Brief for the Petitioner — Republic Aviation Corp. v. NLRB

Supreme Court brief1945

Ask Donna

What actually matters in this document.

Text

—

| ~. . ae ror ete te ot en

ne ’ . naan nae eet wee el la aang eam

. ~ ' . ‘ : 3

« > . * : :

a - - & f ‘ 5 :

‘ , Pt ye Aes aa ©

* . = ; : i

. ; : ~ - 7 = ¢

. ¢ . * : : ,

‘ a ; ar) < : ¥ :

. K

. eo * 7 8 . ‘

* - ¢ . hd wl . ; ‘ = *

. ® .

. e

ry * : as e _ ° ;

A - —— .

2 Ase - , a oS . ; ;

4 ‘ ° . . » is ’ . z

. ’ e F iy

+ . . a ; ;

: : . ‘

‘eae . ° . e * Bo

. :

. 4 ra)

. a z . |

. ° ° bs . : RS

. . . . ® °

. bad 5 J

. > , * : :

; be : 4 ’

. . .] ‘ 3 ‘2, e. . e 4 ——

oot ee. -* % ‘ ‘ * ¢

, 7 ;

as ,

; °

. . . - 3 re , i

. a ’ - rh) : : ;

p .:

a ’ . e . ‘

: A ; : : “ e@ ~ 1 ° . e ”

. . . . ; Mi . ys

6, “9 ‘ ’ y d :

: on ee : ¢ » : Ad |

ros * ° e : =s . . i Sa

. : : ;

> an : 7 - :

‘ ° e ‘ ‘ Ww ‘ a ; :

- rt . . ‘ 5 :

: .

‘ ’ é . s . : 4

« = ri 2 ‘

e . . ‘ ;

> Ps ¢ ‘ i 7

& ~ ss .

~ . ae :

. * j

. . o- ‘ = : . ; i

: . . E : ;

3 ‘ . % S

“ aa

* ad / : ¥ f

Y te SS are are

cd be 3 2 :

a e |

. . 7

. .

e : j

’ : .

; ’ . . ‘

" ; 6 ‘ - . » .

. % 5 od .

* :

. = '

i . ‘ — ) Q--

: f : - ‘

~ e = .

. . .

: : 3 . «

‘ . .- x ;

' .

. , he ‘

. > . ’ o ‘ gt ’ “ ‘ o 5 :

. PS . «

° 4 ’ "a ‘ ; 3 “ ‘ 4

2 . . ’ ¢ “i

" ry e *

. - :

furs ae :

- : NATIO: 7° Laror oon raxe Bn . hay en

ies NATIONAL LABOR WPLATIONS PCSARD,:- PETAVIONER |:

dike Se prente Gert ‘of yp Binited $ Siates”

7 | ois tec ude a ae

- x -

’ ou a ’ os md

8 ‘ Se . .

« c viet 8 sg $ . °

. . . . » e re r

a ° ° .

am. , °

ee ppt * = ‘. Santas ee a, te ®

Bs) . ‘e,. A me? 's BE as 4 : ; oe i

sen ae Le Tor TERE AC Coxtpaxy or “Grorcta’.

GY °° ON WRIT OF CURTiORARL TO TH; UNITED SPAT RS Sy Ret ry

. : 9 be ae ’ e

. P s vy % “~

« i i :

4 gd m ahd 12 Petrone

“

tad . « . ° ° 2 “

¢ r = “ \

* . . *

° o ¢

.* . «@ . : i \e ’

*° ° f °.

' a

‘ : ‘ Ce) . . th

Get ba < *

- ie . ly — vi ie < e ¥. 4 f

ree t 6% ’ o 4

¥ ‘ a 2;

> . ° a .

. . c ° % ; 5

° . .

Ss Rae ai .

. ° ‘ ’ y

+ ‘+ vce *

2 . -*

a re \ ee “ ° Pa 7) * +3

- . ae i N ° - ‘ . . :

‘ . } . ~ ; s \ «

cane. 6. | NOV 45 a

- -

> S$ 5

. +s . en ee tee Shine en aS ed =

. £ mena oo panty 7 to - + x ae — .

o a © +

‘QQURT OF’ APPEALS FOR TUR FU TH CHRCUIT «2 ¢ ;

a ‘ : a . ra = - g a

, Ps Pages - — on . i iS “.

BRIEF FOR THE NATIO on La) 30K RELATIONS BGARD. ~*

‘ . a.” . : » 6 ..

oO. * < * ? . * .

“0 hp leaeeee Se ee on eee pe Re OES Ae Ae, Seceera ee ae

ONE 7 —- ng ea ee ne ee nee acaba acca e

1 ~4 . 4: ie! .

. ~ 4 - . . e

J : oe e ‘ i 2 . ° -

: : ne . nae: & : ‘ 2 \ d E

‘ a ‘ s

: ” : . * ae *% ’

. < = ; ~ , ¢ &

e : ° areas

. e ‘ 74 F

= 6 = $, « 23

; . . z °

baad . o 4 *

« < « e ~ a

: ‘ af B z P

“4 . . ° &

e . 7 a

Fp Ee ' ™ \ * ‘ :

Py * ‘

: e :

@¢

~] .

Oe ‘e

; INDEX

: a

Opinions below _ __- a SGtanene Sn

Jurisdiction. ___- us. Behe se Fr

‘Questions presented - : ‘ te

Statute’ involved _

Statement. ; .

» Specification of egrets to he urged. -4

Summary .of azgulment-_ — _- P 3 pe °

Arguments ; :

The Board properly found that application of the company *s

“no-distribtition” rule to prevjnt the distribution af union

literature by .mployees on parking lots interfered with the

-exercise of rights guaranteed in Section. 7 and violated

Section 8 (1) of the. Act . iene nee

Conclusion - : ' i

4 Appendix... .- _ - BS cs? a -

ue oe \ CITATIONS aS

Cases:

American Cyanampd Co., Matter of 33 N. L. R. B. 578____ 14,2

American Smelt: * & Re fining, Co. v. National Labor Re-

ee ee Sree. 680 (C.-C. A. 8)_."

Associated Press. v. National Lobor Relations Board, 301

"Sees SS ors .

Berkshire Knitting Mills Matter of -46 N. L. R. B. 955, en-

forced, 139. F. _ (2d) 134 (C.-C. AL 3) certiorari denied,

3$22.U. 8. 747: 2 == 24, 40,

; "Boe ing see ge Co. v. National. Labor Relations Board

" §. 140 F, (2d),423 (C. CA. 10

Bradford Psat peaks Matter of 4 NOL. R. ¥. HO4, en-

: foreed. 330 U.S. 318 '. 40,

; Carlisle Lumber Co- Matter af. 2h. LR. B: 248. epforced

‘ M4 F. (2d) 138 (C. ©. A9)> certiorari-denied, 304.U. 8.

S75 n ’ is earc :

Carter Carhuret Corp. v. Nation Lahey Rel ations Board

140 F: (2d) 714 (C. CLA 8). . 21,:

Cating Rope Works, Inc... Matter ef. 4 NL. R. B.1100

Cities:Service O7 Co , Matter of, 20:38. cc a RS °

4 " 4 rs +4 1

ae ‘ 0. ~ . ‘

Q ;

Page Ria raters

~v : -

B ‘

se , Be : a

Cases—¢ ‘ontinued. ete ee ae - Page

Cudahy P lackin Co., Matter of, 17 N. L. R. B. 392, en- ;

forced; 118 F. (2d) 205 (C. ©. A. 10). ba * 40, 42°

Denver Automobile Dealers. Ass'n., Maiter of 10 N. L. R. i.

1173, ..- : nA ye - 43

bohson v. Commissioner, 320 U. S. 489. Ht reese

» General Motors Corp., Matter of, 14 N.L. R. 2.113, enforced, *

116 F. (2d) 306 (C. C. A. 7) ; — _ 40

* Goodyear Aircraft Corporation, Matter of, 77 N. L: RB. B. ms

_ 902 : ; wae a POY 18

Greenebaum Tanning Co., Matter of 25 N. L. R. B. 672. en-

forced by consent, January 26, 1942 (CC. A. 7). : 40.

Hague v. C77. OL 30ZU. 8. 496. iaeneene 14

Hancotk: srick & Tile Co... Matter of, 44 N° L. R. B. 920 " 40

Harlan Fuel Company, Matter of 8 N. L.-R.B. 25 14, 20 ©

Heinz a CH. J... Matter of 10 N. L. R. B. 963. enforced,

311 UL S..514 : a S- 23, 43

- Heod pias Co., Ine., Matter of 14.N. L. Re B. 16 a Ae. 43 -

Houde Frigineering Corp., Matter of, 42 N. L. R.B. 713 40

Howe. Scale Co., Matter of 47 N.L. R. B. 1399-, ” 42

Industrial Rayon Corp., Matter of, 7 N. L. R. B. 878 41

International Assoc tation of Machinists v. Nationa r °

Relations Board, 311 U. 8. 72 ,20

° Jamison v. Texas 318 U.S. 413 ‘ GBS Ze 16, 39

Jensen Radio Mfg. Co., Matter of, 27 .N. ‘ R. B.Si3...°... 2

_ Karp Metal Products Co., Inc., Matter of 42 N. LR. B. 119,

enforced, 134 F. (2d) 954 (C.-C. A. 2)__ 24. : 17

Kiddie Kover Mfg.°Co., Matter of, & N. L. R. ‘B. 335; én-:

foreed, 105 F. (2d) 179 (C.C. A. 6) __- NOE

Kohen-Ligon-Folz, Inc., ooh of, 36.N. ‘, R. B 1294, cn

« foreed, 128 F. (2d) 502 (C. er ip ctcia Reo ee

Lady Ester Lingerie Corp., ene: of 10 N. L. R. B. 548. .40

Lanz Cotton Mills Co., Matter of 9 N. L. R. B. 952. enforce d,

ALE F. (2d) 814-(C. C: A. B)_it 2. icles OO

Lovell v. Grifin 303 U.S. 442. ‘ Scape 16.

+ Lowenstein & Sons, Inc, M., Matter of, 6 N. L. 97 B. 216,

order enforced by consent, October 24, 1938 (C.-C. A. 2) - 40

_ Martin'y. Struthera 319 U.S. 141 °_ 14, 16, 27, 29

McQuay-Norzris Mfg. Co. v; National Labor Relations Board,

* 116 Fo (2d) 748 (C. ©. A. 7), certiorari denied, 313°U. S.

565 an toe teehee 24 -

Médo Photo Supply Corp. v. National. Labor Relations Board, ©

321°'U. S. 628 ; : ga nnwe eae 34.

- Midland Steet Products Co. v. National Labor Relations

Board, 113 F. (2d) 800 (C. ©. A. 6)... mete

Mohawk Carpet Mills, Inc., Matter of 12 N. UL. BR: B. 1265) 43

Murdoc Ev. Fe nsisylrania, 319 U.S. 105 mere 23,430

oO.

Sy, - ee ia

Wi. ar ,

\ ays : 5 rie

Cases-—Continued. - , pit: 5 ‘Page :

Natrepal Labor mr Board v. M. E. Blatt @o., 143 F.

(2d) 268 (C. C. A. 3), certiorari denied, November 13, - ry

1944, No. cae his Term __.- - 22

National Labor Relations Board v. Burry Biscuit C orp., 123 /

F. (2d) 540.(C. C. A. 7)__-- o.-- <n” ae

National Labor Relations Board \x.. Cities Se rvice “Oil Co.,

122 F..(2d) 149 (C. C: A. 2)-- Salm aig ene ee ee ee

National Labor Re ae Board v. Colu nbia Products Cogp.,.

141 F.°(2d) 687 (C. ASR). - «--.-¥-, _ 22

National Labor adhe Board v. William pane Co%-435 :

. F. (2d) 179 (C. ©. A. 7), certiorari denied, 320 U.S. 77 21

National Labor Relations Board vy. Denvér Tent and

Awning Co., 138 F. (2d) 410 (C.-C. AL 10), 21, 37

National Labor Relations Board v. a ring & Research

_ Corp., decided October 12, 1944. (C, C. A. 4) ee ae

Natfenal pare Relations Hound v. Gallup Ame rican Coal Co.,

131 F. (2d) 664 (C. C. A. 10). / 6. re 23

National ae Relations Board v. Gluck Brewing Co., 144 F.

(2d) BAM(C. CL ALS) es, ae ae 24

National Labor Relations Board v. Hearst Publications, Ine... ©

322 U.S. 1s. piaghcac ae

National a, Relations Board v. Hudson Motor Car Co.,

128 F. (2d) 528 ¢CLC. A. 6) : . - 23

Natignal Labor Relations “yal v. Jahn & Ollier Engraving

Co., 123 F. (2d) 589: (C° A. 7) 23

National Labor Relations feeans v. Link- Belt Co., 311 U. Ss ae

"Repel 23, 42

National Labor Re ean Board: v. Mackey Radio &°.

Telegraph Co., 304 U.S. 333 : ma 12

National Labor Relations Board v. Glenn L. Martin Nebraska

Co., 141 F. (2d) 371 (C. C. A.‘8) << 22

National Labor Relations Board v. Peyton Packing + Oe * See

F. (2d) 100P (C. C. A. 5), certiorari de nied, Oc tober:9, - ¢

1944, No. 298, this Term. —._ > is 15, 22, 35

‘National Labor Relations Board v. Star Publishing Co., 97 F.

(2d) 465 (C. C. A. 9)_, . 9 3

‘National. Labor -Relations\ Board ¥. Virginia Electric , toa

Power Company, 314 U.S. 469. , 42

National Labor’ Relations Bogrd ° v. Waterman Steamship -

Corp., 309 U.. 8. 206 Sean A “eT 2

‘ National Labor eer Board v. Whatier Mills Co., 123 —

F. (2d) 725 (C. C. A. 5)... Rei a

-Natioral Labor Relations ” Boaha ‘ W illiameon- Dickie Mfg. ;

Co., 130 F. (2d) 260 C.C. A. 5) % igi ohcre 36

Norfolk Shipbuilding & Drydock Co poration, ‘Memes i

» N.L. R. B. 886, erforeed, 109 F. (2d) 128 (C. C..A. 4)- 40

é. ?

ee ibe vf. :

Cuses— ‘ontinued. oh : Se , Page

‘North Americar Aviation, inc:, Matter of, 56 N. L. R. B. $39. 18

Oran Lumber Co., Matter of, 42 N. Lb. R. B. 1073_.______. 14, 21

Paragon Dig Casting Co., Matter of, 27 N. L. R. B. 878_... 17, 19

Peyton Packing Ce., Matter of, 49 N. L. R. B. 8282. __-__- 15

see Dodge Corp. v. Nationa! Labor Relaftans Bogrd, “313

U. 17. Sd ck cian ae 9. 12

BE oe Rie of v salad California, Matter Pi 25 N E

ee ae oes a PEP eee AUN fo) 3, Bik es rant SEO See sueeeere 44

» Ranco, Ines, Matter of, 87 N. LR. B.. 426... - go... -- xy 44

Rath Packing Co., Matter of, 14 N.'L. R. B. 805, enforced,

115 (2d) 217 (C. ©.’A. 8).-.-.--. 40

Remington Rand, Iné., Matter cf, 2N.L R. B. 626, eudanied

94 F. (2d) 862 (C. C. A. 2), eertigrari denied, 306 U.S: -

» Richfield Oil € ‘orp, Ma ter af, 49 N. L. R. B. 593, enforeed,

143 F.*(2d) S60°%C. C. A. 9)... ; 21, 23

Roebling’s Sons Co.,: Johw A., Matter of 17 N. i. a. 182,

South ¥Allanti Steamship Co v. National pets Relations, 5».

Board, 116 F. (2d) 480,10. ©. A. 5), certiorari denied: 315° 2°J .

576.:. “ 2 a4 40

Republic Aviation C rp. : Matter of, 5 N. ” R. B.-Fi86_2. ~ 26

Re publre = sagan nhs v. National Labor Re lations Board,

get 1.193 (C. C. A. 2), certiorari eer ‘Vetober

’, 1044, “s 226, ae Term Be » 17, 23, 26, 32,38 -

2 Re we Products 4 PrP. . Matter of, iN oN. L AR, = 1202, en- y

fereed, 144 Ff. (2d 88-{C. C. A. 2) : ; ee 19

enforced, 120 F. (24) 180 (C: CA, 8). se Lae

Schngider v, State, 308 UL S.147_ 15, 16,-27, 30

Seas Shipping Co., Matter of 4 N. LR. " aA 2

Securities Exchange Com mission Vv. Che nery ee poration,

318. U. 8. 80. 3S

+ Sled Mig. Co.. Matter of, S8 N. LR. B., No. 232 18, 21

U.S. 582... ; pret SE

Npalek Engineering - C8: meen Matter df, 48@N. L. R. B

1272: .. oy oh Roe. SIRT ee

Tahin- Picker é (so., pred af, 50 N. L. R.. B. 928... 18, 26

Thomas, | a eB Colina” Noa. Pigs ‘this Term. Jee a a 2°

Thornhill ¥,, Alabama, 310 U. 8. 88 : ae ’ a 14

* Todd Shipugtrds Corp., Matter oN. ha Ss. i : 40,43

Tinton Die Casting Co. Matter 7 WN. bk. RB: 36. Tc: eo

Valentine vi Oarestensen, 316 U.S. 52 2-9. (et ase ep 30

Virgrnia Ele ctric & Power Co., Matter of, 44 N. i. R. B. 404. @.

enforced, 319 U.S. 5383_.° ae.

Watlace Mfg. Co.. Matter of.-2.N. L. R B, 1081, e nforceds ;

95 F, (2d) 818.(C. C. A, 4 . co

SVaterman Ste: =e Corp., Matter of, TN. .L. R B 087, ‘

et forced, 309 Uv. 200. Jae es pee : }

We nig satan oy C arp., Matter of. 42 N.L. RB 140 Liao 17

j » ‘“ a

a hee '

ae si

a . ° :

° —y

oats ie

~ Cases—Continued. Page

Western Garment Mfg. Co., Matter of 10 N. L. R. B. 567. 40

~ Western Union Telegraph Co., ere of AT.N.L, ih. B. 34,

‘enforced, 113 F. (2d) 992 (C. 2) « 40

West Kentucky Codi Co., eT . pea N.°L.. R. Bs. 88, « en-

forced, 116 F. (2d) 816 (C.C. A. mae ack eaaenccc ee

Westinghouse Electric & pokey Pea Labor Rela-

ie tions: Board, 112 F. (2d) 657 c. _C, A. 2), affirmed, 312 .

be U.S. 660 ; o ae

‘Weyerhacuser Timber €o., Matter of, 31 N. L. R. B. 258. _. 7.14, 21

Miscellaneous: .

Bituminous Operators Special C ceamitées, The Company. :

Town, Sept. 8, 1923 : oe)

‘ Brissenden, Paul F., Employment Syste m_ of the Lake

| Carriers’ Association. Bureau of Labor Statistics, Buli. *

| ( No. 235 (1918); pp. 24-24 aja oe - 20

Brooks, R. R., When, Laber Orgahizes (1988); p. 10 17

| Brooks, R. R., As Steel Goes (19407, po 117 17

Re: , Chaffee, Zachariah, The Inquiring Mind, New York, Har- c

| _ - court “Brace (1928), pp. 175-176. - 20

i ~ U.S. Coal Cominissicn, Labos Relations in ‘Bituminous

s _ Mining, Part 1 (1925) p. 156, 19

be ~ USS. Coal Commission, Laber Rp lations’ in’ Bituminous - ;

Mining, Part’3 (1925) p. Satis: . a 20

oe U. 8.-Commission on Industrial Relations, . Final aan

af —, * *.* Vol. 1, 1916, pp. 78-79 ; 19

Davis, H. B, Company ‘Towns, Eneyelopedia of Social :

Sciences, 4 (19381), p. 12L. = 20

Fitch, John A., The Causes of Industrial Unre ist M924), pp.

Oe ee 189-4194,197, 2( :

_ Gadsby & M. “The Steel Strike” in “Monthis Labor .

’ ° cookie cothiber 1919, pp. 83. 9] . 20

Hinri A. F., The United Mine Workers of America and :

eth Noactl nion Coal Fields (1923), p. 63 is

H. Rep. 1347, 74th Cong. Ist Sess., pp. 18-19 43

International Ladies’ Garmept Workers Union, Handbook ~

of Trade Union Methods (1937), p. i] a 17.

— of Labor, Annual a A913. pp. 21-22; 1917,

32. tale 7 20

r Sai Bureau of Labor Statistics, National War Labor Board

(1923), Bull. No, 287,-p. °-29- 20

* Lubin, Isador, gg of Social Sciences, Mininge- ;

‘Labor, Vol. 19 (1935), p 504: 19

Mitchell, George Sead Jextile Uninism and the South.

University of North Carekna Press (1931) 20

National Labor Relations Boar’. Third Annual Report

41,

(Gov't Print. Off.; 1937), pp. 118eli4, 115.

tha ever

> ~.

j L a * +

Misetllareous—Cantinued. ae a “ - Page

mt Natioral Labor Relations an: Sixth. “Annial Report

° } (Gov't. Pri®. Off., 1942), FR. 43-44-20: 20

a Natronal Labor Relations Board, Seventh Annual Report :

. (Gov't Print. Off., 1943) p. 45 9 " 41

a -.. Rosénfarb, The National Labor Policy : And HowNt W age J

. (1040), p. 115.._.. .. ee Ve | 42

Seamen's Jounai, April 1, 1934, p. 55 ihc scitet sk aeaiield tarorg ee

* U.S. Senate, West Virginia Coal Fie Ids, Report No. 457, « 7

: 67th Cong. 2d ge . 1922 9 yk a

x ‘s Walsh, Ray mond FLCLLO. laduatstad C nvonisiy in’ ‘Action - ae

- (1937), pp. 69, 19, 170 Sie ' PY 2

° West, George P., UWS. Comission oD Industrial Rela- i

“tiohs Report on the Colorado Strike (1915). pp. 15, 58.. 20

Wevyforth, William, The Organizability 6f Labor (1917), aos

O. 3G2 .. AS ; 17

Statute: ° -_

‘ National Labor Relations Aet (Act of July 5. 1935, 49 Stat.

: 149, 29 US. ©., See. 151, ef aeqg.): :

See. 1. os me oa

: . eee eee : : ‘ 12,46 ~

ens Bee. 8 (1). - ¥ . ° 12, 46

; See.-8 (2) _- ear ha ae tn ee 2,47 ."-

ae 1 See. 8.43 Rid, _ 12,47 ¢

See _ 2 See. 10 ( ee eet i 47

See. 19. (e).-,...-- : ; Ee ... 37,47

: S, :

"ie ey

~ : - ‘: :

Ng ‘a : zi e y 7 . :

i "

¥ ; ’

. z = :

> : m

: .

"the Supreme Hed Sines

Oc TOBER TERM, 1944

geen em eye Now's ae

National Lasor ReLatioys Boarp, PETITIONER

; eae _#

Le Tourneatu CoMPANY OF .GRORGIA

;

_ (ON WRIT OF CERTIORARI TO THE UNITED STATES CIRCUIT

: COURT OF APPEALS FOR THE FIFTH CIRCUII

BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD.

OPINIONS BELOW eg ae :

The. opinion of the Circuit Court. of Appe als

-. (R. 91-93) *is reported in 143 F. (24) 67. The -

- findings of faet, conclusions’ of law, and order

of the Board ¢R. "33H6) are reported in 54°

N. L.R: B. 1253. |

a 2 yoRIspicTion ~~

The decree of the Cireuit -Court of. Appeals

- was entered on June 23 , 1944 (R. $4). .T he j juris-x\

diction of this Court is invoked under Section

240° (a) of the Judicial. Code, as ame nded. by the

Act df February 13, 1925, and Section 10- (e) and.

a of thesNational Labor micas Act.

a, |

—_ hl;

©\

\ rn

- a

_ QUESTION PRESENTED"

W hethery, pea no other feasible means of dis- |

tributing unier lite rature is available, the Board

could properly find’ that: the Company be promul-

gating and enforcing a rule: prohibiting ‘the ‘ dis-

tribution of printed mnatter: on its property, in.-SO,,

far as it. prohibited employees from distributing

union handbills on its parking lots, interfere ed avith

the exercise, of the rights guaranteed employees.

under: Section 7 c of the: Act, in violation of Section

2. .

ns he

A STATUTE INVOLVED:

The pertinent provisions, of the National Labor

Relations Act ( Act of duly 9, 1935, e. 372, 49 Stat:

449, U.S. C,, Title 29, ‘See: 151 et ne are set

“out in the Appendis, pp. 46-47 aa: dea

.” "STATEMENT ©

Up. mthe usual proce eedings the Board, on Febs

ruary 12, 1944, issued its findings of. fact, con-

clusions of law and order: (R. 33-16). The per- -

tine nt facts, as found by the Board aud as. shewn °

by undisputed ev idence, imay. be surnmarized as

follows:*.- ° . ; Sch eaeanee rel Seton

Le Toufrnéau ‘Company of Georgia, a Georgia .

corp@ation, hereinafter cadjed thé® Company, isa

hnaniufacturer. of ea rth-moving machinery « and

ve following statement ‘reférences preceding a sémi-

colon areto the Board?s findings those- following are-to the

supporting evidence. Feferentes to the typewritten tran-

script of testimony are indicattd by the symboF* ie?

Rother products, . and employs: me in 2:10

persons at its: plant, near. Toe ea, Georgia «R. 30 —

36; 44-1, 54). ° The plant site is part of a 6,000- aes

acre tract of land, owned by the, Company -or its |

subsidiary (R. 36; 54), and extends in its entirety: :

along, the northerly side of U. S. Highway 13

. (it. 36; D455; 16-57, Tr. 13). ° It is divided into — . ;

2 sections by a road yay “that: intersects the/high-

way -(R. 36; 56-57). -A6- foot wire fence, roughly

‘paralleling the highw ay, but set back at distances.

‘vitrying - from 30. to LOO feet from the highway

~ (R. 36; 55,. 56), encloses each section of the plant

(RR. 36; 55, D6). Virtualh, ‘all of the ‘employees,

“Tyrespective of the side of ‘the goadw ay upon which

they work, enter and - leave the plant through a

‘main gate which adjoins ami office building that

serves as.a section of the fence (R. 36: 55, 56, 57,

58, 79),* T his aay is set back from the highway

_ 100 feet FR. 36, 42; 56%; the company- -owned -

ground ee ia ffice building and the aa ;

“| oo way (R. 36; 76), is. paved with conc rete (ii.

») 56-57). Thig¢ concrete. apron and a ey aa

: gravel plot, together e alled the North parking hit,

* “extend along the highway for 150+ feet. (R, 36; =

Adjacent to the clas. but on the conte eS sid of Hith-

way 13, iga hamlet owned bythe C fommpany, known’ as. Tour-

gee napull, consisting of a United States Post Office, a gasolitie

station, and about 50 houses, which are oceupied by employees

of the Company (R. 36: 54-55). Tyecoa is about $ miles dis-

tant from Tgurnapull (R.36; 54). :

"8 The time cleeks are- ‘inside the gate {R. 36, n. 3358).

622028—44-——--2 :

qo-56, Tr. 108). ~On the cnbcsite side of the -

} ‘ghey is anotier parking lot, here inatter catleat

he South Ps lit, which is "leased by ‘the Com-

pany | Rv 37: 55, 98-59, Tat, 75-76, Tr. 106-

108), ‘Both its are duarded and kept ‘clean by’

- the Company ’s s plant- protection ‘foree: cased 37 08,

74, 7D, Sk-823. : - me

Most of the: employees live in widely se rattered .

-commumitie@and S phos within a radius of 20

tniles of the plant (R. 36, 42; 55 , TR 78). They

travel -to and from work by PM: or bus”

(R. 36237 42; 55, 56, 38, 59; 60-61,°77).. The:

conyevances. in whic h about 60 percent of therm

Since Jilly 4941, the Company has strictly ex

travel are parked on the North lot; most of the .

others .are parked on the Stith lot (R. 96-37;

“58-59, 60-61) .

tributing printed” matter of any kind on its prop

ety without nermission (R.: 37-38; 74-75, 80-82;*°

83, 90)" In February 1943, the Congress of In-. ; es

ar Organizations, “hereinafter called “the

- 1. O. began to organize the Company ’s~erm-_

ena and on April 8, 1945, the Board held an

election at.the plant, whieh the C. 1. O, lest (Re

£ . %;

t Before the rule was promulgated, merchants fram nearby

tewns employed boys to-place Advertisements inthe parked

automobiles, a practice that had resulted in littering (R. 37;

“SO-S1, 76). - Theffs from the automobiles had also’ occurred

from tithe to time e be fore the rule was adopted (R. 87; 80- $1,-

79). ; Joe ‘ x an © es

~“

forced .a rule prohibiting all pe rsons from, dlis- *

‘ing: his day” s work; a a bus stantding on the

entering the his, Fakipieon. founda few. ©. 1. Oz,

; leaflets, some of whic h he’ gave. to Feflow passe n-

gers, ‘and ‘othe ‘rs of which he handed boc igo act au

AQpen winddw to pe rsons on thie parking lot ( I. :

72-73). The Captain of the: Plant Guard saw

the. ine ‘idle nt. and instructed Ferguson to re port to’

for 2 days because af his v iolation wf the **no-dis-

tribution” rile (Ri 38-39; 7 eer

After the ile feat of the. ~~ 1. O.- the Union

asked for: permission to distribute haniibitls

and about the plant anvouncitgea Union’ nyret-

a few union handbills on the. South parking lot

Pete during his lunch: hour, iN the anist: ri belief that

; this ‘lot did. not be Fong. to the ‘Cofapany. ( (K.'39;

onard obse ve “d' his actions, whit h we re ultimately:

Sanaa .

* Uyited "Steelworkers tal Aineride, afiliat eth the

re CLT. O.. the bgp ect that filed! the charges in this

. ‘

| npeceeding (B. S-9). oye

_ Ing, but the Plant Manager odenied: his request:

CR. 39; 635-64 ). The ext day, Ayers disfiributed ;

"63-65, 68-69, 70, 84-85, Tr. 44° 72-73). A’ plant:

2 " :

; 61-02, Ty 238-39). On the-day of the Board

sles, employee Grady Ferguson, afte "3° omplet--

North parking lot CR 3 72-98, Tr, 82). - On:

fhe plant manager the ne xf. day (R. OS; Ts): : the

- Plast Manager suspended. Ferguson, from work °

: ee to organize the Company’ “ employees <

» + (R. 38; 62-63). On. July 1, POs: eniployee 1. -

Wayman - Ayers, preside nt of the > local union,

% .

Re peer OF Ee

: Pe ah d Se see

~, reported: to the General Manager (R. 39; 54-89,

— 65, 66). The latter suspended Ayers for 2 days

bevayse of his violation of the ee ates

rule (R. 39; 63, 65-66, 4-15) ..

U pon the foregoing facts the Board concluded

that’ although the “no- -distriby tion’ " rule ‘had

Deen applied to. all persons, without ‘exception,

: steking _ to distribute literature on the parking

od ots" * (CR: 40), the Company, “in -applying “ts

‘no- -distributing” rule to the distribution of union ¢

literature De its ‘employebs on. “its parking

lots * * pli yoo an. unreasonable - innpewli-% _ Ji

. ment on the dreedom of conununieation essential

to the exere ‘ise’ uf its 6 myployees’ right _te se li-

organization, * * 8" (Re 45)". oe ‘

' The. Board poiuted . out that bec ause of the

crre “quistane es pider wine +h the emplove es worked

and lived, aiid the focation and surroundings of the

‘Cohapany 's plant, distribution of union liter

‘to emplevees at places other than ‘thie ¢

{ R. 4142 3 By ‘

compare, AR. 05-07). After cmphasizing the serie

property Was . Virtually impossible -

ous detiime ntai impact of the rule upon: the qm”

, ployees’ freedam. of self -Org anization, the Board

turned to a consideration of the possible detrinie nt

#0 thie chiployer! s inte rests which would How from 7

’

* The Board fond “shat the rule had-not been. diserimitia-”

“torily enforced-against Ferguson and Avers for the purpose

of discoumging union tembership and activity (R. 39-49). ,

«st

‘

abrogation of the rule as applied to the parking

lots. The Board, recognize, 1d that the © omnpany had —

a iogltivasté interest in pre venting" litte, ing, but

- argument before the Board, 3333) that thefts had-

‘ceased When outsiders were denied aecess’ to the

found that under the facts of this ‘vase that ine -

terest did not justify ‘the rule (R. 40, 42). The

Board noted that hitter ing oh a parking lot is not

as serious to an employer as would be littering

“within buildings where produc ae is being ear-

med on. * * eer (es es es 72), aml that

the-C onipany chad vo general oe arte littering

CR. 42; 78-79. Tr. 121-1227. In answer: to the

“contention that the rule was designed to prevent

thefts, the Board found TR. 42- 43: 79, Fr, of oral

lots and that im-any event the. rule could have no

hearing upon that »robleri hecatise under the rule

. the employees continued to have free ae vess to the

lots UR, 42-43).. In answer to the Company ’s~

tinal contention—namely, that, the rule lessened the .

likelihood of«employées bringing, literature into

the plant itself—the Board pointed: out that, the

Company has no rule. against employees carrying:

“newspapers or.other printed matter into the plant,

and, that. it’ places copies of a Inagazine. in boxes,

par the plant gate, which the ese cake sean take .

“with them into the plant (R. 43; 59-60, 77).

The Board cone ‘Inded that since the i, as Ap-

plied to the distribution of union ite ‘rature on.the 7

——

~”

he enforced (R. .5-8 ). (Pi June oo. : 1X4

% ay 8 \ ; 2 ie e

parking lots, was not necessary to protect: any

le gitinl ite employer interest, and its enforeement

busts employees - of the only practical, op-

_ pértunity to enjoy their ‘rights under the glet the

rile was ine onsistent with the statutory poliey (R..

40-443). The Board further concluded that, the

Company, by applying. its no-distribution rule sto

fhe ‘distributton-ef union literature by its em-

ployees: on its parking lots, engaged in unfair

labor’ practices within the meaning of Section

S (Ly oof the’ Act a R. 715 atid. by suspe nding

Ferguson and Avers 7 violitions of the rule,

“disernminated in regard: to their hire and tenure

of emplovinent im violafion-of Section 8 (3) of the-

“Aet (R. 43 457.0 |

The Board ordered the Company to cease and

" desist from its wif’ air "Labor practices ; to make

oe erguson and Aye rs whole for the Wages they “lost |

during their respective two-day SUSpelslous; to

rhecigd the rule insofaPSgs it prohibits distribu

tion of uniow dite ature by emMmloyees mi the ‘park- |

ices CR. 45-

46). On February 24, 1944, the Compaiii v peti-

honed, the court below to set aside thi Board's

_ ordi éR. 1-5). . Thereafte ‘the Board,

in Compar v's petition, reqyestec that ’\

tng fots: and to po ist Appropriate

nswertne

i order -

I. the

court below handed doavn fts opinion and entered

i decree setting: aside th Board’s erder in its

entirety (it, 91-94). |

\ » ie

‘ployer to permit ors ganization efforts [by Itis em-

s g P 9 : o

" SPECIFICATION OF ERRORS ‘TO RE URGED

The Cireuit. Court of Appeals erred—

bh holding, as a matter of law, that the Com-_.

pany’s application of its ‘no distribution” rule

to prevent the distribution of union literature by

employees én parking lots did nog interfere with

its employees * exereise of the rights: euaranteed

are in Section 7 of the Act.

.In Jhffd\ng without qualifization that there

s: Ifo provision, express or implied, in the ‘Na-

beau Labor Relations Act whic h reqilires an em-

ployees| on his premises’’ (R, 93), and. that. an.

_employer guiay therefore egiisist “that the -em-

plovees disc uss and act on the matter of their own

organization elsewhere than on. the employer's

property.” ( id.).

In holding that thesissue presents a question |

of law for the court to decide for itself and

failing to give any weight to tlie Board's, deter-

ination that in the instant circumstances, the-

applicatjon-of the rule to eliplovee eonduct on the,

‘parking Jots-constituted interference in violation

ofeSection 8 (1 ) of the Aet..

In holding that the suspension of -Fergusén .

and Avers for hiving violated the rate didnot 3

constitutes discrimifiation- respecting hire and -;

tenuk of euployment violative of Section 8 (3)

4 if the Aet.

In seftine aside -and denying enforcement

te the. Board’: ‘aaa

se,

‘ 10 f

SUMMARY OF ARGUMENT —

The suspension from employme nt of Feyguson -

and Ayers as a penalty for distributing union

: handbills was violative of Section 8 (3) and. (1)

-of the, Act ufiless the Company was privileged to

prohibit its employees ‘from engaging in- such:

activities. The Board found -that the Company's

rule. prohibiting the’ distribution of union liter-

‘ature on-its parking bots was itself “violative of

"Section 8-(1).of the Act and that: the rule con-

_ sequently’ could not Justify the suspensions. Al-

though a-literal reading of Section 8 (1) would

* seem.to render legal ail plant rules which tended

to interfere with unton activities pretected in

Section 7. the Board, construing . the statute,”

‘has sought to ics: the emiployee interests

whie h the statute, protects with competing pro-

prietary interests of e

ognizes that employees }nust have available ade-.

quate channels of communication for the receipt

‘and trjinsmittal of orgahizational informiation both

‘oral and written in order that they may exercise

the rights guaranteed them under the Act. It -

_recognizes on the othgr hand that solic ‘itation of -

union members or distribution of union literature.

_ an plant premises is sometimes injurious to legiti-

mate employer interests. Therefore, where an

‘employer seeks to justify a rule-prohibiting self-

organizational activities on his. premises, the

‘Board balances the extent of the injury which the

employer would sustain if th@ rule were abrogated

plovers. The Beard reec-.

against the eatent of the injury. to the organiza-

. tional interests of the’ employees -which' the rule

imposes, and in-its decision secks to proteét to as -

great a degree as possible the legitimate interests *

of both. Hee ey oe o

The Board has he ld tliat an employer is justific d-,

in prohibiting union. solicitation | during: working

hours: And where other adequate met héds of dis;

tributing union literaturesto: employees are avail--

able, the Board has held thaten¢ mploye r’s interest

‘in maintaining plant ¢le anliness justifies arule pro-

hibiting the qistribution of union literature within

the plant. Where no other ade quite channe Is of

distribution ‘ire. available, however, the Board

: must decide: whether the injury to the employer’ x

legitimate interests is. suffices 1e antly serious 40 | Justify

frustration of the eniployees’ rights by denying:

to them the useof the employer's property. In,

the instant case the Board, found that to deny the

“employees the right to distribute union literature.

on the parking*lots would, because. of the cir.

cumstances under, which they: work, and live, make

- practic ‘ally impossible for: tlien to realize the

benefits of the _ Act. It found further’ that to‘

perinit, the distribution of union literature on the

arking Jots would impose little, if ary, detriment

legitimate interests of the employer, and.

that the nig r remained. free comphtely, to,

protegt his interests by methods which did jini

“adversely affect the rights of the employees.

22028 44

ARGUMENT .

The Rearé Properly found that application of the com-

pany’s “no-distribution” rule to prevent the distribution

of union literature by employees on parking lots inter-

fered with the ¢ exercise of rights fuarantecd in Section 7 i

tnd vidlated Section 8 (1) of the Act

Tt Is undisputed that the Comipany susper “d

Ferguson wnd Aver as a penalty for distributing

inton haridbills, Since an employer engages ‘in

discrimination w Bhin the meaning ofs Section 8

(2) of the Aet whene ‘ver he ‘discharges, refyses to

eae or-cotherwise punishes’ an emplovee Tor ene

faving’ ine Union activities which are protected by

Section 7 of the Net (National Labo Relations |

Board \. Muchiy Radio & Pe]; graph. Cu, 304 fe ia

_ §03, 340-347 - Assor vated. Press v. National tei

t Relations Board. SOLUS. 103. 129; Phelps Dodge

Corp, v. National Labor Relations Bouwrd, 313

U.S. 177, IS3, 185), the suspension “of these two

employees Was unlawful Unlpss the @ omipaiiy Wiis

privile wed to prohibit Its employees from engig-

Ing in the particular UNION activities Involves,

Section. 7 of the Nationat’ ‘Labor Relations Aer

Geclaves that emplovees ‘shall have the right. te

self-orgar IZALION. te form, join, OF assist labor

“ prganiaitions i pth Section fof the te

provides that *it shall, be an wifatr labuy pra

tice for an employe {2} To interfere With, re-

Strain, or coe ree en plovees j In tei exercise of the

eights cnuar: aniteed in Section. : ata . & literal read-_

ing of this section ® would illicate that aay —em- a

| Sage aarti a pa

ployer action which tends to obstruct. or impede

7 self-organizational activities falls within the stat-

utory ban. Se read, the statute would, of course,

require abrogation of all plant rules which cur-

‘tailed union solicitation on plant premises. But

the Board has recognized that. the statutory pro-

Depresentatives access to their ships has no bearing Ln

hibition offinterference, though absolute in,terms,

sshoulde be so construed as te harmonize, to ‘the -

greatest possible extent, the ‘e mployvee - interests

whit | the statute seeks to protect with competing

proprietary interests of -erplovers (R. 40-41).

The Poard’s S approac +h thus follows ¢ ‘losely that ©.

adopted by this Court in reconciling individdial

interests with community Interests Which de mana

clirbs upon Individual freedom. Governmental

restraiiits pon freedom of communication give

a .

‘ 9 =

“Compare the statement of the nited St: tates C irenit Court

of Appeals for the Second Cc ine wait mn National Lahor Rel “ut

tions Board w; ™ NSereice Ol. Co..° Yp2v" "FF . (4d) 149, bbe:

“Tt may he argued that Section Sof the Aet forbids any in

terfereriee whatdver with the right of the enplovees to‘bar

gain collectively- nother words:that invonvenignee and loss

which ray be occasioned to respondents by giving the Lien

¢}4 e

rights of the seamen, which are guaranteed ander Section-7

It would seem thaf a reasonable constrne tiost of thesstative

need not lie as swee ping ‘as this. Dowbrt less fife rference mins!

not hi xu xubs fantial Us fa preclude rhe réeaxonabl e ¢ POTCISE

‘of i the employeus rights. bit in determining What isa reason-.

able opportunity te bargain through chosen re agentes

we think the Board way mre iigh the inconveriience, rhsk

“ nudge “tai posed mpor the employe kK against Any. ere: car

renience to thd Union of access ta the vessel, ° The Board Tras

done this andi our opinion eles ah CONE listen based Vip

substantyal Yridence.” (Traties SUP pledge

er ce 14 - i

rise, to the necessity, ‘illustrated in .Martin. v. a

Struthers, 319 -U. S. 141, 1438,*‘of wei ighing the

conflicting intérests of the appellant in the civil,

rights she claims, is. well as the-right of the indi

vidual householder - ta termine whether -he is ~

willing to receive her message, against the inter,

est: of the COMMUNITY | which bv. this ordinanee

of ers te prote <t the interests of all of its'¢ itize ns.”

The right of eniployees to urge the advantgges

of self-organization, to proselytize and solicit

me ‘mbe ‘rs on behalf of labor organizations, and”

their cor relative right ‘to receive aid, advice, and

information from athers” concerning labor or-

> ganizations, -which the. Act protects, “are -among-

the “fundamental rights” secured against gov-

ernmental infringement. ky the First and’ Four-

‘teenth Aniendments. Hague v. C.1. O., 907 ULS.

496,510. Cf. Thornhill vy. Alabama, 310 U: S. 88,

101-104. By protectmg those basie rights. from’

infringement by employers Congress\squght to

‘remove the primary and long standing soulce of

abstructions. to their exercise and fffus to create”

conditions: indispensable to the attainment of the

statutory objectives. As the Board noted in the -

“In Matter of Harlan Fuel Co. 8 N , iB: B. 25, 32. the

Board stated: “The rights Sas to id Oa by ‘the

Act inclucte full freedom to receive aid, advice, and informa-

tien from others, concerning those rights and their enjoy-

ment. See Bag Matter of Ww, yerhae user Timber by 0. . oF,

N. LR. B.2 % 2Od-265 + nga rof American C yanamid ( "On,

37 N. LOR. a STS, SSS—AS6, 5S : Matter of | Oran Lumber Co.

12 N-L. R. B. 10% 3, 10791081.

——

a aa ae dees

eer 3 a - \

os 15 Rigo -

‘instant case (R. 41), “employees cannot realize

the benefits of the rights to self-or ganization guar-

“anterd them by, ihe Act, unless there are adequate

ave nues, of communication open to them whereby

_ they my be informed or advised. as to the pre---

cise Nature of their rights under the Act and of

theadvantages of self-organizatien, and may, have

opportunities for the interchange of ideas neces-

sary to the exercise of their right to self-organiza-

tion. * Therefore, whenever an employer blocks .

an effective avenue for cogimunication of organi:

zational information. by promulgation ‘or applica-

3 tion of u-plant rule, the Board must, to adapt the

words of this Court, ‘be astute to examine the

effect” of the employer’s rule and **té weigh, the

* * He

cireumstances . ‘and appraise the sub-

stantiality of the reasons advanced in support [of

cag” Schneider v. State, 308 :U. Si 147,- 161.

Such an ap ypraisal led thes Board te conclude in

the Pe yton Packing © ase,. 19 N.. L. R. B. 828, 843-

S44, enforced on other erounds, 142 F. ( (2d), 1009

“(C. C. AL 5), certiorari denied, October 9, 1944,

* No, 29

-circums'

solicitatior

but not during non-working time. This problem

is. now’ before the Court in’ Republic Aviation

Corp, Vv. National Labor Re Nations Board, No. 226, ©

this Term. att Ge | =

The right of employees to communicate organi- °

zational information encompasses communication

o 7 7 , .

this Term, that in the absence of special

ces an emplover could prohibit union.”

within the plant during. working time

See 3

by means of ‘the. written as ‘well as. the spoken

word. | The* Board pointed out that ‘speech . is

not thi only mode of communication by which |

self-organization” ‘is effected, nor is it sufficient

that ‘this channel alone be free. Effective orgeni-,

zation requires the use. of printed literature and

of application and ° membership’ cards, and these

+l ‘modes oe communication arte alse protected by

fhe Act’? (R: 41). Mie Act, like the ¢ ‘onstitution,

eadeae the right °*to ‘distribute literature,

Lovell vy. Griffin, 803 U. $. 442, 452, and neces- sy

sarily protects the right ‘to receive it.’ Martin v..

uthers, 3 U, S. 141) 143: Jamison’ v. . Leras,

BIS U.S. 413, 416. ‘This C ourt has had occasion

ti note that “pamphlets have .proved most effec-.

tive. instruments in the dissemination of 6pinior;~

Schneider vy. State, 308 U.S. 147, 164; Lovell v.

Griffin, 303 U.S. 444, 452; and that their dis-

tribution is ‘essential to the cause of employee

- organization. Martin v. Struthers, 319 U. Ss. 141,.

- 7145-146,

Door-to- door distribution of hs leaflets, the metliod

-considered by thts Court in the Struthe rs case, can, -

be effectively utilized. by labor organizations enly 7

where ‘the homes of the -workers involved are

practically contiguous, for example, in cgtipany

towns or its commupities where the worke rs’

homes are clusfered about the plant. ‘Phe obvious

practical hardships which would attend. any ate.

tempt to distribute literature to the homes of

eniployees ‘scattered throughout a large dy or

° : o———_ — 2. -

? wi’ (ees ash

over a wide rural area ark. enormously increased .

rh wartime by. transpor tation difficulties. When

door-to-door distribution is (mpractical, employee

organizations must-rely heav\ly upon distribution

“at plant gates if tley are to\ get printed matter

into thes hands of the employ tes.” Tf emmy levees

upon leaving - the, jlaut step Aut onto a public

street or highway, Utilization of the employer” s

‘property for the purpose of distributing ors ganiza-.

tional lite’ frature is not, of course, Indispensable to -

s the full: exercise of their rights under the Act.

“Theyefore, unde ‘resuch circumstances, where the:

distribution ‘of union lite ‘rat are on copapany Ae

erty would, impose any “ineonvenience, risk’ « ;

damage” ‘(National Labor Relations Board ve

Cities Service Oi) Co. 122 F. (2d) 149, 152

¢C.C, A. 2)) upon the employer, the Board finds

‘

“

: “Weyforth, Williant O.. he Organizability of Labor

GO (UNIT) p16; Walsh, Raymond F...C. 1.0. Industrial Union-

_ tem In Action (1937) . pp. 69, 131, 169, 170: Iiternation: il

| Ladi¢s’ Garment Workers’ Union, Handbook. of Trade Union

Ne ads (1937). p. 11: Brooks, R. R.. ten Lahor Organizes

| (195 BS). Pp. 10; Brooks, R. Ro, As Nteel GDex 1940), p- 1l7 and

! oO’ mipanyving photograph. See alSo, Matter of Narp Metal.

Products Co., Tne.. N. L. R. B. 119, 134-135, en forced..134

F.2d) 954 (C. C. A. 2) 2 Matter af Revlon Products Corp.

4s NOL. RB. 10g, aw 1A. enforced 144 F. (2d) ss 0C.

ce; -- 2)3 Matter of Wells:Lamont- Smith € OP. 42 N. IL.

meee 440, AS: Matter of Nohent LAqon- Falz ne. me 36 N. L.-

v R. Bo 1294. 4299- 1300, enforced, ls FB, (2d) 502 (COLA, oy:

, Matter of Paragon +. ( fx? Haig ('o, 20 N. L. BR: hs. STS. SS],

S35). SSO. ‘See Pe public Ariation-C orp, ~ Vetional Lober

Re latio NS Board, No. 22ti,. tris Tern. anaes of: record,

p. 66, # ,

“or

Fe at ae

that protection. of the statutory inte restse of eni-

_ ployees does not require that such distribation be.

permitted. - This’ was the situation in’ Matter of

.. Tabin-Picker & Co., 50 N..L.-R. B. a Tn that.

ease, although the plant ‘was located 4 i a large

city, Chiéago, and house-to- house distribution was’,

rot ‘feasible, there wert. NG special: cireninstances

avhich made it difficult of impuissible to distribute

organizational - Titerature fo the «uiployees on the,

_ street as they left the building. The employer

prohibited the <listribution of literature within”

the plant, and thereafter dise ‘harged an employee

Who in violation of the rule distributed handbills. ,

announeing a wniorr meeting. The DBoart-Tield

that the employer's gonduet was not in Violation -

of the Aet and stated, © In the interest of keeping

the plant cleanvand orderly it is pot unreasonable

for an eCmplover tar | prohibit, the -distribution, of.

literature on plant prenaises at’ all. tities.” "50

N--L. B. at 930.'% 4.

On Fr other hand, if ‘an employer interferes

with thy: distribution of union literatiire on the’

eo a . ‘ ty

Acco ral Mart ‘ P of Nort }, A metic nh ; Ae sation, "Ine _ ati

te a? 7 Be wo: Watt fer Of Cro: nb iyjed 7 Aine nage Gor poration,

a7 NLL. R: OD. Sar. In the fagier case the Loard, tphol Rig ;

an nn @ ss prohibition of the distribution of union navina-

bership cards within the plant, where production is is ben g

carr ed on.” said: "We are not conyipeed ak under tlie chr-

“sumstances dtse ‘losed here. the protection of the responde nus

iiterest Sn thaintaining plant cleanline xs isamit Weighe aby tlie

uitérest of ite employees in engaging in the type of activ it

> banned bY the respondent as a tactic in union organizatior.”

But ef. Matt or Of. Neal “fe Mia. c oe? OS NER... No. 2552.

. . .

e 6

. .

“street in fr oft of his plant (Matter of Sjalek En-. -

gincering Company, 45 N. Re B. 1272, 127 76-1279; ° |

Matter of, Revlon Products € orp., 4p Ni L. R..B.

1202, ng: 1209-1212, enfores ‘dy 144 F. (2d). 88

“(2 ¢ ; Mattex of Paragon Die ( ‘asting Co.,

«" WN, a Re. B, 878, 881,886) or at the homes. of

—@. his emplorees, ‘his conduct is unquestionably vio-

dative. of the Act.- 3 |

Often? because pf geographic or other cireum-

stances” “under. which eniptey. es work: and live,

organizational information cannot be placed in

thei ph: inds at places other than the eluployer’ S.

property. Fer example, “etiployees who work .

and live in company towns br on, board ship ean

he approached oniy on the employer? property.

Frypstration of the organizational righfs of such -

employees by the promulga ition and. enforcement -

of rules proRibiting union activity on the em. .

ployer’s pheinises of by the denial of access td the

“employer's property to union organizers: Was a

‘familiar phenomenon prior to the’ passage of the

National Labor _ Relations Act:". After passage

- - P ~

U.S: ‘Commission ‘ on Industria! Re lat iong, Final Report

‘i Comiutaian #3 * * Vol. 1 (1916). pp. 78-79: FS. Coal

Commntission, Lehor Relations tn Bituminous - Mining: part 3

(1925). p. P31: FA om pany Tourn, submitted tothe U nited

States Coal Commission by the Bitiminoyis Operators Special

Committee, Sept. ®; 1928: Fitch, John AL. Th? Causes of [n-..

dus trig I ‘mrest (1924), pp. 189-191, 197, 206. Eneve lopedia

of Sociak Sciences, *Mining-Lahor, by Isador Lubin, Vol. 10

«°°. (1935)..p. 507; Hinrichs,-A. F.. The United Mine Workers’

“ oF America and the Non-U inion Coal Fields (1925), p. 63;

€2202844-— 4 , ; Gs "ees :

. : — Zi a .

‘

, 20. . ee i ¢

of the Act tae Pow Gail the courts iecognized¢—-

thi ‘ate they ights theye. guaranteed were inive ved by

employers who utilized their nivel ever prop-

“em in this n amen, , Une Board and the courts

$ ‘

Mitchel, Ge: ree Sinclair, Tertile WONTON, and the South,

University of oe h Carolina Press (1931): : Seamen's Jour:

ie’ April 1, 193%. p. 45: Paul F. Brissenden. VE m ployment

Sistem of io Tale C arriers” Assad ‘lations Bureni of Labor

Matistics, Bull. Novy: ° (THIS). pp, 24d: ¢ ‘hafee. ‘Zac ‘hariah, -

The Franiriy 1 Mined, Ne We V seg", Harcourt Br: ne Ne 1928), PP.

be GOTO S. Conimissien on. Industrial Relat®ng, (a

ot the Colorado Strike wby George P, West (1915), pre 15.58:

aay

Anpusl Report of the De y@irtiient of) Labor (19), Pp.

21-02; Smpual: Report-of the Department of Labor (IM).

p. -32: de be Strike” in, Monthly-Lahow Review, vy -

Mrs, Mo A. Gadsby, Dec. 1919, pps 83. 9b: Davis. He B.

é'a any . ris, Ey ievelopedi: nof Social Sciences.. Vol, 4°

Li2] : ‘VT. SS. Se nate, W. vf Virain 7 aut Fu lds:

thir ‘Si\atisties, Nati Wop Lal ser] Re Oot pel, " (avy,

_ Na. 25¢,'p eB L. 8: C oe Co “ONIN ISS1On, Libor Relations

Lvtianidne (prin Wind F] id. 7 art i ' 1th “ p. 16,

’

de port No. 7, Ott) Cohe.. = AGas (1929 ;).-. Als 3 ee

Ah hoits Sisth Annual Report a Boa rd said: “In indus-*

Ly Bs whe ¢ the employees guust spend vareually all of their

ni? Upan the-emplover"s property. jt' is upparent that the

emplover can effective Ly pieVvent their poe ecole of the ad

rigits by lenyvi gr oayion represegits tives a@ecess: to its proy-

the Bias lL has. accordingly “held that the exclus sion

eb iter representatives from the emplover’ ~ property umsler *

veh errenmstances constitutes ‘erfous interference’ with the

ey reise of the rights gunrariteed: i it Sectien Af ile National

ay 1.4 Toy, A. i}: Matter Op hari rie in ( Van Id C 0,

Labor Relations Bours <j, NSB? i) Anup sent ii epigt , (Gaov' t P rint,

O4fF., 1942), bp. 45-44, Amon iw 2h ‘ases so holding, are Fee

fallowin ve: Muti cat ihe lon Fue a BN. LR. BR. 5,3

th ie tiploje fiving in company town denied access to untor

i esehtartve): Matior of We st Ay HW Nok ud ‘oal Ce es 4

L. KR: B. 8s, 105-106," 133 (ede tn yy ¢ enforced, 116 F (2d)

N. L. R. B. 378, 585-586, 588 *inegregation of white pe

ee Pee else

é;

——-

“have uniformly? he Id that rues Darring employee

plo:

thane

on hangre «

“

- organizational activities on company premises”

which are either r. adopted, « ' applied “disc rimina=

torily, Tor the. purpose of impeding self-organiza-

tron, are violative of the Act.” “But, although -

itation or-the distribution -of. union literature

(@ gg... rules whieh pernut solicitation for ‘all

causes except unions, oy which permit distribution

of all types ‘of literature except union literature)’

are, like laws which diseriminate against: freedom

of speech, by that token alone rendered invitid,

_ plant rules which discriminate against union sdlic-: -

proof of hon-discrimination does not, In either Case

colored enyplovees mn company town rrstu! 1; prevent inter

undo ivformation) : Matter, of Cazan Luinber ¢ 0.

1YN.ULR. 3. 107: s, Laie LOST. 10s Cider) : Matte of WV tte

hie tise gn Cimber Gr oe 31 N. L- R. 13: 25s, YOA- VOT. 270 (enn

plovees living inc: onipany ‘owned logging eamy de ils “Leds

to Nhiot pepresent: itives) : Matter: of Waterman Nea fii

«<3

Corp. 1m. ts Kt. B.tz27. enforced, 309 U.S. POG, Boden:

(employees living bound “hip de nied WOCESS togni i hep

sentatives) 2 Watter of Cities Nersice Oil Co. 25 No. RR: Ag

the 57 (ile Wit), enforced, | io F( re ) TH. Loy LOA OR

Maths: of Riehfteld O71 Corp. 9 N. i. Kt. 13. = ( /¢ nak

‘

wnt reed, 143 ‘F. (2d) SH | dee a 1) ce Vari . OF pss

Shipping Co wd NA R. BB. 057 ae m). ey

YY, By ojial Lahor poe tions Bound ¥. Villian }), ree s Co

135 Fed) 17% DS 6C, ‘A. 7), certiornm dered, 320 0,

ATO) (dhiserina nators eae of no- sols « ation? rule ee):

C. ape) c arbure toy rd Orp, - Natit cys al a ubor “Ll? lattyn By onenas

bat EF. (9a) Fi4, 716i (C.-C. A. S) (eta ys Mattes of

oe Sledai Mira. la. 58‘N. L. B. B.. No. : woe (ils iSerimni tia’ Gry yn t-

mulgation of rule prohibiting distribution of “handlite oe

, 3

cards” ) : UY, tional Labor Relatio iis Barra Vv. Denver 7. nt &

Aveniig Go.) 138" FEF. (2d) 10,4 UF (C.€ ASin) ¢discriminna-

establish their le ‘gality. Just as a state law

a ae

sé

cer-

tainly does not acqnire coustitutional validity be-,

cause it classifies the privileges protected by the.

First Amendment along with the wares and mer-

chandise.of hucksters and peddlers and treats them

tory ‘promulgation and enforcement of no- solicit ation rule) ;

National Lahor Ré lations _— v.-Pe yton Packing Co., 142

F. (2d) io, 10TO (C. C. AL 5), certiorart denied, October | J

1944. No, 29S-this Term idi m)? National Lehor ‘Relations’

Baird vy. Mo E.Blatt Co. 143 F, (2d) 2682271-278 (C.C. AL

} cortior4ri denied, November 13, 1944,, No. 553, this Term

pe mw): National Labor :Relutions wa v. Kohen- Ligon~

Foltz, “Ine. ZS F.2d) 502, 508 (CLC. A.! 5). enfore ‘ing 26

Ns L. RE B. 1294, 1299-1303 ep ae Choei apphicatian of.

rule prohibiting distribution of literature on plant premises)

Matter of Jensen Radio Mfg. Co. 27 NL. RoB, 813, 830-831

( ibe ne) . National Lahor Re lations Board va Gh vin } Martin

Vebraska Co. WL FL (2d) 3871, 372 (C. C. ALS) +4iserimm-

RoavdecGleurte-Mantin

(Cah (discriminatory “applica ation #3 no-soliciting

wule: . Vational Lahor Relations Board ae f ‘olumbia Products

“Zorp. IAL FL (2d) 687. 688 CCL C. AQ 2) (discriminatory

application of no-visiting rule}: Westinghause Electric &

V fa. ( 0. ¥. National Fi thor segue mated, 112 F. ( Yd) O57,

“aoo-660 1C. CL AL 2) caffiniied, 312 U.S: 660 (aliscriminatory

refusal to permit one of two contesting unions to use company

pre Hijses for holding MieevuLaAgS } - Matter op Ww allace M fa. CS.

2.N: L. R: B. 1081, 1085, luge, 109%, enforced, 95 F. (2d)

“SIS, ww) (CLC. AL A) Cade ne): Matter of Berkshire Aunitteng

Midis, 46 N. L: R. B. 955. 966-968, OTT i, @ nforced, 1s? F, (2d)

Ib4. 180-0C. C. AL 3) certiorari denied, 322° U.S. TH Gidea):

Notional Labor Relations Board v. Wate man hte amship

Corp. 309 ULS. 206, vvd-2uti (discriminatory refusal to Isstte

slapbeard — ‘to Union representative} ; South Atlantic

Steamship. Co. Nv. Natiorval Labor Relations Board, 116 ¥.

(2d) 480, 199.183 (C. C. AL 5) (dem), ceg iran) denied,

. Vi

aig eae

all alike, "* so an eniployer’ . rule does not aequite

immunity from the statutory, injunction against

interference because it Glassifies union literature

along with types , of printed matter which have no

Specific statutory protection and ‘pans. the ‘dis-

tribution of *all: alike. This and other Courts

hav? held that the Act is vidlaved whenever an

employer engages in conduct which tends to inter-

fere- with the free exer¢ise of rights guaranteed to

“employees ‘by the statute, even though ‘the em- -

plover is not motivated by anti-union animus‘and

does not intend by his conduct to viotate the -Act.*

313 U. S. 582; National Bebo Relations Board v. ’ Galitip

elierivan Coal C On, 131 F. Yd) 665, 667 (C. C. ‘b. 10) (dis-

acriminatory denial ‘ef: sign’ posting privileges on company —

premitses) .. ie

Wurdock vw. Péennsyleania, : OU.“ S. 105, 115.

* Absence of illegal motive or intent is ne more determina-,

tive of the validity of the employe “s conduct than is absence

‘of intent to violate the Constitution determinative of the Vva-

‘lidity of legislation Which is alleged to infringe constitu:

tionally guaranteed civil rights. Jnfernational Assoc —

os of Mac hinésts. , # N ational Lahor Relations Board, 41 1 U. §

72.80; Vational Labor Relations Board v. Link- Be It Co.., as

U.S. DS4, 599: HM. J. Meinz Cove N ational Labér Relations

Board. 311 U.S. SIAL SR0-521: National Lahor Relations

— v. w hither Mills Co. 123 Fo: 2d) 125, 727 (©. ©. A.

bi ed : Vational dLahear Relations Board v. ye & Ollier En-

grav ing L o, 123 FL (2d) 589, 593 (C0. C.-AL 7): National

Lahor Relations Board Burry Bisenit Corp.. 123, F. (2d)

5A OAD 145. 4... 7) re Varina! bLahor Relations Board v.

Tludson Motor Car Co... 128 F. (2 dd) WS 5 532. 533:(C. C. A.”

6): Vational Labor, Relations Reard vy. Star Publishing Co.,

OT F. (2b) 465. 470 £0. <;. A. 0): National Labor helations

a v. CSties ‘Ser rice Oil Co. 122 F. (2d) 149, 152 (C. ie

>: Republic Aviation Corp. v: National Labor Relations

Board b4z FL (2d) 198, 196° (C0. C. A. 2), certiorari granted .

t :

» &@

® .

W here the caly practical, method of! soca.

ing* union literature to employes depends upon

utilization ofthe employer's property, the Board:

is. called upon .to decide. whether. sucti activity

would i impose upon the employer a detriment so

severe) as to justify prohibition, of the distrybu-

tion ar consequent, frustration of the crployees’

rights under, the Act CR. 41-43). ‘In the instant

case the Board first-considere rd the extehit to which

the Company's rule, insofar as it prohibited dis-

‘tribution’ of, union literature by employees on the

parking lots, deprived them of ‘the freedem of.

communic ‘ation Which is essential to the exercise

of the right to self organization ” (H, 41). . The

“Board found that: iy

: o 6 & -responde nt’s pfant is loc ated in

‘the country in-thie heart 6f 6:Q0U acres of

land owned by. it oy ifs subsidiary. Apart

from U.S. Highway No. 13 (and perhaps

the inte rscetihe road), the respondent. and

its subsidiary own all the laird adjacent to

the gma This, in itse If, seriously «limits

October. 9, 1944, No. 226, thie Te ‘yon South Ath ani the Steam

ship Co. v. Vational L abortRelations Board, 116 I. (241 ) {s0).

#82 (C. CL A. 5), certiorari dened, 3818 USS. S82: Natidnal

Labor Relations: Board Ve Glick Brewing Co. 144 F. (2d)

j S4T, | SL —S54. Cl ¢ ._ A. 8): Rie fe ld OW A orp. ay ational

Labor Be lutions Board. fe , FF... (Yd) <60, SB2-(¢ ws A. 9);

Vational Bahor BR lations B Ot ‘d ¥. Hugine ‘ tng io ley weate h,

Corp. decided October 12, 1944 (4 <C. A. 4); Me duay-Nori is

} My. Cov. National Labor Relatiyns sige L1G EF. (2d jy74s,

mC. C. AL 7). certioraridenied, 313 USS. 565: American,

Ries iting ad Refining Co. v. National L abor. = lation: s Board.

126 FL (2d) 6s0, 6x5 (C.C. A. 8).

Fs : ; iz Se

the possibilities. of effectively communiecat-

ing’ with the bulk of the respondent ‘*s em-

plovees. This limitation’ would: not,- how-

- ever, be too restrictive if the fespondent’s’

gaté opened diregtly onto the highway;

for then persons could starid .outside the

respondent's: premises and distribute liter-

ature as each employee entered or left, the

plant, But at the respondent! s plant. the

pate is 106 feet bark from the highway, on

., company property. Over 60 pereent of

the respondent's vinplovees, after passing —

the gate, enter automobiles or buses parked

; in the space between the gate and.the high-

way. [i. e. the North pirking Jot], and pre-

sumably. speed homeward, without ever

setting foot.on the highway. Distribution

= wot liters ature to Cnn plovees , Is rendered vir- >

tually impossible nndeér these Gircumstances,

can it is ay ingscapable conelusion that self-

orgdnmization is consequently seriously im-.

pede OR | ii. 41-42).

The Board. further Founid that because “the em-

ployees’ homes are scattered: fiver a wide area,’

hovise-to-house — distribution of liteMiture was

highly impracticable (R. 42 ),’and that “Tn the

absence of a list of names andaddrésses, * * *

direct contact t with the majority of the respond-

ent’s émpleyees ee av from thre plant would be

extremely diffieylt’? CR. id.). Here then, since

the’ bulix of em loyees do et upon leaving the”

plant. step out “Inte a public street or highway,

‘essential organ ational literature -ecan Re - dlis+

‘tributed to them in the normal. fasHion only if the

virtually impossible for the Company's employees

+) “realize the benefits “of the right to ie

‘organization: guarantee then by the Act’’

certiorari granted, October 9, 1944, No, 226,- this” Ma

. Term), the Board proceeded to consider the pos: oo

: the littering of its parking. lots. "The Board ree-

ognized that the Company had a legitimate in-

terest in-preventing littering but it found that the

- ture on the parkiny lots. It pointed ut that the

parking. Tots Would be distribution within the plant itself.

- plant would be likely to, inpose® some cetriment upon theem-

_ distribution within the ‘plant, Whether, if no alternative.

“method of « listribution were available, thé Board would order - -

would-be distributors are permitted to use the

parking lots (R. 42, (6-67). |

_ After émphasizing that enforce ‘ment of the Coin--

pany’s. Fule' under these circumstances foreclosed

a vital avenue ‘of communication and made ¢it

(R. 41, ef. Matter of Repubtic Aviation. Corp., 51

N. L, R. B. 1186; 1193, enforced, 142 F. (2d) 193°

sible detriment to the ¢ Company ‘s interésts whie ‘h

would result fron’ abrogation of the rule as ap- |”

plied to the parking. Tets, The Company con-

tended first ‘that its rule was necessary to prevent

danger of litte ‘ring neither necessitated hor justi-’ |

fied a rule precluding distribution of union litera-

aie

™ The caly practical dai to distribugion on the

Sinte, as the Board pointed out in the "Tabin- Pickey case,

supra, Gstribution ef ution literature within a preduction

plover: the Bo@rd did net order the Company to permit such

an employer to permit distribufion of literature w cithin the.”

plat would de: pendfupon its appraisal of the be nefit” “preju- :

diss consider: ations set out below. .

: \

Littering of: parking lotstis by: ho nieans as sekious

to an employer as would be dittering ‘within —

buildings where proddétion: is) being carried

ee a tal cR. 42; 78, 71-72). The necessity’

of cleamng litter fron™parking lets, like the ne--

cessity. of cleaning ‘it from city streets, is at most.

a “‘nrinor nuisance.’ Martin x. Struthers, 319

U. Seth. But the Board’s order; as it noted,

does: net require the Company to bear even this

“minor burden, since it doesnot deprive the Com-,

. pany of the power to prevent the littering of its:

parking lots (R. 42). The same “obvious methods —

of preventing littering’? (Schneider y. State, 308.

U.S. -1AT, 162), Which may. result from the dis-)

tribution .« if printed matter are Oper ay an-

ploye ras aye opyn toa manic ipality which wishes -

to keep Ws streets clean. * Amongst these is the

punishmeyt of those who actually throw papers”?

oon the parking lots. “The best way to.prevent lit-

tering, as the. C ompany *'s plant manager in effect

conceded at the he awh g (Tr. 121-122 . is to niake

‘a rule against litte ring. This Court ‘s holding that

‘tthe purpose to keep the streets clean. and: of good.

appearance ts, insufficient’ te justify an ordinance

whic hy prohibits a person rightfully on -a publie

street from handing literature to one willing sett

“receive it 4 8 (Séhiicider case, 308 U,

at p. 162), is paralleled by the og

in the iistant case thaf an emplover’s similar pur-

pose. dges not justify a rule which: prohibits ai

einployte Who is rightfully and necessarily on the’

a . ane . : ae , . in

Ne ; 9 i

parking lot from there handing wnion literature.

to those of his Tellows who are willing to receive -

The. ¢ ‘ompany 'S second contention, that its rile

Is necessary in ordey to prevent lit@rattire from

being brought into the plant. where it might al-

legediy interfere with’ efficiency and endanger the-

safety of machines and employees, was teyected

-by the Board as ~vithout merit. The Board

pointed out that, the Company does not attempt

te prevent employees from bringiig newspapers *

or other reading matter ito the plant: im fact,

the Company jplaces.copies. of its’ magazine inv

boxes’ near the: plant gate, which employees Can.

take with them Info the plant (R. 43). It is

avident,- therefore, as ‘the Board found éid. ), that

the ‘Company does not sincerely’, fear that the”

distribution of literature ow its parking lots would

have any appreciable effect upon the efficiency’

~vand satety of operations within the plant. “Eveti -

if such a danger did exist, it could easily be met

within the framework of the Board’s order. As.

‘dhe Joard pointed out’a ‘rule. barring the carry

‘ing of terature * °* * intothe plant * *, *.

yuist the .

plant

-. would provide ‘a better safeguard aga

impairment of efficiency and safety in

gd would

(R. 43)2

_ The Company's tinal contention that the rule

than arule directed at distribution,

not be subject to the suttie objections”

is necessary to prevent thefts from automobiles .

alle nved “fred

: ; = , 29

left on ‘its: parking lots, ‘is 5 manifestly untenable.

Thefts, which had occurred while the Company

pe rmitted. non-e mployees to distr ibute commercial

advertisements on the parking lots (R372 R0-81 ),

admittedly ceased when aveess to the lets was

denied to outsiderseand gnards were statianed on

the lots CR. 33, 792 Tr. of oral argument before

the Board,.33). The Company's no-distribution

rule can have’ no. tendeney - to prevent. thefts by

employees ‘33

aceess to’ the lots. i? any evgit” i

CR. 42),

. the fts by outsiders it remams prec ‘iselye as € ‘ffective

_after the Board's : order as before; the order does

not require the Company , to grant ‘access to its >

parking lots to outsiders, having ny legitimate

——>y v

business on its premises."

''The-facts in the instant case de not: -present arid the

Heard did not consider the question whic h would arise af

unlon representatives who were not employed at the plaat

sought to distribute liter: ATURE OF the parking lots. T he same

benefit. prejudice considerations. which the- Board deemed

' controlling in this tase must be applicableto such a situation,

and the consistent holdings of the Board and the courts that

an employer may not deny access to his property to ‘union’

__Yepresentatives when access Is necessary to enable the em.

"‘ployees te exercise their rights under the Act intelligently

(mn. T.4p. 90-31. supra), would indic ate tnat, subject to what -

ever safe griards naa be appropriate (CF. Martiny Struthers,

OU. S: 141, 143): union represent: itives, no less than. emt

ployees, should be permitted to, distribute. literature on the.

parking lots (Cf. Brief for the United States as Amicus.

. Curiae in BOIL Thomas y. Collins, No. 14, this Term, pp.

Ls,

14-15, 28-29, 34-36).

Ce, as. the Board foynd, they are:

sofar as thee rule tends to prevent ?

cs »

- The he Company” ‘S assertion that if. it: were” re-.

quired | to pe ‘rmit its employe ees to distribute union

“lite ‘rature on the parking’ lots it could not *right-

* fully deny -to Jother me ‘mbers of the public and /

other employees thre right to distwibute. other

literature’? (C ompany ‘'s br ief in the court below,

Jf. OF 1s based on a won se quitur, The requirement

thag an. “employer fulfill his Statutory obligation -

of non interference with the ‘dissemination of self-—

organizat i®val infeytiation by employees anid

heir representatives no more preve nts him frem

pre shibiting. the dissemination of other types Df:

printed mat y by either employees at the peblic

at latge than*does the constitutional requirement |

that governmental agengies refrain frogo infring-

ing upon freedom of the press prevent them from.

“restricting the distr’ ‘ution 6f comme reial, yend-

bills. Murdoe he . Penusyleania, 319 U.S. #05,

e TIL; Valentine ¥. ( here stonsé i, O16 U.S. 32, 54-55 7

Se hneider 2: State, Sad Vv. 7 i, AGS, Goce pp.

206253, Spr Je :

~The most Senificeant reasén offered by the Com-

“pany for the application of its no-distr ibution. rule

to Ubien dite ‘rature appe ars clearly. from the fol-

lowing statement in itsabrief in the cour below

‘(p. 67: **sinee an election was held the result of

—— Which. was against the Union * *.* dist ribis-

tion “OF -funion]. literature pro and con would

necessarily enge nder strife.” . The court below:

evidently adopted this suggestion as justification

for the-rule, After citing with approval e rea-

- goning jf the Circuit» Court

Met as

Sixth Chventé in Midland se Mrodusie ‘Co. ¥,

* National. Labdr Relations Board, 113.8. -¢€2d)..-

,8002° the court said: Unfortunately organization. .

efforts often produce excitement and féeling

along the - employees, even exh ibitions of Viow’

Jenee’? CR. 93 re But this argument’ Proves: too

muehk. ‘It would se TVe equally well to justify pro:

hibition chet on ly of" the. distribution of unton lit-

erature but af unigh discussion or solicit: sth,” at

any place, because such activities might CaMse se

mich hostility bet ween employees | as 10 interfere

with thetr harinonions ‘relations dairing working

hours’ What this’ ‘argument really ‘amounts to is-

that an employer should be. permitted: to ban any.

activity w hich night create differences of opinion

among employees about joining a anien er remain--

ing aloof The insubstantiality if the C ompany 's

fears that tht distribution of union bicckiane

would ‘engender strife’? and thus interfere with

production is apparent in the light of the fact that

the Company does ‘hot find it, necessary oF desir-

able to prohibit orak solicitation and discussion:

about unions on its” premises, gondyeth x which; on

*Tn the Midland: case the court held that” an employer” “?

rule ‘which prohibited uerien solic itation, on plant premises

during non-working as wéll as working hours w was not viola’

tive of the Act. The court found justification for the rule i

the alleged ir that, “Solicitation, argument, the harfing. of

epithets in fense discussion before work has been commenced:

- or in the noon hour, may teasonably be expected tovcarry a ber-

tain animus over into werk hours.” 113 F.-(2d) S00, 805 80%.

mas

| 2 es a

“ ae ee, ,

the reasoning of the wourt below, would bets at

-Jeast as great @ ‘tendency to ‘produce excitement

and feeling’? (R. 93) among the .employees as wy

“would the distribution of promotional literature.

If. oral discussion and solicitation. for unions on

thre: Company’ Ss premises does not result in mani- %

festations of “feeling” af oF. violence” whiéh inter-

fere with production, it is difficult. to understaid

how the dissemination of: union, hiteraturé_ could .

. *

. The instant: case, as ‘the Board pointed out

“(R. 40), 3 g requires an evaluation of conflicting

riglits ieee y policies—the employer’ s right to regu-

late the use of his ‘own property, on the one hand, - 4

‘as. against the émployeés’ right to receive infor-

mation-to enable them to. exércise their right td

: s¢lf-organization, which it is the polict of the Act

to encourage.”’ The Cireuit¢ ‘aurt of Appeals for

the Second Circuit ii) discussing the ‘analogous .

situation presented in the Re pubes case, said that«

it is for the Board to determine in such eases .

“(1) wHat in fact will” be the prejudice to: the

interests of ghe employer in allowing {the par-

do so,

ticular union activity involved | to” go le ia

and what will be the -benefit, to the employees ;_

and what will be his benefit and their prejudice

ill, disallowing £4 (2) whether the’ bene iP shale

prevail over the prejudice, or vice versa * (142

F. (2d) 193, 196). And: the courts in that caseg

properiy récognized’ that ‘only ‘in cases where

[the reviewing courts]. believe that. there is no

. toes | es 4 ° :

“

- pp. 24-32), upon a careful appraisal of the preju- .

: : 33°

iS bad

treasonable warrant for the’ - priority ‘actually.

awarded” (id) may the Board's, order ‘be set

aside. The Board's conclusion. j in the instant case;

that the Company's rule, insofar as it conflicts

with the statutory policy of ‘protecting the ex-

“ercise, by workers of full freedotn of association,

- self- -organization, atid designation of représenta-

“tives of their own, choosing”, (Section 1), must gives

way, was. Vased, as. we. have shown above (supra,

dice to the employees | and benefit to the employer

Which would flow from continued enforcement of

the rule and of the- possible prejudice to the

employer and benefit to the ‘employees? which

, might result from its partial. abrogatien., In view

of the Board's findings that No. prejudice what-

ever’ would result to the Company from partial

abrogation of the rule, whereas. its continued: ene |

foree ‘ment would render *self- -organization among

the ¢ Company's S employees virtually impossible of

+,%

attainment, the Baard. was clearly justified in

7 awarding “priority” to ‘the inter ests of thie. ém-

ploye ees. -Certainkly it. cannot be: said that there

‘s** “tho reasonable warrant’ *Yor the Board’ Se CON- | -

- clusion; consequently, unger the principles: of

judicial review applied by” the Second Circuit,

which, we submit, aie ¢ utirely’ proper the Board’ S.

decision should. have bee n sustained. °

The ‘court below did. not set aside as unsup-

epor' ted by the eV idence, any of the Board’s find-

a gs Of fact, ‘converning j the® repercussions of thg

that upon those findings the Board’s conclusion,”

. nA 34.

Company's: rule upon the interests of ine. em-

Mayes: and of the employer. Nor did it hold.

that proteetion of the statutory interests of the

employees demanded abrogation of the rule tos

the extent directed. by the Board’s order, was, un-

reasonable. Instead, unlike the Cireuit. Court of -

Appeals for the Second Cireuit, it failed to acgord,

any weight whate ver to the Béard’s construction

of the statute; it excluded as irrelevant any con- ”

sideration of the extent. to which the rule as ap--

plied deprived employees af practical opportunity

to exercise the rights which ° the statute, in. the

‘public interest, conferred upon them; and it com-’

pletely disre ‘garded the Board’s determination’

that under the cirewmstances here presented, on

~ balanee, the interests of the employees ‘should.

prevail. . The court’ below thereby disregarded the

prineipile often enunciated by this_Court that

_upon such questions **the experienced jidement

of the Board is entitled to great weight.’’ Medo

_Photo Supply Corp. v. National’ Labor Relations

Board, 321 U. S. 678, 682, 684; National. Labor

. “Réiations Board vy. Hearst ‘Publications, Ine., 322

Vv, is 111, 130-131; Dobson v. Commissioner, 320

U.S. 489, 500-501, and cases therein cited.

In place of the Board's -ceusddeced isahdé

which gives effect to the language .of the statute

proscribing employ er ‘interference’ * and at the

same time recognizes that limitations upon self- ~

organizational activities may at timies be appro-

\ a

Ge a Ko

priate when — activiti 's conflict yith substan-

~ tial, legitimate employer interests, the court

below substituted its -ow® rule—that an employer

may insist “that the employees discuss and act

-in the matter of their own organi#ation elsewhere

_ they enter tlie employer’s property. As we have.

* shown above (supra, pp. 18-20), the Board and

than on the employer’s property”? (R. ,93). “The

court's rule rests.on the fallacious assumption that

employees lose their’ “righ ts under the Act when -

the courts have uniformly held that dn employer

mays net deny access to his pr@ aperty to unien

organizers and thereby block an essential avenue

of communication betwevn employees and those

through whom they cain make their statutory

rights. effective., And ever the court below 2ec-

“that-the employees discuss and act in the matter

_ oF their «wn organization elsewhere than, on the

employer’s property,” if his motive in doing so is

to discoukage or impede self-organization. Na--

tigual Labor Relations Board v. Peyton Packing

Co., 142 F..(2d) 1009 (C. C.- A. 5), certiorari

denied, @ctober 9, 1944, Na, 298, this Term. Since

the employer’ S motive, a- we have demonstrated.

(supra, pp: 21-23), is not the decisive factor in de-

termjning whether conduct w hich interferes: with

full freedom of Self- -OTS! nization is_ violative of

the Act, the right of em) !oyges to have access to

information and advice »: cessary to enable them

to exercise their rights vider the Act cannot be

made to depend upon the employer's motive in. |

ae e- such access.to them.

‘Fhe Company itself concedes that there must pe

some: accommodation between ‘its right to regulate _-

the use of its property and the statutory rights of

the employees, for it admits (Company’s brief ‘in,

. the court below, 10; see also Tr. 219-221, 236-237)

that a no-distributing rule, if applied to the entire

six thousand acre tract.of. land, “might be too —

-restrictive.”’ Yet, under the rule applied : by the °

court below; the Board would be powerless 'to find

even such a rule ‘violative of the Act. In sum,

the theory adopted ‘by the’ court. below would per-

mit any employer who controls the property*on’ =

which his empleyees work: and live’ to foreclose

every afénue of communication of organizational

information ‘to and between his employees. and

thus effectively to preclude them from. obtaining

the benefits of the Act. So te construe the statute

would frustrate attainment of. its objéctives in a

large segment of American industry.

— The same vices inheré in*the approach of the

. Cireuit Courts of Appeals forthe Fifth, Sixth,

Eighth, and Tenth Circuits to cases involving the

validity of rules prohibiting union solicitation on

“an employer's s property during non- -working as

| a as working time. Midland Steel Products

C National Labor’ ‘Relations Board, 113 F.

(: 2g) 800 . 805, 806 (C. C. A. 6); National Labor

Redions Board vy. Williamson-Dickie Mfg. €o., :

130 F. (2d) 20, we, 267-265, (C.°C. A. 5)3'C arter-

~ the rule was.unreasonable and hence null and yoid.

Whether this rule was reasonable is a question of law for the

. ve ee

Carburetor. Corp. v. Natiénal Labor Relations

Board, 140 F.€2d) 714, 716 (C. C. A. 8) ; National

Labor. Relations *Board-v. Denver Tent & Awning

Co., 138 F, (2d) 410, 411 (C.-C. A.10) ; Boeing

* Airplane-Co. vy. National Labor Relations Board,

140 F. (2d) 423, 435 (C. C. A. 10). ‘These courts

adopt the view that no-solicitation rules cannot. be

tional. rights, iftthe rules are * ‘rei asonable.’t They

hold further that the “reasonableness” of such

rules is a matter of law to be determined exclu-

found to violate the Act, no matter how serious *

their effect upon ‘the exercise -of self-organiza- ~

sively by the courts.” — is_a usurpation of.

administrative functions (PI 32-34, supra).

* This approach is ‘exemplified, by the opinion of thé

JSiath Circuit iw the. Widlaud case (113 F. (2d) at p. S059:

“Since the rule was violated, the discharge was |: awful tinless

* * *

court to determine, Little Rock & M. Rd. Co. v. Barry, &..

Sir. 84+ F, 944, 43 L. RAMA. 349; Missouri, Kok 7. Ry. Co. ve

Collier, 8 Civ. 157 F. 347: Chicago, R: L&P. Ry. Co. ¥. Ship.

8 Cir. 174 F. 353; Central Rd. Co. of New io Jersey ¥. Young. 3

Cir., 200 F. 359, L. R. A. 1916E, 927."

It i is noteworthy that the cases cited by the coart to support

is for the courts to determine did not arise under the Act.

Obv iousdy the question of whether court or juryis the proper

. tribuna¥ to decide the ° ‘reasopableness” of working rules

when these are challenged in a. negligent?assion’ *by an em-

ovee is-entirely unrelated to the. question hether, under

’ the statutory scheme created by (@ngress, the Board-or the

court is the proper tribunal to decide whether an employer's -

rile whie h infringes’ rights guaranteed by the stat

sonable.” The answer to the latter question is indic

-referénce to. Section 10 (e) of the Act and the app lic abl]

e is * ‘rea-

tec by

the proposition that fhe “reasonableness” of employer rulés

deci- .

Pia

‘Moreover, in determining the reasonableness of

such Tules, these courts apply a different standard

than that applied by the Board. They disregard |

_the interests of employees.which the Act protects, -

‘ and determine “reasonableness” solely ‘i in relation |

_ to the sled cofitmon law right of employers to

control the use df théir property and ‘the conduct |

of their employees.. Such an approach i is no{more -

appropriate in- these cases than it was in the .

Flearst ease, supra, or in. Securities_&-Eachange

Commission v. Chenery Corporation, 318 U.S. 80,

87; 89, 90-92: As the Second Circuit pointed out

in the Republic casé (142 F, (2d) 193, 196), when

atr ibunalis.called upon to determine questions of-

“reasonableness,” which ariee in many fields of

the law, it ‘Valances the” “interests against each

éther, and awards priority as seems to it just.’’

> But if courts exclude from consideration the statu-

tory interest gof employees in self organization,

their findiug that an employ er’s rule is ‘“‘réason-= ”

‘able’? could not be the product of a balancing of

employer and employee interests but is simply .a

- +> conclusion ‘based on the erroneous: premise, that

employees lose their statutory rights upon enter-

ing the employer’s property. _Te assert that an

~ employer has the power absolutely to prohibit Be

sel f-organizational activities on factory yrounds v

as an exercige of his plenary control ‘over such.

—*,

siovis of this Court Cited above (p. 34), vidi, we supmit.

have been properly interpreted by the Circuit Court of Ap-

pels for the Second Circuibin the Republic Gase.

-<3

. property is as irreconcilable with the. limitations

‘imposed by the Act as is the analogous assertion

bya municipality that “as an exercise of the ¢ ity’ s

plenary control of its streets * *. it has the

power absolutely to prohibit the use of the streets —

for the communication of ideas’’ irreconcilable

with ths limitations imposed by the Constitution.

Jamison v. Texas,’ 318 U.S. 413, 415-416. It is

‘rathér the Board’s approach in in ‘these cases whigh

-comports with judicial standards, for, as in the

instant case, a Board finding as to’ the reasonable-

ness of an employer’ s rule rests ‘not upon a dis-

‘regard of the interests. of : one of the parties .

affected by its decision but upon a careful ap-

praisal of the interests. of both parties. In re-.

solving whatever conflict, exists between them, the

‘Board’ seeks to accomplish ‘the greater good”’

(R. 40).

In support: of its ,eonelusion* that an, a employ a

“tmay lawfully prohibit all self-organizational ace |

tivities on his premises, the court below stated that

under Seetion 8 (2) of the Act an employer “car

not facilitate the organization [of ltis employ eés]

even by providing a meeting place. without in- |

curring the charge that he is attempting to domi-

nafé it” (R. 93). If by this the-court intended to )

. imply that Section 8° (2) compelled the Company

Ap prohibit. the distribution “of union literature

‘on its par king Tots the court we submit was clearly

in error. Tt is true, of course, that an employer’ s

ap to a labor organization of. such- ‘Valuable

lad

2 ie se a” 2

"facilities. as a@ J kecting wise, bulletin boards;

clerical ° *~ or legal. services * * and the like; con-

-* Matter of Berkshire Knitting lille, 46 N. L. R. B. 95!

977, enforced, 139 F. (2d) 134,139 (€. C. A: 3), suehibie

_ denied, 322 U > 747: Matter of C uday acking Co.,

"N. L. R. B. 302, 316, enforced; 118 F. (4) 295 (C. CKK. :

10); Matter of Western Garinent Mfg. Co. 10 .N. L. BR. B.

567, 570, 573; Matter of J. Greenebaum T anning €0., 2%

uary 26, 1942 (C. C.AvT): Matter of Virginia/Electric €.

-o NLL. R. B. 672, 675, 684. 685, enforced by nae Jan-

Poiver Co., 44 N. L. RoB. 404, 415-418, 425, nforced, 319

U.S. 533; Matter of Hancock Brick & 7; Co., 44 N. L,

R. B. 920, 9294; Matter of Norfolk Shipbuilding & Drydock

Corpération, 12 N. L. R.. B. 896, 891, 993, enforced, 109 F.

(2d) 128, 129 (C. C. A. 4)5, Matter ¢ Houde Engineering

Corp. 42-N N. LR. B. 713, 722, 725;Matter of Carlisle Lum-

bereCa.. 2X... R. B. 248, 270-871. enforced, 9£ F. (2d)

138° 143, (C: C. A. 9), ¢ertiorari, ‘denied, 304 U. S. 575;

Matter éf Lane Cotton Mills Co.. 9 NL. R.. _ 958, 969-

970; enforced, ‘111 F. (2d) 814, 816 (C.C. A. 5}; Matter

of Bradford ‘Dyeing Asen., 4 N. L. R. B. 604, 613-614,

~ enforced, 310 U,,S. 318, 335. ;

*% Matter of John A. Roebling’s Sons Co.. W N: L. R.-B.

482, 499-300, enforced, 120 F. (2d) 289, 293 Ay C.-A. ays

| Matter of Western Union Telegraph Co., 17 -N. L. R. B. 34,-

- 63, 137, enforced, 113 F. (2d) 992, 995 (C. C, A. 2); Mat-

ter of General Motors Corp., 14 N. L. R. B. 13, 120-122,

enforced, 116 F. {2d) 306, 308-309 (C. GC. A. 7).

*% Matter of Cai'v2 Rope Works, Ine., 4 x L. R. B. 1100,

1110: Matfer of. Toad Shipyards Corp. . L. _R. B. 20,

34-35; Vatter of & Lowenstein & Sona, So 6 N.L. R. B,

216, 232, order @nivreed by’: consent, October 24, 1938 =

“"(C. C. A. 2); Matter of Union Die Casting Co. 7 N. G.

_R. B. 846, 851: Matter of Lady Ester:Lingerie Corp., 10 ~

= L. R. B. 518, 524; Matten of Rath Packing Co., 14

L. R. B. 805, 813, enforced, 115 F. (2d)- 217, 219

c-&. $). .s

* Matter of Remington Rarid, Tic... 2 N. L. R. B. 626, 732.

enforced, 94 F. (2d) S82. 868, 69 (C. C. A. 2). certiorari

® .

| 4i

f stitutes support. within the meaning of. Section

Ve : | ee: But the Board has never held that mere .

_ Zin. interference by an employer with union solici- °

tation or with distribution of union literature on

his premises during non- -working time amounts to

. illegal support. Nor eould an employer be. sus-.

> pected of attempting to-dominate a labor organiza-

tion simply because of his acquiescence in such ac-

tivities. .Findings’ that. an employer has domi-

nated a labor organization within the meaning of

Section 8 (2) depend upon ‘the existence of con-

ditions or circumstances which the employer

created or for which-he was fairly responsible and —

as a result of which it may-reasonably be inferred . ,

e that the employees. did not have that complete and?

unfettered ana of choice which the Act con: ;

: denied, 304. U. ‘Ss. 516: Matter of Kiddie Kover Mia: Co... : °

6 &, L. R. B. 355, 362-364, enforced, 105 F. (2d) 179°

(C. C. A. 6): Matter of Industrial. Rayon Corp., TN. L,

R. B: 878,.890. 1 ae 6 dae

* The Board statéd in its Seventh Annual Report, “1 is,

an unfair labor practice * * * fér employers * * *.

te aid the [labor] organization by supplying-financial aid

or the use of company facilities suchas bulletiw boards,

mailing lists or office “space.” National | flaber Relations

Board; Seventh Annual Report (Gov't. Print. Off., 1943), -

‘p.45. In its*Third Ansiual Report:the Board cited casés

in which it found that by “furnishing financial aid and

various facilities _to employee organizations, such’ as the use

z of~bulletinboards, mimeographi machines, the Company

automobile, stenographic. services and office space’ and-mail-

‘ing-lists” employers had violated Section 8 (2) of the Act.

National Labor Relations Board, Third Annual Report.

(Gov't. Print. Off., 19375, pp. 113-114, see also p.. 115.

templates.”’ National Labor. Relations Board v.

. ° .. Link-Belt Co., 311-U. 8. 584, 588. Such a finding _

. must take into account the “whole congeries of

facts’’ (id.) including ‘‘imponderable subtleties at

_ werk’? ‘which it is the. Board’s function, to ap-

praise, National Labor ‘Relations Board v, Vir-

ginta Electric & Power Company, 314 U.S. 469,

Link-Belt case, supra, ‘no one fact is conelu- A

sive.’ * Often, the grant of valuahle facilities to |

a labor @rganization or the sanctioning of or-.

izational activities on working time * is deemed ~

(Cf, Rosenfarb, Th Vational Labor Policy and How 4

ss ee Works. (1940), P, 115: “In-virtvally none of the Cases have .

¥. employer attempts at domination been along any single :

line of attack. Manifold activities have been resorted to'to -

achieve this evd. The Board, has, therefore, never had“ to

decide as to th determinative effect of. any one activity.”

- In proceeding: ‘with the” arialysis of. the Ways and jeans

of interference, with company unions, the factshould not

-be lost sight of that the Board had ‘dealt. gith them me a

_ combination of circumstancés.” —

G*In ‘determining | whether a course; of conduct constitutes °

28 violation of Section § (2), “The” Board has - * +

, considered the effects of employer's activities. ia sitin

«2+ ‘thesfonduet’ of organizational .actiyities on the employer's

_. premises’ during working hours with. the @onsent of the

‘employer.” National Labor Relations Board, Third Annual

» Weer 4 .

- Report (Gov't Print. Off., 1937), p. 113. See, for example, —

Matter of Cudahy Packing Co., 17 N. L. BR. B. 302, 317,

i enforced, 118 F. (2d) 295 (C. C. A. 10) (circula-

tien of union petition on- working time); Matter of Howe —

the Board. an. indication of employer favoritism

Co., a N. L. R. B. 99, 1403,"T413 ene of

“34

43 ; ‘

toward a particular labor organization and as‘such

‘an element of domination. Cf. H. ‘Rep. 1147, 74th

Cong., Ist Sess., pp. 18-19; Matter of Berkshire

Knitting Mills, 46 N. L. R. B. 955, 977, enforced,

139 F. (2d) 134, 139-140 (C. C.-A. 3), certiorari

denied, 322° U. 8. 747. But the normal inference

of favoritism which arises from the grant of com-

“pany time or facilities to a labor. organization may

‘be, and often is, rebutted by persuasive. evidence

of employer neutrality. For example, in Matter

of Mohawk Carpet Mills, Inc., 12 N. L. R. B. 1265,

1272-1273, the Board said:

The fact that the ‘geapondent sintaiited

Solicitation of. membership by the Amster-

_dam Union on company time w ould,- ordi«

narily, be ia Sa, | circumstance —

=m pefitions, distribpation of: literature, solicitetion,- during

working hours) ; Matter of. Todd Shipyards Corp., 5 N. L.

> R. B. 20, 34-35 (solicitationand meetings, on’ company

time); Matter of H. J. Heinz Co., 10 N. L.'R. B. 963, 970,

972, 973-978, enforced, 311. U. S. 514 ‘(solicitation during

- working hours) ;. Matter :of West Kentucky Coal’ Co., 10

N. L. R. B, 88, 103, enforced. 116 F. (2d) 816 (Cx-C: A. 6) ,

. (cireulation of membership cards during working hours) ; :;

eo Matter of Denver Automobile Dealers Ass'n, 10 N. 1. R. B. .

_ 1173, 1204 (solicitation of members during working hours) ;

' Matter of Hood, Rubber Co., Tne., 4 N. GL. R. B. 16, 24-83.

{solicitation of members on’ company time) ;, Matter of

Bradford Dyeing Assn., 4. N. L. R. B. 604 12-614, en-

forced, 310 U. §. 318,. 333-336 irculation of membership

~ cards during working hours) ; atter of Lane Cotton Mie

Go., 9 N. L. R. B. 952, 9NQ-790, enforeéd, 121 °F, (2d) 814,

816 (C. C, A. 5) (meetings held during working fours).

2°

e 482 x

| ¢

Be. )

_ domination and interference with that or-

_ ganization. However, since ‘the record -

shows that the T. W. O. C, [the charging.

tinion] was permitted like freedom in this

_ regard, we cannot say that sponsorship and

support of the Amsterdam ‘Union are shown,

withinthe meaning of the Act”

Normally, of ceurse, the mere fact that an emn-

ployer does not interfere with ‘the solicitation of

members. on behalf of a labor organization dur-

ing non-w orking time or with the distribution 9g

uniort literature in a manner which does not im-

pede production constitutes no evidence whatever

of: favoritism toward the labor organization. in-

volved, and we are aware of no case in which the.

Board has held to the contrary. Only if the em-

ployer interferes with the similar activities df a

“competing labor organization, or himself instigates

“the organizational activ es, Or affirmatively CO-

"operates with a. labor’ organization to increase

the effectiveness of its proselytizing techniques by . ,”

‘lending to them-an appearance of employer —

sponsorship’ does his conduct take on ‘the color of

| iggality.

CONCLUSION Ok RE nee. eet

For.the Arigong reasons it is; respectfully sub-:

y mitted that the decision below s lould be rev ersed.

° Nees rd: Matter of Ranvo, Ine:, .5TN CLR. ‘B. A25,; Matter

of Ponty Predtice rs of c ‘entral ¢ tm igi 25. N. L. R. B.

os 7.359, : ) } “

‘ ene “ 4

atid the cause remanded with directions to en-

‘force the Board: s order 1 in full. ‘

/ CHARLES Fany,

aes ayee Solicitor Genokal.

ALvIn J. RocKWELL,

; ' . General Counsel,

RctH WEYAND, —

2 + Mozart G, Ratner, ~

. Attorneys,

. National Labor Relations Board.

~ 4 .

= + a \

“ . a -

ye 52 . : &

fF “ ® ~~ . =

b ,

é —— Ng

The pertinent provisions of the National a thor

Relations Act (Act of July 5, 198549 Stat. 449, _-

#29 abt C., See. i a, et seq. ) 3 are as follows: *

-- \

a SEC. 1

- « ere * * Oise. }

It is- hecriihie declared to bé the poliey of

the United States: to eliminate the causes

of -eertain substantial obstructions | to ther.

_ free. flow of commerce and to ‘mitigate and *:

elinninate fhese obstructions: when they have |

,oceurred: by encouraging the practice and’;

at * procedure of eqllective- hargaining and by

Os ~ protecting the exercise by workers of full e

freedom of association,’ selfsorganization, |’

.° and designation of representatives .of ‘their’

, own éhoosing, for the’ purp&e of negotiat- *< |

ing the terms.and éonditions“of their em-.. °

- , ployment or other mutual aid or protec tion.

ec S ae *- + alae » eet

Sec. 7 7. Eimploye ees shall hay éthe vight. to»

self-organization, to forms join; or assist

, “labor organizations, to bargain collectively

through representatives of their own chdas-,

. fig, and to engage in concertedsactivities, -

for the purpose of eallective bargaining or

* + other —— aid oy protection,

Sere. 8. It:shall be -an¢ unfair = pre ‘ac :

‘tlee ae an employer— sh

‘yu. 4 ae iiitterfere with, - restrain, er coerce

__enaplaye ‘es’ in. the exercise. of the rights F

*attaganteed in section 7. --

(48) .-

Men.

a “re -

‘

(2) To. Seminite: or alia: With the

formation or administration of any labér

organization or coritribute financial or other

support to it:.* * * sok

(3) By. discrimination: in regard to dive

or tenure of employment or any term. or

condition of employment to’ encourage or

discourage membership. ae any labor

ics suena 7 a eee

e. * See 8. * as **

‘See. 10. - as °’ 7 e .

& 4 - Py a

4 : * & : a as ?

e) ~ -. e Tf nyjon. al] the testimony,

taken the Beard shall be of thesopinion that’

any person nariied in ‘the complaint. has

tie engaged in of is engaging in any such uni-

_ fair-dabor practice, then the: Board shall

_ State its’findings of fact arfl shall issue atid

cause to be served on steh person an. order

requiring such person to cease aad ‘desist

from such unfair. labor: practice, and to

~. take .such affirmative action, including re-

* “instatemenf of employees with or without =.

.. back pay, as will effectuate the policis ies of

o--€ this: We ey , wha

aig ie x ee Dok nae # Specs

- *¢e)- * ~The find ings -of ¢ the Board <

as to the facts, if suppeyted hy. evidence,

shi ll he conclusive.» af"

me s) x.

’ : 16

4 ° vai equcenmen psa OFFICE. 1946

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.