty and in many respects is only a few
notches below paying taxes, the American flag , and being opposed to sin
It is not an adequate basis of comparison
"The plant was built in 1964 There is no antiunion background or
evidence from 1964 to the date of the hearing
We therefore find no warrant to infer antiunion
motivation or that the prohibition applied on September
23 was discriminatory, i.e., that the reason for the
prohibition was to discriminate against union activity and
that if the same employees had been engaging in some
other activity on the night of September 20 in the plant,
such a rule would not have been invoked . The issue in the
case, as we view the evidence, is discrimination only in the
sense that if Respondent ' s legal position is wrong in
prohibiting union activity in the plant on nonwork time,
unconnected with work presence , then its conduct is illegal
and in that sense has discriminated against legitimate
union activity
The Law
A good starting point for consideration of the
applicable law is the Peyton Packing, case.1" In that case
the employer had a rule prohibiting solicitation of any
kind on its property. Certain employees were discharged
for violating the rule. While the decision describes the
dates or periods when the alleged rule violations occurred,
including testimony of employer witnesses, the time of the
violations with regard to work periods is not clear About
the only reference to time is that "One [Witness] testified
that the solicitation occured during the luncheon
period."" The Board noted that each of the dischargees
testified that they did not engage in solicitation on
company time and property but the Board did not find
and found it unnecessary to find that such was the fact
The Board found, in effect, that the rule and the
Company's board interpretation thereof made the
discharges illegal
The Board had no problem with the tact that "working
time is for work" and that proscription of solicitation on
working time was proper The Board went on to state
that:
It is no less true that time outside working hours,
whether before or after work, or during luncheon or rest
periods, is an employee's time to use as he wishes
without unreasonable restraint, although the employee
is on Company property.
It was further stated:
It is . . . not within the province of an employer to
promulgate and enforce a rule prohibiting union
solicitation by an employee outside of working hours,
although on Company property. Such a rule must be
presumed to be an unreasonable impediment to
self-organization and therefore discriminatory in the
absence of evidence that special circumstances make the
rule necessary in order to maintain production or
discipline
In view of the factual situation in Peyton which
consisted of a broad no-solicitation rule on company
property, as well as the denial of the employees that they
had even solicited on company property, let alone on
company time, and evidence that there was solicitation
during the lunch period, it is extremely doubtful that the
Board was directing its decision to anything but the
normal situation of an employee coming to work at the
plant, changing his clothes, working, having one or two
break periods and a lunch period during the shift,
completing his shift, changing his clothes and leaving the
company premises. This tends to be confirmed by the
Board's reference to working time being for work and
"Pevton Packing Co . 49 NLRB 828, enfd 142 F 2d 1009 (C A 5)
"P. 846
DIAMOND SHAMROCK CO. 269
then, in this context of employee normal presence at the
plant for work, the Board went on to distinguish
nonworking time of the same employee, "whether before
or after work or during luncheon or rest periods" as being
an employee's own time to use as he wishes although on
company property. In our opinion, it is reasonable to view
the reference to nonworking time before or after work, in
connection with lunch or rest periods, as the
approximately 15 to 30 minutes that an employee coming
to work could use on company property to prepare for
work and the same period that he would use after work in
preparing to leave company property. While at work
during working time the employee could not cease work in
order to solicit but the same employee, in the nonworking
periods aforedescribed, could engage in union solicitation
That is the Peyton case and that in our opinion is what
the Board held in that decision.20
Aside from stating the proposition that an employee on
his own time, before and after work, on lunch and rest
periods, could use his time as he wished without
unreasonable restraint, the Board did not explicate why
this "right" was a right or why it should be, or had to be,
freely exercisable on company property or why the
Company's right to exercise dominion and control over its
property had to yield to such an employee right. Perhaps
the reason is self-evident or deemed to be such Thus,
employees during lunch and rest periods and when
changing clothes before and after work customarily do
and are allowed to talk about baseball, football, sex, cars,
domestic problems, Viet Nam, a loan of money, or
anything else To prohibit only union talk, including
asking fellow employees to join a union, would therefore
be discriminatory This approach, however, does not tell
us the basic reason why employees during rest and lunch
periods and when changing clothes in the plant can use
company property to talk about unions and why they can
solicit other employees during such periods. Moreover,
they can do these things despite a company rule that
prohibits, and is uniformly enforced against, without
disparity, all other solicitation in company property
Initially, in the nonworking time situation that we are
discussing and which we believe was the Peyton situation,
the employees were on company property as a matter of
right. They were there pursuant to the basic
employer-employee relationship which is essentially a
work relationship. There was a mutual arrangement
whereby the employee came on the property to work, for
instance, from 8 a.m. to 4 p.m.; the employee was to work
on property, facilities, and equipment provided by the
employer; the employees would receive wages and the
employer would receive the labor of the employee. During
this work period which included perhaps 15 or 30 minutes
of both prework and after work preparation, as well as
rest and lunch periods, the Company had, in effect,
dedicated its property or, at least part of it, to the
employer-employee relationship, including parking and
other facilities, and also to the employees involved in that
relationship from 8 to 4. During that period there was, as
previously described, certain nonwork times, but all within
the periphery of the particular work shift. The employees
are therefore present on the property as a matter of right
"The Board concluded that the company rule was enacted and enforced
to prevent union organization and that the discharges were illegal The
court of appeals in its decision enforcing the Board 's order said , "The rule
against solicitation , though reasonable and in lawful form, was
administered not according to its terms but in an arbitrary and
discriminatory manner."
albeit subject to company supervision, control and
possibly discharge and ejection if employer-employee
employee work relationship is severed.
In saying that the employer-employee relationship is
essentially a work relationship, we are not speaking of
ethical or philosophical concepts, but simply are
describing a general reality in realistic terms. While an
employee remains an employee when he completes his
work shift and leaves the plant, the employer-employee
relationship after work or before work is quiescent The
employer remains obligated to the employee for wages
and other benefits that have accrued to the employee
while the work relationship had been active but otherwise
few obligations or rights exist between the employer and
employee when the latter has completed his work and has
left the plant The employee, having departed, may decide
not to return and may secure employment elsewhere. Or,
when he leaves employer A's plant, he may have a second
job at employer B's plant. Also, the employer may decide
after the employee has left his plant that he does not wish
to have him return the next day as an employee and may
so advise him by telephone or otherwise. Rights and
obligations between the employer and employee as to
what each may choose to do on his own time after the
daily work relationship at the plant has ended are virtually
nonexistent This is also true of their respective property
interests The employer has no right of access to the
employee's home, car, or other property and if the
employee on his own time operates a private club, the
employer has no more right of access than any other
individual. The same is true with respect to the employee.
When the daily work relationship is completed and he
leaves the plant, he has no right of access to the
employer's property, including the plant unless there is a
legal basis for such access By reason of the fact that the
employee was properly in the plant during the day
pursuant to the work relationship does not mean that
private property, the plant, was converted into
employer-employee community property, particularly not
after ,the daily work relationship ended with the
employee's departure from the plant
In them$elves, the concept or fact that a person, an
employee, is on his own time, nonworking time, or that he
has certain statutory or constitutional rights, does not
confer a right of access to someone else's property. A
person has a right to become a political candidate. He
decides that he wishes to be a state senator. After
completing his work in a plant from 8 a.m. to 4 p.m , he
returns to the plant at night, on his own time, walks in
and solicits support and votes in the plant cafeteria from
employees on the night shift who are on their lunch
period The employer asks him to leave and ejects him. In
our opinion, neither the fact that the individual is an
employee on the day shift, nor the fact that he is on his
own time, nor the exercise of his statutory or
constitutional right, accord him any right to be in the
plant at night unless the employer grants him such a right.
But suppose the employee in the above situation,
instead of political campaigning, wishes to and does return
to the plant, not to prepare for or to go to work but to
engage in union solicitation among the night shift
employees. By what right is he entitled to enter the plant
at night and if he is entitled to enter at that time, what
are his rights once he is in the plant?
Before endeavoring to answer these questions, and we
do not propose to do so immediately, it is appropriate to
first refer to a related situation and pose the same
questions and endeavor to answer them. The related
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation is that of the employee whose work shift is 8 to
4 and the employee is in the plant 15-30 minutes before
starting work, and then is at work, including lunch and
rest periods and then is still present for 15-30 minutes
after work before leaving the plant This is the common
situation of an employee being in the plant pursuant to
the work relationship which is, as we have observed, the
basic employer-employee relationship. We believe that this
was the situation in the Peyton case. The observation in
that case that nonworking time was the employee's own
time to use as he pleased was not made to justify the
employee's presence on employer property since his
presence was attributable to the normal work relationship
and required no other justification and was not challenged
by the employer The reference to nonworking time was
directed to the employee's rights on employer property
once the employee was rightfully on such property
pursuant to the normal work relationship. Accordingly,
shortly before and after work on his shift, and during his
lunch and rest periods, the employee had certain nonwork
time which was his own to use as he wished, including
union activity, since such nonwork periods are the normal
times for employees, who are rightfully present in the
plant, to associate and to communicate with each other,
and to prevent such use of nonwork time for union
activity materially negates the rights guaranteed by
Section 7 of the Act.
The Republic Aviation case is a basic case in the area
with which we are concerned.21 It has been cited for
various propositions and it merits close attention as to
what it involved and what it stands for
The case concerned an established employer rule
against solicitation of any type in the plant or office An
employee was discharged for passing out union cards to
employees on his own time during lunch periods Among
other things the Board had ordered reinstatement of the
employees and rescission of the rule against solicitation
insofar as it prohibits union activity and solicitation on
company property during the employees' own time. Before
the Supreme Court, the Company argued that there was
no evidence in the record that the company rule interfered
with and discouraged union organization in the
circumstances shown in the record and that the Board
could not substitute its knowledge of the facts of industrial
relations for substantive evidence.22 Responding to this
argument, the court said, in effect, it is true that there was
no evidence that as a result of the company rule union
organization was stultified or made ineffective or could
not be carried on effectively off company property
"Neither in the Republic nor the Le Tourneau cases can it
properly be said that there was evidence or a finding that
the plant's physical location made solicitation away from
company property ineffective to reach prospective union
members. Neither of these is like a mining or lumber
camp where the employees pass their rest as well as their
work time on the employer's premises so that union
organization must proceed upon the employer's premises
or be seriously handicapped [p. 798-799]."2J However, the
court then went on to describe the nature of the
administrative law procedure under the Act, including the
taking of evidence in an adversary proceeding. "Such a
requirement does not go beyond the necessity for the
production of evidential facts, however, and compel
evidence as to the results which may flow from such facts
. . . . An administrative agency . . . after hearings . . .
11 Republic Aviation Corp v N L R B. N L R B v Le Tourneau Co
Of Georgia 324 US 793
may infer within the limits of the inquiry from the proven
facts such conclusions as reasonably may be based upon
the facts proven."
The court had initially stated that the case involved the
"working out an adjustment between the undisputed right
to self-organization assured to employees . . and the
equally undisputed right of employers to maintain
discipline in their establishments." There was no problem
in the Republic case or in Peyton of the employee being
properly present in the plant The employee was there
pursuant to the work relationship and it was his
solicitation on nonworking time during his lunch period
that was involved. The court then went on and recognized
that, although the employee was properly in the plant and
had solicited on his own time, there still remained the
question of why his right to engage in union activity
entitled him to do so on company property and why a rule
preventing him from doing so interfered with his rights
under the Act. In answering this question the court said
that the use of company property for the solicitation could
not be justified on the basis that the plant was like a
mining or lumber camp where the employees lived and
worked in a company compound so that any effective
union activity had to take place on company property
The court also said that there was no direct evidence that
the plant's physical location rendered solicitation off
company property ineffective. But the court stated that
the Board could infer from the evidence, coupled with the
Board's specialized knowledge of industrial relations, that
the company rule was an unreasonable impediment to the
exercise of employee rights. The evidence and the
reasoning on which the Board could and did reach such a
conclusion are then described by the court as follows:
The court's own description of the evidence was quite
limited. It said that "the evidence showed" that the
Company in 1943 was "a nonurban manufacturing
establishment which employed thousands. It was growing
rapidly. Trains and automobiles gathered daily, many
empolyees for the plant from an area on Long Island,
certainly longer than walking distance. The rule against
solicitation was introduced in evidence and the
circumstances of its violation by the dismissed employee
after warning was detailed." The court then resumed and
said, "The Intermediate Report [Trial Examiner's
Decision] in the Republic Aviation case [citation] set out
the reason why the rule against solicitation was considered
inimical to the right of organization. This was approved
by the Board." The court in connection with the foregoing
observations quoted the Intermediate Report:
[The portion of the Report preceding the quoted part
had described the long distances and so forth that
employees traveled to come to the plant. This had
evidently served as the basis for the Court's own brief
description of the plant situation which appears above]
Thus, under the conditions obtaining in February 1943,
the Respondent's employees, working long hours in
plant engaged entirely in war production and expanding
with extreme rapidity, were entirely deprived of their
normal right to "full freedom of association" in the
plant on their own time, the very time and place
uniquely appropriate and almost solely available to
them therefor. The Respondent's rule is therefore in
"P 798
"The General Counsel cites this statement in his brief for the proposition
that the court considered such matters irrelevant in that case We believe
the citation is taken out of context by the General Counsel and for this
reason we have gone into some detail
DIAMOND SHAMROCK CO. 271
clear derogation of the rights of its employees
guaranteed by the Act.
It is quite clear that when the court said that the
Intermediate Report "set out the reason why the rule
against solicitation was considered inimical to the right of
organization" and also stated that "This was approved by
the Board" and then proceeded to quote the Intermediate
Report as above, that the court considered the approach
and the reasoning in the Report, as quoted, to be the
reason for striking down the company rule and that the
court concurred in that approach and reasoning.
While it is true, as the court said, that the Board had
affirmed the Intermediate Report in the conclusion that
the no-solicitation rule was illegal and that the Board did
not criticize or repudiate the reasoning in the Intermediate
Report, the Board's opinion in itself was brief. The Board,
in fact, regarding the no-solicitation rule, simply said that
"it is now established that, in the absence of special
circumstances, a rule prohibiting union activity on
company property outside of working time constitutes an
unreasonable impediment to organization" . . the record
discloses no special circumstances and the Respondent
advances no cogent reason , warranting extension of the
prohibition to nonworking time, when production and
efficiency could not normally be affected by union
activity." The court, however, did not quote the foregoing
from the Board's opinion but instead stated that the
Intermediate Report, as quoted by the court, and which
the court said had been approved by the Board and which
was a constituent part of what may be regarded as the
Board decision in the case, "set out the reason why the
rule against solicitation was considered inimical to the
right of organization."
Our next consideration is, how did the court in
Republic regard the Peyton Packing doctrine or
proposition and what was its approach to the Pevlon
doctrine
The court first adverted to the Peyton case after all the
foregoing portions of its opinion which we have described
up to this point. The court referred to Peyton as one of
the "authorities" cited by the Board in both Republic and
in Le Tourneau The court said that "in these cases,"
Republic and in Le Tourneau, there had been adequate
explication of the theory upon which violations of the Act
had been found (p. 803) Moreover, said the court, not
only had the theory regarding "rules against solicitation
or prohibitions against the wearing of union insignia" (the
latter aspect being another facet of the Republic case)
been "sufficiently expressed" "but insofar as rules against
solicitation are concerned,"" the Board had "expressed
the requirements of proof which it considered appropriate
to outweigh or overcome the presumption as to rules
against solicitation ," the court here citing Peyton Packing
The presumption in Peyton Packing, said the court,
"Like a statutory presumption or one established by
regulation, the validity, perhaps in a varying degree,
depends upon the rationality between what is proved and
what is inferred " In short, the circumstances or facts in
Republic and Le Tourneau (what was proved)
demonstrated the rationality of the Peyton presumption
(what was inferred), i e , that the companies' rules
constituted unreasonable impediments to the exercise of
employee rights under Section 7 of the Act. The court, in
our opinion, therefore, did not regard the Peyton doctrine
or presumption as having a per se status but as a
presumption dependent upon the facts in two cases which
did warrant the conclusion on inference as drawn in
Peyton that the rules against solicitation in the cases were
an unwarranted inference with employee rights This
perhaps explains why the court had quoted the
Intermediate Report in containing as it did an explanation
of the factual situation in the case, saying that the Report
"set out the reason why the rule against solicitation was
considered inimical to the right of organization." The
Board's Le Tourneau decision, also as we shall see,
contained a full explanation of the factual situation in the
case, comparable to the Trial Examiner's Report in
Republic, and did not treat the Peyton doctrine or
presumption as a per se presumption.
One of the cases cited by the court was Mobile, J &
KCRR v Turnipseed, 219 U.S. 35, 43. The statute in that
case provided that evidence of injury from the operation
of a train created an inference of negligence on the part of
the railroad The court said that the lower court "has
declared that the effect of the statute is to create a
presumption of liability, giving to it thereby, an effect in
excess of a mere temporary inference of fact . . The
only legal effect of the inference is to cast upon the
railroad company the duty of producing some evidence to
the contrary. When that is done the inference is at an end
and the question of negligence is for the jury upon all of
the evidence . a . presumption . . must not, under
guise of regulating the presentation of evidence, operate to
preclude the party from the right to present his defense to
the main fact thus presumed."
In another case cited in Republic and Le Tourneau,
namely, Western & A & R Co v. Henderson. 279 U S
639, the Court distinguished the Mobile case, above, by
saying that there the statute created merely a temporary
inference of fact that vanished upon the introduction of
opposing evidence But, here, said the court in Western,
the statute as construed by the lower court "creates an
inference that is given the effect of evidence to be weighed
against opposing testimony and is to prevail unless such
[opposing] testimony is found by the jury to
preponderate " The Supreme Court rejected this
approach.
The above two cases in their approach to presumptions
are far from the acceptance of a per se presumption. We
regard the fact that the court in Republic cited these cases
in connection with its own statements regarding Peyton as
being a fact of some significance.
It appears therefore that the court in Republic and Le
Tourneau found the explanation of the particular facts in
those cases sufficient to support the Peyton presumption.
The court also said that the companies could have moved
to introduce additional evidence "to show unusual
circumstances" in their plants but did not do so. In short,
the companies could have attacked the presumption of
"In the Examiner's opinion , the court ' s reference to "rules against
solicitation" referred to both Republic and Le Tourneau The employee in
Republic had been discharged for violating a no-solicitation rule by passing
out union application cards during his lunch period In Le Tourneau. a
no-distribution rule was violated by distribution of union leaflets by one
employee during his lunch period and by another as he was leaving the
plant after completing his day's work We believe that the court treated
both rules as rules against solicitation and its decision does not distinguish
the rules The portion of the Board's Le Tourneau decision that the court
had earlier referred to made two references to "a rule prohibiting union
solicitation" and it was equally clear that the Republic case involved a rule
against solicitation As far as the court's decision indicated , the court
considered two legal situations, (I) the no-solicitation rule in Republic and
Le Tourneau and (2 ) the Republic prohibition of union stewards wearing
union buttons while at work
"The Board cited Peyton Packing and other cases
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peyton that their no-solicitation rules interfered with
employee rights under Section 7 by showing, apparently,
that the conditions in the plants, their physical location
etc., were not such that the plant rules precluded the
employees from equally effective organizational activities
elsewhere. The statement in Peyton that the presumption
prevailed absent a showing by the employer that its rule
was necessary to maintain production and discipline goes
to another point and not to the validity of the
presumption which was what the court in Republic and Le
Tourneau was speaking about when it said that the
explication of the facts in Republic and Le Tourneau
supported the presumption. Production and discipline
have no bearing on the presumption that the effect of the
company rules was to interfere with employee rights
Interference with production and discipline would pose the
question that, assuming the rules did interfere with
employee rights, the exercise of those rights would so
materially interfere with production and discipline, that
the employee rights should not prevail This is a different
matter than challenging the Peyton presumption that the
rules constituted interference per se
Although we have described the court decision in both
Republic and Le Tourneau and, while the factual situation
in Republic that the court said explicated the reasons why
the company rule in that case interfered with employee
rights as found by the Examiner and the Board was
sufficiently clear from the quotation by the court of the
Republic facts, the same cannot be said of the Le
Tourneau factual situation regarding the same aspect, at
least in the court decision We therefore briefly describe
the Board's decision in Le Tourneau in which the court
said "the discussion of the reasons underlying the findings
[of interference] . . [were] . . . "more extended."
Le Tourneau involved a company rule prohibiting
distribution of literature on company property Employee
A finished his day's work and boarded a bus in the
company parking lot preparatory to leaving, He
distributed union handbills to persons in the bus and also
handed out handbills through the bus window to persons
standing in the parking lot. He was suspended for this
conduct Employee B placed union handbills on cars in the
company parking lot during his lunch period and he was
suspended. The Trial Examiner found no violation of the
Act. The Board reversed The Board recognized that "an
evaluation of conflicting rights . . [was involved], the
employer's right to regulate the use of hisownproperty
as against the employee's right . to selt-organization,
. ." The Board cited a court of appeals case where the
court had said that sometimes some dislocation of
property rights may have to occur to safeguard rights
under the Act (the cited case was one where the court of
appeals held that an owner of an oil tanker was required
to issue passes to union representatives to enable them to
board the vessel to talk to employees but the court held
that the passes were to be forfeited if the holders used
their access to the vessel either to solicit union
membership or to collect dues) The Board went on to cite
the Peyton doctrine and said that "In view of the
foregoing well-established principles, the sole question
confronting us is whether, under the circumstances of the
instant case . the rule . constitutes a serious
impediment to the freedom of communication which is
essential to the exercise of the right to self-organization . .
To what extent then does the respondent's rule impede
the effective exercise of the right to self-organization?"
The Board then answered its question by referring to the
fact that the plant was on 6,000 acres of company
property, that the plant gate which was in the fence
enclosing the buildings and parking lot was 100 feet from
the highway on company property, that the majority of
the employees entered cars or buses on company property
and "presumably speed homeward without ever setting
foot on the highway Distribution of literature to
employees is rendered virtually impossible under these
circumstances, and it is an inescapable conclusion that
self-organization is consequently seriously impeded . we
are convinced and find" that the company rule is ". . an
unreasonable impediment to the exercise of
employees' right to self-organization.. . "
After, expressing itself as described above, in what we
regard as the crux of the decision, the Board then dealt
with some contentions of the company, including the
argument that the rule was a reasonable one designed to
prevent littering of the plant The Board acknowledged
that it had accorded recognition to such a justification in
the Tabin-Pickes case but did not consider it applicable to
the Le Tourneau facts because in the Tabin case the
employees could effectively distribute literature at the
plant gates "Moreover," said the Board, "considerations
of efficiency and order which may be deemed of first
importance within buildings where production is being
carried on, do not have the same force in the case of
parking lots."
NLRB v. Babcock & Wilcox Co.. 351 U.S 105,
involved an employer prohibition of distribution of union
literature by nonemployee union organizers on
employer-owned parking lots.26 The court said that the
Board's finding that the employer had violated Section
8(a)(l) of the Act was "placed on the Labor Board's
determination in Le Tourneau " where "the Board
balanced the conflicting interests of employees . . . with
the employer's right to control the use of his property and
found the former more essential in the circumstances of
that case "Z" The court then quoted at length the Board's
explication of the circumstances in Le Tourneau, including
the physical location of the plant and highways and so
forth which we have described above
Following the quotation from the Board's Le Tourneau
decision, the Court said that the Board had recognized in
that case "that the employer could restrict employee's
union activities when necessary to maintain plant
discipline or production" but that on all the circumstances
and facts in that case the Board had concluded that the
employer rule "placed an unreasonable impediment on the
freedom of communication essential to the exercise of its
employees right to self-organization. This court affirmed
the Board," citing the Republic - Le Tourneau case
The Examiner submits that what the Court said in Le
Tourneau and what it said in Babcock about Le Tourneau
was the same thing. In neither instance did the Court treat
the Peyton presumption as a per se presumption but as
one to be supported and explicated by the facts in the
particular case. Also that the reference to the recognized
fact that an employer may restrict employee union
activities when necessary to maintain plant discipline or
production was not a reference to an element in the
Peyton presumption because the latter was dependent on
the facts and circumstances in the case (Republic and Le
Tourneau) as explicated The reference to production and
discipline referred to a situation where the presumption
that the company rule unreasonably impeded the exercise
of employee rights to self organization had been
"There were several cases involving different companies before the court
"Emphasis supplied
DIAMOND SHAMROCK CO. 273
established and explicated on the facts in the case and
therefore there was a conflict between employee rights and
company property rights In such a situation the
company rights were obliged to yield to employee rights
absent a showing that the exercise of company rights was
necessary to maintain production and discipline.
The court in Babcock next observed that the Board had
applied "its reasoning in the Le Tourneau case" to they
Babcock situation28 and "the Board has set out the facts
that support its conclusions as to the necessity for
allowing nonemployee union organizers to distribute union
literature on the company's property In essence they are
that nonemployee union representatives, if barred, would
have to use personal contacts on streets or at home,
telephones, letters or advertised meetings to get in touch
with employees." The court commented that "the force of
this position in respect to employees isolated from normal
contacts has been recognized by this court - [citing
Republic/ 19 However, the court made it clear later in its
decision (p. 113) that it did not consider that the Babcock
situation was one where the employees were "isolated
from normal contacts" or where "the location of the plant
and the living quarters of the employees place the
employees beyond the reach of reasonable union efforts to
communicate with them " The court said "No such
conditions are shown in these records The plants are close
to small well-settled communities where a large percentage
of the employees live The usual methods of imparting
information are available The various instruments of
publicity are at hand Though the quarters of the
employees are scattered they are in reasonable reach."
The principal thrust of the court' s opinion was that the
Board had failed to distinguish rules of law applicable to
employees and those applicable to nonemployees. The
court held that the employer could post his property
against nonemployee distribution of union literature if
reasonable efforts by the Union through other available
channels of communication will enable it to reach
employees and if the employer's rule does not discriminate
by allowing other distribution. Only where "the location
of the plant and the living quarters of the employees place
employees beyond the reach of reasonable union efforts to
communicate with them" must the employer "allow the
Union to approach his employees on his property"
because, as to nonemployee union organizers, "Their
access to company property is governed by a different
consideration" than the access to employer property by
employees and the rights of employees thereon. And in
this context the court said that "no restriction may be
placed on the employees' right to self-organization among
themselves, unless the employer can demonstrate that a
restriction is necessary to maintain production or
discipline" [citing Republic] 3°
"The location of the plant and various conditions of employee
transportation to and from the plant had been described in the Board's
Babcock decision After noting such facts , the court said that the only
public place in the immediate vicinity of the plant was a small area where
a driveway crossed the public right of way, "Because of the traffic
conditions at that place the Board found it practically impossible for union
organizers to distribute leaflets safely to employees in motors as they enter
or leave the [ parking] lot " The plant was on 100 acres about a mile from
a community of 21,000 About 40 percent of the 500 employees lived in
that town and the remainder lived within a 30 - mile radius More than 90
percent of the employees drove to work
"The official citation of the Republic - Le Tourneau is, of course,
Republic Aviation Corporation v N L R B , but it is apparent that the
court in Babcock was citing Le Tourneau or Le Tourneau and Republic
and not Republic alone
"It is to be borne in mind that earlier, in Babcock , the court had cited
It is our opinion that the last mention quotation above,
with the supporting citation to Republic, since it also
appears in Republic where the court quoted the Peyton
Packing decision, is still the Republic decision as we have
described it The Republic decision stands for no more or
no less than it did when issued Indeed the court in
Babcock said that the Board's position in Babcock that it
was necessary to allow union organizers to have access to
employer property was sound enough in the respect that
"the force of this position in respect to employees isolated
from normal contacts [as in Republic and in Le
Tourneau/ has been recognized by this Court - ," citing
Republic
The case of N L R B v United Steelworkers of
America, CIO. 357 U S 357, involved two cases, one
being the Nutone. Inc , case and the other the Avondale
Mills case. The Court said that "these two cases. . are
controlled by the same considerations and will be disposed
of in a single opinion " In Nutone the company, while
itself distributing antiunion literature to employees on
company property, enforced its rule against employees
posting signs or distributing literature on company
property or soliciting on company time and proclaimed
that the rule applied to all employees whether for or
against the Union The Board dismissed the complaint
allegation that the company had discriminatorily enforced
"its no-solicitation rule " The Court of Appeals held that
it was an unfair labor practice for the company "to
prohibit the distribution of organizational literature on
company property during nonworking hours while the
company was itself distributing anti- union literature " The
Supreme Court reversed the court of appeals on this
holding. In Avondale, the company discharged employees
for violation of a rule prohibiting solicitation in the plant
during working time.32 The Board held that the evidence
showed that the rule had been promulgated or invoked to
interfere with employee organizational rights and ordered
reinstatement. The court of appeals found insufficient
evidence of discrimination in the application of the rule
and reversed the Board on this point The Supreme Court
affirmed the court of appeals.
In dealing with the relatively limited issue in the cases,
the Supreme Court said that there was no evidence that
the employees had asked the company to make an
exception to allow "pro-union solicitation" by using as an
argument the fact that the employer himself was engaged
in "anti-union solicitation"; nor had the Board concluded
from its experience that such a request would have been
futile, according to the court The court then stated (p
363)•
No attempt was made in either of these cases to make a
showing that the no-solicitation rules [it is apparent that
the court regarded the company rules in both cases as
no-solicitation rules] truly diminished the ability of the
labor organizations involved to carry their message to
the employees [through other employees, since both
cases involved the application of the company rules to
employees ] Just as that is a vital consideration in
determining the validity of a no-solicitation rule, see
Republic Aviation Corp [citation]; N L R B v
Babcock & Wilcox [citation ], it is highly relevant in
determining whether a valid rule has been fairly applied
Republic as a case involving "employees isolated from normal contacts "
Presumably, subsequent citations of Republic in Babcock impliedly
included this basic characteristic of Republic
"The language and characterization are the court's
3 115 NLRB 840, 841
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board in determining whether or not the
enforcement of such a [no-solicitation] rule in the
circumstances of an individual case is an unfair labor
practice, may find relative alternative channels available
for communications on the right to organize. When this
important issue is not even raised before the Board and
no evidence bearing on it adduced, the concrete basis
for appraising the significances of the employees'
conduct is wanting.
Chief Justice Warren and Justices Black and Douglas
dissented in part and concurred in part. The dissent stated
that "In contrast to Babcock and Republic Aviation we
are not concerned here with the validity of these
[company] rules per se The no-solicitation rule here may
well be valid if fairly applied." The Chief Justice then
went on to find that while the employer was engaged in
his own antiunion program on company property and
time, his denial of permission for comparable prounion
solicitation was illegal and in violation of Section 8(a)(1).
In the course of the dissent, reference was made to the
fact that one circumstance "on which the majority relies is
the failure of the Board to make findings that reasonable
alternatives were not open to the Union in the face of the
no-solicitation rule. Admittedly, evidence and findings of
this nature were elements in cases where the validity of
employer no-solicitation and no-distribution rules was in
issue. [See Babcock and Republic citations.] However,
there has heretofore been no indication that such evidence
and findings were indispensable elements to every case in
which these employer rules were being examined."
To support the last mentioned statement, the dissent
appended a footnote wherein it said that "In the opinion
in Republic Aviation all that appears is that the company
was a large nonurban manufacturer, many of whose
employees lived at great distances greater than walking
distance from the plant in the Long Island area."
It is true that the Republic opinion did contain a
statement to the foregoing effect but as the Examiner has
pointed out previously, the court in Republic stated that
"the Intermediate Report in the Republic Aviation case . .
set out the reasons why the rule against solicitation was
considered inimical to the right of organization" and the
court quoted from the Report. The Report was an
explication of many details of location, travel and so forth
that led to the conclusion that the employees by reason of
the company rule were deprived of normal communication
in the plant on their own time, "the very time and place
uniquely appropriate and almost solely available to them
therefore." The Board's decision in Le Tourneau also
contained a detailed description of the plant location,
accessibility, travel and so forth that led to the conclusion
that the company rule unreasonably impeded
communication. Both in Republic and in Babcock in
reference to Republic, the court referred to the isolation
of the employees in the Republic and in the Le Tourneau
plants.
The dissent in Steelworkers. continuing its footnote,
then states that the Republic decision said that "no
evidence was offered that any unusual conditions existed
in labor relations, the plant location or otherwise to
support any contention that conditions at this plant
[Republic! differed from those normally occurring at any
other large establishment "
As the Examiner reads the three paragraphs of the
Republic decision in which all of the foregoing appear, it
is this:
(1) The court said that Republic was in 1943 a
nonurban establishment which employed thousands and
trains and cars brought employees to the plant daily from
all over Long Island ." We regard this as introductory by
the court of the general picture of the case before it. This
is confirmed by the fact that the'next sentence states that
"the rule against solicitation was introduced in evidence
and the circumstances of its violation by the dismissed
employee after warning was detailed ." This concluded
what we have numbered the first paragraph
(2) The next paragraph began , "as to the employees
who were discharged for wearing the buttons of a union
steward .. " and continued on this aspect of the case.
The court dealt with the company contention that a
steward was a union representative to deal with
management after the union was recognized and that the
company would be violating its neutrality if it permitted
the display of such buttons before the union was
recognized
(3) The court then said in the next paragraph, in
response to the company contention, above, regarding
buttons, in our opinion , that, in effect , the company's
contention was of an esoteric nature a9d not a description
of how such buttons would normally be regarded. Thus,
said the court , "no evidence was offered that any unusual
conditions existed in labor relations , the plant location or
otherwise to support any contention that conditions at this
plant differed from those occurring normally at any other
large establishment "
An alternative interpretation of the quoted paragraph
above is suggested by the paragraph that immediately
followed it , and wherein it was stated that Le Tourneau
was also devoid "of special circumstances" since the
evidence "tends to prove the simple facts heretofore set
out as to the circumstances surrounding the discharge of
the two employees for distributing union circulars." The
court had shortly before said that in Republic "the
circumstances of its [the rule's] violation by the dismissed
after warning was detailed " and so perhaps the paragraph
stating that "No evidence was offered that any unusual
conditions existed in labor relations, the plant or
otherwise . " was referring simply to the fact that the
circumstances of the discharges in both cases involved no
special circumstances from the company standpoint or
from the Board 's standpoint other than the validity of the
rules
The dissent in Steelworkers also stated that the court in
Republic quoted Peyton Packing with approval although
Peyton did not contain the evidence and findings that the
majority said were necessary in Steelworkers The
Examiner has earlier described in detail how, in his
opinion, the court decision in Republic reveals the court's
approach to Peyton in Republic In any event, it is
reasonably apparent that the majority in Steelworkers
interpreted Republic and that case's treatment of the
Peyton doctrine in a manner different from the minority
view.
N L R.B v United Aircraft Corporation , 324 F 2d 128
(C A 2), cert denied 376 U S 951, is a case in which
there was a company rule prohibiting employees Irom
distributing union literature on their own times in
nonworking areas of the plant 70 Among other things, the
"This statement was four paragraphs before the court went to the details
of the Intermediate Report that "set out the reason why the rule"
frustrated organization
"Respondent had at one time permitted employees, before reporting to
work , to distribute union leaflets at two tunnel entrances to the plant that
employees customarily used to get to work after parking their cars on
adjacent parking lots Thereafter the company barred such activity from its
DIAMOND SHAMROCK CO. 275
Court observed that the Company contended that the
Board, in finding the rule illegal, "erred in failing to
comsider, in evaluating the no-solicitation rule, whether
the employees have alternative means of communication "
The Court held that in Republic the Peyton Packing
presumption was approved and, in effect, that since the
Peyton presumption "was independent of the existence of
alternative means of communication," this was what
Republic stood for " Later in its Opinion, the court
discussed various cases including Steelworkers Since
Steelworkers or any other case is the majority opinion in
the case, and since the majority had interpreted Republic
quite differently than had the dissent, the Court of
Appeals in United Aircraft disposed of Steelworkers as a
case not involving "the validity of a no-solicitation rule"
but rather a:; one where the employer enforced the rule as
to union solicitation of employees while violating the rule
itself by antiunion solicitation. Therefore, when the
majority in Steelworkers said that the question of
available alternatives for union solicitation other than on
company property was relevant, the statement did not
pertain to the validity of the rule and, presumably, the
Steelworkers' case statement by the majority about the
relevancy of alternatives on the question of a
no-solicitation rule's validity was dictum in the view of the
court of appeals in United Aircraft Since the facts and
issues in the case did not change, it is not readily
perceived why the dissent in Steelworkers, disagreeing
with what the majority had said about the relevant factors
in determining a rule's validity, was any less a dictum but
nevertheless merited being cited twice by the court of
appeals in its decision in United Aircraft
While it is true that in Steelworkers the issue was not
the validity of the rules, the Court's decision quite
definitely, we believe, stated, in effect, that Republic and
Babcock had held that in determining the validity of a
no-solicitation rule the effect of the rule on the ability of
employees and/or unions to communicate was a relevant
consideration, indeed "a vital consideration" and that the
availability of alternative channels of communication
bears directly on the matter of ability to communicate
when a company rule forbids communication on company
property. Just as, or since, the foregoing was central and
vital to the question of the validity of a company rule, the
court held that it was highly relevant to the determination
whether a valid rule had been fairly applied In fact, the
majority indicates that what it, in effect, described as the
holding in the Republic case was the source of the legal
doctrine that it was applying in Steelworkers to the facts
in Steelworkers The dissent understood what the majority
had said and replied that, although "evidence and findings
of this nature [that reasonable alternatives to solicitation
on company property] were elements" in [Babcock and
Republic J, there had been not been "heretofore" (prior to
the majority decision in Steelworkers) an indication that
evidence and findings on the availability of alternatives
was essential. The dissent then undertook to illustrate this
position by quotations from, and statements about, the
opinion in Republic We have previously given these
details, above.
Although the Court of Appeals in United Aircraft said
that Republic adopted and approved the Peyton Packing
presumption and doctrine, the Court of Appeals also went
on to say that "Reason and sound administrative policy"
supported the Supreme Court in Republic in its "approval
of the Peyton Packing Co. formulation."
In effect, the explication in United Aircraft is that the
superior effectiveness, economy, and convenience of union
solicitation by employees among fellow employees on
company property when they are on nonworking time
supports the Peyton formulation'36 and tips the balance
between employee rights and employer property rights in
favor of the former unless the employer can show that his
no solicitation rule is necessary to maintain production or
discipline. At this point we make only one observation
about the foregoing explication and justification of the
Peyton presumption and that is that, in our opinion, the
Supreme Court, either in Republic, Babcock, or
Steelworkers, has never adopted or approved this
explication or an explication along these lines. The
explication in Republic and Le Tourneau for the validity
of the Peyton presumption was the isolated physical
location of the plants, the scattered and distant abodes of
employees, the extensive use of automobiles and related
factors, all adding up to no reasonable alternatives to
allowing communication among employees in the plant on
their own time. Babcock affirmed that Republic was an
isolated plant situation as did Steelworkers, with the
latter spelling out that Republic had required and that
Steelworkers requires the consideration of whether there
were alternative means of communication on union
matters if the use of plant property for such purposes was
barred by the employer
After setting forth the explication that we have
described above, the Court in United said: "Even apart
from considerations involving the remoteness of the
existence of realistic alternatives, we feel that the Board's
position [in Peyton] is sound." The court then quoted the
Peyton formulation from the Peyton decision. The court
next said that "The Board is manifestly correct .
property rights [cannot] be used arbitrarily or capriciously
to restrict a worker's freedom of association or expression
[citing the dissent in Steelworkers/. It is inevitable that
the thrust of an organizational drive would be blunted by
rules which cut into a worker's use of his own time "
In this connection, since the court quoted the Peyton
decision, it is helpful to briefly summarize again what
Peyton said. After stating that, presumptively, an
employer could prohibit union solicitation on working
hours, the Board said that "It is no less true that outside
working hours . . is an employee's time to use as he
wishes without unreasonable restraint, although the
employee is on company property. . . . Such a rule
[prohibiting union solicitation by an employee on
nonworking time on company property] must be presumed
to, be an unreasonable impediment to self organization and
therefore discriminatory in the absence of evidence that
special circumstances make the rule necessary to maintain
production or discipline."
Peyton contains two propositions on the subject of
employee nonworking time on company property: (1) An
employee can, without unreasonable restraint, do what he
wishes on his nonworking time on company property;
therefore (2) a rule prohibiting union solicitation on
premises because, inter alia, the leaflets were highly critical of food in the
plant cafeteria Additional reasons for the rule were also presented to the
Board and the Court
"On this point , the Court referred for support to the dissenting opinion
in Steelworkers, above
'.in Steelworkers, the court said , "Of course the [no-solicitation] rules
had the effect of closing off one channel of communication but the Taft
Hartley Act does not command that labor organizations , as a matter of
abstract law, under all circumstances , be protected in the use of every
possible means of reaching the minds of individual workers "
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company property is presumptively an unreasonable
impediment to self-organization absent justification by the
necessity of such a rule for maintaining production or
discipline.
Is proposition (1) a self-evident proposition requiring no
explication? On company property, on an employee's
nonworking time, the employer can prohibit card playing
or other activities; he can prohibit an employee from using
the executive restrooms or dining room ; he can require
that safety shoes be worn at all times by employees on
company property, including rest and lunch periods; he
can require or prohibit any number of things by
employees on company property and on nonworking time
on such property; before the Act the employer could
prohibit all solicitation on company property; under the
Act the employer can prohibit all solicitation on company
property (except union solicitation and this is of course
part of what we are considering in thus examining
Peyton) What can we find in the Peyton formulation to
support proposition (1) that an employee can do as he
wishes on his own time on company property. Unless the
proposition be regarded as self-evident requiring no
explication, we would have to turn to proposition (2) to
support proposition (1). In effect, this is to argue that
proposition ( 1) is true because presumptively a rule
prohibiting union solicitation on nonworking time on
company property unreasonably impeded self-organization
and therefore proposition (1) is true that an employee on
company property on his own time can do as he wishes
But what supports proposition (2) that presumptively a no
solicitation rule as to an employee's nonworking time
unreasonably impedes organization? The only answer in
Peyton is apparently that because proposition (1) is true,
that an employee can do as he wishes on his own time on
company property, then proposition (2) is true We believe
some explication is required if we are to emerge from this
circle.
The Peyton formulation uses as a premise the statement
that an employee can do as he wishes on his own time on
company property and from this premise enunciates a
presumption that, if a company prohibits employees from
doing what they wish on their own time regarding union
organization , then the rule or prohibition unreasonably
impedes self organization. Under the pure Peyton
doctrine, neither the premise not the presumption flowing
from the premise need be established by evidence. If the
General Counsel introduces evidence that the employer,
pursuant to a no-solicitation rule on company property,
discharges an employee for union solicitation on company
property on his own time, there is a violation of Section
8(a)(1) under the Pevton doctrine unless the employer can
establish that the rule was necessary to maintain
production and discipline
In the Examiner's opinion, the Supreme Court in
Republic, and in Babcock and Steelworkers, wherein the
latter two cases cited and characterized Republic, has not
decided a case on the basic Pevton doctrine although the
court has cited and quoted Peyton at various times in the
decisions . With little or no attention to the premise in
Peyton from which the Peyton presumption flowed, the
court in Republic tested the presumption against the
factual evidence in both Republic and Le Tourneau The
validity of the presumption, said the court, "depends upon
the rationality of what is proved and what is inferred
[what is presumed]." The court then made it clear that
what was proved in both cases (and this was the evidence
in both cases) was that the plants were physically isolated
and that the employees came to the plants from many
scattered locations involving substantial distance and
travel, so that if the employees were prohibited from
normal communication with each other on their own time
in the plant on matters of union organization they were
being unreasonably impeded in the exercise of their rights
to self-organization under the Act. The court therefore
concluded that the Peyton presumption, that a
no-solicitation rule applied to company property on
nonwork time was an unreasonable impediment to
self-organization, was valied and applicable to Republic
and Le Tourneau In Babcock, the court said that the
problem of communication had been recognized in
Republic, in Babcock, and also in Steelworkers, the
availability or unavailability of "relative alternative
channels available got communications on the right to
organize" was a relevant and material consideration "in
determining whether or not the enforcement of such
[no-solicitation] rule in the circumstances of an individual
case is an unfair labor practice .. .
For adoption of the "pure" Peyton doctrine, therefore.
we cannot , in the Examiner 's opinion , turn to the existing
Supreme Court decisions We must resort to the Court of
Appeals in United Aircraft for an example of espousal
and adoption of the Pevton doctrine in its pristine form.
The court, in effect, there stated, as we have seen, that
in all situations there were no realistic alternatives in
terms of convenience, effectiveness, and economy to union
solicitation by employees on their own time on company
property. The court explicated its convenience,
effectiveness, and economy contentions. This is not pure
Peytonism since presumably if, in a particular case an
employer contended and proved that convenience,
economy and effectiveness in self-organization were not
adversely affected by his no-solicitation rule, the
contention would fail. And at least the matter would have
to be litigated.
However, the court went on to state that even apart
from whether there were no realistic alternatives to
solicitation on company property on employees' own time,
"the Board's position [in Pevton/ is sound." The court
said that "It is inevitable that the thrust of an
organizational drive would be blunted by rules which cut
into a worker's use of his own time...."
Even apart from the fact that Peyton is an existing
Board decision, we have not disagreed with the Peyton
principle that, contrasted with "working time," an
employee's "time outside working hours, whether before
or after work, or during luncheon or rest periods, is an
employee's time to use as he wishes without unreasonable
restraint although the employee is on company property."
The problem has been, as we see it, that the foregoing
premise was not explicated by the Board in Pevton and
that little or no attention has been paid to the premise by
either the Board or the courts. If the premise is self
evident or accepted as true, with or without explication or
rationale, then the rest of the Peyton formulation follows,
namely, that a rule prohibiting employees from using their
own time, if they wish to use their own time for union
activity, prima facie interferes with employee rights
guaranteed in Section 7 The premise is actually a
presumption, a general proposition requiring no proof in
the individual case if the Board and the courts once accept
the premise. With such a premise or presumption, the
only evidence necessary to establish a violation of Section
8(a)(1) is proof that the employer maintains a rule
prohibiting solicitation or distribution on company
property on employees' nonwork time.
DIAMOND SHAMROCK CO. 277
Instead of the foregoing approach, however, the Board,
in its decisions in Republic and Le Tourneau that were
presented to the court, and the court, in its decisions
thereon, while all quoted Peyton language at one stage or
another, used as a proposition to be proved by the facts in
the particular cases, the contention that the company rules
on the facts of the case unreasonably impeded the exercise
of employee rights under Section 7. Steelworkers adopted
the same approach. Lip service was paid to the Pevton
language but neither the Board nor the court used a
presumption that was recognized as self-evident or as
acceptable and as requiring no proof on the facts of the
individual case . What was done, in effect, was to prove,
on the basis of evidence in the case, that the company
rules in the cases, regarding nonwork time, unreasonably
impeded the exercise of employee rights, and then to state,
as the Court did, in effect, in Republic that therefore
Peyton was correct in stating that an employee was free to
do as he wished, including union activity, on his own
nonwork time ." It is difficult to perceive much more in
this approach than the common method of proof of an
allegation in any situation where it is contended that an
employer's conduct has interfered with employee rights.
Where is the presumption or premise requiring no
evidentiary proof and from which premise, if it is once
shown that the company has acted in a manner at direct
odds with the premise or presumption, it follows that
therefore there has been a violation of the Act (excusable
only if, despite the company's transgression of the premise
or presumption, the company's production or discipline
would be so adversely affected that the transgression will
be excused or, in effect, that the employer's rights in such
a situation outweigh employee rights)
Having embarked on this route of proving by evidence
in the particular case that a company's no-solicitation rule
unreasonably impeded the exercise of employee rights on
nonwork time , as in our opinion both the Board and the
court did in Republic and Le Tourneau, the necessary
implication was that evidence that the company rule in a
particular case did not unreasonably impede the exercise
of employee rights would be relevant The relevancy was
in fact indicated quite directly and not simply left to
implication. Both in Republic and Le Tourneau the
isolation of the plants, the distances, difficulties in
communicating and so forth were focused upon and
language was used to the effect that under such
circumstances there were no reasonable alternatives to
employee communication on nonwork time during the
course of the workday and that rules prohibiting such
communication unreasonably impeded the exercise of
employee rights Steelworkers affirmed that this was
indeed the Republic decision "
We have endeavored to point out what, in our opinion,
was the original contemplation of the Peyton language.
We have also set forth our belief that the Supreme Court
has never applied the Pevion formula in its original form.
We have described various court decisions. We believe the
"The Peyton language did not have as its objective the establishment
from evidence in a particular case the proposition that employees can do as
they wish on nonwork time and it certainly did not intend to establish the
proposition of employee freedom on their own time by evidence that a rule
prohibiting union activity on employees ' nonwork time unreasonably
interfered with employee rights The Peyton language contemplated that
the right of employees to do as they pleased on their own time was to be
used as the basic premise or presumption, without proof, and from that it
could be presumed or concluded that a rule proscribing union activity on
an employee ' s own time unreasonably impeded his rights under Sec 7
"See also N L R B v Rockwell Mfg Co , 271 F 2d 109 (C A 3)
original Pevton formula is sound and we rely on it
although, in our opinion, no Supreme Court decision can
be cited as supporting that formula. The Board and
various courts have viewed Republic and other Supreme
Court cases as instances of full and complete adoption of
the Pevton formulation."
As previously stated, it is our opinion, that the
neglected aspect of the Peyton formula has been the
premise or presumption that unlike working time,
employees may do as they wish on their own time on
company property, subject to reasonable restraint It is
not self-evident and it is difficult to establish without
explication that employees may do as they wish on their
own time on company property. Pevton gave no
explication of the foregoing premise and in Republic and
the other cases above cited the premise was for all
practical purposes ignored and the Board and the court
decisions turned on the fact that the evidence in the
particular case demonstrated that the company rules had
unreasonably impeded the exercise of employee rights
because in the particular cases there was no reasonable
alternative to union solicitation on company property on
nonwork time and unless such solicitation was allowed
employee rights of self-organization would be nullified.
The premise or presumption that employees may do as
they wish on nonworking time on company property once
established or accepted makes the premise available
thereafter in all solicitation type cases and limits the
evidence in such cases to the question of whether the
company rule prohibits employees from doing as they
wish on nonworking time on company property, absent a
demonstration by the company of major impediment to
production and discipline
Since the above premise involves company property, the
premise first entails an explication of the legal basis for
the employee being on company property. Access to, and
presence on, the company property is not to be ignored as
a matter of no consequence. The nonemployee organizers
in Babcock foundered on the problem of access to
company property and the court pointed out that "their
access to company property is governed by a different
consideration" than that involving the access of employees
to company property.40
What then is the basis of employee access to company
property? This was no problem in Pevton, Republic. Le
Tourneau and the other cases we have cited because the
employees were on the property pursuant to the basic
employer-employee relationship which is the work
relationship The solicitation in those cases occurred
shortly before commencing work or shortly after
completing work or during a lunch or break period. But
an explication of the legal basis why presence on company
property pursuant to the work relationship creates no
problem of access to company property is an essential
element in establishing the premise that employees on
company property on nonwork time can do as they wish.
The premise, including the matter of access and being
properly, or as a matter right, on company property, and
the right to be free on nonwork time, are established by
the following factors, earlier mentioned:
"Walton Manufacturing Company, 126 NLRB 697, enfd 289 F 2d 177
(C A 5), Stoddard-Quirk Mfg Co. 138 NLRB 615
"We submit that the sole significant distinction between nonemployees
and employees regarding access to company property is the work
relationship , the basis employer-employee relationship which, of course, is
nonexistent in the case of nonemployees
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A mutual understanding or arrangement exists by
which the employee comes on company property to work,
with the employee supplying his services and the employer
providing plant, equipment and so forth. Being legally
present on the employer's property, it is also mutually
understood that, while on company property, shortly
before and after work, during lunch and break periods,
the employees may, among other things, during these
nonwork periods, communicate with each other on
matters of mutual interest." This is the normal situation
in the employer-employee relationship and it is a
recognition of the normal nature of employees as human
beings in a civilized democratic society Further examined,
it will be recognized that employees in the aforementioned
nonwork periods on company property can and do
communicate with each other on all matters of mutual
interest, including sports, domestic matters, politics, taxes,
work, war, or anything else Their communication may
include the solicitation of a loan of $5 by one employee
from another and this may include passing and signing of
an 1.0 U. on a piece of paper In the course of
conversation and communication one employee may show
or give another employee a newspaper clipping or a leaflet
about a new social security or tax bill or similar subject.
Pictures of children, boats, and so forth may be passed
between employees in the course of oral conversation
These are but a few illustrations of the scope and nature
of communication between employees on company
property on nonwork time. We therefore can affirm that
the Peyton premise that employees can do as they wish on
their own time on company property is manifestly correct
for the reasons and as illustrated above.
One of the subjects of mutual interest to employees,
and a most important interest, is the matter of their
wages, hours, and working conditions, and
self-organization and union activity relating thereto
Moreover, this subject of mutual interest, unlike others,
possesses the additional element of statutory protection
under Section 7 of the Act. Further, the nature of this
subject of mutual interest to employees as employees is a
particularly appropriate subject about which employees
may wish to communicate while they are together on
nonwork time on company property, the place where they
are all fellow employees
The Peyton premise having been thus established, a
company rule that impedes or prevents, the normal right
of employees to communicate on matters of mutual
interest , including union organization , on their own time
on company property, is discriminatory against the
normal rights of employees, even though there may be
some other subjects of mutual interest to employees or
methods of communication on subjects of mutual interest,
that may be affected by the rule."
Apart from discrimination or in addition to the
discriminatory aspect, if and since one of the subjects of
employee mutual interest is self-organization, a statutory
right, the company rule impeding or preventing the
exercise of that right in the normal exercise to the
employee's right to communicate as he wishes and on the
subjects he wishes on nonwork time on company property,
is illegal unless the company can demonstrate that the rule
is necessary to maintain production and discipline 43
The foregoing is what we understand the Peyton
doctrine to be As we view it, the premise is the crux of
the Peyton doctrine and alternative areas of
communication, plant location and so forth are irrelevant
factors. We prefer the term premise but if the term
presumption is preferred, the premise or presumption is
that employees on their own time on company property
can communicate with each other on subjects of mutual
interest, including the statutorily protected subject of
union organization. If the term presumption is used it can
be described as a presumption of fact or a presumption of
law but it is not a rebuttable presumption. It is, in our
opinion, a premise (presumption), which as explicated, is
accepted or rejected, and once recognized or accepted it is
usable in all appropriate cases involving employer
solicitation rules The Board recognized the premise or
presumption in the Peyton case. We have previously
described its subsequent history. And to complete this
description of the premise or presumption aforementioned,
it is our opinion that, when in Peyton it was said that a
rule prohibiting union solicitation by an employee on
nonwork time on company property must be "presumed"
to be an impediment to the exercise of employee rights,
this was not the presumption or the presumption part of
Peyton although worded in that term. The presumption in
Peyton, if we wish to talk in that terminology, was the
premise aforedescribed The statement that a company
rule prohibiting union solicitation on nonwork time on
company property was an unreasonable impediment to
employee rights was the inference or conclusion that, in
our opinion, followed from the premise or presumption
that employees on their nonworking time on company
property can do as they wish which includes
communication on subjects of mutual interest, one of
which is union organization The conclusion is not a
presumption and to speak of it as a presumption is
probably one of the reasons why, in Republic and other
cases, so much effort, in fact in our opinion, practically all
the effort of the Board and the Court was devoted to
proving on the evidence that the rule unreasonably
impeded self-organization. The conclusion or inference
flows from the premise or presumption and the relevant
evidence should be very limited, with the conclusion being
defeasible only by a showing of production or discipline
necessity for the rule.
With the explication of the Peyton principle, above set
forth, including its basic premise or presumption, which
we regard as wholly sound and defensible, we now
consider the General Counsel's contention that
Respondent's rule or policy prohibiting employees, who
had completed their regular work shift at 4:30 p m. and
had left the plant, from returning to a building in the
plant at 1 l • 15 p.m. to 12 midnight solely for the purpose
of engaging in union activity in a nonwork building of the
plant, was illegal. As we view the General Counsel's
contention it is, in essence, that the Peyton doctrine is
applicable since the solicitation and distribution occurred
on the employees' own time, their nonworking time, on
company property.
411f an employer did not allow any talking, any conversation , during
nonwork periods it is safe to predict that he would have few or any
employees in the average industrial establishment in the United States in
1969
"As previously indicated , if all communication or methods of
communication of employees on nonwork time were proscribed the
employer would probably have no employees
"A capsule analogy is Employees during an 8-hour period of work in a
plant are normally recognized to have the right to have some rest, some
food , some liquid , some restroom recourse during the 8 hours If a
company rule impedes or prevents the exercise of the foregoing rights, it
obviously does just that, it impedes or prevents the exercise of the right if
the employee right is statutorily protected , as by a public health or other
law, the company rule is illegal
DIAMOND SHAMROCK CO. 279
There was no problem of the employees ' right to be on
company property in the Peyton . Republic , Le Tourneau,
and other cases since their union activity occurred when
they were on company property pursuant to the basic
employer-employee relationship , the work relationship
The union activity occurred shortly before or after their
work shifts or during break or lunch periods These
periods were in fact the illustrative periods that the Peyton
decision in so many words described as the typical
nonwork time that it was discussing
Since both the Board and the Supreme Court had
always recognized that the union solicitation and
distribution situations on company property required a
balancing of employee rights under the Act and company
property rights under the Constitution , it is evident that
implicit in the Peyton doctrine was a consideration and
disposition of two elements , the right of the employees to
be on the property , and what they could do regarding
union activity once they were properly on company
property As mentioned , the right of the employees to be
on company property in the Peyton and Republic cases
and similar cases was clear since they were on company
property pursuant to the work relationship when they
solicited and distributed We have earlier elaborated on
this work relationship and the normal right of employees
to communicate in such a situation in our explication of
the crucial premise or presumption that we regard as the
keystone of the Peyton principle.
Babcock was an additional reminder that company
property rights as well as employee rights were involved in
situations of union activity on company property The
Court found that nonemployee organizers ' right of access
to company property depended on different considerations
than those applicable to employees Although the court
did not go into the basis of employees' access to company
property it is our opinion that the basis was the work
relationship , an aspect that we have earlier analyzed and
which we believe was manifested in the Peyton case
The terms or concepts of "an employee's own time, his
nonwork time" were not the basis or rationale for getting
the employee on company property nor were they the
reason why he was properly on company property
Employees and others in the course of their lives have
considerable time that is their own and they have
considerable nonwork time after they have completed their
work and after they have left the plant. But because an
individual is on his own time or on nonwork time does not
in itself confer any right to be on another's property as a
matter of right and against the owner ' s consent. The
normal concomitants of being on one's own time,
nonwork time , after completing work and leaving the
place of employment , is that the individual can use or be
in his own property , house, apartment, car, boat , public
streets, public parks and so forth. If he wishes to enter or
use someone else's property he must do so with the
owner's consent , express or implied, either as a social or
business guest, as in stores, theatres , sports arenas , hotels,
restaurants , a friend ' s home and so forth.
Being on one's own time and nonworking is a
characteristic of most people after they have departed
their place of employment and in themselves they are no
open sesames as far as having a right to be on or to use
someone else ' s property . Company property, in our
opinion, is not employer -employee community property
and company property is not the employee ' s other home
or his home away from home except when he is on that
property pursuant to the work relationship , at which time
he has all the rights which we have described and, we
believe, have justified , as the premise or presumption of
the Peyton doctrine . To use the words "the employee's
nonworking time" in the Peyton doctrine as disposing of
the question of the right of the employee after leaving the
plant after work to return and use a building in the plant
for union activity is , in our opinion , to take the words out
of context and out of the rationale inherent in and
essential to the Peyton premise The work relationship
basis of the Peyton premise and the normal right of
communication between employees during that
relationship is essential, in our opinion , to both the legal
basis for the employee ' s presence in the plant and to the
exercise of his rights once present
It is our opinion that it is not a fact that in the normal
employee-employer relationship the employee has free
access to a building in the plant at any time he chooses
after he has completed his work and left the plant Nor do
we believe that returning to the plant as aforementioned is
the normal or customary time or place for communication
between employees We do not believe that the concept of
an employee being on nonwork time equates with right of
access to company property when the work relationship
for the day has ended Nor do we so construe the Peyton
premise and doctrine '
The instant employees enjoy and are entitled to the
protection of the Peyton doctrine . When they are at the
plant pursuant to the work relationship , they have
exercised their right, when on their nonworking time,
shortly before and after work and on lunch and coffee
breaks, to engage in union distribution and solicitation in
a building in the plant, the change house This has enabled
them to engage in organizational activity among all their
fellow employees, more frequently with some employees
and less frequently with others, depending on who is
working on what shift Respondent has not prohibited
this. The same is true of the parking lot, the walkway
from the parking lot, and the plant road . With respect to
periods when these employees are not at the plant
pursuant to the work relationship, they have been
permitted ' to, and Respondent does not contest their right
to, distribute and solicit on the company owned parking
lot, walkway , and road. The parking lot at night is not the
best illuminated place that can be conceived and except in
the immediate area of the lights near one portion of the
lot, the lighting is probably not adequate for reading.
There is, however, no reason why the recipient of a union
card or leaflet in the parking lot should have to read the
material in the lot rather than later in his home where it
probably could be read with more comprehension The
plant road is not an ideal place for distribution or
solicitation , since the employees are in cars and in motion
On one occasion a guard told a union solicitor not to
block traffic by causing cars, coming from the parking lot
to the point where the plant road enters the highway; to
stop The solicitor, however, continued with his
solicitation and distribution for some time thereafter
without being again accosted by the guard . Aside from all
the foregoing avenues for organizational activity on
company property, there are , of course , meetings and
other methods of reaching employees off company
property in homes, clubs , streets, and so forth.
In the Examiner ' s opinion , employees on company
property pursuant to the work relationship have, of
course, the right to solicit and to distribute on behalf of a
union on their nonworking time on company property, as
they have done in the instant case . In order , however to
have access as a matter of right to an in-plant building, at
times unconnected with the employee-solicitor's work
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relationship with the plant, it is our opinion, consistent
with our view that this is not a Peyton situation, that it
must be shown that, absent such access, the employees
would have no reasonably adequate means of
communicating with other employees or with certain other
employees on company property on the subject of union
organization. The situation in the instant case, in our
opinion, is that in addition, of course, to communication
off company property on nonwork time there has been
adequate opportunity to communicate on company
property, including an in-plant building, on nonwork time
pursuant to the work relationship such as shortly before
and after shift and during lunch and coffee breaks There
is also communication on company property such as
parking lot, walkway and road, at times unconnected with
the work relationship We perceive no basis for concluding
herein that access to an in-plant building at a time
unconnected with the solicitor's work relationship with the
plant is required as a matter of right or that by
prohibiting such access the Respondent has interfered with
employee rights under Section 7 of the Act °° In our
opinion, the fact that the employee solicitation is on his
own time is not enough.,' We recommend dismissal of the
complaint.
CONCLUSION OF LAW
Respondent has not engaged in unfair labor practices
under Section 8(a)(1) of the Act
RECOMMENDATIONS
It is recommended that the complaint be dismissed.
"We do not understand the law to be that an employer may control his
property only when he demonstrates that such control is necessary in order
to maintain production and discipline It is when the right of control
unreasonably impedes or prevents the exercise of employee rights under
Sec 7 of the Act that the matter of production and discipline become
relevant since , in such a situation , they become the sole basis on which
employer's rights will prevail over the employee's rights under Sec 7
"Bauer Aluminum Co 152 NLRB 1360, enfd sub nom Republic
Aluminum Company, v N L R B, 374 F 2d 183, 394 F 2d 405 (C A 5),
involved access to a company parking lot on an employee 's own time
unconnected with the work relationship The instant case does not involve
the issue of access to a parking lot but does involve the issue of access to
an in-plant building The difference between access to an in-plant building
and a parking lot is comparable to the difference of a noninvited person
standing in the driveway of a home and that same person entering and
standing within the house, whether in the hall , basement , living room, or
dining room Parking lots although company owned have been viewed
differently than the interior of a store building , also company owned
American Food Employees v Logan Valley Plaza , 391 U S 308, where
the Court , although sanctioning picketing and distribution in a privately
owned parking lot and mall of a shopping center, in no way indicated that
the same rights could be exercised within the store buildings whether by
employees or non-employees The fact that from a parking lot, whether at
a plant or in a shopping center, a person may walk within a building does
not obliterate the distinction between the lot and the building