# Petition for Writ of Certiorari — United Aircraft Corp. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1505%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 951 ## Text diret No. RK) 7 ; | . ei. ~ cree a ich INTHE, ‘ " eiperme Court of the United States Ocropen Ter, 1965 . AIRCRAFT CORPORATION, —— & W HITNEY. AIRCRAFT Division, Petitioner _ UNITED Vv. National Lasor RELations Boarp, Respondent/ 5 - ~* on PETITION, FOR A WRIT OF CERTIORARI TO THE ; : UNITED STATES COURT OF APPEALS _ FOR THE SECOND CIRCUIT @ Uerarp D. Remy | Josep C. WELIS,° > Re) . 1120 Tower eee, aie ; Washington, D. C. 20005. Attorneys for Petitioner ReEIELY AND WELLS: 1120 Tower, Building Washineton, D.C. 20005 | YF Courdsel . = Press or Byaon S. Avams, WasuincTon, D.C. oa = Pa . a, rons ‘ . | . , / . f . . . ' . > | voy ‘ “ | . "@ { ‘ = . H ! ‘ | | ‘ a ; F ie | : ’ . . . LS a ‘ , 2 - : | INDEX ; : ae : : Page OPIN IANS BeLow ea are eae Sv eracee Cee St a keels echoes 7 5 JURISDICTION oe eee Ey Dae er eg eo ee 2 QUESTIONS aes Seat ks Soak ie nee oo S. Stature Lyvoivey ...... 656. eee TE ORC Or ore e | sags OF THE CARE... o-T ecg eee e erent Roe o . The Facts.....: iad ee bee ge eee e erence Wg ee . The Board’ s.Decision and Orde 2 ee PO en . The Second-Cire uit’s . Decision ewes : ap a cae | 11 eas FoR GRANTING THE Ww RIT 2.2.0 e eee CAs Rape CoxcLrsios ‘Sas gerrrrrrerre re ry etre tS PCT ts 20 APPENDIX A ..2. ee eee eee ee cadeeuba see ees peeeene la Aprenpix B Ih OE SOE ETE LTT Voerer aeeasae ae oe : - vee AUTHORITIES CITED p> CUASES: : . iy eee Tractor Ca. Vv. N-L.B.P., 230 I. 2ds 397 cf PRPS RGR ee ert eee QD Mar sper Drydock Co. v. N.L. R. B.. 183 F ~ 20° 008 je ae * ae ere a Or ee ean a ata ete 18, 20 ON.E,RB. v. Aintree Corp., 135 F, 2.395 (CLA 4). 18, 20 N.LR.B. vi Baheock & Wileox C O., es DL ULS. 103. ; ae on we 1 N.L.R.B. v. Le Toarneas C Ont 324 US. 793 ........5- 12, 14." = N.L.R.B. v. morn? 5 Pina Lao _ NEBR Enited Steclwo or & 1 2 16 Republie Aviation © orp. v. N.L.B.B.,.3 a U.S. 793... .12,14 Stoddard- Quirk Mig. Co., 1 33 NLEB Gi) ....... PEERS STATUTES:! | | National Labor Relations Act N 7 Pao ee ee ee ; oe & es are ee re ae a es a a ee ds li TS to Beer seer es a oe ae on i) ra IN THE | Supreme Court uf the Hnited States: , ae a OcrosEr TERM, 196: A oe eae | ‘ by he called the Act). They art printed tn Appendix A hereto, infra, p. da. -° he fa . STATEMENTOFTHECASE = »——’:~«. 1, The Facts. _ Petitioner aud U nited Automobile, Aireraft & Agri- cultural implement Workers of America’ and its Local 1234 (herein called the Union) have been in con- tinuous contractual relations since’ 1953 (J.A., 80-81). The current: contract provided for: grievance proce: dures and’ imion bulletin board privileges ini the plant (J.A. 62-63, 64). I -etitioner employs about 5,000 em- ployees at flie plant here involved, of which about _ 4,000 are in the unit represented by the Union (.7.A.. 81). There is no eontention that petitioner in any respect sought to, interfere with the union activities of its employees or with the Union’s efforts te inerease ‘its membership. employees off company property, tisually at the base -of a ramp leading from the publie roadway conto pAti- _tioner’s premises (J.A..156), Thi that vear, the Union requested and was giver permission for employees, ‘during nonworking times, to distribute union litera- ‘ture on company premises at the twe tunnels used by entployees in walking between the company parking — “lots and the plant proper (.J.A. 156, 82-83 ). =. . (i Until 1956, thie i nion had distributed literature te ~~ e. Pe The distribution was always made to émployees on” the three shifts as they entered, the plant ‘for work (J.A. 85, 10% 109, 156). Asa result, the literature was carried into the plant and frequently disearded in the tunnels, the cafeterias, the restrooms, the locker- rooms and the shop floor (J.A. 157, 165,- 167). » This littering was called to the attention of the Union sev- eral times (J.A. 157): ° Petitioner, on the other hand, made its bi-weekly and. monthly publications available to employees only as they. jeft ‘the plant at the end: of their shifts (J.A. 157- 158 ).. —_— 2 In Dec ember 1958, idea ees comaiiied of abusive | language by employee Celentano, then president of the. Union, when they refused to accept the ‘Union litera-* ture he was distributing (J.A.°111, 148, 168): . Be- cause of: this, petitioner barred Celentano’s further , ticipation, in distribytions on its premises (aul... 787). In July 1959, the. Union was still pressing a grieyance filed because of, petitioner’s action against ‘Celentano. (J A. 167 , 148). Daring the first part of 1959, International Repre- _ sentative Greenberg was the ‘administrator of the ‘Union (J.A. 88). In May 1959, Crgenberg, to pro- mote an increase in union memberships and dues check ’ off authorizations, distributed leaflets at the plant tun- nels which likened working fer petitioner to life under communism and fascism, characterized petitioner's officials as ** F aseist ‘Communist’, ** Storm Trooper’ and **Indiati Giver’*, and promised. to expose how em- ployeés had been ‘hoodwinked out of raises’? (JA. 66-69 ).: . Petitioner without ‘success, protested to the Union about the contents of these leaflets (J.A. 147- 148)... ge: ihe a A distpi ed campaign leaflets onthe « company’s prem: . rn ‘In June 1959, Chamberlain heca ume , president of the’ U nion (J:A. 80). Hall: petitioner’s personnel supe visor, promptly met with C hamtberlain in an, effort to improve relationships between petitioner and the Union by suggesting timely discussion of disagree- ments and greater use of the! grievance procedures of the contract, instead of publics ios of supposed griev- anees in leaflets-and the continuation of Greenberg's attempt to stir up trouble by distributing le: iflets vili- fying | petitioner’s officials and containing unfounded adcusations (J.A. 90, 116-117, 152-153, 1622 164). Chamberlain rebuffed Hali’s efforts. aor Between June 23 and September 16, 1959, the Unien ises at the tunmels which le: iflets, among other things, criticized the fogd. served in the cafeteria and made assertions, unfounded ‘in faet, about the operation of the eaféteria and the prices it charged (J(A. 28, 36, 38, 40); implied that the company had refused to eon sider U ‘nion ‘sound and conerete plans” ’ for Yelieving _ trafic at change of shift times (J.A. 28-29, 42), when the Union never,submitted any such plans to manage- ment (see -J.A. 116, 117,154; Tr. 336-337) ; asserted that the employees were required to-work in “het, stic ‘kly, oily atmosphere,” without ventilation or *“*re- lief from the oppressive, strength . - ises and that the privilege was being withdrawn (J.A. 155, 86-87) Hall mentioned the ‘litter problem’ : the Celentano matter and the Greenberg leatlets (ibid.). Wall reminded Chamberlain that he had warned him previously that the Company ‘Sopjeeted to . 2 The | ‘nion’s leaflet of November 24, 1959, statéd They pushed us out into Washington Ave. for having ‘incited’ pyople in the _ ¢afeteria issue *-(J0A. 71 ; ° : - 8 this distribution of flvers which were designed to incite employees and to tell them what a lousy place Pratt: -Whitney was to work’’ and stated that the company . did not intend to make its ‘‘property available for the distribution of such literature’? (J.A. 155-156, 87). A: few days later, Hall repeated the reasons for the - ban_-to the Union’s. International Representative Di- frente (J.A. 147). ee Since September 16, 1959, the Union has hinkin dlis- tributing its literature where it did until 1956—at the foot of the. ramp at the only entrance to'the company’s © premises (J.A..89, 85). Petitioner showed that the Union and its supporters had adequate opportunity to distribute literature to employees at this place (J.A. ~, 143-144, 107-108, 152, 122,106), and Chamberlain ad- | “mitted, on’ company questioning, that there is no **problem”’ distributing leaflets at the rimp arid that the Union has ‘ta system that works very well”? (J.A. 134).° Between August 1959 and the hearing in May 1960, the Union’s membership increased from about 1600 to over 2300 (F.A. 113). After September 16, the Union in its literature ¢ con- ‘tinued to publish provocative. and yore state- thents about the cafeteria (J.A. 73, 75, 70-72), plant ventilation (J°A. 73), and the company’s aan re- fusal io consider Union plans for improving traffic - “notw ithstanding that no such plans were ever submitted to the company (J.-A. 73; Tr. 336-337): continued to disparage the existing contract between’the company ~~ andThe Chion asa ‘flagrant and shameful miscarriage — of justice,” a ‘*foolish book of double-talk,”’ a ‘‘joke book’? (J.A. 73, 76); and continued to provoke and in- cite employees by-. promised revelations regarding ‘The Ghost of Maloney,’ New and startling informa- .9 tion in a scandal thought to be dead“ (J.A. 74), which when released would cause ‘‘excitement’’ and ‘‘con- sternition’’:(J.A. 76). and which would be released ‘after ‘‘new information’ received was **checked care- fully”? (J.A. 69-70), and ** ‘The Work Order Scandal.’ How: the abuse of work orders has created a monster — which must strangle those who gave it birth’? GJ.A. 75), which will ‘‘tell the truth about the handling of , J , . work orders,:and how the handling affects not only _ the worker's future but the company’s future as well”’ (J.A. 76) and expose how the ‘abuse of work orders, and the growing malignancy which such abuse inevi- tabiv nourishes, will be our strongest Witness in our case‘against, ‘The Merit Raise System’ ”’ (J.A. 70). Needless to say these promised exposures never ap- peared (J.A. 123). | Tt was not claimed that petitioner, in- any man- ner, sought to restrict oral solicitation of union mem- bership on company premises. 2. The Board's Decision and Order The Board, without discussion, adopted the ‘‘find- ings, cone lusions, and recommendations of the Trial Examiner”? (J.A. 2), and entered an order restraining petitioner from promulgating or enforeing any rule or order prohibiting employees, when they are on uon- working time and in nonworking areas of the plant, from distributing any {union | jenssets, * ete. (JA. 2-3; italics added ).° . x 31%t is significant that the Board. in issuing this -broad order, refured even to concede, contrary to es: Trial Examiner, that a ban against use of company premises to —— leaflets of the Greenberg type would be lawful (.J.A. 2, fn.*1) s : 10 The Trial Examiner held that, although an employer. has the *‘undisputed right’? to **deny employees aecess to its property to distribute uhion literature when such denial is necessary to maintain production or disci- pline,’? petitioner's September 16 action nonetheless was unlawful (J.A. 14). He premised. his conclusion, in part, upon the view that the employees’ right té use ‘the démpany’s premises ‘‘is riot lost simply because the information imparted is not entirely accurate, or is exaggerated or objectionable to the employer, provided; of course, the information. is not deliberately false or maliciously inspired”? (J.A. 15). Although agreeing that. the language in the Greenberg leaflets “appears to have gone bevond the palé of: protected cancerted ace. tivity’? and might have justified a ban on liter ature.con- taining similar language (GJ.A. 16),* he stated of the Chamberlain leaflets that ** Although the Union’s eriti- Yeism of Respondent in these leaflets was sharp and definitely not without partisan. appeal,. and under- ‘standably irritating,’ it ‘did not exceed—the -preper bounds of lawful comment and concerted aectivity’” (J.A.°15-16). He refused to find that the ** Union's leaflets encouraged and contributed to the disturbalices in the cafeteria’’ stating that there is ‘tnothing in the - leaflets whi¢h advogated such action’ (J.A.-17). But then added, *teven ASSUMING that the leaflets incited — the booing in the cafeteria,”’ the Companuy> had **not -demonustrated that the ban -~wwas necessary’? (L.A. 17)... He dismissed the littering and Celentano matter with auly passing comment (J.A. 11). Finally, hé held ir- relevant the existence of other means of distribiiting 4 As noted above (fn. 3) the Board refused t6 adopi even this limitation on the kind of literature the Union could insist on dis- tributing on petitioner's premises, ws el, eae literature to employees, the existence of grieyance-pro- cedures through which complaints could Ke-aired with nianagement, and the absencé of antiation motivation in the withdrawal of the use of company premises for the distribution of the literature involved thereby ex- pressly finding “it unnecessary to determine whether, the Union had other reasonable alternatives for com- municating aoe employes: (FA. 17-19). 3. The Second Circuit’ s Decisien Ou petition of the Board, the Second Circuit, on Noe vember 6, 1968, issued its opinion and entered me maw, granting enforcement of the Board's order with- out modificationa-~ feces 2, /49¢3, Disregarding the distinctions between oral solicita- tion and the distribution of literature, and contrary to the Third Circuit in N.L.R.B. v. Rockwell Mfg. Co., 271 F. 2d 109, the court held that the Board was not re quired ta consider, jr-evaluating The no" solicitation rule, whether the employees have alternative means Of ier communication’ but could attach a‘! presumption” i illegality to the ban against the distribution of union literature by ¥ employers on their own time in non working areas*’, which presumption could be overcome ‘only ond a Wing that special circumstances thake the rule necessary, to main tain production. or ‘tise ‘ipline’ (infra, pp. 4a. 3a). The court disposed of the “resultant littering, result- ant unruly demonstrations in the plant cafeteria, and abusive language used by a distributor” by stating that the ‘record sustains ‘the Board's finding” that these were ** questionable after-the-fact rationalizations and insufficient to explain the institution of the rule” ‘infra, p. Ba). As to the contents of the leatlets the o > & 12 court disposed of this question in a footnote with the i comment that a hile there ‘may conceivably be -in- : stances in which union literature is so defamatory that * an employer would be justified i in prohibiting its distri- bution on company premises, we do not find that the leaflets disseminated in the ‘three-month period pre- ceding the ban in the present case fall into this cate- gory’ (infra, p. 3a). “* . e REASONS FOR GRANTING THE WRIT . 1. ‘On the question of whether the Board was required to consider the evidence that Union members had, ade- quate opportunity to distribute literature to employees at the single entrance to. the plant in evaluating the ban imposed by petitioner here, the decis ‘ion of the vourt below. is diveetly_in, feontlict with, the Third Circuit's __—leeision in N » & RB. v. Rockwed Mfg. Co., 271 F. 2d 109. In that ease, similarly involving a ban against employee distribution.of literature on-company preni- ises, the ‘Third Circuit tafter rey iewing this Court‘s decisions in aE Aviation Corp. \ aparece and N.L.RLB. Vv. Le Tourneau © Oe; ast U.S. 793; N.L.R.B.’ “V. Babeoch & Wiicor Co, 351 Esso to: and “NL. Rb Vv. United Steelworkers of Amesioa, 357 U.S. 357) held at,p. 115) thai— ‘ _* * * the Board.was bound. to consider not oni the evidence that was offered as to the impact that the distribution of literature would have on plant discipline, cleanliness, order, ete., but al evidences Clearly, if the-eriplayvees . vhave virtually ne alternative opportunities — te distribute literature and membership applications, cs then .the respondent ‘ust show strong justifies: tion for its prohibition,” Conversely whey. a= the: respondent contends this tase, the enployee: have readily availatle alternative means of dis ‘tribution, the emplover’s duty to show exceptional justifying ¢ ire eymstances is lessened, C -The court below conceded that its cone diciet Was 1h conflict with-the Third Circuit's decision m= loek well (infra, py Aa) The court below asserted that the Third Cireuit rej il its “conclusion that available alterna- tives of communi “ation “mMilist be considered in ev ali ating: a no-solte ikation rule’ on an erroneous mterpre tation af the above cited deeisions of this Court—and — whie i the. court below expre rsa re jected” Centre, yp. * Ga-Ta },, Thus, it is submitted, this Court sonra the writ because ofthe char disagreement between the Second Circuit here and tle Thiped Cireuit in the Roch- well ease as to the obligation of #he"Board to consider all evidence adduced by an employer in Justification of its-refusal to make its premises available for the distribution of union literatnre, me nding, ey idence of alternate means of communication. ¥ * d *s . rf 6 7 14 It is respectfutiy submitted that the Third Cireuit | contently interpreted this Cour®® decisions regarding the rights of a union and its employee supporters to use ‘an employer's -premises for the distribution of pro- Hien literature avd that the cours below, erroneously refusing to rec ognize a difference hetween distribution | of union literature and oral solicitation of union mem- herships a difference recognized even by the Board Jtself- (see, c.g., Stoddard-Quirk Mfg. Co., 28 NLRB 615)—-has misconstrued these dee is}Ous. Hi the consolidated cases of Be public Aviation Cor b .N.L.R. I. ak | NV Lgl. ved ‘Totr; sean Co, B24 0, vi, thix Conrt expressly noted of the Le Tournean “ nation (which involved a ban against the distribution of union liter ature hy emplovees on their awn time in the company ‘s parking lots) that (at aL 797 )- * * * contact on public WiVS OF oO, Hon-compat property With emplovees,ateor about the éstab- lishinent is liniited to these emplovees, less than 800 out of 2100, whe are likely to walk across the public highway near the plant on their way to Werk, or to those employees who will step their private automobiles, buses or‘other eonvevaneces on the public reads for communications. The em- plovees” dwellings aré-widely- scattered, : ¢ * Se te ‘Republic (which involved discharges for astic. iting memberships durimg nonworking times and wear Ing union, buttons in the plant in violation of a broad no-solicitation rule), the Court noted (at p. 800) thet it was--- | ae : ** J : ® . a j 7 a d 4 (Joseph (*. Wells, of Reilly & Wells, Washington, D. ©. on the bri ef).-for re spondent. working areas. of respondent ’ s plant. Respondent offered e CLARK, Circuit Judge: The National Laher Relations Board found respondent to have violated $X(a) (1) of the National Labor Relations, . Act,.29 T'. 8. C. Sl S8(a)(1), by prohibiting employees from ~memowand » distributing inion lite afore on.their. _owrm time in non: «. grounds for its rule: resultant littering.. resultant unruly demonstrations in the plant cafeteria, and abusive language used by a distributor of the pamphicts. The Board found these to be questionable after-the-fact rationalizations and insufficient to. explain the institution of the rule. The reeord sustains the Board’s finding. ‘Rules prohibiting solicitation hy employees on their own time in nonworking areas can be upheld only on 2 showing - that special circumstances make the rule necessary to main. tain production or discipline: See Repithbé Aviation Corp. NN. L. R..B.. 324 0. S. 798, 808, 157 A. 1. R. 1081; = iL. R. B. v. Babcock d& Wileor Co,..351 U.S. A0K, 113: JT. R. Bo v. Linda Ja Shoe Co. 5 Cir® 307 FL 2d 35h, $51 > NLL. R. Boy. Walton M&gi Co. 5 Cir. 289 F.2d 177, ISO. Since litter is inevitable when leaflets aro distributed ~ and since the literature did not cause the disturbanee in the cafeteria, respondent has clearly failed to show special! cireumstanees making its rale necessary for the miain- ‘ tenance of productien or discipline. | "As an additional justification’ for’ its mossolicitation rule. tne respondent asserted tnat the leaflets vilified the company antl its ofticiats in false and, scurrilous fanguage While there may ey) ceivabiy be instances in which union literature is so defamatory that an employer would be Justified in prohibiting its distribution on company premises, we do not find that the leatlets disseminated ‘in the three-month period preceding the ban in the present cave fali into this category. No proof was offered which would indicate that any of the statements made were maliciously false; and. a union engaged in an intensive organizational. campaign should por be expec ted to communicate in the most moderate of terms ; 4a. | ; it argues, however, that the Board erred in failing to consider, in evaluating: the no-solicitatiop, rule, whether the employees have alternative means of communication. Re- spondent is not without support in this position. See NLL, RB. vy. Rockwell Mfg. Co. (Du Bois Division), 3: Cir., 271 F.2d 109, : a jt is clear that in exereising its ‘*special function of applying the general provisions of the Act to the complexi- ties of industrial life?’ the Board is not required to conser and make findings on every contention raised in defense or every aspect of the problem presented, N.L. R. Biv, Eri Resistor Corp. S05 ULS. 221, 236. It ean in some eases infer the existence of diserimination from its past experi “ones im such factual inquiries. Local 357, Internationa! > Brotherhood of Teamsters, Chauffeurs, Warehouse men and | Helpers of Ameri ay, N. 1. R. B.. B65 U. SS. 667, OT5: Radio Officers’ Union of Commercial Teleqraphers Union; ABEL v. NOL. R. B., SAT US. 17, 49, 4 AR 2d 621, OF course presumptions ‘utilized by the Board must be rationally justifiable: there must be a logical nexus between what is proved andwhat is presumed. See Republic Aviation Corp. VON. Lat. BL, supra, 424 US. 793, 804-805, See also 2 Davis. Administrative Law Treatise $15.04 (1958). The issue thus presented is whether consideration of available alternatives is necessary to make the presumption in question -rational. In Republic Ariation Corp. v: NOL. BR. BL supra, 8324 U.S. 793, 804, the Supreme Court considered and approved the NLRB presumption agains! no-solicitation rules in the ‘*definitive form’? expressed in Peyton Packing Co., 49 NLRB SUX, 845, enforeed NV. L. R: B. v. Penton Packina Co., 5 Cir, 142 F. 2d 1009, eert. denied: $25 UeS. 750. The-presumption approved clearly was inde- pendent of the existence of alternative means of communi ‘ation, Cf: VL. RB. vy. United Steelworkers of America, CTO, 397 US. 357, 367 (opinion of Chief Justice Warren, | concurring in part and dissenting in part). Y ir oa Reason and the. demands of sound administrative policy support the Court’s approval of the Peyton Packing Co. formulation. The chanees are negligibte that alternatives equivalent to solicitation in the. plant itself would exist. In the plant the entire work foree may- be contacted by a rela tively small number of employees with Tittle expense. The solicitors have the opportunity for personal confrontation, so that they can present their message with maximum -per- suasiveness. In contrast, the predictable alternatives bear without exception the flaws of greater expense and ‘effort, and a lower degree of effectiveness. Mailed material would he typieally lost in the daily flood of printed matter which passes with little impact from mailbox to wastebasket. Tele- vision and radio appeals, where not precluded entirely, by cost, would suffer from competition with the family’s favor- ‘ite programs and at best would not compare with personal solicitation. Newspaper advertisements are subject-to’ simi lar objections.. Sidewalks and street corners are subject to the vicissitudes of climate and often foree solicitation at | awkward times, as when employees are hurrying to or from. work. [t might be suggested that it would be harmless to reauire the Bgayd to make findings in all no-solicitation cases. But in addition, to being an appreciable increase in the Board's already unwieldy werk load, this would simply be an incitement to litigation and casuisiry, Even apart trom considerations involving the’ remotene-=- of the existence of realistic alternatives, we feel that the Board ‘s position is sound. It sunimarized the basis fer its view in Peyton Racking Co., supra, 49.NLRB 828, 843-844. quoted with approval in Republic Aviation Corpon. N. L. R.B.. supra, 824. US. 797%, 802.510: “The Act, of course, does not prevent an entplover from making and enforeing . reasonable rules covering the eonduct of employees on. company time. Working time is for work. It is therefore Within the provinee 6f'an employer to promulgate and en- force ‘a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the 7 © - 6a absence of evidence that it was adopted for a diseriminatory 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 unrease sable restraint, although the employee is pn com- pany 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 pre- sumed to be an unreasonable impediment to self-organiza-_ tion and therefore discriminatory in the absence of evidence . that special circumstances make the rule neeessary in order |’ pe ; to maintain production or diseipline.’’ Se@ alse Walton, Mia. Co. 124 NIRB 1331, 1335. The Board is manifestly correct. We have long passed the point where the Immdle of property rights ean he used arbitrarily or capriciously to restrict a worker's freedom of association or expression. See N. L. R. BL v.- United — rit orkers.of America, ClO, supra, 357 UL 5: 357, 369 “(opi ion ef Chief Justice Warren, concurring in part and dissenting in part). 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 and tmade his associa- tion and expression subject to management limitations. Clearly the existenee-of available alternatives would not mitigate this deleterious effect or insure the employee the - organizational freedom-which the Act seeks to give him. Cf. N. L. R. B.v. Erie Re sistor C orp., sapra, 373 U.S 221, 236. See also V. L. RB. v. William Davies Co., 7 Cir.. 133 F. 2d 179, cert. denied W itiam Davie sCa.v. XN. a R. B.., 320 1". S. 770. The Third Cirenit in NV. 1. R.-B. v. Rockwell Mia. Co. (Du Rois Division), supra, 3 Cir., 271 F. 2d 109, reach@d the conclusion thet available alternatives of communica- tion must be considered int evaluating a no-soliecitation rule not, on a consideration of the rationality of the Board's eS fe, ia ; at Dane ae es presumption or of the policy involved, but rather 6n ‘the - _-ground that it was constrained to do so by the governing law. We do mot so read the trilogy — forms Rockwell's forgdation. Republic Aviation Corp. v. y. L. R. B.. supra, 324 U.S. 793, 803, mw. 10, with its.,clear approval of Peyton. Packing Co., supra, 49 NLRB S28, 843-844, is strong/authority for the postition that ‘he consideration of available alternatives is not required. V. 4. &. R. vy. Babe ock & Wilcox Co.; supra, 351 U.S. 105, while holding that honemiployee organizers could be forbidden. to. ‘solicit on company property when reasonable alternatives were available, made it clear that the emplovees in exercise of their rights are not to be judged by the same standards. as berserk Hurthers it ae Republic Ariation Corp.'v. N. LR. B.. supra, gat _U.S. 793, as controling with pe to employees. The “ea case, NL R. B. vy. United Steelworkers of: America, C10; supta, 357 UL S. 357,362, did not involve the validity , of a no-solicitation rule, but rather the ‘*very narrow and almost abstract question’? whethe r", when an employer en- gages in antiunion solicitation in a manrfer forbidden ty his employees by ar otherwise valid no-solicitation rule, it is an unfair labor. practice to enforce the rule again-t. them. In this context the. Court held the consideration of ‘available alternatives to be relevant. This -isSelearly dis- ‘tinguishable from a case where the. justifiableness of the no-solicitation rule is in question, rather than the propriety of the employer's: use of means he had forbidde nto the employees The: Third. Cireuit relied upoti Othe Court pa&sing reference to Republic Aviation ¢ ‘orp. v. N. LR: B., supra, 324-U. S. 793, os authority for the broad propési- tion that the showing of a diminished union power: to organize was vital in ascertaining the valyiity of a no- solicitation rule. V. L. IPB. vy. Rockwell M¢4-Co. (Du Bois Division), supra, 3 Cer., 271 F.2d 109.) Byt as Chief Jus. tice Warren pointed out, concurring in part aiid dissenting —_—w 3. = Sa - in part, NL. R. B. v. United Steélworkers: of America, C10, supra, 357 U.S, 357, 367, the evidence and findings required by the Court were not required in Republic Avi ld-, tion Corp. v. N. yx R. B., supra, 324 U.S. 793, or. in Peyton Packing Co., supra, 49 NLRB 82s, which Republic ap. proved. We cannot read the Coust’s dictum as erasing the important qualification established in Republic that no such showing was required ana employees alone are, involved. See Time-O-Malic, Inc. v. N. L. R. B., 7 aie 264 F. 2d 96, 101. ~ : . ra The order will accordingly be enforced, -and-a decree of” enforcement will issue. er — —~ . . se A . \ Pi . 2 e o . . “ . . . eo ° : ™ . «-* ta. ‘< - . ‘ . \ e “2 ® . F] . e i Ps . ‘ oe . . . . s E . . ‘ . « . . . . ‘ . . . . * Ya. UNITED STATES COURT OF APPEALS «, FOR THE SECOND CIRCUIT : o ; “No. JS : fe Eee a Nationar Labor Riarioxs Boarp, Petitioner, 2 ° v. | he Usirep Amecrarr Conporatios, Pratt axp Warrses Aimcrarr Divisios, Respoudent. ' Decree Before: Clark, Moore and Kaufman, Circuit Judges. Tras Cavse came on to be heard upeh the petition af the National Labor Relations Board forthe enforcement of accertain order issued by it against the Respoude nt Ok- Oetober 10, 1962. The Court heard argument Of respective counsel -on Qetober 60, 1963, aid has conside red the brie fs .” and transeript of Seecie fijed in this Gause. On November” © 4, 1965, the Court being fully advised in’ the -premises, handed down its -gecision dot enforcement of the Board's order. , ; Ox Cosine RATION Wipekecr, i is ordered, adjadged and deerecd by the United States Court of Appeals for the’ Second Circuit that the said order of the National Labor Relations Board -in said proceeding be enforeed;.and thiat United Aircraft Corporation, Pratt and Whitney Aircraft Division, its olficers, agents, sueeygsscrs and assigns abide by and ‘perform the direction of Bhe Board in said erdeg, contained. a get En ~s Crarues' ih. Chark | ) aes Judge, United States Court: of Ajipeals for the Second Cireuit ‘ ‘Lgoxsan T. Moons ; Sze, Unifed States Court. of. Appeals for ‘the Second Curent --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1505%3A2. Public record. Not legal advice.