These two cases involve the question whether, in the
circumstances, it was an unfair labor practice within the meaning
of § 8(a)(1) of the National Labor Relations Act, as amended, for
an employer to enforce an otherwise valid rule forbidding employees
to engage in pro-union solicitation during working hours or to
distribute literature in the employer's plant when the employer was
engaging in anti-union solicitation and was committing other acts
which constituted unfair labor practices. In one case, the
employer's anti-union campaign was so conducted as to constitute an
unfair labor practice. In neither case was it shown that the
employees or the union had requested the employer to make an
exception to permit pro-union solicitation or that the
no-solicitation rule actually diminished the ability of the labor
organization involved to carry its messages to the employees.
Held: the records in these cases furnish no basis for
findings that enforcement of the no-solicitation rules constituted
unfair labor practices. Pp.
357 U. S.
358-365.
100 U.S.App.D.C. 170, 243 F.2d 593, reversed in part, affirmed
in part, and cause remanded.
242 F.2d 669 affirmed.
Page 357 U. S. 358
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
These two cases, argued in succession, are controlled by the
same considerations, and will be disposed of in a single opinion.
In one case, the National Labor Relations Board ruled that it was
not an unfair labor practice for an employer to enforce against his
employees a no-solicitation rule, in itself concededly valid, while
the employer was himself engaged in anti-union solicitation in a
context of separate unfair labor practices. This ruling was
reversed by a Court of Appeals. [
Footnote 1] In the second case, the Board, on the basis of
similar facts, except that the employer's anti-union solicitation
by itself constituted a separate unfair labor practice, found the
enforcement of the rule to have been an unfair labor practice, but
another Court of Appeals denied enforcement of the
Page 357 U. S. 359
Board's order. We brought both cases here because of the
importance of the question they present in the administration of
the Taft-Hartley Act, and because of the apparent conflict in the
decisions in the Courts of Appeals. 353 U.S. 921; 355 U.S. 811.
No. 81. -- In April of 1953, the respondent
Steelworkers instituted a campaign to organize the employees of
respondent NuTone, Inc., a manufacturer of electrical devices. In
the early stages of the campaign, supervisory personnel of the
company interrogated employees and solicited reports concerning the
organizational activities of other employees. Several employees
were discharged; the Board later found that the discharges had been
the result of their organizational activities. In June, the company
began to distribute, through its supervisory personnel, literature
that, although not coercive, was clearly anti-union in tenor. In
August, while continuing to distribute such material, the company
announced its intention of enforcing its rule against employees'
posting signs or distributing literature on company property or
soliciting or campaigning on company time. The rule, according to
these posted announcements, applied to "all employees -- whether
they are for or against the union." Later the same month, a
representation election was held which the Steelworkers lost.
In a proceeding before the Board commenced at the instance of
the Steelworkers, the company was charged with a number of
violations of the Act alleged to have taken place both before and
after the election, including the discriminatory application of the
no-solicitation rule. The Board found that the pre-election
interrogation and solicitation by supervisory personnel and the
discharge of employees were unfair labor practices; it also found
that the company had, in violation of the Act, assisted and
supported an employee organization formed after the
Page 357 U. S. 360
election. However, the Board dismissed the allegation that the
company had discriminatorily enforced its no-solicitation rule. 112
N.L.R.B. 1153. The Steelworkers sought review of this dismissal in
the United States Court of Appeals for the District of Columbia
Circuit, and the Board petitioned for enforcement of its order in
the same court. The Court of Appeals concluded that it was an
unfair labor practice for the company to prohibit the distribution
of organizational literature on company property during nonworking
hours while the company was itself distributing anti-union
literature, and it directed that the Board's order be modified
accordingly, and enforced as modified. 100 U.S.App.D.C. 170, 243
F.2d 593.
No. 289. -- In the fall of 1954, the Textile Workers
conducted an organizational campaign at several of the plants of
respondent Avondale Mills. A number of individual employees were
called before supervisory personnel of the company, on the ground
that they had been soliciting union membership, and informed that
such solicitation was in violation of plant rules, and would not be
tolerated in the future. The rule had not been promulgated in
written form, but there was evidence that it had been previously
invoked in a nonorganizational context. During this same period,
both in these interviews concerning the rule and at the employees'
places of work, supervisory personnel interrogated employees
concerning their organizational views and activities and solicited
employees to withdraw their membership cards from the union. This
conduct was in many cases accompanied by threats that the mill
would close down or that various employee benefits would be lost if
the mill should become organized. Subsequently, three employees,
each of whom had been informed of the no-solicitation rule, were
laid off, and eventually discharged, for violating the rule.
Page 357 U. S. 361
As a result of charges filed with the Board by the Textile
Workers, a complaint was brought against the company alleging that
it had committed a number of unfair labor practices, including the
discriminatory invocation of the no-solicitation rule and the
discharge of employees for its violation. The Board found that the
interrogation, solicitation, and threatening of employees by the
company's supervisory personnel were unfair labor practices.
Moreover, it found that resort to the no-solicitation rule and
discharge of the three employees for its violation were
discriminatory, and therefore in violation of the Act; it further
held that, even if the rule had not been invoked discriminatorily,
the discharge of one of the employees had resulted solely from his
organizational activities, apart from any violation of the rule,
and was therefore an unfair labor practice. The Board ordered the
cessation of these practices and the reinstatement of the
discharged employees. 115 N.L.R.B. 840. Upon the Board's
petitioning for enforcement in the Court of Appeals for the Fifth
Circuit, the company contested only the portions of the Board's
findings and order relating to the rule and the discharges. The
court enforced the uncontested portions of the order, but, finding
insufficient evidence of discrimination in the application of the
no-solicitation rule, denied enforcement to the portion of the
order relating to the rule and to two of the discharges. As to the
third discharge, the court agreed with the Board that it was the
result of discrimination unrelated to a violation of the rule, and
the court enforced the portion of the Board's order directing the
employee's reinstatement. 242 F.2d 669.
Employer rules prohibiting organizational solicitation are not,
in and of themselves, violative of the Act, for they may duly serve
production, order and discipline.
See Republic Aviation Corp.
v. National Labor Relations Board, 324 U.
S. 793;
Page 357 U. S. 362
Labor Board v. Babcock & Wilcox Co., 351 U.
S. 105. In neither of the cases before us did the party
attacking the enforcement of the no-solicitation rule contest its
validity. Nor is the claim made that an employer may not, under
proper circumstances, engage in noncoercive anti-union
solicitation; indeed, his right to do so is protected by the
so-called "employer free speech" provision of § 8(c) of the Act.
[
Footnote 2] Contrariwise, as
both cases before us show, coercive anti-union solicitation and
other similar conduct run afoul of the Act, and constitute unfair
labor practices irrespective of the bearing of such practices on
enforcement of a no-solicitation rule. The very narrow and almost
abstract question here derives from the claim that, when the
employer himself engages in anti-union solicitation that, if
engaged in by employees, would constitute a violation of the rule
-- particularly when his solicitation is coercive or accompanied by
other unfair labor practices -- his enforcement of an otherwise
valid no-solicitation rule against the employees is itself an
unfair labor practice. We are asked to rule that the coincidence of
these circumstances necessarily violates the Act, regardless of the
way in which the particular controversy arose or whether the
employer's conduct to any considerable degree created an imbalance
in the opportunities for organizational communication. For us to
lay down such a rule of law would show indifference to the
responsibilities imposed by the Act primarily on the Board to
appraise carefully the interests of both sides of any
labor-management controversy
Page 357 U. S. 363
in the diverse circumstances of particular cases and in light of
the Board's special understanding of these industrial
situations.
There is no indication in the record in either of these cases
that the employees, or the union on their behalf, requested the
employer, himself engaging in anti-union solicitation, to make an
exception to the rule for pro-union solicitation. There is evidence
in both cases that the employers had in the past made exceptions to
their rules for charitable solicitation. Notwithstanding the clear
anti-union bias of both employers, it is not for us to conclude as
a matter of law -- although it might well have been open to the
Board to conclude as a matter of industrial experience -- that a
request for a similar qualification upon the rule for
organizational solicitation would have been rejected. Certainly the
employer is not obliged voluntarily and without any request to
offer the use of his facilities and the time of his employees for
pro-union solicitation. He may very well be wary of a charge that
he is interfering with, or contributing support to, a labor
organization in violation of § 8(a)(2) of the Act. [
Footnote 3]
No attempt was made in either of these cases to make a showing
that the no-solicitation rules truly diminished the ability of the
labor organizations involved to carry their message to the
employees. Just as that is a vital consideration in determining the
validity of a no-solicitation rule,
see Republic Aviation Corp.
v. Labor Board, supra, at
324 U. S.
797-798;
Labor Board v. Babcock & Wilcox Co.,
supra, at
351 U. S. 112,
it is highly relevant in determining whether a valid rule has been
fairly applied. Of course, the rules had the effect of closing off
one channel of communication;
Page 357 U. S. 364
but the Taft-Hartley Act does not command that labor
organizations as a matter of abstract law, under all circumstances,
be protected in the use of every possible means of reaching the
minds of individual workers, nor that they are entitled to use a
medium of communication simply because the employer is using it.
Cf. Bonwit Teller, Inc. v. Labor Board, 197 F.2d 640, 646;
Labor Board v. F. W. Woolworth Co., 214 F.2d 78, 84
(concurring opinion). No such mechanical answers will avail for the
solution of this nonmechanical, complex problem in labor-management
relations. If, by virtue of the location of the plant and of the
facilities and resources available to the union, the opportunities
for effectively reaching the employees with a pro-union message, in
spite of a no-solicitation rule, are at least as great as the
employer's ability to promote the legally authorized expression of
his anti-union views, there is no basis for invalidating these
"otherwise valid" rules. The Board, in determining whether or not
the enforcement of such a rule in the circumstances of an
individual case is an unfair labor practice, may find relevant
alternative channels, available for communications on the right to
organize. When this important issue is not even raised before the
Board and no evidence bearing on it adduced, the concrete basis for
appraising the significance of the employer's conduct is
wanting.
We do not at all imply that the enforcement of a valid
no-solicitation rule by an employer who is at the same time
engaging in anti-union solicitation may not constitute an unfair
labor practice. All we hold is that there must be some basis, in
the actualities of industrial relations, for such a finding. The
records in both cases -- the issues raised in the proceedings --
are barren of the ingredients for such a finding. Accordingly, the
judgment in No. 81 is reversed insofar as it sets aside and
requires the Board to modify its order, and the cause is remanded
to
Page 357 U. S. 365
the Court of Appeals for proceedings not inconsistent with this
opinion; in all other respects, it is affirmed. The judgment in No.
289 is affirmed.
It is so ordered.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS would affirm the
judgment in No. 81 for the reasons set forth in the opinion of the
Court of Appeals, 100 U.S.App.D.C. 170, 243 F.2d 593.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS join in the dissent in
No. 289,
Labor Board v. Avondale Mills.
* Together with No. 289,
National Labor Relations Board v.
Avondale Mill, on certiorari to the United States Court of
Appeals for the Fifth Circuit.
[
Footnote 1]
The statutory basis for the decision that this conduct
constituted an unfair labor practice was § 8(a)(1) of the National
Labor Relations Act, 49 Stat. 449, 452, as amended by 61 Stat. 136,
140, 29 U.S.C. § 158(a)(1), which provides:
"(a) It shall be an unfair labor practice for an employer
--"
"(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 7; . . ."
Section 7 provides that
"[e]mployees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment as
authorized in section 8(a)(3)."
[
Footnote 2]
49 Stat. 449, 452, as amended by 61 Stat. 136, 142, 29 U.S.C. §
158(c):
"The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of
benefit."
[
Footnote 3]
49 Stat. 449, 452, as amended by 61 Stat. 136, 140, 29 U.S.C. §
158(a)(2).
MR. CHIEF JUSTICE WARREN dissenting in part and concurring in
part.
These two cases concern the issue of whether the enforcement of
company rules preventing union solicitation or distribution is an
unfair labor practice when concurrent with this enforcement the
employer embarks on a program of advocacy against the union.
Contrary to what is stated in the opinion of the Court, I do not
believe that both these cases are controlled by the same
considerations. The pivotal distinction is that, in
Labor Board
v. Avondale Mills, the employer's anti-union activities were
coercive in nature, while, in
Labor Board v. United
Steelworkers, they were not. I dissent from the judgment in
No. 289,
Avondale Mills, and concur in the result in No.
81,
United Steelworkers.
In
Avondale Mills, this Court affirms the judgment of
the Court of Appeals, which refused to enforce that portion of an
order of the Labor Board which held that enforcement of the
company's rule against solicitation on the premises during working
hours was an unfair labor practice contrary to Section 8(a)(1) of
the National Labor Relations Act. I cannot agree with the
conclusion of the majority that the record is
Page 357 U. S. 366
insufficient to sustain the action of the Board. Their
conclusion depends on two circumstances. The first is the failure
of the union or the employees to request the employer not to
enforce his anti-solicitation rule during the union organizing
campaign. This is a slender reed. Union membership cards were first
distributed to employees in November 10, 1954. On the very next
day, certain employees were summoned to the office of a management
representative, who read the following statement:
"It has come to our attention that you are attempting to solicit
union membership in this plant during working hours, while the
employees that you are attempting to solicit are at work. This is a
violation of plant rules, and any future instances of this sort
will result in prompt dismissal."
Immediately thereafter, the company's supervisory personnel
engaged in a series of personal confrontations with union members
and other employees, threatening loss of jobs and other benefits in
case the organizing campaign continued or the plant became
unionized. Furthermore, there was substantial evidence from which
the Board was able to conclude that, prior to November 11, 1954,
there was in fact no rule against solicitation on the premises
during working hours, and that the rule was invoked solely as an
anti-union measure. None of these conclusions was disturbed by the
court below, which merely held that the invocation of the rule
under these facts was part of the employer's right to oppose the
union. The majority thus attaches significance, where the Board did
not, to the fact that the union failed to request the company to
grant for the union's benefit an exception to a rule that was
promulgated to keep the union out.
The second circumstance on which the majority relies is the
failure of the Board to make findings that reasonable
Page 357 U. S. 367
alternatives were not open to the union in the face of the
no-solicitation rule . Admittedly, evidence and findings of this
nature were elements in cases where the validity of employer
no-solicitation and no-distribution rules was in issue.
See
Labor Board v. Babcock & Wilcox Co., 351 U.
S. 105;
Republic Aviation Corp. v. Labor Board,
324 U. S. 793.
However, there has heretofore been no indication that such evidence
and findings were indispensable elements to every case in which
these employer rules were being examined. [
Footnote 2/1] In contrast to
Babcock and
Republic Aviation, we are not concerned here with the
validity of these rules
per se. The no-solicitation rule
under examination here may well be valid if fairly applied. But the
Board held that it was not fairly applied on account of its link to
the company's campaign of coercion, and the evidence and findings
on that issue are far more relevant to this case than a discussion
of the site of the plant, the nature of the surrounding area, and
the places of residence of the workers.
While praising "the Board's special understanding of these
industrial situations," the majority opinion reverses the Board on
the very sort of issues that are within its special competence. An
examination of the record shows that the Board has already
carefully apprized itself of the interests of both sides in this
controversy. An employer
Page 357 U. S. 368
has forbidden his employees to engage in union solicitation
within the plant during working hours. He contemporaneously engages
in a campaign of coercive anti-union solicitation during those same
working hours. The validity of both practices -- the enforcement of
the no-solicitation rule and the coercive anti-union solicitation
-- comes into question, for they are not separable. Under one set
of circumstances, the no-solicitation rule may be valid. However,
the determination as to whether an employer's anti-union activities
are an unfair labor practice depends on the context in which those
activities occur, [
Footnote 2/2]
and no-solicitation rules are to be subjected to the same kind of
scrutiny. Employees during working hours are the classic captive
audience. At the very moment the employees in this case were under
the greatest degree of control by their employer, they were forced
to listen to denunciations of the union coupled with clear
references to the personal disasters that would ensue if the union
succeeded or if the particular employee continued to solicit for
the union. These threats were themselves held to be unfair labor
practices by the Board, and that holding was enforced by the Court
of Appeals, and is not in issue here. During this same working
time, the unionized employees, who, under Section 7 of the National
Labor Relations Act, have a right to engage in concerted activity,
were unable, due to their employer's own rule, to try to overcome
the effect of his activities even though those activities were in
violation of Section 8(a)(1) of the Act. It is not necessary to
suggest that, in all circumstances, a union must have the same
facilities and opportunity to solicit employees as the employer has
in opposing the union. However, the plant premises and working time
are such decisive factors during
Page 357 U. S. 369
a labor dispute that, when an employer denies them to the union
and at the same time pursues his own program of coercion on the
premises and during working hours, this denial is, by itself, an
interference with the rights guaranteed in Section 7 of the Act,
and, hence, contrary to Section 8(a)(1).
There is no issue in this case of balancing the employee's
rights under Section 7 with the employer's right to promote "the
legally authorized expression of his anti-union views." The only
expression of views carried on by Avondale Mills was a series of
threats against the union. Far from being "legally authorized,"
this expression of views constituted an unfair labor practice by
itself. Thus, we are not concerned in this case with the
possibility of curtailing legitimate employer expression in
violation of either the First Amendment or Section 8(c) of the
National Labor Relations Act. Moreover, it is no aid to the company
that all the activities here involved occurred on plant property
and during working hours. When a choice has been required between
an employer's rights in his premises and the rights that Congress
has protected under Section 7, this Court has not hesitated to give
effect to the congressional will.
Republic Aviation Corp. v.
Labor Board, supra; Labor Board v. Stowe Spinning Co.,
336 U. S. 226;
cf. Labor Board v. Babcock & Wilcox Co., supra.
In
United Steelworkers, I concur in the result. The
National Labor Relations Board declined to hold that the
enforcement of an employer's no-distribution rule against a union
was an unfair labor practice even though it was coupled with an
anti-union campaign. The Court of Appeals reversed the Board on
this point, modifying the Board's order accordingly. This Court
sustains the Board. It is conceded that the enforcement of this
no-distribution rule against the union is not, by itself, an
Page 357 U. S. 370
unfair labor practice. The Board determined that the employer's
expressions of his anti-union views were noncoercive in nature.
This fact creates a vital distinction between this case and
Avondale Mills. Being noncoercive in nature, the
employer's expressions were protected by Section 8(c) of the
National Labor Relations Act, [
Footnote
2/3] and so cannot be used to show that the contemporaneous
enforcement of the no-distribution rule was an unfair labor
practice. [
Footnote 2/4]
[
Footnote 2/1]
In the opinion in
Republic Aviation, all that appears
is that the company was a large nonurban manufacturer, many of
whose employees lived at distances greater than walking distance
from the plant in the Long Island area. 324 U.S. at
324 U. S. 800.
The opinion goes on to note that, in both the
Republic
Aviation case and its companion
Le Tourneau Co.
case,
"No evidence was offered that any unusual conditions existed in
labor relations, the plant location, or otherwise to support any
contention that conditions at this plant differed from those
occurring normally at any other large establishment."
Supra, at
324 U. S. 801.
Evidence and findings now required by this Court were similarly
absent in
Matter of Peyton Packing Co., 49 N.L.R.B. 828,
quoted with approval in
Republic Aviation, supra, at
324 U. S.
803.
[
Footnote 2/2]
Cf. Labor Board v. Virginia Elec. & Power Co.,
314 U. S. 469;
International Ass'n of Machinists v. Labor Board,
311 U. S. 72.
[
Footnote 2/3]
"The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act if such expression
contains no threat of reprisal or force or promise of benefit."
[
Footnote 2/4]
See H.R.Rep. No. 245, 80th Cong., 1st Sess. 8, 33;
H.R.Conf.Rep. No. 510, 80th Cong., 1st Sess. 45.
See also
the remarks of Senator Taft during the Senate debate on the Act. 93
Cong.Rec. 6443-6444, 6446-6447, 6859-6860.