# Republic Aviation Corp. v. National Labor Relations Board > Court of Appeals for the Second Circuit · March 22, 1944 · 142 F.2d 193 URL: https://www.frixlaw.com/law-library/cases/6888570 ## Case - **Full name:** REPUBLIC AVIATION CORPORATION v. NATIONAL LABOR RELATIONS BOARD - **Court:** Court of Appeals for the Second Circuit - **Decided:** March 22, 1944 - **Citations:** 142 F.2d 193; 14 L.R.R.M. (BNA) 550; 1944 U.S. App. LEXIS 3288 - **Precedential status:** Published - **Opinion:** Dissent by Swan - **Judges:** Hand, Swan - **Cited by:** 5 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6888570 ## Opinion text SWAN, Circuit Judge (dissenting in part). I disagree with so much of the opinion as relates to the discharge of Stone for violation of the company rule against soliciting of any type. Stone knew of the rule and knew that the company construed it to forbid union electioneering on the premises during non-working hours. He violated it deliberately in order apparently to make a test case. The Board held “that, in the absence of special circumstances, a rule prohibiting union activity on company property outside of working time constitutes an unreasonable impediment to self-organization, and that discharges for violation thereof are discriminatory.” A rule against electioneering on company premises is of course an impediment to unionization, whether applied during working or nonworking hours; but only if it is an “unreasonable” impediment is it invalid. Concededly it is a reasonable restriction during working time. There is not much judicial authority, but all the judges who have previously considered such a rule, appear to have thought it also reasonable when applied to non-working hours. The reasons for this view are well expounded by Judge Allen in the Midland Steel Products case, 113 F.2d 800, at 805, 806 . Solicitation, argument and the hurling of epithets by rival union organizers during the lunch hour may reasonably be expected to carry over into working hours and to impair the concentration, cooperation and harmony which are essential to efficiency and safety performance of work in a manufacturing establishment. Against these considerations the Board has advanced no arguments. Nor has it made any findings that electioneering outside the company’s premises would be so difficult as to make the rule unreasonable as applied to this particular plant. In the absence of some such special circumstance I think the rule should he held valid. The Board, however, by its ipse dixit and without stating reasons seems to have inverted the process_ and to require the employer to show special circumstances to justify the rule. My colleagues think this is within the Board’s exclusive province. I cannot agree, for I am unable to see why the Board is supposed to have more competence than the courts to pass upon the reasonableness of the rule in the absence of evidence tending to show that it unduly interferes with the employees’ right to form, join or assist labor organizations. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6888570. Public record. Not legal advice.