The Prudential Insurance Company of America v. National Labor Relations Board, and Insurance Workers International Union, Afl-Cio, Intervenor

FRIENDLY, Circuit Judge

(dissenting) :

If the real issue here were whether the Union needed help from Prudential in communicating with district agents concerning contract negotiations and administration, the Board’s order might pass the substantial evidence test, although by the narrowest possible margin. While my brother Kaufman has put the case for the order as persuasively as anyone could, many doubts come to mind. The characterization of the Union as “relatively small” seems a curious description of a body having as members some 10,000 agents of Prudential 1 and thousands more of other insurance companies. 2 If the smallness relates to the Union’s employment of “only ten full time organizers, all of whom have, since 1965, been engaged in activities unrelated to Prudential,” that was the Union’s choice, and I fail to see why it is entitled to special consideration on that account. The General Counsel’s concern about the inadequacy of bulletin boards appears to be limited to offices with no Union members ; he concedes that “in those offices where the Union does have members (and therefore a grievance committee), material posted on the bulletin board is sure to be read, and may be discussed during work breaks and at such outside meetings as the employees may wish to arrange.” 3 Hence the Union can communicate via the bulletin boards with 68.4% of the nonmember agents and 87.6% of all agents. Again I see no warrant for accepting the Union’s self-serving statement, not sup *86 ported by the stipulation, that it is “unable” to establish grievance committees at any of the 221 district and detached offices where none of the agents has authorized a check-off. And these offices, it may be repeated, contain only 12.4% of the agents.

None of the foregoing is meant to indicate that the Union’s means of communication with the nonmember agents were ideal. The law does not require that they should be. Even in the context of an organizing campaign, it is not an unfair labor practice for an employer to force union organizers to locate the employees and communicate with them without access to the employer’s property or other help from him, NLRB v. Babcock & Wilcox Co., 351 U.S. 105 , 76 S.Ct. 679 (1956), except when “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,” 351 U.S. at 113 , 76 S.Ct. at 685 . That situation, which we found to exist with respect to the hotel employees in NLRB v. S & H Gross-inger’s, Inc., 372 F.2d 26, 29-30 (2 Cir. 1967), is not present here where, as in Babcock & Wilcox, “the usual methods of imparting information are available,” 351 U.S. at 113 , 76 S.Ct. at 685 , in addition to the special ones made available by the collective bargaining agreement. This court has held, in denying enforcement to a remedial order that a company furnish a list of employees and their addresses to a union, that the union’s entitlement to such a list is governed by considerations similar to those governing non-employee access to an employer’s property. Textile Workers Union v. NLRB, 388 F.2d 896 , 905-906 (1967); see Decaturville Sportswear Co. v. NLRB, 406 F.2d 886 (6 Cir. 1969). Finally I cannot at all agree that this Union has anything like as persuasive a case as in Standard Oil Company of California, W. O., Inc. v. NLRB, 399 F.2d 639 (9 Cir. 1968), where the union showed it needed the names and addresses to counter company propaganda that there was no “necessity for union organization and representation.” Here there is no intimation that Prudential has practiced any anti-union activity.

The occasion for my dissent is that we engage in self-deception when we proceed on the basis that the Union’s real objective is what its request of Prudential professed. There comes a point where we “should not be ignorant as judges of what we know as men.” Watts v. Indiana, 338 U.S. 49, 52 , 69 S.Ct. 1347, 1349 , 93 L.Ed. 1801 (1949) (opinion of Mr. Justice Frankfurter). The Union wants the names and addresses of the agents not to poll them about contract proposals or to service their grievances but to engage in active solicitation of membership. Three facts suffice to establish this. One is the absence of any evidence that in the entire period since 1959 when the Union became the representative of the Prudential agents, it has ever consulted its members or the approximately 150 nonmembers whose names and addresses it has, with respect to contract proposals; 4 indeed the stipulation indicates that the Union communicates to its members by mail only about twice a year, except for sending them its monthly publication “The Insurance Worker.” The second is the manner in which the Union conducted its campaigns in 1964-66 to obtain nonmember names and addresses through its members. Its communications with district and detached Union officials and its coverage of the campaigns in The Insurance Worker stated explicitly that the reason the Union desired the names was to facilitate recruitment of new members among the employees in the unit. The third is the out-of-hand rejection by the Board and the Union of Prudential’s suggestion that if the Union’s need is what it and the Board claimed, the order should be appropriately limited to the kinds of communication to which the Union’s request referred.

*87 Of course, the Union’s desire to increase its rather low proportion of members is an entirely worthy one. But I do not understand Prudential to be required to assist the Union in achieving that goal by making an exception to its stipulated “policy and practice * * * to refuse to disclose or supply a list of names and addresses of District Agents to any organization seeking such a list for any purpose.” Cf. The Little Rock Downtowner, Inc., 145 N.L.R.B. 1286 , 1308-09 (1964), enforced as modified, 341 F.2d 1020 (8 Cir. 1965). The Board order recently sustained in NLRB v. Wyman-Gordon Co., 394 U.S. 759 , 89 S.Ct. 1426 , 22 L.Ed.2d 709 (1969), was based on the Board’s power, under § 9 of the National Labor Relations Act, to conduct representation elections; nothing in that case or in the Board’s Excelsior “rule” indicates that it is an unfair labor practice for an employer to decline to help a certified union increase its membership by handing over the names and addresses of employees.

At minimum I would therefore remand this case for explanation why an order limited as Prudential suggests would not meet any legitimate union needs. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 193-197 , 61 S.Ct. 845 , 85 L.Ed. 1271 (1941), amply justifies this. I would also direct the Board to explain why, in order to effectuate the purposes and policies of the Act, it is necessary that Prudential be required to turn over the names and addresses of nonmember agents rather than simply mail Union communications to them at the Union’s request and expense. Congress has deemed such a procedure satisfactory for union elections, Labor-Management Reporting and Disclosure Act of 1959, § 401(c), and this has long constituted the limit of the federally imposed duty of a corporation involved in a proxy contest. SEC Rule 14a-7.

There is still another subject I would ask the Board to consider on remand. While we are told that this ease represents a unique situation, other unions are not likely to find it so. The Board is thus involving itself and reviewing courts in a mass of new litigation which will add to the delays that have unfortunately marred its administration of a statute under which speed is particularly important. See, e. g., Bryant Chucking Grinder Co. v. NLRB, 389 F.2d 565, 572 (2 Cir. 1967) (dissenting opinion of Judge Anderson), cert. denied, 392 U.S. 908 , 88 S.Ct. 2055 , 20 L.Ed.2d 1366 (1968); NLRB v. World Carpets of New York, Inc., 403 F.2d 408 (2 Cir. 1968). Now that the Supreme Court has taken note of the mounting criticisms of the Board for failure to utilize the rule-making procedures of the APA, see NLRB v. Wyman-Gordon Co., 394 U.S. at 765 , 89 S.Ct. at 1429 fn. 3 (plurality opinion of Mr. Justice Fortas), 5 will not the Board, at long last, recognize the desirability of proceeding in that manner in a new field that cries for such treatment, rather than continue in the painful and time-consuming task of individual adjudication?

. The figures in the opinion are the number of members who have consented to a check-off of union dues. The record does not disclose how many more agents are members.

. The General Counsel’s brief on appeal indicates that in 1966 the Union’s total membership amounted to four times its membership at Prudential.

. While the bulletin boards may not be be used as a method for distributing material, they can readily be used to indicate where material can be obtained.

. Although the Union has taken strike votes and has had its contracts ratified, the Union Constitution allows only members to vote on these subjects and the actions have been taken at Union meetings.

. In addition to the criticisms there cited, see NLRB v. A. P. W. Prods. Co., 316 F.2d 899, 904-906 (2 Cir. 1963); Operating Engineers Local 49 v. NLRB, 353 F.2d 852, 856 (D.C.Cir.1965); NLRB v. Majestic Weaving Co., 355 F.2d 854, 859-861 (2 Cir. 1966); NLRB v. Penn Cork & Closures, Inc., 376 F.2d 52, 57 (2 Cir. 1967); McLeod on Behalf of N. L. R. B. v. General Elec. Co., 257 F.Supp. 690 , 708 n. 14 (S.D.N.Y.1966); Peck, A Critique of the National Labor Relations Board’s Performance in Policy Formulation: Adjudication and Rule-Making, 117 U.Pa.L.Rev. 254 (1968).